Woods v The King

[2024] NSWCCA 186

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Woods v R [2024] NSWCCA 186

Hearing dates:

14 June 2024

Date of orders:

18 October 2024

Decision date:

18 October 2024

Before:

Kirk JA at [1];
Campbell J at [2];
N Adams J at [59]

Decision:

(1) Under rule 3.5(5) Supreme Court (Criminal Appeal) Rules 2021 grant the applicant leave to make his application for leave to appeal from the sentence passed on him in the District Court.

(2) Grant leave to appeal.

(3) Appeal dismissed.

Catchwords:

CRIME – appeals – appeal against sentence – application for leave to appeal – self-representation not a privilege but a disadvantage – leave not ordinarily granted merely because a party is self-represented – applicant unaware no application was made while he had legal representation – leave to appeal granted

CRIME – appeals – appeal against sentence – State and Commonwealth offences – accumulation, concurrency and totality – whether sentencing judge erred in wholly accumulating the Commonwealth aggregate sentence on the State sentence – no obligation to import a degree of concurrency – different criminality involved – whether sentencing judge erred by not expressly referring to R v Fernando and Bugmy v The Queen – sentencing judge had regard to the applicant’s subjective case and found reduced culpability – sentence passed necessarily stern to reflect the Commonwealth Parliament’s intention – appeal dismissed

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW), ss 3A, 17

Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D

Crimes Act 1914 (Cth), ss 16A, 16AAB, 16AAC, 19, 19AJ, 19AV

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

Criminal Code (Cth), ss 474.22, 474.22A

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases Cited:

Bisiker v R [2022] NSWCCA 110

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; 270 A Crim R 556

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Director of Public Prosecutions (Vic) v Swingler [2017] VSCA 305; 269 A Crim R 526

Gallo v Dawson [1990] HCA 30; 64 ALJR 458

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Fernando [2002] NSWCCA 28

Xiao v The Queen (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:

Principal judgment

Parties:

Toby James Woods (Applicant)
Crown (Respondent)

Representation:

Counsel:
Applicant (Self-represented)
A Chhabra with A Schatz (Respondent)

Solicitors:
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2021/159612

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

13 December 2022

Before:

Coleman SC DCJ

File Number(s):

2021/159612

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 13 December 2022, the applicant was sentenced in the District Court after pleading guilty to one State offence of failure to comply with reporting obligations contrary to s 17(1) Child Protection (Offenders Registration) Act 2000 (NSW); and two Commonwealth offences of using carriage service for child abuse material, and possessing child abuse material through a carriage service, respectively contrary to ss 474.22(1) and 474.22A(1) Criminal Code (Cth). The State offence carries a maximum penalty of imprisonment for five years, while the maximum penalty for each of the two Commonwealth offences is 15 years imprisonment. To the extent the applicant has a previous conviction for child abuse offences, a mandatory minimum head sentence of four years applies to each Commonwealth offence under s 16AAB Crims Act 1914 (Cth).

The applicant was sentenced to 12 months’ imprisonment for the State offence and an aggregate term of four years for the Commonwealth offences. The State sentence was backdated to commence on 4 June 2021 to the effect it had already been served during the applicant’s time on remand. The Commonwealth aggregate sentence was wholly accumulated on the State sentence and commenced on the day that fixed term of imprisonment expired. The total effective sentence was one of five years, with a non-parole period of three years and six months.

The applicant appealed against the sentence on the grounds that the sentencing judge erred by (i) sentencing the Commonwealth and State sentences to be served consecutively rather than concurrently; and (ii) failing to apply the principles established in R v Fernando [2002] NSWCCA 28 and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

The issues before the Court were:

1. whether leave to appeal should be granted under r 3.5(5) Supreme Court (Criminal Appeal) Rules 2021 (NSW) as the applicant’s Notice of Appeal was filed after the expiry of the applicable period;

2. whether the sentencing judge erred in wholly accumulating the Commonwealth aggregate sentence on the State sentence; and

3. whether the sentencing judge erred by not expressly referring to R v Fernando or Bugmy v The Queen, to the effect he had failed to have regard to relevant mitigatory considerations.

The Court held (per Campbell J, Kirk JA and N Adams J agreeing), dismissing the appeal:

As to Issue (1):

Being without legal representation is a disadvantage and not a privilege, and leave would not ordinary be granted merely because a party is self-represented. However, the applicant’s Notice of Intention to Appeal expired while he was represented (for the limited purpose of obtaining advice as to the merits of the application for leave to appeal), and the applicant had been unaware that no application had been made to preserve his position. Leave to appeal granted.

As to Issue (2):

The sentencing judge was alive to the complications which flowed from imposing separate State and Commonwealth sentences at the same sitting and followed the guidance in Director of Public Prosecutions (Vic) v Swingler [2017] VSCA 305; 269 A Crim R 526, and Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; 270 A Crim R 556. There was no obligation on the sentencing judge to import a degree of concurrency between the State and Commonwealth offences. Given the nature of the State offending was different to the Commonwealth offending (where the emphasis is not on the contact per se, but rather the “very fact of failing to comply with the requirements of the [CPOR Act]”: Bisiker v R [2022] NSWCCA 110 (per Kirk JA at [23]-[25]), cumulation was an appropriate and available approach to address the respective criminality involved.

As to Issue (3):

The sentencing judge had regard to the applicant’s subjective circumstances and fully accepted that those matters operated in mitigation in particular to reduce the applicant’s culpability to a certain extent. It was unnecessary to refer to the relevant authorities when neither the applicant nor the Crown referred to them in their oral or written submissions, and in any event, it is evident that the sentencing judge in his reasons correctly applied the principles derived from those authorities. The total effective sentence passed was necessarily stern to reflect the Commonwealth Parliament’s intention in enacting Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth).

JUDGMENT

1. KIRK JA: I agree with Campbell J.

2. CAMPBELL J: The applicant seeks to appeal from the sentence passed on him in the District Court of New South Wales on 13 December 2022 by his Honour Judge Coleman SC (as his Honour then was).

3. The applicant was sentenced for one State offence contrary to s 17(1) Child Protection (Offenders Registration) Act 2000 (NSW) (“CPOR Act”) and two Commonwealth offences respectively contrary to ss 474.22(1) and 474.22A(1) Criminal Code (Cth). The applicant had pleaded guilty to all three offences at the earliest opportunity in the Local Court. The maximum penalty for the State offence is imprisonment for five years, while the maximum penalty for each of the two Commonwealth offences is 15 years imprisonment. By dint of s 16AAB Crimes Act 1914 (Cth), a mandatory minimum head sentence of four years applies to each Commonwealth offence because the applicant has a previous conviction for child abuse offences.

The Offences

4. The charges to which the applicant pleaded guilty were particularised in the following terms (AB 50):

1. Count 1: Between about 9 July 2020 and 3 June 2021 at West Tamworth in the State of New South Wales and elsewhere, did, without reasonable excuse, fail to comply with his reporting obligations under the [CPOR Act], in that he failed to report the name, date of birth and address of a child (or other means of contacting the child) with whom he had contact.

2. Count 2: Between about 24 May 2021 and about 25 May 2021 at West Tamworth in the State of New South Wales and elsewhere, did, using a carriage service, solicit material, the material being child abuse material.

3. Count 3: On or about 3 June 2021 at West Tamworth in the State of New South Wales and elsewhere, did possess or control material, being child abuse material, in the form of data held in a computer or contained in a data storage device, and used a carriage service to obtain or access that material.

Sentences Passed

5. It was common ground that by his plea of guilty to the offences, the applicant was entitled to a 25% discount on his sentence under s 25D(2) Crimes (Sentencing Procedure) Act 1999 (NSW) for the State offence, and under s 16A(1)(g)(iii) Crimes Act (Cth) for the Commonwealth offences: Xiao v The Queen (2018) 96 NSWLR 1; [2018] NSWCCA 4.

6. The sentencing judge sentenced the applicant as follows (AB 47; Sentencing Judgment (“SJ”) 16):

“Mr Woods, for the offence of failing to report, you are convicted and the sentence I impose, after the 25% discount, is a term of imprisonment of 12 months. That sentence will commence on 4 June 2021 and expire on 3 June 2022.

For the offence of use a carriage service to solicit child abuse material, you are convicted and the indicative sentence I impose, after the 25% discount, is a term of imprisonment of three years. For the offence of possess child abuse material you are convicted and the indicative sentence I impose, after the 25% discount, is a term of imprisonment of three years.

For the Commonwealth offences, I impose an aggregate term of imprisonment of four years. The sentence will commence on 3 June 2022. I set a non-parole period of two years and six months and the first date you will be eligible for release to parole will be 2 December 2024. The balance of term will expire on 2 June 2026.”

7. The applicant was arrested on 3 June 2021 and remained in custody bail refused for a period of one year, six months and nine days until he was sentenced on 12 December 2022. The sentencing judge had determined that it was appropriate to backdate the State sentence to commence on 4 June 2021, to the effect that it had already been served during the applicant’s time on remand. The Commonwealth aggregate sentence was wholly accumulated on the State sentence and commenced on the day that fixed term of imprisonment expired. The total effective sentence was one of five years, with a total non-parole period of three years and six months.

Grounds of Appeal

8. The applicant was self-represented in these proceedings and his Notice of Appeal did not annex a standalone document setting out the grounds on which he appealed against the sentence. Instead, he filed a two-page document styled “Appeal Submissions” (“AS”) containing two grounds articulated by counsel for the Commonwealth Director of Public Prosecutions (“CDPP”) in written submissions in the following terms, confirmed by the applicant on the day of the hearing as capturing the grounds that he wished to put before this Court (AB 11-12; AS [8]-[9]; T5.9):

1. The sentencing judge erred in sentencing the applicant with Commonwealth and State sentences to be served consecutively rather than apply a period of concurrency.

2. The sentencing judge erred in sentencing by not applying the principles found in Fernando Bugmie (sic) [R v Fernando [2002] NSWCCA 28 and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37]. These principles were absent from sentencing considerations.

Extension of Time

9. The applicant requires an extension of the time limited by r 3.5(2)(a) Supreme Court (Criminal Appeal) Rules 2021 (NSW) as his Notice of Appeal seeking leave to appeal against his sentence was not filed until 2 May 2024, more than four months after his Notice of Intention to Appeal (“NIA”) filed on 21 December 2022 had expired. Accordingly, he requires leave under r 3.5(5) of the Rules to make his application for leave to appeal.

10. Mr A Chhabra of counsel, who appeared with Mr A Schatz for the CDPP formally opposed leave but acknowledged some leeway may be appropriate because the applicant was self-represented. He did not object to the Court having regard to the matters raised by the applicant informally in appeal submissions dated 2 May 2024 and orally on the hearing.

11. In essence, the applicant said that when the NIA expired, he was still awaiting “further advice”. In oral submissions the applicant said the merits advice required by Legal Aid was not received until “mid to late December 2023” (T4.20). He requested “additional information and assistance” which was not forthcoming until February 2024. He was unaware that an application for an extension of the NIA had not been made.

12. It is well-accepted that being without legal representation is a disadvantage not a privilege (Gallo v Dawson [1990] HCA 30; 93 ALR 479); and self-represented parties have the same obligation to comply with the rules as represented parties. I would not grant leave to make the application merely because the applicant is self-represented. However, it appears that the NIA expired while the applicant was represented at least for the limited purpose of obtaining advice as to the merits of the application for leave to appeal against sentence. I would accept that he was unaware that no application had been made to preserve his position while he was finalising the exploration of his entitlement to legal aid. I would infer he relied on his then lawyers to properly protect his position in relation to the proposed appeal proceedings. Given the CDPP’s, at most, merely benign opposition, I would accept that the applicant’s explanation is (just) satisfactory and would grant leave for the application for leave to appeal to be made under r 3.5(5) of the Rules.

The Facts of the Offending

13. An agreed statement of facts was tendered in the proceedings on sentence and was summarised by the sentencing judge in his reasons (AB 33-35; SJ 2-4). For the purpose of this appeal, I will provide my own summary of the salient features of the offending taken from the sentencing judge’s reasons and the statement of facts.

Count 1

14. By reason of previous convictions, the applicant is a “registrable person” under s 3A CPOR Act. In November 2019 the applicant signed a notice issued to registrable persons in respect of his obligations under the Act, and in March 2021 he updated his employment details on the form issued under that Act.

15. In June 2020 the applicant met the victim through his sister. The victim was 15 years of age at the time. The applicant and victim had been in each other’s and others’ company on four or five occasions.

16. In May 2021, the applicant sent a message on Snapchat with words to the effect that the victim should leave the room, go to the bathroom, and lift up his shirt. The applicant then sent a photograph of himself lying shirtless on the bed. As further described below (at [18]), the applicant communicated with the victim on Snapchat on 24 and 25 May 2021. In July 2021, he sent a friend request to the victim on Facebook.

17. In the period between 9 July 2020 and 2 June 2021, contrary to s 17(1) CPOR Act, the applicant failed to comply with his obligations to report the relevant personal information, namely, the details of a child with whom he had contact, including exchanging contact details with the child and attempting to befriend the child.

Count 2

18. On 24 May 2021, the applicant sent a series of messages to the same victim including a request that he send a “dick pic” to the applicant. The victim refused and stated “I’m only 15 years old”. On the next day, the applicant sent further messages (which were opened in the presence of the victim’s mother and her friend), inciting the victim to show him his body and to go into the bathroom; and asking whether he wanted to “see [the applicant’s] dick quickly”. When denied, the applicant sent a message to the effect of “I am sorry for asking what I asked. It won’t happen again”.

Count 3

19. Police examination of the applicant’s mobile device revealed 87,000 downloaded images and 5,000 downloaded videos from which police identified 80 images and two videos depicting category 1 child abuse material, and seven images depicting category 2 child abuse material.

20. It is convenient at this juncture to record that the applicant at the time of the offending was on conditional bail for an offence of failing to comply with his reporting obligations. As alluded to at [3] above, he also had prior convictions for: using a carriage service to send indecent material to a person under 16 years of age; using a carriage service to solicit child pornography; and, incidentally, drink driving. The applicant was convicted of the offence of using a carriage service to send indecent material but was ordered to be released without passing sentence upon entering into a recognizance. As to the offence of using a carriage service to solicit child pornography, he was convicted and sentenced to imprisonment for eight months.

The Applicant’s Subjective Case

21. The applicant was 27 years old at the time of offending and was 29 when sentenced. He is the older of two children born of his parents’ marriage. The applicant’s parents divorced when he was four years old, after which he resided with his father and visited his mother every few weeks. The applicant struggled at school and was frequently suspended. He was expelled in early high school for fighting and transferred to a behavioural school where he completed Year 12.

22. In his interview with Ms Godbee, a forensic psychologist whose report was tendered in his case, the applicant reported being subjected to three sexual assaults. First, at the age of seven, he was sexually assaulted by his mother’s boyfriend’s brother. The abuse progressed from touching to oral sex and ultimately anal penetration. Secondly, when he was approximately 14 years old, he was sexually assaulted over the course of a year by a local photographer who he had been working for. The applicant and his friend were modelling for the photographer, who would take nude photos of the pair, and eventually, instruct them to perform sexual acts on each other. Finally, the applicant experienced further sexual abuse while in custody at Parklea Correctional Centre in his mid-twenties.

23. At the time of offending the applicant was heavily abusing polysubstance to the extent of using heroin almost daily in the six months prior to the offending. He began consuming alcohol at the age of 15, which increased to as much as 20 drinks per week when he began working in pubs at the age of 18. In 2020, he began using cocaine and ecstasy every day or two to cope with his deteriorating mental health. He was also abusing pain medication, namely, Endone, morphine and fentanyl, that he had been prescribed.

24. The applicant had a complex medical history and suffered from a number of physical injuries and illnesses, including coeliac disease, pre-diabetes, fatty liver, hypomagnesemia (a disease affecting his kidney function), and a tumour on his spine. As to his mental conditions, the forensic psychologist opined that the applicant appeared to have post-stress traumatic disorder from the sexual abuse of which he was the victim, generalised anxiety disorder and low mood in custody. The sentencing judge observed (AB 41; SJ 10):

“I note that the trauma suffered by the offender during his childhood at the hands of his abusers has resulted in those mental health conditions and these require treatment, and I do consider these matters are relevant to the offender’s moral culpability for the offending.”

Submissions at First Instance

25. I interpolate for the purpose of Ground 2, it is important to record that neither counsel for the applicant nor the Crown referred to R v Fernando or Bugmy v The Queen in their oral or written submissions.

Submissions for the applicant

26. In written submissions on sentence (“AWSS”), counsel for the applicant emphasised the paramountcy of the consideration of the need for rehabilitation so as to avoid the risk of recidivism identified by the forensic psychologist (AB 8; AWSS [47]). Counsel contended that the applicant’s traumatic childhood (see [22]-[23] above) and the forensic psychologist’s opinion that the applicant had “good insight into… his need for mental health intervention” (AB 211; AWSS [32]) ought to be considered when assessing his moral culpability. Further reliance was placed on the applicant’s constellation of physical injuries (see [24] above) to the effect that his experience in custody would be more onerous than the typical inmate (AB 211; AWSS [33], [48]).

27. In making an application for a reduced or single non-parole period, counsel submitted (AB 213; AWSS [48]-[49], [51], [53]):

“[48] It is submitted that the purposes of sentencing of general and specific deterrence can still be achieved irrespective of reducing the length of a non-parole period to be served by the offender. A reduction of the non-parole period would take into account the onerous nature of imprisonment on this offender because of his physical injuries.

[49] The offender submits that taking into account the principle of totality would cause the Court to depart from the presumption of cumulation in favour of partial concurrency of sentences.

[51] The offender further submits that the Court could impose a single non-parole period for the Commonwealth offences with a lengthy period to be served on parole under supervision so as to promote the offender’s rehabilitation to avoid further offending.

[53] It is submitted that, bearing in mind the period already spent in custody, and a lengthy period to be spent on parole, the Court could consider releasing the offender to parole following a brief further period of time in custody”.

28. For the State offence, counsel argued a relatively short, fixed term of imprisonment up which the Commonwealth sentences could be partially or wholly accumulated was appropriate. Counsel said that while the State and Commonwealth sentences had to be determined separately, the application of the totality principle permitted the sentencing judge to structure the total effective sentence appropriately with regard to concurrency and accumulation. Indeed it was put that the factors informing the Commonwealth offending permitted a high degree of concurrency to be incorporated in their structure. Counsel accepted the Crown assessment of objective seriousness as falling at the lower end.

Submissions for the Crown

29. The Crown submitted that “no sentence other than an immediate term of imprisonment on each charge” was appropriate, and contended for a degree of cumulation between all charges so as to reflect (i) the distinct and different forms of offending; and (ii) the presumption in favour of cumulation under s 19(5) Crimes Act (Cth) between the Commonwealth offences (AB 77; Crown Submissions on Sentence (“CWSS”) [4]). While the Crown accepted that the offending fell under the lower end of objective seriousness (CWSS [4]), it was submitted that the mandatory sentencing regime under ss 16AAB and 16AAC Crimes Act (Cth) remained relevant. Counsel referenced the Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) (AB 81; CWSS [10]):

“The mandatory minimum sentencing scheme and increase in maximum penalties are reasonable and necessary to achieve the legitimate objective of ensuring that the courts are handing down sentences for Commonwealth child sex Offenders that reflect the gravity of these offences and ensure that the community is protected from child sex Offenders. Current sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further sexual abuse of children.”

30. As to the applicant’s subjective circumstances, the Crown contended that the principles established in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 were inapplicable given the absence of any realistic causal link between the applicant’s mental health conditions and his offending (AB 56; CWSS [30]). Notwithstanding, the Crown accepted that imprisonment has been, and will continue to be, more onerous for the applicant particularly “due to his serious physical conditions and to a lesser degree, his PTSD” (AB 86; CWSS [32]).

31. To the same effect as submissions on behalf of the applicant, the Crown argued that while each of the State offence, on the one hand, and the Commonwealth offences, on the other, were required to be sentenced separately, subject to the respective State and Commonwealth legislation, overall structure including aspects of concurrency and accumulation were a matter for the judge. Neither counsel put an erroneous argument that it was essential that the sentences for the Commonwealth offences be wholly accumulated on the State sentence.

The Reasons for Sentence

32. I do not propose to summarise the whole of the sentencing judge’s reasons for sentence. I have already summarised his Honour’s findings in relation to the nature of the offending and the salient features of the applicant’s subjective case. I propose to focus upon the matters relevant to the two grounds of appeal.

33. I should say, however, that not everything in the forensic psychologist’s report of Ms Godbee was favourable to the applicant and in particular his Honour accepted Ms Godbee’s assessment that when discussing his offending to her, the applicant had offered “several minimisations” to the effect that the agreed facts “made it look worse than it was” and that “sending… photos is not as problematic as planning to meet children in person” (AB 41; SJ 10). His Honour found that Ms Godbee was of the view that the minimisation impacted upon the applicant’s willingness to engage in offence-specific interventions. In his affidavit read on the usual basis the applicant seeks to demonstrate that Ms Godbee’s reservations have not been substantiated as he has engaged in appropriate courses made available to him in custody, but these matters, of course, are only available in the event of resentencing.

34. On a related point, Ms Godbee quantified the risk of recidivism using the Static-99R Assessment tool. The applicant’s results placed him in the well-above-average risk level for being convicted of another sexual offence. This concerning assessment of risk is partly informed by the applicant’s continuing substance abuse issues and his then apparent resistance to intensive treatment. His Honour’s acceptance of this evidence supported the finding that the applicant’s prospects of rehabilitation are “at best, guarded” (AB 42; SJ 11). This finding has particular salience for the purpose of s 16A(2AAA) Crimes Act (Cth) requiring a court to have regard to the objective of rehabilitating a person sentenced for any Commonwealth child sex offence.

Reasoning Relevant to Ground 1

35. His Honour observed that the sentencing task before him in the applicant’s case involving the necessity to sentence for a State offence and two Commonwealth offences at the same time was “not without difficulty” (AB 35; SJ 4); especially having regard to the different statutory regimes and the need to have regard to principles of totality, accumulation or concurrency. His Honour referred to Director of Public Prosecutions (Vic) v Swingler [2017] VSCA 305; 269 A Crim R 526 at [63]-[89]. A relevant complexity referred to by that unanimous Court of Appeal of the Supreme Court of Victoria was s 19AJ Crimes Act (Cth) which provides that a court is not authorised to fix a single non-parole period, inter alia, in respect of both Federal sentences of imprisonment and State or Territory sentences of imprisonment. His Honour again referred to the “some considerable complexity” attending passing sentence for both Commonwealth and State offences at the same sitting given the different statutory regimes (AB 42; SJ 11). His Honour said the following (AB 44; SJ 13ff):

“It has been recognised by appellate courts throughouts Australia the very real difficulties in reconciling principles that govern orders for accumulation and concurrency in relation to sentencing combining State and Commonwealth offences. There have been a number of approaches recommended.”

His Honour again referred to Swingler at [63]. His Honour continued:

“I propose first to deal with the State offence and then the Commonwealth offences. This will enable me to set a single non-parole period pursuant to s 19AV of the Crimes Act (Cth) against the background of non-parole periods for sentences imposed for the State offence.

I intend to impose an aggregate sentence for the Commonwealth offences. This does not mean accumulation is no longer relevant.”

36. His Honour referred to Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; 270 A Crim R 556 where, on a successful Crown appeal, the majority of this Court sentenced the offender for a State offence and a number of Commonwealth offences, structuring the sentence so that the single non-parole period in respect of the Commonwealth offences was accumulated on the state non-parole period to commence at the conclusion of the State non-parole period.

37. His Honour also said (AB 45; SJ 14):

“I have considered the principle of totality and accumulation, and there is a degree of accumulation and concurrency to be applied. In doing so, I must avoid a crushing sentence. It is therefore my intention to impose two sentences, the first with respect to the State offence and the second an aggregate sentence with respect to the Commonwealth sentence in accordance with s 19 of the Crimes Act (Cth). The Commonwealth sentence will commence at the expiration of the State offence sentence.”

38. His Honour accepted the submissions of counsel for the applicant and for the Crown that the objective seriousness of each of the State and Commonwealth offences fell at the lower end of objective seriousness for offending of the type in question.

39. There was some attention paid at the hearing of the appeal to comments his Honour made about special circumstances, although no ground of appeal concerns itself specifically with that matter. His Honour first said, with respect, correctly, (AB 43; SJ 12), “With respect to the Commonwealth matters, there is no requirement to identify a specific ratio between any non-parole period I set and the balance of the term of the sentence”. His Honour made further comment about the principle governing the fixing of the minimum sentence to be actually served in full time custody. However, his Honour also went on to say that he had regard to the offender’s traumatic childhood and the resulting mental health concerns which impact upon him and require treatment. He also referred to the physical medical conditions which beset the applicant. He added (AB 47; SJ 16):

“I consider that these matters will make his time in custody more onerous, and I will take this into account as special circumstances impacting the ratio of the non-parole period to the balance of terms.”

40. Given his Honour’s clear recognition of the obvious that there is no statutory ratio governing the relationship between the non-parole period and the balance of the sentence established by the Crimes Act (Cth), his Honour’s statement in that regard must have been applicable to the State offence. A fixed term of imprisonment is taken to be referrable to the non-parole period that would have been imposed had an additional term also been fixed. The factors referred to by his Honour may be taken, inter alia, as referrable to the setting of the fixed term for the State offence which was relatively short having regard to the applicant’s record of similar offending. Were I wrong about this, the factors to which his Honour referred were of course equally relevant to fixing the length of the sentence separately required in respect of each of the State offence and the Commonwealth offences.

Reasons relevant to Ground 2

41. Dealing with the reasons relevant to Ground 2, as I have said, I have summarised the evidence accepted by his Honour to support his primary factual findings above. In particular, his Honour made positive findings about the trauma of the offender’s exposure to child sex abuse as a victim, and the resulting mental health conditions which “require treatment” (AB 41; SJ 10). Specifically, and distinctly his Honour said “I do consider these matters are relevant to the offender’s moral culpability for the offending” (see [24] above). I acknowledge that no express reference was made to Fernando, Bugmy, or De La Rosa. But the only inference open is that his Honour regarded the combination of factors to which he referred as being relevant to the offender’s moral culpability to the extent to which they attenuated or reduced it, operating in mitigation of the sentences which would otherwise have been passed. In this regard one should not overlook the second passage I have extracted (at [39] above) where his Honour referred to special circumstances, and again, the combination of the offender’s traumatic childhood and resultant mental health concern, as well as his physical medical conditions. Again, the context of his Honour’s statement makes it clear those matters were operating in mitigation of the sentence that would otherwise have been passed.

Submissions on Appeal

Submissions for the applicant

42. Without intending any disrespect, the applicant’s submissions in writing and orally were very succinct. However, I am of the view that he made his point clearly and concisely. So far as Ground 1 was concerned the substance of his submission was that the learned sentencing judge fell into an error of principle by ruling that the separate sentences for the Commonwealth offending could not be partially accumulated on the State sentence to permit a degree of concurrency between them. If established, this may be categorised as an error of principle.

43. So far as Ground 2 is concerned the applicant’s submission was that because his Honour failed to refer expressly to, in particular, Fernando and Bugmy he made an error of principle by failing to apply those authorities; and having regard to the evidence before him, failed to have regard to relevant mitigatory considerations.

Submissions for the Crown

44. Mr Chhabra submitted that it was clear from the whole of the sentencing judge’s statements with regard to questions of totality, concurrency and accumulation that he did not fall into the error of ruling that the sentence for a Commonwealth offence could not run concurrently with the separate sentence for a State offence passed at the same time either wholly or partially. Counsel also argued that his Honour was alive to the complications that flowed from imposing separate State and Commonwealth sentences of the same sitting. His Honour followed the guidance provided by the cases to which he referred of Swingler and Beattie.

45. There was no obligation upon his Honour to import a degree of concurrency between the State and Commonwealth sentences into the sentence structure adopted and his failure to do so did not constitute error.

46. The nature of the State offending was quite different from the Commonwealth offending and a sentence for one could not adequately address the criminality involved in the other or others. Accumulation was an appropriate and available approach.

47. While the total sentence imposed may be regarded as stern, it was not crushing given the applicant’s previous record for like offending, the seriousness of offending, the relevant guideposts of the minimum and maximum head sentences, the need for general and specific deterrence, protection of the community and the guarded assessment made of the applicant’s prospects of rehabilitation. Conversely there was an appropriate degree of leniency involved in the high degree of concurrency in the structure of the aggregate sentence for the quite separate Commonwealth offences.

48. Turning to Ground 2, counsel referred to Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at [385]-[386] to the effect that it is not open to a party on appeal to complain that reasons are not given for a matter which was not the subject of submissions made to the court at first instance. As neither Fernando nor Bugmy were expressly referred to it was not an error for the sentencing judge not to have referred to them. However, counsel argued that in substance the sentencing judge took these matters of mitigation into account as his Honour did have regard to the evidence of the applicant’s childhood trauma and resulting mental health conditions in an appropriate way. His Honour referred specifically to their effect upon the offender’s moral culpability in a way that made it obvious that he regarded those factors as reducing his culpability for each of the offences.

Ground 1 disposition

49. It is sufficient for present purposes to refer to the statement of the principle of totality as expressed in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (at [45]-[47]) where McHugh, Hayne and Callinan JJ said:

“To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.”

50. In the present case, in my view, the learned sentencing judge properly recognised that questions of cumulation and concurrence were affected by the complexity of the interplay of the different statutory rules governing State sentencing, on the one hand, and Commonwealth sentencing, on the other. But it is clear from his Honour’s careful approach that he had a firm grasp of those complexities, with respect, and certainly did not fall into the asserted error the subject of Ground 1 of regarding himself as precluded from structuring the total effective sentence for the State and Commonwealth sentences passed at the same sitting so as to incorporate a degree of concurrence.

51. I am satisfied that his Honour was well aware he was bound to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality.

52. It is also clear that in structuring the total effective sentence his Honour accepted the submissions made on behalf of the applicant. That is to say, that a relevantly short, fixed term of imprisonment should be imposed for the State offence. And the Commonwealth offences, having regard to the complexity of the Commonwealth legislation governing child sex abuse offences, involving as they do mandatory minimum head sentences, should be structured with a relatively high degree of concurrency. As I have said, the learned sentencing judge acceded to this submission in the sentences he passed and the structure he adopted. Questions of concurrency and cumulation were left to his Honour’s discretion.

50. I am not satisfied that the separate criminality involved in the State offence was covered by the criminality involved in Commonwealth Count 2. Although the period covered by the State offence covered the dates of the offending for Count 2, the conduct was completely different. The whole gravamen of the State offence was the applicant’s failure to report his contact with the victim; not the contact. As Kirk JA observed in Bisiker v R [2022] NSWCCA 110 at [25], the emphasis is not upon the contact per se, but rather the “very fact of failing to comply with the requirements of the [CPOR Act]”.

51. I am not persuaded that any error of principle or otherwise has been demonstrated in his Honour’s approach to fixing the appropriate sentence for each offence or his consideration of the relevant questions of cumulation and concurrence as well as of totality. I would reject Ground 1.

Ground 2 disposition

55. I am not satisfied that Ground 2 has been made out. As I have demonstrated above, his Honour had full regard to the strength of the applicant’s subjective case and made many findings favourable to the applicant on the evidence before him. It was entirely open to his Honour to have reservations about the important questions of the applicant’s degree of contrition and his prospects of rehabilitation. But so far as Fernando, Bugmy, or De La Rosa for that matter, considerations were concerned his Honour had full regard to and fully accepted the applicant’s case that those matters operated in mitigation, in particular to reduce the applicant’s moral culpability at least to some extent for his offending. It was not necessary that his Honour referred to the relevant authorities particularly when they were not cited to him. In any event, from the reasons actually expressed by his Honour it is clear to me that he correctly applied the principles to be derived from those authorities. The sentencing judge did have regard to the mitigatory factors disclosed by the evidence of the applicant’s childhood trauma and resulting mental health conditions in an appropriate way. His Honour referred specifically to their effect upon the offender’s moral culpability in a way that made it obvious he regarded those factors as reducing his moral culpability for each of the offences.

56. It may be observed, as Mr Chhabra acknowledged, that the total effective sentence passed was characterised by a certain sternness. However, there is no doubt that it was the intention of the Parliament of the Commonwealth in enacting the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) that the sentences handed down for the Commonwealth child sex offences, especially for repeat offenders, should be increased to reflect the gravity of these offences and ensure the community is protected from these offenders (see [29] above). This legislative purpose should not be overlooked. I also accept Mr Chhabra’s submission that, so far as there was scope for it, the sentence structure incorporated a degree of leniency into the sentences passed by adopting a high degree of concurrency for the aggregate Commonwealth sentence.

57. I am not satisfied that the grounds of appeal have been made out.

Orders

58. The orders I propose are:

1. Under rule 3.5(5) Supreme Court (Criminal Appeal) Rules 2021 grant the applicant leave to make his application for leave to appeal from the sentence passed on him in the District Court.

2. Grant leave to appeal.

3. Appeal dismissed.

59. N ADAMS J: I agree with Campbell J.

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Decision last updated: 18 October 2024