Tu v The Queen

[2014] NSWCCA 155

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

TU v R [2014] NSWCCA 155

Hearing dates:

28 July 2014

Decision date:

15 August 2014

Before:

Hoeben CJ at CL at [1]
Beech-Jones J at [2]
Hamill J at [71]

Decision:

(1) Leave to appeal be granted.

(2) The appeal be dismissed.

Catchwords:

CRIMINAL LAW - appeal - child sexual assault - victim offender's daughter - offences seven years apart - whether sentencing judge erred in finding offence not isolated - alleged use of wrong statistics - Ellis discount - alleged failure to consider rehabilitation and remorse - error demonstrated - no lesser sentence warranted in law.

Legislation Cited:

- Crimes Act 1900 (NSW), s 61N, s 66A, s 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 44, s 54A, s 54D, Pt 3 Div 3
- Criminal Appeal Act 1912 (NSW), s 6

Cases Cited:

- Beldon v R [2012] NSWCCA 194
- Elyard v R [2006] NSWCCA 43
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- R v Ellis (1986) 6 NSWLR 603
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Ryan v R [2001] HCA 21; 206 CLR 267

Category:

Principal judgment

Parties:

"TU" (Applicant)
Crown (Respondent)

Representation:

Counsel:
A. Barrie (Applicant)
L. Babb SC (Respondent)
Solicitors:
George Sten & Co (Applicant)
S. Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s):

2013/053844

Publication restriction:

See [*2*]

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-10-25 00:00:00

Before:

Blackmore DCJ

Judgment

1. HOEBEN CJ at CL: I agree with Beech-Jones J.

1. BEECH-JONES J: This is an application for leave to appeal from sentences imposed by the District Court on the applicant for sexually assaulting his daughter. At the outset it should be noted that s 578A(2) of the Crimes Act 1900 (NSW) precludes the publication of any matter which identifies or is likely to lead to the identification of the victim. To avoid the identity of the victim being ascertainable, the electronically available versions of this judgment will refer to the applicant as "TU".

1. On 25 October 2013 the applicant was convicted of one offence of having sexual intercourse between 1 September 2005 and 11 March 2007 with a person under the age of ten years, contrary to s 66A(1) of the Crimes Act 1900 (the "first offence"). He was also convicted of an offence of having sexual intercourse between 1 December 2012 and 25 December 2012 with a person under the age of ten years in circumstances of aggravation, namely that the victim was under his authority, contrary to s 66A(2) of the Crimes Act 1900 (the "second offence"). The maximum penalty for these offences was 25 years imprisonment and imprisonment for life respectively. For both offences a standard non-parole period of fifteen years has been prescribed (Crimes (Sentencing Procedure) Act 1999 (NSW), the "Sentencing Act", ss 54A to 54D).

1. Associated with the second offence were two additional charges which were dealt with in accordance with the procedure specified in Division 3 of Part 3 of the Sentencing Act (ie a "Form 1"). They consisted of another charge under s 66A(2), and a charge of committing an act of indecency towards a person under the age of sixteen years contrary to s 61N(1) of the Crimes Act 1900. The maximum penalty for the latter offence was two years imprisonment. Each of the Form 1 charges arose out of the same incident as the second offence.

1. For the first offence the applicant was sentenced to two years imprisonment commencing 25 October 2013 and expiring 24 October 2015 with a non-parole period of sixteen months. For the second offence the applicant was sentenced to eight years imprisonment commencing 25 October 2014 expiring 24 October 2022 with a non-parole period of five years. The combined effect of the sentences was that the applicant is to serve a non-parole period of six years commencing 25 October 2013 and expiring 24 October 2019, with an additional term of three years.

The offences

1. The victim was born in 2004. She was two years old at the time of the commission of the first offence, and eight years old at the time of the commission of the second offence. The victim's mother separated from the applicant between the time of the two offences. After they separated, the applicant lived nearby and would assist the victim's mother with babysitting and child care generally.

1. The circumstances in which the first and second offences came to be discovered is of significance to ground 3. They are outlined in detail below. However in summary in February 2013 the applicant disclosed to the victim's mother that he had committed the first offence. This set in train inquiries which led to the victim disclosing that he had committed the second offence. The applicant initially denied, but then later admitted the second offence.

1. As already noted, the first offence was committed between September 2005 and March 2007. The applicant was at home with the victim. His mother was not in the house. The applicant showered with the victim. After the shower he wrapped a towel around himself and one around the victim. They both went to the bedroom. The victim was standing on the bed and the applicant rubbed moisturiser over her body. At one point whilst she was lying on the bed the applicant used his finger to rub the victim's clitoris as he was applying the moisturiser. The applicant said he touched her clitoris for about five to ten seconds. He said he stopped "because his conscience got the better of him".

1. The second offence occurred some seven years later in December 2012. The applicant was minding the victim and her sibling while their mother was away. While the sibling was occupied, the applicant took the victim to her mother's bedroom. He closed the bedroom door. He took off the victim's swimming costume and undressed himself. He put some moisturiser on his hand and rubbed the cream onto the genital area of the victim outside of her labia and on her clitoris. This conduct was the basis for the charge under s 66A(2) that was dealt with on the Form 1 in relation to the second offence.

1. The applicant then put moisturiser on his penis and masturbated himself while the victim lay on the bed nearby. This conduct constituted the basis for the other charge dealt with on the Form 1.

1. The applicant then rubbed his penis up and down on the victim's vaginal area, including her clitoris for about half a minute. He ejaculated into a T-shirt. Both he and the victim got dressed and left the room. This conduct constituted the second offence.

The sentencing judgment

1. In the sentencing judgment his Honour described the facts of the offences, as well as their maximum penalties. His Honour then addressed the sentencing task as follows.

1. First, his Honour addressed the circumstances surrounding the commission of the first offence. His Honour considered the very young age of the victim, and the fact that the applicant was in a position of trust, as significant matters affecting his culpability. His Honour noted that the nature of the sexual contact was a serious example of the offence, notwithstanding that it did not "amount to full penetration". His Honour noted the significant circumstance that the offence only came to light as a result of the admission of the applicant. This warranted a discount in accordance with the principle stated in R v Ellis (1986) 6 NSWLR 603 ("Ellis"). That principle is discussed further below, but it suffices to note that no complaint is made in relation to his Honour's application of Ellis in determining the sentence for the first offence.

1. Second, his Honour addressed the circumstances of the second offence. Not surprisingly his Honour described it as "plainly very serious". His Honour also stated that the "offence cannot be viewed as an isolated one", a "finding" which forms the basis of the complaint under ground 1. His Honour identified a number of circumstances of the offence which his Honour considered rendered it serious, namely the form of sexual contact, the age of the victim and the fact that the applicant ejaculated. His Honour concluded that "the offending [in relation to the second offence] can be gauged as falling within the middle of range of seriousness" for offences of its kind.

1. Third, his Honour noted the applicant's plea and the fact that it relieved the victim of having to confront her own father in court. His Honour noted that the plea was entered at the first reasonable opportunity and that the applicant was entitled to the maximum discount, namely 25 percent.

1. Fourth, his Honour noted that although there was no victim impact statement, it could be "assumed that the offender's mistreatment of the victim will leave real psychological scars on her that may take years to resolve". His Honour correctly noted that, as that is the type of harm that is often caused by offending of this nature, it does not strictly amount to an aggravating factor for the purposes of sentencing.

1. Fifth, his Honour noted the applicant had no prior convictions. His Honour accepted that he was entitled to some leniency by reason of his prior good character, but found that it was not a matter that attracted great weight in sentencing for these offences.

1. Sixth, the sentencing judge referred to a psychiatrist's report and a report from a counsellor. I will return to address these reports when considering ground 4.

1. Seventh, the sentencing judge made a finding of special circumstances for the purposes of s 44(2) of the Sentencing Act because it was the applicant's first time in custody and he would spend much of his custody in isolation. The applicant was thirty-four years old at the time of sentencing.

Ground 1: Error in finding that the second offence was "not isolated"

1. Ground 1 contends that the sentencing judge erred in finding that the second offence was "not isolated".

1. The relevant part of the sentencing judgment that contains this "finding" is as follows:

"The second offence, however, is plainly very serious. It is true, as counsel for the offender submitted, that it only came to light when the offender made his initial admission [concerning the first offence] that led to further investigations being carried out and the victim's ultimate disclosure. She disclosed that the events happened regularly and consequently the offence cannot be viewed as an isolated one." (emphasis added)

1. The applicant's sentence proceedings commenced on 24 October 2013. At the outset the Crown tendered, without objection, a statement of facts. The statement of facts included the following:

"The [victim] said in her second interview that 'he does it every time mum goes out' and that it had happened lots of times. It had happened in her bedroom and her mother's room, she was unable to recall any details of any other occasions."

1. Later Counsel for the applicant submitted that the "offending occurred over a very brief period of time". The sentencing judge then referred Counsel to the above passage from the statement of facts. The exchange continued as follows:

"His Honour: I don't think that supports a conclusion that it happened on one occasion or that it's isolated.

[Counsel for the Applicant]: Well in my submission your Honour it would be an aggravating feature of the offence or the sets of offences that form count 2 and for your Honour to find it an aggravating feature your Honour would have to be satisfied beyond reasonable doubt -

His Honour: This is in the agreed facts, 'He does it every time mum goes out'. Now that's obviously more than once.

[Counsel for the Applicant]: Your Honour that's what the victim complained of. He doesn't -

His Honour: - shouldn't have put it in the facts, if it's going to be an issue it's going to be an issue that's going to have to be decided beyond reasonable doubt because I can tell you now I'm not going to treat it as an isolated incident. You'll have to have the victim called if you want to pursue it.

[Counsel for the Applicant]: Well we certainly don't want that your Honour. But on the point -

His Honour: I obviously have no evidence of these other occasions outside what she say -

[Counsel for the Applicant ]: Yes.

His Honour: The extent of my finding would be that it wasn't an isolated incident.

[Counsel for the Applicant ]: Well we certainly -

His Honour: Which I'm not sure is an aggravating feature, I'd have to check. It takes away from a mitigating factor that it was an isolated - if it's an isolated incident it could be a mitigating factor. If I don't make that finding it doesn't necessarily aggravate the offence but it's certainly something that doesn't mitigate it but I'd have to go and check sentencing books about that.

[Crown]: As I understand the authorities your Honour is required to sentence him for the matters before the court on the basis of the factual circumstances of the matters before the court, but as I understand the agreed facts, well I just rose to agree entirely with what your Honour just said, so I don't think I should repeat it. It takes - it's not the situation on the agreed facts where he's entitled to a discount because they were isolated incidents. But your Honour must sentence him for the count on the - the count that he was committed for sentence for and take into account the two matters on the form 1. I just rose to agree with what your Honour was saying.

[Counsel for the Applicant ]: The solution is your Honour that we don't propose to ask the victim to come to give evidence and so that being the case then your Honour -

His Honour: You've heard what I've had to say -

[Counsel for the Applicant]: Yes I have." (emphasis added)

1. On behalf of the applicant it was submitted (correctly) that a sentencing judge may not take into account facts adverse to the interests of an offence unless those facts are satisfied beyond reasonable doubt (citing R v Olbrich [1999] HCA 54; 199 CLR 270) ("Olbrich"). It was contended that his Honour made such a finding and did so without sufficient evidence to enable it to be proved beyond reasonable doubt because his Honour was advised that part of the statement of facts was in dispute.

1. I do not agree. First, this ground misconstrues the finding of the sentencing judge. His Honour did not make a positive finding adverse to the interests of the applicant to the effect that he had committed sexual offences against his daughter on occasions other than those the subject of the first and second offences. Instead his Honour only declined to make a finding favourable to the applicant, namely that the offence was "an isolated one". This distinction was explained in Olbrich at [25] to [26]:

"... Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)

In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a 58 year old first offender who pleaded guilty to importing more than 1.1 kilograms of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation "principal" could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was 'a courier'. The respondent bore the burden of proving this fact. The judge was not persuaded of it." (emphasis added)

1. In this case it was the applicant who, in the passage extracted at [23] above, sought to bring a "a matter to the attention" of the sentencing judge, namely that the "offending occurred over a very brief period of time". It follows that the applicant "bore the burden of proving" that fact. However the sentencing judge was not persuaded. The approach foreshadowed by the sentencing judge in the extract set out above was reflected in his findings in the sentencing judgment. It was consistent with Olbrich.

1. Second, there was evidence which justified his Honour rejecting the finding that was sought on behalf of the applicant. Arguably the agreed facts could have supported a positive finding that he sexually assaulted the complainant on other occasions, but it is not necessary to consider that. As I have stated, the facts were tendered without objection. When Counsel for the applicant queried the use to which they might be put, he was offered the opportunity for the victim to be called, which he declined. Even if the passage in [23] above could be construed as the raising of a late objection to the admission of part of the statement of facts, that objection was subsequently withdrawn.

1. I reject ground 1.

Ground 2: Alleged error in taking into account sentencing statistics tendered by the Crown

1. Ground 2 complains that the Crown tendered statistics from the Judicial Commission's database recording sentences imposed for "multiple offences" under s 66A(2). The applicant submitted that he was only being sentenced for one offence under s 66A(2) with another such offence being included on a Form 1, and that his Honour "appears to have relied" on those statistics.

1. The Crown noted that the statistics also related to "[a]ll offenders" and contended that statistics relating to multiple offenders were relevant in that the applicant was sentenced for multiple offences, albeit the first offence was a contravention of s 66A(1).

1. I consider this ground untenable. Statistics concerning multiple offending under s 66A(2) could be of some assistance to a sentencing judge in ascertaining general sentencing patterns relevant to the sentencing of an offender for an offence under s 66A(1) and an offence under s 66A(2). In any event it is unnecessary to consider this further because there is nothing to suggest that his Honour made any use of the statistics. They were not referred to in the sentencing judgment. Given the limited significance of statistics concerning the sentences imposed for offences (Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54] to [55]), this is not surprising. Instead, as is to be expected, his Honour noted the maximum penalty and the standard non-parole periods for these offences.

1. I reject ground 2.

Ground 3: Alleged insufficient discount given to the applicant for his assistance to the authorities

1. Ground 3 alleges that an insufficient discount was given to the applicant for his "assistance to the authorities". As framed, this ground is potentially confusing in that the relevant assistance being referred to was his disclosure of his own criminality (and not any assistance he gave to an investigation of the criminality of others). The essence of the complaint is that he was proffered either no, or an insufficient, "Ellis discount" for the second offence.

1. In Ellis at 604 Street CJ held that a "considerable" or "significant added" element of leniency is required in sentencing an offender in respect of offences disclosed that were otherwise unknown to the authorities, and that the extent of any such discount will "vary according to the degree of likelihood of that guilt being discovered ... [and] guilt being established" against the offender. The principle in Ellis is well recognised (see Ryan v R [2001] HCA 21; 206 CLR 267). It is a "rule of law" for the purposes of s 21A(1) of the Sentencing Act.

1. To address this ground it is necessary to outline the course of events that led to the charging of the applicant. They are partly taken from the police facts and partly taken from the submissions of Counsel for the applicant before the sentencing judge which were not disputed.

1. In February 2013 the applicant made a disclosure to his former wife that he had touched their daughter in the vaginal area when she was about two years old. His former wife reported this to the authorities.

1. The victim was interviewed at 9:17am on 19 February 2013 by an officer from the Department of Community Services ("DOCS"). She did not disclose any offences by the applicant. However when the victim returned home after the interview she disclosed the offences to her mother. The victim's mother advised police of this when they attended the home on that day.

1. At 3:30pm on 19 February 2013 a DOCS officer spoke to the applicant. He admitted the conduct the subject of the first offence.

1. The applicant was interviewed by police at midday on 20 February 2013. He again admitted the conduct the subject of the first offence, but also denied any subsequent offending. The victim was interviewed by police at 5.28pm on 20 February 2013. She disclosed the facts giving rise to the second offence and the charges on the Form 1. The applicant was arrested later that evening and reinterviewed. He then admitted the second offence and the conduct the subject of the charges on the Form 1.

1. The end result is that the applicant first disclosed the conduct the subject of the first offence. His disclosure led to an investigation that ultimately led to the victim disclosing the conduct of the second offence and the Form 1 charges. The applicant initially denied committing any offence other than the first offence, but after his arrest admitted the conduct the subject of the second offence and the charges on the Form 1.

1. Before the sentencing judge, Counsel for the applicant placed reliance on Ellis in relation to the first offence. However, in relation to the second offence Counsel conceded that "[i]t is accepted that the Ellis principle has little application to the 2012 offences because the offender initially denied this offending when interviewed by police" and the "victim had already made disclosures to police".

1. As noted above, the sentencing judge referred to Ellis in addressing the circumstances of the first offence. His Honour concluded that "... given the nature of the offence and the fact that the victim, being so young, was never likely to report it, the offender is entitled to a very substantial discount on the sentence". This discount is reflected in the comparatively low sentence imposed on the applicant for the first offence.

1. As noted, the substance of the applicant's complaint concerns the absence of any or any sufficient Ellis discount for the second offence. In the passage set out in [21] above the sentencing judge accepted the connection between the initial disclosure and the second offence, but otherwise did not further advert to whether any discount was warranted for the second offence.

1. In my view the proper construction of the extract from the sentencing judgment set out in [21] is that his Honour accepted that there was bare causal connection between the applicant's initial disclosure of the first offence and his prosecution for the second offence, but did not consider that was sufficient to warrant any Ellis discount. In light of the concession made on the applicant's behalf, that conclusion is not surprising. Moreover I do not consider that it was erroneous. The applicant's initial disclosure of the first offence may have been the occasion for interviewing the victim, but it was her bravery that led to the disclosure of the second offence. If she had not disclosed it, then no doubt the applicant would have maintained his denial that he committed any offence against the victim other than the first offence.

1. I reject ground 3.

Ground 4: Failure to make findings in relation to the applicant's remorse, risk of re-offending and prospects of rehabilitation

1. Ground 4 complains that the sentencing judge failed to make any findings in relation to the applicant's remorse, risk of re-offending and prospects of rehabilitation. The applicant submitted that there was "ample evidence" in support of those factors and they were of great significance to the sentencing process, yet his Honour did not make any findings concerning these factors.

1. The Crown submitted that there was no evidence of remorse on the part of the applicant and, to the extent there was material concerning his prospects of re-offending and rehabilitation, it was adverse to the applicant. The Crown contended that the evidentiary burden on the applicant was not discharged with the result that "his Honour left the matters neutral in his sentencing judgment".

1. Before the sentencing judge the applicant's Counsel referred to s 21A(3) of the Sentencing Act and submitted that the applicant was "unlikely to re-offend" (s 21A(3)(g) and had "good prospects of rehabilitation" (s 21A(3)(h)). It was also submitted that he had shown remorse (s 21A(3)(i)).

1. The applicant did not give evidence before the sentencing judge. However, two reports were tendered, one from a psychiatrist, Dr Ellis, and another from a "sexologist", Vanessa Thompson. Ms Thompson's qualifications and report suggest that she counsels sex offenders.

1. Dr Ellis' report contains a lengthy section addressing the applicant's recidivism. Dr Ellis applied the "STATIC-99R" actuarial assessment methodology to the applicant. It yielded a score in the low risk category which was said to be similar to other "incest offenders". Dr Ellis also stated:

"Risk factors particular to this case have been identified according to the Risk for Sexual Violence Protocol. This instrument identifies factors associated with future risk of sexual offending, but does not place persons in categories. The offending in this case has been sporadic, rather than frequent or persistent. The offending shows little diversity in regards to behaviour and similarity of the victims. The behaviour has escalated from curiosity in viewing images, to touching, to intercourse like activity. The effect of the behaviour on victims was minimised, and continues to be. Typical distorted thinking supportive of offending was displayed at the time of the offences, but no longer endorsed. There is potential evidence for sexual deviance in the form of paraphilia as having driven the behaviour. Mr [TU] has displayed relatively unstable or absent interpersonal relationships during the two periods of offending. He currently displays attitudes that are favourable for progress in rehabilitation. He has never been tested under supervision.

...

Overall his profile shows concern centred around potential sexual deviance, which places him at similar concern to other incest offenders (who tend as a group to be low risk of repeat behaviour, reflected in his score in the STATIC-99R). His lack of understanding about his behaviour is of concern, as is likely ongoing instability in the relationship with his ex-partner. A program of rehabilitation should address the identified factors, primarily his potential deviant sexual arousal pattern, and associated attitudes plus relationship skills and put supervisory mechanisms in place to reduce risk to children." (emphasis added)

1. In her report Ms Thompson described conducting 27 counselling sessions with the applicant between March and October 2013. She reported his progress as "positive" and stated that he expressed a willingness to continue. Ms Thompson also stated that "[TU] has been assessed by Dr Ellis (and my results concur) as being of low risk of reoffending ...". The report from Dr Ellis that was tendered did not support this assertion. The reference to "low risk" in Dr Ellis' report only concerned the outcome of the STATIC-99R assessment.

1. In the sentencing judgment this material was referred to as follows:

"The offender has been undertaking counselling with respect to his sexual behaviour. His psychiatrist is concerned that the offender does not appear to understand why he behaves in the way he does. However, he is also of the view that he would benefit from some ongoing counselling to address the issue."

1. Beyond this his Honour did not make any finding as to the applicant's prospects of re-offending and his prospects of rehabilitation.

1. In Beldon v R [2012] NSWCCA 194 at [50], Johnson J (with whom McClellan CJ at CL and Hammerschlag J agreed) stated:

"Although it may be said that the longer the minimum term under consideration, the greater the difficulty in making a satisfactory prediction about the future progress of an offender and the danger which the offender would present to the community, it remains the responsibility of a sentencing Judge to take account of the need to protect the community, and to make an assessment of the material before the Court, including an assessment of the offender's prospects of rehabilitation (Bugmy v R [(1990 169 CLR 525] at 532 (Mason CJ and McHugh J))." (emphasis added)

1. In this case it was submitted to the sentencing judge that the applicant had good prospects of rehabilitation and low prospects of reoffending. There was a body of material addressing that topic although it may not have had the persuasive force that the applicant contended. It is an important aspect of the sentencing judge's task to ascertain the risk posed by the applicant especially in cases of child sexual assault. In my view it was incumbent on the sentencing judge to address the applicant's prospects of rehabilitation and reoffending.

1. The Crown's submissions appeared to implicitly accept that the sentencing judge was so obliged. However, it contended that the passage at [52] above reveals that the sentencing judge addressed the matter but was simply unable to make a favourable finding for the applicant. I do not accept that submission. Given the submissions made on behalf of the applicant to the sentencing judge, the significance of the topic of the applicant's prospects of re-offending to the sentencing exercise and the body of material that was tendered concerning it, one would expect further discussion than the extract set out above if the matter was truly addressed. If the sentencing judgment was unsatisfied by the material as to whether any finding in relation the applicant's prospects of rehabilitation could be made then it can be expected that his Honour would have so stated.

1. The position is different with remorse. Section 21A(3)(i) of the Sentencing Act provides that a mitigating factor in sentencing is:

"the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

1. The applicant did not give evidence before the sentencing judge. The only material that the sentencing judge was referred to as demonstrating remorse on the part of the applicant was an answer he gave in his interview with the police. However neither the interview nor the specific answer was tendered so that there was no evidentiary basis for the submission.

1. In this Court, Counsel for the applicant referred to other material as supposedly demonstrating the applicant's remorse, namely the applicant's initial disclosure to the victim's mother, his plea of guilty and a suggestion in the material that at some point he was suicidal. However the disclosure to the victim's mother was only made in circumstances that she told him he had to be honest if they wanted to reconcile. As noted, he later denied the second offence to the police. The plea of guilty of itself does not satisfy s 21A(3)(i) and any suicidal thoughts or actions are equivocal at best. They could be a manifestation of despair at his own predicament.

1. In addition Counsel referred to a passage in Dr Ellis' report which recounts the applicant describing his actions as "silly and stupid". This does not assist. To the contrary, those comments and other observations by Dr Ellis in his report reveal the applicant had very little insight, if any, into his own offending and the damage he has caused. In the passage from Dr Ellis' report set out above, the author refers to the applicant's "lack of understanding about his behaviour" as a matter of concern.

1. The applicant had sex with his eight year old daughter. Not much insight is required to understand how appalling and damaging that conduct was. The material before the sentencing judge was eloquent in its silence as to the applicant's remorse. In those circumstances there is no basis for suggesting that the sentencing judge erred in failing to address the topic of the applicant's remorse.

1. I would uphold ground 4 of the appeal but only so far as it concerns the failure of the sentencing judge's failure to address the applicant's prospects of re-offending and rehabilitation.

1. As it will be necessary to consider whether any lesser sentence is warranted in law and, if so, re-sentence the applicant, this Court should consider what finding, if any, should be made as to the applicant's prospects of re-offending and rehabilitation. As neither the applicant nor the authors of the above reports gave evidence before the sentencing judge, this Court is in as good a position as the sentencing judge to address this topic.

1. In Elyard v R [2006] NSWCCA 43 at [19] Basten JA stated

"In assessing prospects of rehabilitation, the Court will generally have access to material falling within one or more of the following categories:

(a) evidence of past conduct and behaviour of the offender;

(b) professional opinions, taking into account past conduct and behaviour and expressing views as to future prospects, and

(c) at least in some cases, the opinions and expressions of intention of the offender himself or herself."

1. In relation to (c), there was no evidence from the applicant direct but his engagement with Ms Thompson's program was a positive step. Against this his lack of insight as revealed by Dr Ellis' report does not assist him. Dr Ellis' assessment falls within (b). It is guarded but generally positive as to the applicant's prospects. Ms Thompson's report is more positive. As for (a), the first and second offence spanned a period of seven years and there is no finding in the applicant's favour that the offences were "isolated". However, given that he will inevitably serve a significant period in custody, it seems very unlikely that he will ever care for his daughter again. His offending to date has been confined to girls in his care, but it cannot be definitively stated that he will not have access to girls in similar circumstances in the future. In these circumstances I accept that it is "unlikely" that he will ever commit an offence of the same seriousness again, but would not make any finding in his favour beyond that. For that reason I regard the applicant as having "good" but certainly not excellent prospects of rehabilitation (s 21A(3)(h)).

Ground 5: Manifest excess and whether lesser sentence is warranted in law

1. Ground 5 contends that the sentence is manifestly excessive. In light of the applicant's success on ground 4, it is not necessary to address this ground. Instead the next question that arises is whether any "less severe [sentence] is warranted in law" (Criminal Appeal Act 1912 (NSW), s 6(3)). A finding against the applicant on that issue would also resolve ground 5 adversely to him.

1. I have already described the offences, the applicant's subjective circumstances and summarised the sentencing judge's findings, including his assessment of the relative seriousness of the offence. That assessment has not been challenged. In addition I have made supplementary findings concerning the applicant's prospects of re-offending and rehabilitation which are generally favourable to the applicant. Despite those findings I do not consider that any less severe sentence is warranted. The attitude of the legislature to these offences is revealed by the maximum sentence of life imprisonment and the standard non-parole period of fifteen years. Only murder has a longer standard non-parole period and its maximum penalty is the same. The applicant's breach of trust was shocking. It is likely that it will profoundly affect his daughter for the rest of her life. The ripples of affectation of such conduct can travel through generations.

1. The penalty imposed on the applicant included a non-parole period which was one third of the standard non-parole period. I am satisfied that any penalty for the second offence which is less severe than what was imposed is not warranted, even having regard to the applicant's plea of guilty and his subjective case. Similarly his conduct in committing the first offence warrants extra punishment even allowing for those matters and an Ellis discount. His victim was his daughter and she was two years old. In those circumstances, to describe her as vulnerable is a gross understatement.

1. I would grant leave to appeal but dismiss the appeal.

1. The orders I propose are:

(1)   leave to appeal be granted;

(2)   the appeal be dismissed.

1. HAMILL J: I agree with Beech-Jones J.

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Decision last updated: 15 August 2014