Waterstone v R

[2020] NSWCCA 117

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Waterstone v R [2020] NSWCCA 117

Hearing dates:

19 March 2020

Date of orders:

09 June 2020

Decision date:

09 June 2020

Before:

Johnson J at [1]
N Adams J at [17]
Ierace J at [129]

Decision:

(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentences imposed on the applicant in the District Court on 5 July 2019 are quashed. In lieu thereof the following aggregate sentences are imposed under s 53A of the Sentencing Act:

 

Counts 1-2: An aggregate term of imprisonment of 2 years and 3 months commencing on 13 October 2018 and expiring on 12 January 2021 with a non-parole period of 18 months to expire on 12 April 2020;

 

Counts 3-6: An aggregate term of imprisonment of 20 months commencing on 13 April 2020 and expiring on 12 December 2021 and direct that the applicant be released by way of recognizance release order on 12 January 2021 after serving 9 months’ imprisonment upon the applicant entering into a recognizance to be of good behaviour for a period of 11 months.

 

The indicative sentences are as follows:

 Count 1: 2 years’ imprisonment;
Count 2: 2 years’ imprisonment;
Count 3: 18 months’ imprisonment;
Count 4: 18 months’ imprisonment;
Count 5: 18 months’ imprisonment;
Count 6: 18 months’ imprisonment.

Catchwords:

CRIMINAL LAW – appeal against sentence – sexual offences against stepdaughter – sentencing judge did not set non-parole period – lack of single recognizance release order for Commonwealth offences – when a fixed sentence should be imposed – finding in relation to aggravation – abuse of trust – objective seriousness – whether sentence manifestly excessive

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 19, s 21A(2)(k), s 44, s 45
Criminal Code Act 1900 (Cth), s 474.17(1)
Crimes Act 1900 (NSW) s 61O(3)(b)
Crimes Act 1914 (Cth), s 16A, s 17A(3), ss19AB(3), s 19AC, s 19 AH
Criminal Appeal Act 1912 (NSW), s 6(3)
Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016

Cases Cited:

Beavis v R [2018] NSWCCA 248
Collier v R [2012] NSWCCA 213
Convery v R [2014] NSWCCA 93
De Hollander v R [2012] WASCA 127
Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
DPP (Vic) & DPP (Cth) v Swingler [2017] VSCA 305
Franklin v R [2016] NSWCCA 319
Hancock v R [2012] NSWCCA 200
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kannis v R [2020] NSWCCA 79
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lipchin v R [2013] NSWCCA 77
Magro v R [2020] NSWCCA 25
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McIntosh v R [2015] NSWCCA 184
MRW v R [2011] NSWCCA 260
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Power v R; Selenski v R; Lyons v R (1974) 131 CLR 623: [1974] HCA 26
R v Burgess; R v Saunders (2005) 152 A Crim R 100 [2005] NSWCCA 52
R v Currey [1975] VR 647
R v Dunn [2004] NSWCCA 346
R v Governor of Her Majesty's Gaol at Pentridge; in Ex parte Cusmano, [1966] VR 583
R v Parsons [2002] NSWCCA 296
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Suarez-Mejia (2002) 131 A Crim R 577; [2002] WASCA 187
R v Zamagias [2002] NSWCCA 17
Spreitzer v R (1991) 58 A Crim R 114
Tuvunivono v R [2013] NSWCCA 176

Texts Cited:

NSW Law Reform Commission, Report No 139: Sentencing (July 2013)
Commonwealth Director of Public Prosecutions Sentencing of Federal Offenders in Australia: A Guide for Practitioners (2nd edition, 2020)

Category:

Principal judgment

Parties:

John Waterstone (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr I McLachlan (Applicant)
Mr B Hatfield (Respondent)

  Solicitors:
Watsons Solicitors (Applicant)
NSW Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/117253

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

05 July 2019

Before:

Judge Baly SC

File Number(s):

2016/117253

Judgment

1. JOHNSON J: I have had the advantage of considering in draft the judgment of N Adams J. I agree with the orders proposed by her Honour and, subject to what follows, with her Honour’s reasons.

2. Her Honour has considered a number of decisions in which the meaning of a fixed term of imprisonment under New South Wales legislation has been considered, with differing views being expressed. I agree with her Honour that it is not necessary to make any finding concerning this aspect for the purpose of determining the present appeal. I do not join with her Honour’s analysis on this aspect for a number of reasons.

3. Firstly, the Court was not invited to undertake this analysis for the purpose of determination of the appeal. The Crown written submissions noted a number of these decisions which expressed different views concerning the New South Wales legislation. However, counsel for the Applicant did not submit that the Court should embark upon a consideration of those cases, let alone that the outcome of the appeal turned upon such an examination.

4. Secondly, if the issue was to be considered, it would be necessary to have regard to s.45 Crimes (Sentencing Procedure) Act 1999 in its present form. That section has been amended since the various cases referred to were decided.

5. N Adams J refers at [78] to paragraphs 6.69 and 6.70 of Report No. 139 of the NSW Law Reform Commission issued in 2013. The proposition contained in paragraph 6.69 is drawn from R v Dunn [2004] NSWCCA 346 at [161]. Immediately following paragraph 6.70 was Recommendation 6.3 which stated:

“Recommendation 6.3: Fixed terms and the SNPP scheme

A revised Crimes (Sentencing) Act should contain a provision amending s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that would:

(1)    permit the court to impose a fixed term for an offence included in the SNPP Table; and

(2)    specify that the sentence imposed must not be less than that which the court would have set as the non-parole period for the offence.”

6. Section 45 was amended by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 with the insertion of s.45(1A) and (1B) so that s.45 now provides:

“45    Court may decline to set non-parole period

(1)    When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences, a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so -

(a)    because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or

(b)    because of any other penalty previously imposed on the offender, or

(c)    for any other reason that the court considers sufficient.

(1A)    A court may decline to set a non-parole period for a sentence of imprisonment, or an aggregate sentence of imprisonment, for an offence or offences set out in the Table to Division 1A of this Part only if the term of the sentence is at least as long as the term of the non-parole period that the court would have set for the sentence if a non-parole period had been set in accordance with that Division.

(1B)    Subsection (1A) does not apply in relation to the sentencing of an offender in respect of an offence -

(a)    which is being dealt with summarily, or

(b)    if the offender was under the age of 18 years at the time the offence was committed.

(2)    If a court declines to set a non-parole period for a sentence of imprisonment or an aggregate sentence of imprisonment, it must make a record of its reasons for doing so.

(3)    Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4)    The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.”

7. In the second reading speech concerning the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016, the Minister said with respect to s.45(1A):

“This will implement a recommendation of the NSW Law Reform Commission in its 2013 sentencing report to provide courts with the flexibility to impose a fixed term if they wish to do so, while ensuring that the integrity of the SNPP scheme is preserved.”

8. Although the 2016 amendments to s.45 were confined to offences which carry a standard non-parole period (so that they do not apply to the present New South Wales offences), the proper construction of s.45 requires attention to be given to the whole provision.

9. Consideration of the meaning of a fixed term of imprisonment under the New South Wales legislation should await a case where the Court is assisted by submissions from the parties and where it is necessary to determine the question. The present appeal is not such a case.

10. I accept that there is utility in her Honour’s reference to authorities and publications which have touched upon the proper construction of ss.19AB(3) and 19AC(4) Crimes Act 1914 (Cth), the former provision concerning non-parole periods and the latter recognizance release orders.

11. The provisions in the Crimes Act 1914 (Cth) concerning the fixing of non-parole periods and recognizance release orders do not expressly engage any State or Territory law so that attention is directed to the terms of the Crimes Act 1914 (Cth) in sentencing federal offenders: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [52].

12. In Hili v The Queen; Jones v The Queen, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ addressed the approach to setting a recognizance release order under the Crimes Act 1914 (Cth). Their Honours said at [39]-[41] (footnotes omitted):

“39   In Ruha, the Queensland Court of Appeal went to some lengths to emphasise the cardinal importance of beginning consideration of the sentencing of any federal offender by examining the applicable statutory provisions, particularly Pt IB of the Crimes Act. The Court of Appeal summarised the effect of the relevant provisions of the Crimes Act in three propositions, but neither the summary, nor any of the individual propositions is, or was intended to serve as, a substitute for the statutory language.

40   The Court of Appeal in Ruha examined what considerations bear upon fixing the length of a pre-release period under a recognizance release order. As the Court of Appeal rightly said, ss 16A(1) and (2) ‘make it plain that all of the circumstances, including the matters in the non-inclusive list in s 16A(2), must be taken into account in making recognizance release orders just as they must be taken into account in imposing a sentence of imprisonment’. In determining what recognizance release order is to be made, s 16A(1) requires the sentencing court to ‘make an order that is of a severity appropriate in all the circumstances of the offence’. What is the ‘severity appropriate’ is determined having regard to the general principles identified by this Court in Power v The Queen, Deakin v The Queen and Bugmy v The Queen.

41   In the present cases, one consideration critical to the making of recognizance release orders was the determination of what was the period of imprisonment that justice required that each offender must serve in custody. And as the Queensland Court of Appeal pointed out in Ruha, again correctly, ‘the necessary deterrent and punitive effects of sentences for serious tax fraud must be reflected both in the head sentence and also in any provision for earlier release from custody’.”

13. The determination under s.19AC(4) that it is not appropriate to make a recognizance release order requires attention to be given to all factors bearing on sentence in s.16A Crimes Act 1914 (Cth) and the particular factors referred to expressly in s.19AC(4)(a). The articulated reasons for declining to make a recognizance release order should address particular factors in the case and not merely recite the general statutory formula in s.19AC(4).

14. It has been said that the matters specified in s.19AC(4) are the very matters generally relevant to the sentencing exercise: R v Suarez-Mejia (2002) 131 A Crim R 577; [2002] WASCA 187 at [17]; Hancock v R [2012] NSWCCA 200 at [46]-[47], [51].

15. The reasons given by the sentencing Judge for the purpose of s.19AC(4) (set out at [45] of N Adams J’s judgment) failed to articulate reasons for the exceptional step taken in this case.

16. Subject to these observations, I agree with the orders proposed by N Adams J and her Honour’s reasons.

17. N ADAMS J: The applicant seeks leave to appeal against the sentences imposed on him on 5 July 2019 for sexual offences committed in relation to his stepdaughter; he has been given a pseudonym to protect her identity. The applicant stood for sentence on both State and Commonwealth offences following his convictions at trial. The State offences (counts 1 and 2) were two counts of acts of aggravated indecency towards a person under the age of 16 years, namely 12 or 13 years of age contrary to s 61O(1) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 5 years imprisonment. The Commonwealth offences (counts 3-6) were four counts of using a carriage service to offend contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). This offence carries a maximum penalty of 3 years imprisonment.

18. The applicant was sentenced by Judge Baly SC to an effective fixed term of imprisonment of 3 years and 1 month to commence from 13 October 2018 and expire on 12 November 2021. That effective sentence comprised the following individual sentences:

1. Count 1:   A term of imprisonment of 2 years commencing on 13 October 2018 and expiring on 12 October 2020;

2. Count 2:   A term of imprisonment of 2 years commencing on 13 April 2019 and expiring on 12 April 2021;

3. Count 3:   A term of imprisonment of 18 months commencing on 13 August 2019 and expiring on 12 February 2021;

4. Count 4:   A term of imprisonment of 18 months commencing on 13 November 2019 and expiring on 12 May 2021;

5. Count 5:   A term of imprisonment of 18 months commencing on 13 February 2019 and expiring on 12 August 2021; and

6. Count 6:   A term of imprisonment of 18 months commencing on 13 May 2020 and expiring on 12 November 2021.

19. The applicant relies upon the following four grounds of appeal:

1. Ground 1:   Her Honour erred:

2. (a) in declining to set non-parole periods or an aggregate non-parole period for counts 1 and 2 contrary to s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW); and/or

3. (b) in declining to set a single recognizance release order for counts 3-6 contrary to s 19AC of the Crimes Act 1914 (Cth).

4. Ground 2:   With respect to counts 1 and 2 her Honour erred in finding that both offences were aggravated by “an abuse of trust” in circumstances where the offences where aggravated charges because each occurred whilst the complainant was “under the authority” of the applicant.

5. Ground 3:   Her Honour erred in her assessment of the objective seriousness of each count.

6. Ground 4:   The sentences imposed were otherwise manifestly excessive.

Facts

20. The applicant was convicted following a trial. Her Honour was satisfied of the following facts for the purpose of sentencing the applicant.

21. The applicant was the victim’s stepfather at the time of the offences. He began a relationship with the victim’s mother towards the end of 2005. At the beginning of 2007, the victim’s mother and her three children, including the victim, moved in with the applicant and his three children. The victim was born in 1996. Following a brief separation in 2009, the applicant and the victim’s mother married in 2010. The victim’s mother worked as a nurse and her work included nightshifts.

22. In 2013, the victim disclosed to a good friend that the applicant was sending her sexually explicit messages. In 2014, she made a disclosure to her mother, the applicant’s sister (her aunt) and another person who she called “aunty” that the applicant was sending her indecent messages and pictures of his penis. Each of them saw the messages on the victim’s phone. The victim made her first statement to police on 14 March 2014.

23. Count 1 occurred between 14 September 2008 and 1 September 2010. It involved the applicant taking a photograph of the victim on his mobile phone through a partially open window while she was having a shower in the family bathroom. The victim heard the clicking of the camera a number of times, saw the applicant and told him to go away. When she confronted him outside he denied taking photographs. The victim was 12 or 13 years old at a time.

24. Count 2 occurred between 1 January 2010 and 31 December 2010. It involved the applicant sending a text message to the victim after she received her first mobile phone, which was when she was about 13 years of age. The message read, “[c]ome home. I wanna lick your pussy”. The applicant sent numerous text messages to the victim with a similar content.

25. Counts 3-6 occurred on 12 January 2014, 15 January 2014, 25 January 2014, and 5 February 2014, respectively. They each involved the applicant sending the victim images of a penis. The image the basis for count 3 was of a flaccid penis, whereas the other three images were of an erect penis. The Crown case at trial was that the images were of the applicant’s own penis, but her Honour was not able to make this finding beyond reasonable doubt for the purpose of sentencing the applicant.

Proceedings on sentence

26. The proceedings on sentence were heard on 17 June, 21 June and 5 July 2019 and the applicant was sentenced on 5 July 2019.

27. The Crown tendered a victim impact statement (Exhibit A), a Sentencing Assessment Report (“SAR”) (Exhibit B) and a Crown sentence summary (Exhibit C).

28. The applicant tendered a reference of Paul Knight dated 14 June 2019 (Exhibit 1), a psychological report by Bradley Jones dated 3 July 2019 (Exhibit 2) and Progress Clinical Notes dated 30 June and 3 July 2017 provided by Justice Health (Exhibit 3). The applicant’s father also gave evidence on sentence and was cross-examined.

29. Both the Crown and the defence provided written submissions on sentence.

30. A focus of the oral submissions was how to structure the sentence given that counts 1 and 2 were State offences and counts 3-6 were Commonwealth offences; this precluded the imposition of one aggregate sentence. The following exchanges with the applicant’s then counsel took place during the proceedings on sentence:

“HER HONOUR: There's a third alternative, isn't there, and that is fixed sentences, cumulative, and that was frankly what I was thinking in this case.

MCCOLM: One way I was looking at it was if your Honour gave for the first two counts fixed sentences with some accumulation or some concurrency. I'm not sure what the difference is with part accumulation or part concurrency. It's the same thing, some overlay--

HER HONOUR: It's the same thing, same effect anyway.

MCCOLM: --same overlapping.

HER HONOUR: Yes, I understand.

MCCOLM: As far as the four Commonwealth matters, which are within a relatively short space of time, your Honour could proceed to impose an aggregate--

HER HONOUR: Yes, I could.

MCCOLM: --which again would either have to commence at the end of whatever sentence is imposed for counts 1 and 2 or some time before. Again I'm suggesting some partial currency of the sentences depending on that term, if your Honour goes down that path, as to the aggregate sentence. If it's three years then your Honour has to set a non‑parole period, and there's no formula that your Honour--

HER HONOUR: You're talking about the Commonwealth matters?

MCCOLM: Commonwealth matters, yes.

HER HONOUR: If it's more than three years it's a non‑parole period.

MCCOLM: Yes.

HER HONOUR: If it's less it's a recognizance release order, but I don't have to. I can decline--

MCCOLM: Yes.

HER HONOUR: --depending upon how I structure the sentence.

MCCOLM: Yes.

HER HONOUR: Yes. There are number of ways and it's--

MCCOLM: In my submissions I suggested dealing with the State matters first because they are first in time--

HER HONOUR: Yes.

MCCOLM: --and notionally they carry--

HER HONOUR: A greater penalty.

MCCOLM: --a greater penalty.

HER HONOUR: Yes.

MCCOLM: But that's not the only way because--

HER HONOUR: It's not the only way.

MCCOLM: --against it is that, because they were first in time of offences - one incident in the bathroom was the first incident and count 2 is the first message received - that reduces the objective seriousness of them because nothing has occurred after, them just being first in time whereas the Commonwealth offences occur where there has been a background of other messages, other photos being sent.

HER HONOUR: Yes.

MCCOLM: But my submission is your Honour should deal with the two State matters first and then deal with the Commonwealth phone matters.

HER HONOUR: Yes, and I could deal with the Commonwealth - if I do deal with the matters by way of fixed terms and I'm talking about the State sentences, and then with some partial accumulation I could either deal with the Commonwealth matters by way of an aggregate sentence, partially accumulated on the State sentences or, again, further fixed terms partially accumulated.

MCCOLM: Yes.

HER HONOUR: Yes. There are so many ways you could do this, yes.”

(Emphasis added.)

31. Later during the Crown oral submissions the following exchange took place:

“KERR: They are my submissions. I don't wish to anything else to what I have. If it assists, your Honour heard me refer to one of the DPP solicitors having worked for the Commonwealth. Mr Dixon is seated next to me--

HER HONOUR: Good.

KERR: --and if it assists because of the complexity of the Commonwealth legislation, he's prepared a draft order, subject to which, of course, your Honour wishes to take may assist your Honour in drafting that order if that's what your Honour wishes to take.

HER HONOUR: All right, pass that up. I'll mark is and I'll have a look at it but my current thinking is fixed terms seem to make sense because the sentence isn't going to be huge.”

(Emphasis added.)

Remarks on sentence

32. Her Honour recounted the facts as she found them. Given that her Honour presided over the trial which led to the applicant’s convictions, she was aware of other material that was not before the court on sentence. On this issue her Honour noted:

“As the defence point out, I do not need to find that hundreds of penis images and hundreds of offensive sexually explicit messages were sent. Suffice to say, there were many. I find, beyond reasonable doubt, that the offender did have a sexual interest in the victim. I find, beyond reasonable doubt, that the offences here were not isolated acts, but were committed in the course of ongoing sexual misconduct, committed by the offender towards the victim, during the period from 14 September 2008 to 5 February 2014, that is, the indictment period, but most particularly from the period 10 January 2010 to 5 February 2014, namely, the time that the offender was sending messages and penis images to the victim.

Of course, the offender will not be punished for the other acts that he committed toward the victim. The relevance of it, as both parties point out, is that the offender is not entitled to claim that the counts on the indictment were isolated acts.”

33. Her Honour then read the statement of the victim who has been impacted by the applicant’s actions by loss of appetite, anxiety, depression, nightmares and emotional breakdowns. Her Honour noted that the applicant had shown no remorse and found that the harm suffered by the victim was significant but that the aggravating feature was not applicable. On this issue her Honour then stated:

“This offending was insidious. The victim was receiving disgusting and sexually explicit texts and images from her stepfather, and I am not surprised that she has suffered the harm that she has.”

34. Her Honour went on to assess the objective seriousness of each count. In doing so, she observed that counts 1 and 2 fit into the lower range of sexual offences against children by reference to the available maximum penalty. Her Honour noted that the defence had submitted that all of the offences fell below the “putative midrange” in that count 1 was the only count where the offender was physically present.

35. Her Honour found that the objective seriousness of both counts 1 and 2 fell “into the midrange”. Her reasons for this finding on count 1 were as follows:

“That finding is based, of course, on what the offender did, namely, take an image or images of the complainant, naked, when she was showering, but it is also based on the fact that, by his act, he created or captured that image on his phone. Albeit I accept that there is no evidence as to what became of that image, a matter highlighted by Mr McColm this morning, it can, nevertheless, be observed that he not only breached the victim's privacy, but also she must have known that the image, or images, taken of her naked, were on the offender's phone.”

36. Her Honour’s basis for finding that the objective seriousness of count 2 fell within the mid-range was as follows:

“The message that the offender sent to the victim, in my view, is highly indecent, and obviously sexually explicit in its terms. It is trite to observe that it is highly indecent for an adult stepfather to send such a message to his teenage stepdaughter.”

37. Her Honour found the aggravating features of the offending to be as follows:

“The offences, that is, Counts 1 and 2, are aggravated by the egregious and gross abuse of trust that the offending entailed. The offender was married to the victim's mother. The victim felt powerless to inform upon him. Instead, she endured appallingly disgusting messages and images, sent on a regular basis to her. She did not want to break up her family, and so she did not disclose until a late stage.

Count 1 is aggravated by the fact that it was committed in the home of the victim, a place where she was entitled to feel safe and secure, and entitled to think that her privacy while showering would be respected by others in the house, particularly the adults. The Commonwealth Crimes Act requires that I take into account the nature and circumstances of the offences. Counts 3, 4, 5 and 6 are, in my view, very serious examples of offences of their kind. The sending of the images by the offender to the victim, his stepdaughter aged in her teens, was highly offensive.”

38. Her Honour then summarised the applicant’s subjective case noting that he was at that time 52 years of age and came before the court with no prior convictions. Her Honour noted the evidence of good character. She also referred to the evidence of the applicant’s father that the applicant was “a little slow” at school and that when he left school he worked and later married. The applicant’s father also gave evidence that the applicant had been assaulted several times when incarcerated at Grafton, which included having boiling water poured over his feet. The applicant told his father that he would prefer suicide rather than further incarceration.

39. Her Honour then referred to the SAR and noted that the applicant was born in Victoria and raised in regional New South Wales. He had a supportive upbringing. He has three adult children. He had worked in brick manufacturing until 2008 and joined the New South Wales Fire Brigade thereafter. Prior to his arrest he had been installing and servicing fire suppression systems.

40. Her Honour noted that in the SAR the applicant was described as a “categorical denier of the offending”. Her Honour then stated the following:

“Of course, [John Waterstone’s] sentence will not be increased because he maintains his innocence, but his lack of remorse, his lack of insight, and what I consider to be his audacious and arrogant attitude toward the victim, are matters that are relevant to other sentencing factors. He has shown no remorse.

He is assessed as having a low risk of reoffending but, it seems to me, that this assessment is somewhat flawed. I find that the assessment of low risk in the SAR is based on a lack of prior relevant offending. It seems to me not to have taken into account the fact that the offender denies the offending, and has sought, in the SAR, to claim that the victim has made false allegations against him. Frankly, the Crown case against the offender was a strong one, if not an overwhelmingly strong one, especially in relation to Counts 2 – 6, where the messages and the penis images were shown to have been sent from his phone to the victim’s, and where there was strong tendency evidence.”

41. As for the applicant’s good character her Honour noted:

“There is no doubt that the offender has been a productive member of the community. His lack of prior criminal convictions and his positive prior good character will be given some weight in mitigation, but I intend to give it less weight in this sentencing exercise, because there is a pattern of repeat offending over a period of time. What her Honour Fullerton J said in R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at [44] is apposite. I accept the submission that it has not been shown, beyond reasonable doubt, that the offender's good character assisted him in the commission of the offences. In making that determination, I rely on what was said in AH v R [2015] NSWCCA 51 at [20]-[24].”

42. Her Honour then referred to the report of Mr Jones, psychologist, and stated:

“The report begins with [John Waterstone], once again, professing his innocence, and [Mr Waterstone] proffering his opinion as to why he thinks the victim made up the allegations against him. He states, "I don't understand why she did it." Once again, the lack of remorse and lack of insight is palpable. Once again, I must state that [Mr Waterstone] will not be punished for his lack of remorse, but it does not bode well for his prospects of rehabilitation. He shows no insight into what he did, and the consequences for the victim.” (emphasis in original)

43. Her Honour outlined more background material in relation to the applicant obtained from Mr Jones’ report. She noted that he had two sisters, one of whom gave evidence against him at the trial. His relationship with them both is now “strained”. Her Honour repeated that the applicant had a good childhood, is close to his father, had no problems in school and has had a strong employment history. She observed that he has been placed on protection due to an assault and is experiencing “clinically mild levels of anxiety and depression”. Her Honour then referred to various risk assessments including STATIC-99 and LSI. The latter indicated that the applicant poses a low level of risk for committing general offences and a moderate to low risk of engaging in sexual offending behaviour.

44. Her Honour went on to accept that there had been a degree of extra curial punishment in the form of the assaults in custody and that she proposed to give that factor some weight in mitigation. Her Honour noted that she was unable to make “meaningful findings” about the applicant’s prospects of rehabilitation and then stated the following:

“I note that the maximum penalties are not set at high levels, and the maximum penalties are legislative guidelines that I must apply to each of the sentences that I intend to impose. It is realistically conceded, on the offender's behalf, that the offences warrant sentences of imprisonment. A significant issue in this case is application of the totality principle. I have found that no sentences other than sentences of imprisonment are appropriate, and I note that such sentences should only be passed as a last resort.”

45. Her Honour referred to the principle of totality and was satisfied, as submitted by both parties, that there must be some partial accumulation but that the level of accumulation between counts 3 to 6 would not be “great”. It was noted that counts 1 and 2 were committed in separate time periods and that the degree of accumulation between them would be greater. Her Honour referred to the decision in DPP (Vic) & DPP (Cth) v Swingler [2017] VSCA 305 on the question of sentencing for both State and Commonwealth offences and then stated the following:

“…[G]iven the length of the individual sentences, and the fact of partial accumulation, I have decided that the most appropriate way is to set fixed terms for each of the counts, and I decline to set non-parole periods for the state offences, pursuant to s 45 of the Crimes (Sentencing Procedure) Act, and, in relation to the federal sentences, I decline to set recognizance release orders pursuant to s 19AC(4) of the Crimes Act 1914. I am satisfied that such orders are not appropriate, having regard to the length of the sentences, the sentence structure and the fact that the offender will be serving state and federal sentences.”

46. Her Honour then went on to impose the sentences I have already set out above.

Ground 1: Error in imposing fixed sentences

Applicant’s submissions

47. It was acknowledged that the applicant accepted the approach suggested by her Honour during the proceedings on sentence, insofar as fixed sentences were concerned. However, it was submitted that the approach ultimately taken by her Honour was contrary to principle. It was submitted that, given that both sentences for the State offence were greater than 6 months, her Honour was required to set non-parole periods or an aggregate non-parole period for such offence, unless s 45(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) was applied. Further, given that the sentences imposed for the Commonwealth offences were all also greater than 6 months but less than 3 years in aggregate, her Honour was required to set a single recognizance release order, unless the court is satisfied that such an order is not appropriate for the reasons stated in 19AC(4) of the Crimes Act 1914.

48. Given this background of statutory requirements, it was submitted that her Honour’s reasons did not permit her to decline to impose non-parole periods and/or a recognizance release order. This was an error that deprived the applicant of serving some of his sentence on conditional release.

Crown submissions

49. The Crown did not concede that it was an error to impose an effective fixed sentence of 3 years and 1 month with no period of parole/recognizance. It was contended that s 45(4) of the Sentencing Act and s 19AH of the Crimes Act1914 provide that sentences are not invalidated by errors in fixing a non-parole period or recognizance and that the applicant puts his case on the basis that her Honour‘s reasons did not permit that outcome.

50. It was submitted that the applicant’s counsel at the proceedings on sentence agreed that it was open to her Honour to impose fixed sentences for both the State and the Commonwealth offences and that her Honour gave her reasons for doing so.

51. During the hearing of this appeal, counsel for the Crown conceded that he had never seen an effective sentence this long. Nor could he conceive of any forensic reason why an offender would not wish to have a portion of his or her sentence served in the community if a fixed sentence of over 3 years was to be imposed.

Consideration

52. The sentencing judge was faced with a difficult sentencing exercise in this matter. Two of the six offences were State offences and four of them were Commonwealth offences. In addition, the former carried a maximum penalty of 5 years imprisonment whereas the latter carried a maximum penalty of only 3 years imprisonment. These relatively low maximum penalties precluded the option of imposing one long sentence with a shorter non-parole period to allow partial accumulation and still end up with the applicant serving some of his sentence on conditional release.

53. The applicant does not dispute that her Honour had the power to impose an effective fixed sentence of this length; the complaint is that none of the statutory or other reasons for doing so warranted such a long fixed term in this matter.

54. Section s 45(1) of the Sentencing Act is in these terms:

(1)  When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences, a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so—

(a)  because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or

(b)  because of any other penalty previously imposed on the offender, or

(c)  for any other reason that the court considers sufficient.

55. Section 45(2) provides that a record of reasons for failing to fix a non-parole period must be noted and subs (4) provides that a failure to comply with subs (2) “does not invalidate the sentence”.

56. The term “fixed sentence” does not appear in the Sentencing Act. It did, however, appear in the predecessor to that Act, the Sentencing Act 1989 (NSW) (“Sentencing Act 1989”). Section 6(1) of the Sentencing Act 1989 was in these terms:

(1)  When sentencing a person to imprisonment for an offence, a court may decline to set minimum and additional terms for the offence and may set instead a fixed term of imprisonment that the person must serve for the offence.

57. Although the use of the word “fixed” to describe a sentence where no non-parole period is set did not carry over to s 45 of the current Act, the same descriptor has continued to be used to refer to a sentence imposed without a non-parole period being set under s 45 of that Act.

58. The same statutory regime is provided in the Crimes Act 1914. Section 19AC(1) provides that when a court imposes a sentence for a federal offence or offences that does not exceed 3 years, the court must “make a single recognizance release order in respect of that sentence or those sentences and must not fix a non-parole period”. Section 19AC(4)(a) provides that a court may decline to make a recognizance release order if the court is satisfied that such an order is not appropriate, having regard to:

(i)  the nature and circumstances of the offence or offences concerned; and

(ii)  the antecedents of the person.

59. Section 19AC(5) provides that reasons must be stated for declining to make a recognizance order and s 19AH(1)(a) provides that a failure to comply with subs (2) “does not invalidate the sentence”.

60. Thus, both sentencing regimes require a non-parole period/recognizance order to be imposed on any sentence greater that 6 months imprisonment, unless there is a reason not to do so. Any such reason must be clearly stated by the sentencing judge. R v Parsons [2002] NSWCCA 296 and Collier v R [2012] NSWCCA 213 are examples of cases where the sentencing judge erred by not fixing a non-parole period and not giving reasons as to why he declined to do so. It is not suggested that her Honour failed to comply with these obligations; her Honour stated that she was satisfied it was not “appropriate” to fix a non-parole period/recognizance for three reasons: the length of the sentences, the sentence structure and the fact that the applicant would be serving state and federal sentences. The question is whether these reasons were a proper basis in the circumstances of this case.

61. A common example of when fixed terms are imposed is when an offender is being sentenced on multiple counts and the parole terms of some of the individual sentences would be subsumed in the non-parole period of a longer sentence if fixed sentences are not imposed. Another reason for declining to fix a non-parole period is when the sentencing judge determines that an offender would not benefit from parole supervision as occurred in R v Burgess; R v Saunders (2005) 152 A Crim R 100; [2005] NSWCCA 52 at [45]. Neither of those situations was applicable in this matter. On the contrary, the applicant was a sex offender with a low to medium risk of re-offending. Such an offender is more likely than not to need time on parole for supervision in the community.

59. As stated above, her Honour imposed sentences of 2 years imprisonment to be served partially accumulated for the 61O offences, which carried a 5 year maximum imprisonment. Her Honour then imposed terms of 18 months imprisonment, partially accumulated for the s 474.17(1) offences which carried a maximum penalty of 3 years imprisonment. Although her Honour did not expressly state so, given the other findings made by her Honour, these sentences would appear to equate with the appropriate head sentences. Although, for reasons I will return to below, there is much force in this being the correct approach to take, there is conflicting authority as to whether in fact it is.

60. In R v Dunn [2004] NSWCCA 346, the court (Handley JA, James and Howie JJ) observed the following at [161]:

“161. In re-sentencing the applicant fixed terms of imprisonment should be imposed for most of the offences, because if a sentence containing a non-parole period and a parole period was set, the parole period would be subsumed in the non-parole period or the fixed term of some longer sentence or sentences. There is no necessity, as Judge Finnane thought, to set a non-parole period for every one of the sentences. In accordance with sentencing principle, where a fixed term of imprisonment is imposed the fixed term will be equivalent, not to the total term of a sentence containing a non-parole period and a parole period, but merely to the non-parole period of such a sentence”. (Emphasis added.)

64. This passage in R v Dunn has since stood as authority for the proposition that when a court does not set a non-parole period for a sentence of more than 6 months’ imprisonment under s 45 of the Sentencing Act, the sentence imposed should be set to equate with the non-parole period rather than the head sentence. This principle derived from R vDunn has been followed in a number of decisions of this court. One of them was Collier v R in which it was followed by McClellan CJ at CL, Schmidt J agreeing. The third member of that bench was R A Hulme J, who observed the following at [56] in relation to this “principle”:

“There are a multitude of cases in which reference has been made to a notion that a fixed term should be set at the level of what would otherwise have been a non-parole period. As far as I am aware, the notion had its origins in the early 1990s when the prevailing legislation was the Sentencing Act 1989. Section 5 provided for a court to set a minimum term and an additional term of imprisonment. Section 6 provided a discretion for a court to "decline to set minimum and additional terms for the offence" and to instead set a fixed term. Where multiple sentences were accumulated, it was thought that in respect of sentences to expire before others there was "no utility" in providing for an additional term, as it would be subsumed by one or more sentences to expire later: see, for example, R v Radenkovic (Court of Criminal Appeal, 6 March 1990, unreported); R v Donovan (Court of Criminal Appeal, 9 September 1992, unreported); R v Close (1992) 31 NSWLR 743; and R v Thomas (1992) 65 A Crim R 269.”

65. At [57], his Honour referred to R v Dunn and extracted the passage from that judgment I have extracted above at [63]. His Honour then went on to state at [58]:

“I have identified 26 cases in this Court in which the nature of a fixed term of imprisonment has been an issue. Many have involved standard non-parole period offences but not all of them. The majority have treated a fixed term as the equivalent of a non-parole period (or a minimum term in the earlier cases). But I have not detected any case in which there has been reference to the terms of the legislation. Construed literally, the discretion provided in s 6 of the Sentencing Act was to decline to set both a minimum term and an additional term and, in lieu, set a fixed term. Construed literally, the discretion provided in s 45 of the current legislation is to decline to set a non-parole period. Neither provided, in terms, for discretion to reduce a sentence by not including within it an additional term, or parole period.”

66. His Honour concluded at [62]:

“Whether a sentencing court has the power within the terms of s 45 of the Crimes (Sentencing Procedure) Act to reduce what would otherwise be the appropriate sentence by setting a fixed term of imprisonment is a question best left for resolution in an appropriate case in the future. Resolution of that question will also bear upon whether, in an appeal against the severity of a sentence, this Court can or should increase the sentence where a fixed term has been erroneously imposed.”

67. The fact that there have been differences of approach on this question was acknowledged by Hidden J in Lipchin v R [2013] NSWCCA 77 where his Honour observed at [16]:

“There is a considerable line of authority in this court, both under the current sentencing legislation and its predecessor, the Sentencing Act 1989, equating fixed terms with non-parole periods. In particular, that has been the court's approach in a number of cases in which a sentencing judge had passed a fixed term in respect of an offence carrying a standard non-parole period. In those cases the court has treated the fixed term as equivalent to the appropriate non-parole period and has intervened by increasing the length of the overall sentence. However, that has not always been the approach, and in other cases the court has treated the fixed term as the head sentence and fixed a non-parole period in respect of it.”

68. His Honour went on to consider the observations of R A Hulme J in Collier v R before concluding at [19] that the issue did not need to be resolved in Lipchin v R either.

69. Shortly after this decision, Basten JA observed the following in Tuvunivono v R [2013] NSWCCA 176 at [10] (his Honour was the dissenting judge as to the result; Price and Campbell JJ did not address this question):

“As explained in Lipchin v R [2013] NSWCCA 77 by Hidden J (Bathurst CJ and Button J agreeing) a fixed term sentence is usually to be equated with a non-parole period: at [16]; Collier v R [2012] NSWCCA 213 at [56] (R A Hulme J); R v Dunn [2004] NSWCCA 346 at [161] (Handley JA, James and Howie JJ). Once it is understood that an appropriate sentence must be imposed for each offence, it is clear that the fixed term must equate with an appropriate minimum period of imprisonment. Were it otherwise, and each of the other convictions were set aside on appeal, the offender would serve in custody more than the minimum term appropriate to that offence.”

70. In Convery v R [2014] NSWCCA 93, McCallum J (as her Honour then was), with whom Simpson J (as her Honour then was) and Adams J agreed, observed the following at [23] (it should be noted that the reference to “aggregate” sentence at [23] is to the effective sentence of the two separate sentences imposed in that matter and not to an aggregate sentence imposed under s 53A):

“The aggregate sentence was accordingly a total sentence of six years with an aggregate non-period of two years and six months. In describing that as the aggregate non-parole period, I am assuming his Honour intended that a so-called "fixed term" (not an expression used in the Act) should be equivalent to the non-parole period for that offence, in accordance with the prevailing law. The correctness of that approach has been doubted: see the remarks of R A Hulme J in Collier v R [2012] NSWCCA 213 at [56] to [58] where his Honour noted that s 45 simply permits the court to decline to set a non-parole period. Hulme J observed that neither s 45 nor its predecessor conferred, in terms, any discretion to reduce a sentence by not including within it an additional term or parole period. There is force in those observations. Extra-curially, the sentencing judge in the present case has expressed his agreement with them, evidently accepting however that the prevailing law is that a fixed term will represent the non-parole period for the offence: see "The Art of Sentencing", a paper presented by Judge Peter Berman SC at the Local Court Conference in 2013.”

71. The doubts raised by R A Hulme J in Collier v R were noted again in RJB v R [2015] NSWCCA 93 by Hidden J (with whom Meagher JA and RA Hulme J agreed) when his Honour observed the following:

“It appears to me that the 3 year term his Honour fixed in respect of each offence is what he would have considered an appropriate non-parole period. Whether that is how a fixed term should be arrived at was a question raised, but not resolved, by RA Hulme J in Collier v R [2012] NSWCCA 213, at [56]-[62]. Nor need it be resolved here.”

72. Justice Basten revisited this issue in McIntosh v R [2015] NSWCCA 184 at [166]-[168]. That case was concerned with an aggregate sentence imposed under s 53A of the Sentencing Act. An issue arose as to whether indicative sentences represented the head sentence or a non-parole period. At [166] Basten JA referred to the decision in R v Dunn and noted the comments by R A Hulme J in Collier v R. His Honour then observed this at [167] regarding the terms of s 45 of the Sentencing Act (footnotes omitted):

“Although words should, where possible, be given their ordinary meanings, the literal construction of statutory provisions is sometimes a poor guide to meaning. It is usually necessary to construe provisions as a whole and having regard to their apparent purpose. The present exercise is to determine what is meant by “the sentence” that would have been imposed for each offence, in s 53A(2). The term “sentence” is defined to mean “the penalty imposed for an offence”. There are many provisions relating to the imposition of “a sentence of imprisonment” but the critical provision is s 44, which requires that the court first “set a non-parole period for the sentence” and then set the “balance of the term of the sentence”. It may be inferred that “the sentence” is the combination of the two periods, but because s 45 permits the court to decline to set a non-parole period, that cannot always be the case. The reasons for not setting a non-parole period include “because of any other penalty previously imposed” and “for any other reason that the court considers sufficient”. There is nothing in this language which denies the court the power to approach the specification of a sentence of imprisonment for accumulated offences in the manner described in Dunn. Accordingly, unless there are compelling reasons for not following Dunn, it is at least the entitlement of this Court to follow it, if not its obligation.”

73. Although both Hidden and Wilson JJ agreed with the result in McIntosh v R, Hidden J observed the following in a separate judgment at [174]-[175]:

“I share the view of RA Hulme J, referred to by Basten JA at [166], about the discretion provided by s 45 of the Crimes (Sentencing Procedure) Act to decline to set a non-parole period. Of course, on many occasions sentencing judges set a fixed term which represents the appropriate non-parole period for a particular offence when that sentence is part of a sentencing structure involving cumulative or partly cumulative sentences, an exercise which is obviated by the aggregate sentence procedure. However that may be, the determination of the minimum period of mandatory custody for an offence may be affected by discretionary considerations different from those governing the determination of a head sentence. It is that sentence which reflects the assessment of the criminality of an offence, taking into account all the relevant circumstances, objective and subjective, and it is that assessment which should be reflected in an indicative sentence.

For the purpose of the present case, however, I am content to adopt the pragmatic approach suggested by Basten JA at [169].”

74. These cases all concern s 45 of the Sentencing Act. The Western Australian Court of Appeal considered s 19AE of the Crimes Act (Cth) in Spreitzer v R (1991) 58 A Crim R 114 and noted the following:

“…The explanatory memorandum says that the discretion to sentence without making a recognisance release order is intended for those cases where the crime is so serious or where there is a history of repeated offences which would require the offender to serve the full sentence less remissions.”

75. This statement reflects the approach that a sentence imposed without a recognizance order equates to the head sentence. The publication of the Commonwealth Director of Public Prosecutions (“CDPP”) titled Sentencing of Federal Offenders in Australia: A Guide for Practitioners (2nd edition, 2020) at 5.10.8 (paras 675-684), accepts that this is the correct approach (citing the Crimes Legislation Amendment Bill (No 2) 1989 (Cth)), Explanatory Memorandum (House of Representatives) at 17 (regarding proposed new section 19AE) as follows:

“The statutory discretion to decline to fix a NPP or to decline to make a RRO was introduced in 1990. The Explanatory Memorandum for the relevant bill said that the provision was “intended for those cases where the crime is so serious or where there is a history of repeated offences which would require the offender to serve the full sentence”.(Emphasis added.)

76. The CDPP publication goes on to state that:

“It is implicit in the scheme of Part IB of the Crimes Act 1914 that the determination of the appropriate length of the head sentence should be made independently of the determination of the period of imprisonment (if any), or the minimum period of imprisonment, to be served. It would seem wrong in principle to reduce a head sentence merely because all of it would be required to be served, just as it would be wrong in principle to increase a head sentence merely because none of it would be required to be served.”

77. The decisions of R v Currey [1975] VR 647 at 655; R v Zamagias [2002] NSWCCA 17 at [26]-[29]; De Hollander v R [2012] WASCA 127 at [86].are cited in support of this proposition. Those cases confirm that, when imposing a term of imprisonment, the court first fixes the head sentence and then decides the “minimum term”. In R vCurrey, Dunn J referred to the statement in R v Governor of Her Majesty's Gaol at Pentridge; in Ex parte Cusmano, [1966] VR 583 at 587 that: "[t]hat language requires the court to impose a term of imprisonment appropriate to the offence charged in the same way as if it were imposing a fixed sentence and then, and only then, to proceed to the fixation of a minimum term” (referring to a predecessor of the Social Welfare Act 1970).

78. On the other hand, the NSW Law Reform Commission, Report No 139: Sentencing (July 2013) noted the following at 6.69 - 6.70:

“6.69 A further question has arisen as to whether the court should set the fixed term by reference to the non-parole period that it would have otherwise imposed, the legislation being silent on the matter. Some appeals appear to have proceeded on the basis that the fixed term represented the total term of the sentence which the court would otherwise have imposed. The CCA has said that: In accordance with sentencing principle, where a fixed term of imprisonment is imposed the fixed term will be equivalent, not to the total term of a sentence containing a non-parole period and a parole period, but merely to the non-parole period of such a sentence.

6.70 In order to avoid doubt, we consider that a revised Crimes (Sentencing) Act should include a provision to the effect of s 45 of the CSPA. The provision should be amended to make clear that the fixed term that the court imposes should be not less than that which it would have set as the non-parole period for the offence.”

79. This recommendation has never been adopted.

80. It is ultimately not necessary for me to make any finding as to whether Judge Baly SC intended to impose head sentences or non-parole periods when imposing the fixed terms. I am satisfied that error has been established either way because her Honour did not explain why she considered an effective fixed sentence of 3 years and 1 month without release on parole and/or a recognizance was warranted in this matter. With respect to her Honour, justifying such a course on the basis of the length of the individual sentences and the fact that the offences were both State and Commonwealth offences did not explain why such a long sentence without parole for a sex offender assessed as having a medium to low risk of re-offending was warranted.

81. Although it was not necessary to make any finding on this issue in order to determine this ground, for my part, I too share the doubts expressed in the decisions I have referred to above as to whether a fixed term should be equated with some notional non-parole period rather than the head sentence. These doubts arise for the following reasons.

82. First, as R A Hulme J observed in Collier v R at [58], the discretion in s 45(1) of the Sentencing Act, in its terms, is to decline to set a non-parole period when fixing a sentence. There is nothing in the statutory language of s 45 to suggest that an additional discretion is conferred to permit the reduction of what would otherwise be the appropriate sentence when declining to fix a non-parole period.

83. Secondly, I have had regard to the following observation by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [70] where his Honour observed:

“The legislature has long required sentencing judges in New South Wales to impose a non-parole period (or its equivalent) as a fixed relationship to the head sentence, unless the circumstances were such that the sentencing judge believed it appropriate to have a lower proportionate relationship. This statutory guide or fetter or constraint operates in one direction. It is a hurdle to be overcome if a lower proportion than that for which the statute provides is to be determined. There is no hurdle for a sentencing judge if that judge wishes to impose a higher than statutory proportion. Indeed, at all times the sentencing judge has had a discretion to impose a fixed term without a non-parole period of any character (now found in s45 of the 1999 Act).” (Emphasis added.)

84. His Honour made these comments in the context of consideration of the scope of “special circumstances” for the purposes of (now) s 44(2) of the Sentencing Act. The italicised portion in this passage is consistent with the imposition of a fixed term being a step along the continuum from imposing a shorter non-parole period pursuant to s 44(2) of the Sentencing Act, to imposing the statutory ratio, to imposing a longer non-parole period, to imposing none at all. That is, the decision not to impose a non-parole period is an extreme version of a decision to impose a non-parole period higher than the statutory ratio in s 44(2). This observation by Spigelman CJ is inconsistent with a fixed term being reduced to equate to a notional non-parole period.

85. Thirdly, a question arises as to how a notional non-parole period for the sentence is arrived at when a court declines to “set” a non-parole period. If that sentence then equates to some notional non-parole period does that mean that the statutory ratio in s 44(2) is applied in all cases? For example if the sentence to be imposed is 2 years imprisonment and a decision is made not to set a non-parole period does that mean that the term has to be reduced to 18 months to reflect the statutory ratio or can it be reduced lower? Would special circumstances need to be found in order to impose a fixed term the length of a non-parole period that is less than three quarters of the notional head sentence? Section 44(2) only applies to sentences when a non-parole period is fixed. Does that mean that a court can reduce a non-parole period to a term lower than the statutory ratio in s 44(2) without having to find “special circumstances”?

86. Fourthly, the statutory language of s 45 of the Sentencing Act differs in a significant respect to the language of s 6 of the Sentencing Act 1989. Whereas s 45 provides that “a court may decline to set a non-parole period for the offence or offences”, s 6 of the Sentencing Act 1989 provided that “a court may decline to set minimum and additional terms for the offence and may set instead a fixed term of imprisonment that the person must serve for the offence.”

84. In Power v R (1974) 131 CLR 623; [1974] HCA 26 at 628–629, the High Court rejected the proposition that considerations of punishment and deterrence were primarily relevant to fixing the head sentence rather than the non-parole period. Rather, the court held that a non-parole period reflects the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 the High Court confirmed that this was so, observing that the non-parole period is imposed because justice requires that the offender serve that period in custody: at [57]. Based on these principles, I can see some textual basis in s 6 of the Sentencing Act 1989 for concluding that a fixed term might be said to equate with the non-parole period but the same cannot be said for s 45 of the Sentencing Act.

85. Fifthly, s 46(1) of the Sentencing Act provides that a court “may not” set a non-parole period for a sentence of imprisonment if the term of the sentence is 6 months or less. This means that all sentences of imprisonment of 6 months or less must equate with the head sentence. It is difficult to see why a fixed term of imprisonment under 6 months equates with a head sentence but a fixed term over 6 months does not.

86. Finally, I have had regard to the observations of Basten JA in McIntosh v R at [167] concerning s 44 of the Sentencing Act. Although his Honour was satisfied that a “sentence” is made up of non-parole period and the balance of term, his Honour went on to observe that when a court declines to set a non-parole period under s 45, the “sentence” cannot comprise the non-parole period and the balance of term as no non-parole period is imposed. With respect to his Honour, that fact does not necessarily lead to a conclusion that a fixed term imposed under s 45 must equate with the non-parole period.

87. For these reasons, I too have some doubt as to whether a fixed term should be set as equating to the non-parole period rather than the head sentence.

88. Returning to the determination of this ground, the applicant conceded that the transcript of the proceedings on sentence records that counsel before the sentencing judge appeared to acquiesce to the approach taken by her Honour. Despite this, I am satisfied that had the applicant’s counsel properly understood that a sentence of over 3 years was going to be imposed, without any portion of that sentence to be on conditional release, such acquiescence would not have been forthcoming. When her Honour indicated that she would impose fixed sentences due to their length, it may well have been anticipated that an effective sentence of much less than 3 years was to be imposed. I do not consider the position of the applicant’s counsel before the sentencing judge to preclude the intervention of this court, error having been established.

89. I would uphold Ground 1.

Ground 2:   Error in finding NSW offences were aggravated by “an abuse of trust”

Applicant’s submissions

93. It was submitted that in expressly finding that counts 1 and 2 were “aggravated by the egregious and gross abuse of trust”, her Honour made an error of law. That is, her Honour double counted the aggravating factor of abuse of trust. It was contended that, where it is already an element of the offence that the offender was in a position of authority, it may be open to the court to also take into account a breach of trust but that it would arise only in circumstances where the facts giving rise to the two separate aggravating factors are different.

94. The applicant relied upon the decision in Franklin v R [2016] NSWCCA 319. It was further submitted that her Honour drew no distinction between the two distinct concepts and that, as both relied upon the “same relationship” and “same core-facts” (see Franklin at [72]) or the breach of trust was “as a matter of substance …an element of the offence” (Beavis v R [2018] NSWCCA 248 at [255]), her finding that breach of trust further aggravated counts 2 and 3 amounted to double-counting and was error of law.

95. It was accepted that counsel for the applicant in his written submissions before the sentencing judge accepted that a breach of trust was a statutory aggravating factor under s 21A(2) of the Sentencing Act and that the Crown submitted that the abuse of trust went beyond “the already present element that the victim was under the authority of the offender”.

Crown submissions

96. The Crown relied upon the decisions in Beavis v R and MRW v R [2011] NSWCCA 260 in support of its position that there had been no double-counting.

Consideration

97. Counts 1 and 2 charged aggravated acts of indecency on a person under the age of 13 years: s 61O of the Crimes Act (NSW). The relevant circumstance of aggravation under s 61O(3)(b) was that the victim was “generally or at the time of the commission of the offence under the authority of” the applicant.

98. Section 21A(2)(k) of the Sentencing Act provides that an aggravating factor which may be taken into account on sentence is where “the offender abused a position of trust or authority in relation to the victim”. The sentencing judge observed the following on this issue:

“The offending that is Counts 1 and 2, are aggravated by the egregious and gross abuse of trust that the offender entailed. The offender was married to the victim’s mother. The victim felt powerless to inform upon him. Instead, she endured appallingly disgusting messages and images, sent on a regular basis to her. She did not want to break up her family, so she did not disclose until a late stage.”

99. The question is whether there was double-counting by her Honour when she described counts 1 and 2 as being aggravated by the “egregious and gross abuse of trust” that the offences entailed.

100. This same issue arose in MRW v R, which was a case involving a father who was convicted of having sexual intercourse with his 10-year-old daughter. The sentencing judge had observed (as extracted at [68]):

"In relation to the consideration of breach of trust, this is a separate circumstance from part of the indictment that [the complainant] was under the offender's authority. The breach of trust which I take into account here, which is an obvious and aggravating feature, is in relation to [MRW] being [the complainant's] father on the one hand, and at the time she was also under his authority. The abuse of trust involved between a father and a child is an obvious aggravating feature."

101. Chief Justice Bathurst, with whom James and Johnson JJ agreed, considered the complaint of double-counting and observed this at [77]-[79]:

“77. There can be little doubt, in my opinion, that the matters referred to in s 21A(2)(k), namely abuse of trust and abuse of authority, are distinct concepts although commonly arising out of the same facts. As only the latter of the two concepts formed an element of the offence, in my opinion, it was open to the trial judge to take the former factor into account as an aggravating feature on sentencing.

78. However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court. However, the judge committed no error in taking abuse of a position of trust into account in sentencing the appellant.

79. Further, it does not seem to me that the judge erred in concluding that the appellant was "a feared authority figure". Having regard to the jury's verdict, she was entitled to accept the complainant's evidence that she would get into a heap of trouble and get flogged if she complained, and the complainant's evidence of the conduct of MRW when confronted with the complaint (T 5/8/09 p 12). This evidence, in my opinion, provided justification for her conclusion.”

102. In Franklin v R [2016] NSWCCA 319, a similar complaint was made and the ground upheld. After citing MRW v R with approval, R A Hulme J, with whom Macfarlan JA and Bellew J agreed, stated the following (at [72]):

“The problem in the present case is at a more basic level: the sentencing judge stated that there were these two aggravating features but he did not explain why, in the circumstances of the case at hand, they were aggravating. There is also nothing to indicate that the judge saw a distinction between a breach of trust and a breach of a position of authority; if he did, he did not explain what it was.”

103. More recently in Beavis v R [2018] NSWCCA 248, this court (Ward JA, Bellew and Beech-Jones JJ) considered a similar complaint. Reliance was placed on the decision in Franklin v R. The court confirmed at [247] that the relevant error in Franklin v R was a failure by the sentencing judge “to advert to the distinction between a breach of trust and the holding of a position of authority”. That is, he did not indicate that he was aware of that distinction (at [72]).

104. The court went on cite the paragraphs from MRW v R set out above and then observed the following at [252]:

“In MRW, the sentencing judge had expressly stated that “breach of trust” was a “separate circumstance from part of the indictment that [the complainant] was under the offender’s authority”. It appears from what was said at [78] that Bathurst CJ did not regard it as a case where the breach of trust arose from the same facts as the abuse of authority. It appears, from the summary at [67]-[71] of his Honour’s judgment, that the sentencing judge had separately identified the breach of trust (specifically, that the offender was the complainant’s father).”

105. In Beavis v R, the court ultimately upheld this ground. After referring to the sentencing reasons and evidence in the matter the following was held at [255]:

“…the matters said to demonstrate that the complainant was under the appellant's authority for the purposes of counts 3,4 and 5 were the same as those matters said to constitute the breach of trust for all offences, namely that the complainant was staying in the appellant's house and accordingly he was responsible for her safety and security. Thus, similarly to Franklin, the sentencing judge either did not advert to or at least maintain a distinction between a breach of trust and a breach of authority. Put another way, in relation to counts 3, 4 and 5 the sentencing judge treated a breach of trust as aggravating an offence, when as a matter of substance that breach was an element of the offence (Crimes (Sentencing Procedure) Act, s 21A(2))”.

106. I have considered these authorities and had regard to her Honour’s sentencing reasons. I am satisfied that her Honour was aware of the distinction between a breach of trust and being under authority. Her Honour drew a distinction between counts 1 and 2, which had the element of aggravation of being under the applicant’s authority, and counts 3-6, which did not. Her Honour separately identified the factors relevant to the breach of trust and the fact that the victim felt powerless and did not wish to break up the family.

107. I have also had regard to the fact that in written submissions filed on behalf of the applicant before the sentencing judge the following was submitted:

“Statutory aggravating factors – section 21A(2)

The defence acknowledges the statutory aggravating factors the aggravating circumstances being present of a breach of trust and for count1 being an offence committed in the home.”

108. The applicant’s counsel before the sentencing judge accepted that a breach of trust was an aggravating factor for counts 1 and 2. Her Honour delivered her reasons ex tempore. The fact that this was an issue on which the parties were in agreement is another relevant factor when examining the adequacy of her Honour’s reasons on this issue.

109. I would dismiss this ground.

Ground 3:   Her Honour erred in her assessment of the objective seriousness of each count.

Applicant’s submissions

110. It was submitted that her Honour erred in finding that, in terms of objective seriousness, counts 1 and 2 fell in the mid-range of offences and that each of counts 3-6 was “above midrange” because they were “very serious examples” of their kind.

111. It was also submitted that each count was momentary in time with count 1 occurring when the applicant was nearby but not in the immediate presence of the complainant, and counts 2-6 not involving the complainant’s physical presence; count 2 being a short text and counts 3-6 comprising pictures depicting a penis and without determination as to whose penis it was.

Crown submissions

112. With respect to Ground 3, it was submitted that the characterisation of the degree of objective seriousness for each offence was open to her Honour and that the features of the case identified by the applicant in his submissions did not mitigate the seriousness of offending.

Consideration

113. The question of whether a sentencing judge has erred in a finding regarding objective seriousness is a question of whether the finding was open: Mulato v R [2006] NSWCCA 282 at [37], [46]-[47]. As Spigelman CJ observed in that frequently cited decision:

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.”

114. More recently, Gleeson JA (with whom Button and R A Hulme JJ agreed) observed the following in Magro v R [2020] NSWCCA 25 at [29]:

“The assessment of the objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing the inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46].This is an evaluative exercise that requires an assessment of a range of factors which may be susceptible of significantly differing views. It has been observed that those difficulties are at their height in circumstances where there has been a trial in which the sentencing judge has been able to assess the evidence the Crown witnesses who gave evidence in the witness box: Baines v R [2016] NSWCCA 132 at [15] (Basten JA).”

115. Her Honour was sentencing the applicant after a trial. This meant that she was able to assess the evidence of the Crown witnesses at trial. Count 1 was committed in the victim’s home while she was 12 or 13 years old. She was naked and alone in the shower. The criminality of the offence was not only the taking of the photographs, but the fact that the victim must have believed that the images remained on the applicant’s phone to be viewed when he pleased. There was no evidence of what happened to the photographs but the victim’s belief is still relevant. Her belief was that they remained on his phone for him to look at as he pleased. This offence occurred in the home and involved a breach of trust for the reasons set out under Ground 2.

116. As for count 2, the applicant sent a text to his stepdaughter when she was about 13 years of age which read, “[c]ome home. I wanna lick your pussy”. The applicant sent numerous text messages to the victim with a similar content. That did not aggravate the objective seriousness of the offence but it meant that the offence could not be viewed as an act in isolation. This offence also involved a breach of trust for the reasons set out under Ground 2.

117. In relation to the four Commonwealth offences it is important to have regard to the broad nature of conduct caught by the relevant offence provision, which carries a maximum penalty of 3 years imprisonment. Section 474.17 of the Criminal Code (Cth) is in these terms:

Using a carriage service to menace, harass or cause offence

(1)  A person commits an offence if:

(a)  the person uses a carriage service; and

(b)  the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

118. It is not an element of the offence that the victim is a child nor that the conduct is of a sexual nature. This makes the applicant’s conduct of sending offensive texts of his penis to his stepdaughter a serious example of an offence under this section. As her Honour observed, the Crimes Act 1914 required her to take into account “the nature and circumstances of the offences”. Her Honour was satisfied that this conduct in counts 3-6 was “highly offensive” and in her Honour’s view, very serious examples of offences of their kind. I can find no error in her Honour’s finding that such conduct was highly offensive.

119. Although her Honour was ultimately not able to make any finding that it was the applicant’s penis that was depicted in the images, the fact remains that he was regularly sending close ups of a penis mostly in an erect state to his teenage stepdaughter.

120. I am satisfied that it was open to her Honour to make the findings of objective seriousness that she did.

121. I would dismiss Ground 3.

Ground 4: manifest excess

122. I am satisfied that Ground 1 has been established but not Grounds 2 and 3. I do not propose to consider Ground 4 (allegation of manifest excess) because, error having been established, it is necessary for this court to exercise its own independent sentencing discretion in any event for the purpose of determining whether a lesser sentence should be imposed under s 6(3) of the Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

Re-sentencing

123. In undertaking the sentencing discretion afresh the court is required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the court in Muldrockv The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]. The maximum penalties are guideposts to which I must have regard. I have also had regard to the respective legislative schemes in the Sentencing Act and the Crimes Act 1914.

124. I have set out the applicant’s subjective circumstances and the findings of the sentencing judge above at [41]-[44]. I adopt the same findings as the sentencing judge. I have had regard to the fact that the applicant was convicted after a trial and received no discount for a plea of guilty. Nor has he shown any remorse. I adopt the statement by her Honour that he demonstrated an “audacious and arrogant attitude towards the victim”; the offending was not isolated and spanned over a number of years and the victim impact statement showed the profound impact of the offending on the victim. Her Honour was unable to find that the applicant had good prospects of rehabilitation and was unlikely to offend. Although the applicant was of previous good character, as her Honour pointed out, his pattern of repeat offending took place over a period of time. I too would mitigate the sentence on account of the two significant assaults in custody which constitute a degree of extra-curial punishment.

125. I propose to adopt the same course as her Honour and impose the sentences on counts 1 and 2 first and then on counts 3-6. I propose to impose one aggregate sentence under s 53A of the Sentencing Act for counts 1-2 and a further aggregate sentence under s 53A of the Sentencing Act for counts 3-6.

126. As Johnson J recently observed in Kannis v R [2020] NSWCCA 79 at [10], in Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146], this court determined that aggregate sentencing under s 53A of the Sentencing Act is available where a court is to impose sentences for several Commonwealth offences: In Director of Public Prosecutions (Cth) v Beattie, Price J, with whom Basten JA and Walton J agreed, observed this at [145]-[146]:

“145.   The Commonwealth Director submitted that based on the decision in Putland [(2014) 218 CLR 174; [2014] HCA 8], aggregate sentences are available in New South Wales for offenders prosecuted for two or more Commonwealth offences on indictment, by application of s 53A of the Crimes (Sentencing Procedure) Act. The respondent did not take issue with the Commonwealth Director’s submission.

146. The Commonwealth Director’s submission is soundly based. There does not appear to be any good reason for concluding that s 53A does not apply to Commonwealth offences dealt with on indictment in New South Wales.”

127. Exercising my sentencing discretion afresh, and in particular having regard to the application of the totality principle, I have arrived at aggregate sentences which together are slightly less than the length of the effective fixed term imposed by her Honour. Despite this, the indicative sentences I would have imposed are the same. I do not propose any significant accumulation in relation to the Commonwealth offences. I propose to vary the statutory ratio for counts 1-2 in order to achieve a 3:1 ratio in the total sentence. I propose to fix an early release on recognizance in relation to the second aggregate sentence for the same reason.

ORDERS

128. I would propose the following orders:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The sentences imposed on the applicant in the District Court on 5 July 2019 are quashed. In lieu thereof the following aggregate sentences are imposed under s 53A of the Sentencing Act:

Counts 1-2:   An aggregate term of imprisonment of 2 years and 3 months commencing on 13 October 2018 and expiring on 12 January 2021 with a non-parole period of 18 months to expire on 12 April 2020;

Counts 3-6:   An aggregate term of imprisonment of 20 months commencing on 13 April 2020 and expiring on 12 December 2021 and direct that the applicant be released by way of recognizance release order on 12 January 2021 after serving 9 months’ imprisonment upon the applicant entering into a recognizance to be of good behaviour for a period of 11 months.

The indicative sentences are as follows:

Count 1:   2 years’ imprisonment;

Count 2:   2 years’ imprisonment;

Count 3:    18 months’ imprisonment;

Count 4:   18 months’ imprisonment;

Count 5:   18 months’ imprisonment;

Count 6:   18 months’ imprisonment.

129. IERACE J: I agree with the orders proposed by N Adams J and with her Honour’s reasons.

130. As her Honour has stated, it is unnecessary to determine whether the fixed terms that were imposed by her Honour Judge Baly SC were intended to reflect a notional non-parole period or head sentence. Accordingly, I also decline to express a conclusive view on the issue.

131. I am appreciative of N Adams J’s comprehensive review of cases and material concerning the issue of how the length of sentence should be determined when it is imposed pursuant to s 45(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) or s 19AC(4) of the Crimes Act 1914 (Cth), although I do not share her Honour’s concerns with the proposition derived from R v Dunn [2004] NSWCCA 346 that a fixed term sentence is the equivalent of the non-parole period of the sentence. In that regard, I find Basten JA’s observation in Tuvunivono v R [2013] NSWCCA 176 at [10], quoted by N Adams J at [69] of her Honour’s judgment, persuasive, as to at least one of the adverse implications of a fixed term not reflecting only the equivalent of a non-parole period, being the minimum period that an offender should be detained in custody as punishment.

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Amendments

09 June 2020 - Order (3), Counts 3-6: “12 January 2021” instead of “12 February 2021”

Decision last updated: 09 June 2020