XZ v R

[2018] NSWCCA 76

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	XZ v R [2018] NSWCCA 76
Hearing dates:	7 March 2018
Date of orders:	30 April 2018
Decision date:	30 April 2018
Before:	Payne JA at [1] Johnson J at [2] Campbell J at [79]
Decision:	Leave to appeal against sentence granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – child sexual assault offences – sexual intercourse with a child under 10 years, then being a person under the authority of the Applicant, contrary to s.66A(2) Crimes Act 1900 – incite a child under 10 years to commit an act of indecency contrary to s.61O(2) Crimes Act 1900 – assault a child under the age of 16 years and at the time of the assault commit an act of indecency contrary to s.61M(2) Crimes Act 1900 – sexual intercourse with a child under 10 years contrary to 66A(1) Crimes Act 1900 – two victims of child sexual assault were the Applicant’s step-granddaughters – additional Form 1 offences with respect to each victim - unrelated firearm offence – possess more than three unregistered firearms including at least one prohibited firearm contrary to s.51D(2) Firearms Act 1996 – aggregate sentence of imprisonment for 15 years and non-parole period of 10 years and six months – claim that sentence manifestly excessive – aggregate sentence reflected totality of Applicant’s serious offending against two young victims over a period of time together with unrelated firearm offence – sentence not manifestly excessive – appeal dismissed
Legislation Cited:	Crimes Act 1900 Children (Criminal Proceedings) Act 1987 Court Suppression and Non-publication Orders Act 2010 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Weapons Prohibition Act 1998
Cases Cited:	Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 Allen v R [2010] NSWCCA 47 DV v R [2017] NSWCCA 276 Essex v R [2013] NSWCCA 11 Ingham v R [2014] NSWCCA 123 Jones v R [2012] NSWCCA 262 KB v R [2015] NSWCCA 220 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 MLP v R [2014] NSWCCA 183 R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159 RJA v R (2008) 185 A Crim R 178; [2008] NSWCCA 89 R v Krstic [2005] NSWCCA 391 R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 Taylor v R [2018] NSWCCA 50 TO v R [2017] NSWCCA 12 Westaway v R [2016] NSWCCA 281 ZA v R [2017] NSWCCA 132
Category:	Principal judgment
Parties:	XZ (Applicant) Regina (Crown)
Representation:	Counsel: Ms S Kluss (Applicant) Mr E Balodis (Respondent)   Solicitors: Ross Hill and Associates (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/296213; 2014/332669
Publication restriction:	Yes - see [3] of judgment.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: --- Citation: --- Date of Decision: 27 March 2017 Before: His Honour Judge Hunt File Number(s): 2014/296213; 2014/332669

Judgment

1. PAYNE JA: I agree with Johnson J.

2. JOHNSON J: The Applicant, XZ, seeks leave to appeal against an aggregate sentence of imprisonment imposed upon him at the Campbelltown District Court on 27 March 2017 with respect to child sexual assault and firearm offences.

3. The Applicant is referred to by letters as he was the step-grandfather of the victims of the child sexual assault offences so that identification of him would tend to identify the child victims: s.578A Crimes Act 1900; s.15A Children (Criminal Proceedings) Act 1987. On 7 March 2018, a non-publication order was made by this Court under the Court Suppression and Non-publication Orders Act 2010 with respect to the Applicant’s name to provide further protection against any publication which might identify the victims.

4. Following pleas of guilty, the Applicant was sentenced by his Honour Judge Hunt to an aggregate sentence of imprisonment comprising a non-parole period of 10 years and six months commencing on 9 October 2014 and expiring on 8 April 2025, with a balance of term of four years and six months commencing on 9 April 2025 and expiring on 8 October 2029.

5. The sole ground of appeal contained in the Notice of Application for Leave to Appeal filed on 14 November 2017 was that the aggregate sentence is manifestly excessive.

The Offences and Indicative Sentences

6. Before moving to a narrative of the offences, the charges, maximum penalties and indicative sentences (fixed for the purpose of s.53A(2) Crimes (Sentencing Procedure) Act 1999)) are set out in the following table. The victims are referred to as Amy and Kate, which are not their real names.

Offence	Maximum Penalty and Standard Non-Parole Period (SNPP)	Indicative Sentence
Count 1 - Between 1 July 2014 and 9 October 2014 having sexual intercourse with Amy, a child under the age of 10 years, namely nine years, she then being a person under the authority of the Applicant contrary to s.66A(2) Crimes Act 1900. Two Form 1 offences were taken into account on sentence for Count 1. Between June 2013 and June 2014, grooming a child (Amy) for sexual activity contrary to s.66EB(3) Crimes Act 1900. Between January and March 2014, committing an act of indecency upon a child under 10 years (Amy) contrary to s.61O(2) Crimes Act 1900.	Life imprisonment - SNPP 15 years	Imprisonment for 12 years - non-parole period eight years
Count 2 - Between 1 January 2011 and 9 October 2014 inciting Amy, a child under the age of 10 years, namely between six and nine years, to commit an act of indecency with the Applicant contrary to s.61O(2) Crimes Act 1900.	Seven years’ imprisonment – no SNPP	Four years’ imprisonment
Count 3 - Between 1 January 2012 and 9 October 2014 assaulting Kate, a child then under the age of 16 years, namely between six and eight years, and at the time of the assault committing an act of indecency contrary to s.61M(2) Crimes Act 1900.	10 years’ imprisonment - SNPP eight years	Six years’ imprisonment, non-parole period four years
Count 4 - Between 1 December 2013 and 9 October 2014, having sexual intercourse with Kate, a child then under the age of 10 years, namely eight years, contrary to s.66A(1) Crimes Act 1900. Three Form 1 offences were taken into account on sentence for Count 4: Between January 2012 and October 2014, grooming a child (Kate) for sexual activity contrary to s.66EB(3) Crimes Act 1900. Between December 2013 and October 2014, indecent assault upon a child under 16 years (Kate), contrary to s.61M(2) Crimes Act 1900. Between December 2013 and October 2014, indecent assault upon a child under 16 years (Kate) contrary to s.61M(2) Crimes Act 1900.	Imprisonment for 25 years - SNPP 15 years	Imprisonment for 12 years - non-parole period eight years
Count 5 - On 9 October 2014, possession of more than three unregistered firearms, one of which was a pistol or prohibited firearm, the Applicant not being a person authorised by a licence or permit to possess those firearms contrary to s.51D(2) Firearms Act 1996. Seven Form 1 offences were taken into account on sentence for Count 5: On 9 October 2014, not keep firearm safely contrary to s.39(1)(a) Firearms Act 1996 (four counts). On 9 October 2014, possession of ammunition without holding a licence contrary to s.65(3) Firearms Act 1996. On 9 October 2014, possession of a prohibited weapon without a permit contrary to s.7(1) Weapons Prohibition Act 1998 (a slingshot). On 9 October 2014, failure to ensure safekeeping of a prohibited weapon contrary to s.32A(a) Weapons Prohibition Act 1998 (a slingshot).	20 years’ imprisonment - SNPP 10 years	Imprisonment for four years and six months - non-parole period of three years

Facts of Offences

7. Statements of Agreed Facts were tendered at the sentencing hearing.

The Child Sexual Assault Offences

8. The Applicant was born in 1949. He is the step-grandfather of the two victims, Amy (born in December 2004) and Kate (born in December 2005). Amy and Kate are sisters. Prior to his arrest, the Applicant resided in a western Sydney suburb with his long-term de facto partner, the maternal grandmother of the victims. Amy and Kate resided at premises in the same suburb with their brother and their parents.

Count 1 - Aggravated Sexual Intercourse with Amy - s.66A(2) Crimes Act 1900

9. One afternoon during the second half of 2014 (when the Applicant was 65 years old), Amy (then aged nine years) visited the home of the Applicant. The Applicant’s de facto partner was at work at the time. Amy was using a computer in the study. The Applicant was also in the room using a separate computer. He turned towards Amy and said “[Amy], can I please put my finger in your fanny?” and she said “Yes”. Amy explained later to police that she did not like upsetting people and she wanted to make the Applicant happy. She got off the chair where she had been sitting and walked towards the Applicant. Amy stood in front of the Applicant who was seated on a chair near his computer. He pulled her pants and underpants down and spread her legs. The Applicant digitally penetrated Amy’s vagina. Amy told the Applicant that this hurt and asked him to stop, but he continued to move his finger around inside her vagina for about 30 to 60 seconds whilst she was fidgeting. He asked her to stay still. She tried to comply, but was unable to do so. When the Applicant finished, Amy went to the toilet. She wiped her vagina with toilet paper and noticed that there was blood on it. Amy returned to the study and sat down on a chair where she continued to play on the computer. The Applicant told her “I’m sorry if I hurt you”. Some time later, the Applicant’s de facto partner returned from work and Amy was collected by her mother who took her home.

10. On 27 September 2014, Amy disclosed to her mother that the Applicant had put his finger in her vagina. The matter was reported to police and, on 2 October 2014, Amy participated in a recorded interview with police in which she repeated the disclosure concerning the first count.

11. On 9 October 2014, police executed a search warrant at the Applicant’s residence. The Applicant’s wallet was searched. Located inside the wallet was a handwritten note which read:

“I like Pop licking my fanny and rubbing my fanny I like sucking Pops dick XOXO I want Pop to fuck me one day XOXOXO I like Pop doing his bud and I like seeing his Dick XOXOXO.”

12. There were ticks next to various parts of this handwritten note.

13. The Applicant was interviewed by police on 9 October 2014. He accepted that he had committed an offence or offences against Amy, but when pressed about her disclosure, he showed some reluctance to accept all the details. The Applicant blamed Amy in a number of respects. He claimed that the note was written by Amy and denied abusing anyone other than her.

14. On 14 October 2014, Amy was reinterviewed by police in relation to the handwritten note located in the Applicant’s wallet. She denied writing any letters or notes to the Applicant. When shown a copy of the note, Amy told police that it had been written in the handwriting of her sister, Kate, and that she had seen Kate write the note and give it to the Applicant towards the beginning of 2013.

Count 2 - Incite Amy to Commit Act of Indecency - s.61O(2) Crimes Act 1900

15. In the interview with police on 9 October 2014, the Applicant stated that he had used a “vibrating thing” on Amy between January 2011 and October 2014. He told Amy to put it on her vagina and said “You might like it”.

Form 1 Offences Concerning Amy Taken Into Account on Sentence for Count 1

16. Between June 2013 and June 2014, the Applicant played a video to Amy which depicted people kissing and he told her that he “used to do this kind of stuff” with Kate (Form 1 s.66EB(3) offence of grooming a child (Amy) for sexual activity). The Applicant also showed Amy a video in 2013 which the Applicant had secretly recorded in the study. The video depicted Kate playing with the Applicant’s penis underneath the Applicant’s desk. This video was not recovered during the execution of the search warrant by police.

17. On one occasion between the beginning of January 2014 and the end of March 2014, when Amy and the Applicant were alone in the study, the Applicant told her that he wanted to show her something. When she looked towards him, he pulled down his pants and showed her his penis which looked small and soft (Form 1 s.61O(2) offence of committing act of indecency with child under 10 years). Amy turned her head and looked away when the Applicant exposed himself to her.

Form 1 Offences Concerning Kate Taken Into Account on Sentence for Count 4

18. In light of the information provided by Amy, police interviewed Kate on 15 October 2014.

19. Kate informed police that the Applicant had showed her videos on his computer which depicted “rude stuff” whilst she was alone with him in the study at his home and that she did not want to watch. He did this a few times between 2012 and 2013 until she told him that she did not want to do this anymore and the Applicant became upset. The videos depicted males and females who would get undressed and show each other their body parts and touch each other all over their bodies including their “rude parts”. The door of the study was always closed when the Applicant showed the videos to Kate (Form 1 s.66EB(3) offence of grooming a child for sexual activity).

20. Kate disclosed that the Applicant had made her touch his penis (his “rude part” or “doodle”) once when she was eight years old. The Applicant was sitting on a chair in front of his computer in the study and Kate was also in the room playing with a separate computer. She went under the desk to grab something which she had dropped and the Applicant said “While you’re under there touch my doodle”. Kate declined to do this, but the Applicant insisted and repeatedly told her to do it and eventually she did. Kate touched the Applicant’s penis with her hands which she said was “gross”. The Applicant told Kate to move her hand up and down his penis as she held it and she did so for a short period before she stopped and moved away (Form 1 s.61M(2) offence of indecent assault upon a child under 16 years).

21. Kate was shown a copy of the handwritten note (see [11] above) and was asked whether she had written it to which she replied “I think so”.

22. When asked who made the ticks on the handwritten note, Kate said “I think it was me or Pop [the Applicant]”. She stated that the Applicant had told her what to write in the note and that she did not know what the sentences meant. She gave the note to the Applicant after she had written it and she saw him place it in his wallet.

23. She disclosed that the Applicant had licked her vagina with his tongue once in his study when she was seven or eight years old (Form 1 s.61M(2) offence of indecent assault upon child under 16 years).

Count 3 - Aggravated Indecent Assault of Kate

24. On an occasion between January 2012 and October 2014, when Kate was aged between six and eight years, whilst they were in the Applicant’s study, he moved her underwear to the side and rubbed her vagina for about two seconds.

Count 4 - Sexual Intercourse with a Child Under 10 Years (Kate)

25. Between December 2013 and October 2014, the Applicant asked Kate to suck his penis when they were together in the study alone on a weekend. Kate was eight years old at the time. She had dropped a toy on the ground and went under the desk to retrieve it. She sucked the Applicant’s penis for a short period whilst she was under the desk retrieving the toy. She said that it made her feel wrong and she stopped when her mother came in to tell her that dinner was ready. At that time, she got up and ran out of the room. Her mother could not see what had been happening because the Applicant’s back was to the door.

26. Kate told police that she did not disclose the Applicant’s offending because she was scared.

27. When approached in November 2014 by police to be interviewed concerning Kate’s allegations, the Applicant exercised his right of silence.

The Firearms and Weapons Offences

28. When police searched the Applicant’s house on 9 October 2014, they asked him whether he had anything at the premises which he wanted to declare. The Applicant informed police that he had three or four unregistered firearms which had been in his possession for a number of years. He indicated that they were wrapped in a blanket under the bed in the master bedroom which he occupied. Police seized the following items:

1. an eight millimetre Mauser calibre Wilhel Gustloff (German) Model 98 repeating bolt-action rifle which was in working order – the internal box magazine had the capacity to hold 5 x 8mm Mauser calibre cartridges;

2. a .22 short calibre Winchester model 58 single-shot bolt-action rifle which was not in working order;

3. a .243 Winchester calibre Sako VL63 Finnwolf repeating lever-action rifle with a Nikko Stirling 3x9x40 telescopic sight attached – the firearm was in working order;

4. a .455 Webley calibre Orbea Hermanos (Spanish) six-chamber revolver which was not in working order;

5. a Marskman USA slingshot which was in working order;

6. a disassembled Barnett crossbow which did not fall within the definition of “prohibited weapon” because it was disassembled.

29. The three rifles referred to at [28] (a)-(c) above were “firearms” and the revolver at [28](d) was a “pistol” for the purposes of the Firearms Act 1996.

30. A green canvas bag (which contained the firearms) also contained a brown wooden rifle stock, a rifle cleaning kit, a bolt-action for the rifles, 38 crossbow bolts (of unknown manufacture), 119 lead shots for the slingshot and a variety of items of ammunition of different calibres for several types of firearms.

31. During an interview with police on 9 October 2014, the Applicant admitted owning all the weapons and provided a range of explanations for acquiring them. He said that he had owned the items for a long period of time, having acquired them in different ways. He said that he had a “passion for firearms”. He said that he was aware of the requirement to store firearms inside a safe and that he did not have a safe in his premises.

Arrest of the Applicant

32. The Applicant was arrested on 9 October 2014 and was refused bail. He remained in continuous custody after that date.

The Applicant’s Subjective Circumstances

33. The Applicant was aged between 62 and 65 years of age at the time of the offences. He was 67 years old at the time of sentence.

34. The Applicant had no prior criminal history.

35. At the time of the commission of the offences, the Applicant was in receipt of a disability support pension for diabetes and related health difficulties.

36. A presentence report dated 29 September 2016 was tendered at the sentencing hearing. Tendered in the defence case on sentence were reports of Dr Stephen Allnutt, psychiatrist, dated 10 November 2016 and Ms Amanda White, psychologist, dated 7 December 2016. In addition, Justice Health records concerning the Applicant’s treatment and management in custody were tendered.

37. The Applicant did not give evidence at the sentencing hearing.

38. The sentencing Judge recounted the Applicant’s subjective circumstances in a manner which did not come under challenge in this Court (ROS21-22):

“The offender was the eldest of six children to parents who provided him, on his report to Dr Allnutt, with a ‘loving and supportive familial environment without any exposure to domestic violence, sexual abuse or physical violence’. Uneventfully, the offender reached year 9 at high school without any behavioural issues after some early employment as a teenager. After leaving school the offender was self-employed as an engineer from that time until he retired in 1992. He retired as a result of his disability, his diabetes then causing him difficulties even at that early stage. He revisited employment in the early 2000s and then proceeded, after some years, to accept the disability pension.

The offender was married for 17 years between 1972 and 1989. He was thereafter in a lengthy de facto relationship with the grandmother of his victims. That relationship, as I understand it, is now over as a result of these offences.

The offender suffers and has for some years suffered from a number of serious medical conditions. I have had regard to material that has been tendered on his behalf, both a report of Dr Stephen Allnutt, forensic psychiatrist, and a neuropsychological assessment that was conducted at Dr Allnutt’s request by Amanda J White, clinical neuropsychologist, together with some significant extracts from his Justice Health records in relation to his treatment assessment and various admissions to hospital since he has been in custody for these matters since 9 October 2014.

Among other things, across his life he has had open heart surgery and bariatric surgery which at one stage significantly improved morbid obesity that he had suffered from for a long time. He has had two cataract surgeries and teeth surgery. He has had, at least on my calculation, three admissions to different hospitals while he has been on remand in relation to the index offences.”

39. His Honour turned to the Applicant’s sexual history and his prospects for rehabilitation (ROS22-23):

“His sexual prehistory before these offences is unremarkable. He reported two non-consensual sexual events when he was aged 12 and 13, some improper touching of him by a cadet leader and another sexual event that involved a 30 year old woman. Because I have not heard sworn evidence from the offender, I am not in a position to make a finding on the balance of probabilities in his favour that he was sexually abused, but if that was the case, that may explain to some degree the proclivity to offend in this particular way, although it certainly does not excuse it.

In terms of assessing the offender’s prospects for rehabilitation I accept that I need to be guarded in terms of that part of Dr Allnutt’s report (which rests on the offender’s history given to him) given that I have not sworn evidence from the offender himself. Helpfully, Dr Allnutt summarises some of the offender’s medical conditions, which I am prepared to give weight to because I have seen material in the Justice Health records that corroborates that material. As I have said, Dr Allnutt thought it was important to rule out an underlying neurocognitive disorder in regard to the offender’s executive functioning, and that was effectively done by Ms White’s report.

The doctor records, among the medical problems that the offender continues to suffer from is diabetes mellitus, high blood pressure, atrial fibrillation, cardiovascular heart disease, including positioning of a stent as well as a valve defect, peripheral oedema, cellulitis, peripheral neuropathy, cataract problems, obstructive sleep apnoea and, as noted by me earlier, problems with his weight and obesity. Dr Allnutt did not find any mental difficulties that could be seen as creating a causal link with the offending. Relevantly, Dr Allnutt diagnoses the offender as having behaviour consistent, given his offending with [Kate] and [Amy], with a heterosexual paedophilic disorder.

He describes paedophilic disorder as a recognised psychiatric condition for which there is no ‘cure.’ It is a condition that is managed through a sex offender rehabilitation program.”

40. The sentencing Judge considered further the reports of Dr Allnutt and Ms White together with a psychological assessment which accompanied the presentence report which indicated that, as the Applicant was now in his late 60s, “his risk of sexual offending fell within the low range relative to other sexual offenders”. The sentencing Judge assessed the Applicant’s prospects for rehabilitation as being “relatively high provided that the offender makes some full acknowledgement of the difficulties that he has in relation to paedophilia” (ROS24-25).

41. With respect to remorse, the sentencing Judge said (ROS25):

“In relation to the issue of remorse, apart from that which derives from the offender having pleaded guilty, there is some evidence of remorse by the offender in terms of him volunteering details of particular offending that had not previously been disclosed by [Amy]. In the psychiatric assessments of Dr Allnutt and the neuropsychological assessment of Ms White, there are expressions of remorse. Of course less weight can be given to those histories because the offender has not given evidence before me.

It is the case that when the offender made admissions in relation to [Amy], he made some expressions of remorse for harming her and some acknowledgement of the harm that he had likely done to her. The extent to which I place any reliance on that material as an early expression of remorse, is somewhat undercut by (a) the material that suggests that the offender in part blames [Amy’s] character and behaviour for his interactions with her and (b) his failure to disclose that he had been offending against [Kate] at the time. On balance I am prepared to accept that he is remorseful for his behaviour and has some limited insight in relation to the effect it had on these two vulnerable young girls.”

42. The sentencing Judge had regard to the Applicant’s health problems in the following way (ROS28):

“There is material in the custodial records that show that although the offender is being relatively well managed in custody in terms of his various medical problems he walks with the assistance of a frame. There are undoubtedly difficulties which I have observed first hand watching him come into court on another occasion with his mobility, and there is material consistent with him having had one fall in custody, and one assault of him by another inmate which must have been very difficult to resist in circumstances where he was so immobile.

Whist I intend to take into account the offender’s age, his lack of record, his remorse, his prospects of rehabilitation, as part of the general sentencing balancing exercise, I intend to take into account his parlous health together with the fact that this is his first time in custody, in making a finding of special circumstances.

I was invited to do that by Mr Marr, and the Crown did not demur from the notion that this was a proper case to find special circumstances. I find special circumstances on the basis that it is the offender’s first time in custody, and secondly his parlous health. I do not intend to take into account his health difficulties in any other fashion. So it should not be seen that I am involved in the exercise of double counting in that regard.”

Some Further Findings of the Sentencing Judge

43. The sentencing Judge allowed a discount of between 10% and 15% for the Applicant’s pleas of guilty to the child sexual assault offences and a discount of 25% for the Applicant’s plea of guilty to the firearm offence.

44. In light of the submissions made for the Applicant before this Court, reference should also be made to the findings of the sentencing Judge with respect to the objective seriousness of the offences. These findings were not challenged in this Court.

45. With respect to Count 1, his Honour found that the matter fell just below the mid-range of objective seriousness. It was observed that the Form 1 matters to be taken into account on sentence for the first count were both serious offences that were committed on different occasions to the first count itself. His Honour noted that the Form 1 matters necessarily “will place upward pressure on the sentence as it will be necessary to increase the sentence that would otherwise apply taking into account those two matters” (ROS19).

46. With respect to the second count, the sentencing Judge found that it lay at the mid-range of objective seriousness.

47. With respect to the third count (involving Kate), his Honour found that the matter fell just below the mid-range of objective seriousness.

48. His Honour found that the fourth count (concerning Kate) fell at the mid-range of objective seriousness. His Honour found that the Form 1 matters attaching to the fourth count were three serious matters which occurred on different occasions which would “necessarily have an impact in terms of the penalty being increased” than if the fourth count was being dealt with on its own (ROS20).

49. His Honour observed that the firearm offences represented a “further discrete class of offending” (ROS29).

50. In calculating the aggregate sentence, the sentencing Judge rejected a defence submission that it was appropriate to notionally make all sentences in relation to Amy and Kate totally concurrent one with the other. His Honour stated (ROS30):

“I do not think that is a principled approach and I determine in terms of the notional accumulation that there would be some accumulation between each of those offences, although more modest in relation to counts 2, 3 and the firearms offence.”

The Sole Ground of Appeal - Claim that the Aggregate Sentence is Manifestly Excessive

Submissions for the Applicant

51. Ms Kluss, counsel for the Applicant, submitted that the aggregate sentence was manifestly excessive. In support of this submission, reliance was placed upon the findings as to the objective seriousness of the offences. Counsel referred, as well, to other sentencing decisions for offences under s.66A Crimes Act 1900 in support of a submission that such a comparison assisted the Applicant in this case.

52. It was submitted that the indicative sentences on Counts 1 and 4 of 12 years’ imprisonment with an eight year non-parole period placed the sentences in the top 72% of overall sentences which attracted prison sentences for s.66A offences. Reliance was placed, as well, upon several cases referred to in the Public Defenders’ Sentencing Schedule with respect to s.66A offences.

53. It was submitted that the indicative sentence for the firearm offences was at a level that did not reflect the objective criminality of those matters.

54. Whilst acknowledging the gravity of the Applicant’s offences against two young children, it was submitted that the overall sentence was unreasonable or plainly unjust when regard was had to all the circumstances including the Applicant’s poor health.

Submissions for the Crown

55. The Crown submitted that these were serious examples of offences against children which involved aggravating features including the Applicant’s use of the note in his dealings with the children. The Crown pointed to the wide age discrepancy between the Applicant and the two victims and the need for the indicative sentences on Counts 1 and 4 to have regard to the additional Form 1 offences. It was submitted that some degree of notional accumulation was necessary given the fact that there were two victims.

56. The Crown observed that, when considering the aggregate sentence against which the ground of appeal is raised, it is possible to imagine slightly shorter indicative sentences for the first and fourth counts and a greater, but nonetheless principled degree of notional accumulation, to arrive at the same aggregate sentence.

57. It was submitted that the Applicant’s reliance upon other s.66A sentencing decisions must be approached with caution and that there were, in any event, important factors that differentiate the Applicant’s case from other sentences including the fact that there were two victims, multiple offences and other uncharged grooming behaviour of the Applicant.

58. The Crown submitted that the examination of sentence appeals involving s.66A undertaken in TO v R [2017] NSWCCA 12 at [262]-[279] did not support the claim of manifest excess in the present case.

59. With respect to the firearm and weapon offences, the Crown acknowledged that the Applicant’s possession appeared to flow from his interest in those items with there being no evidence of intention to use them for criminal purposes. That said, the Crown referred to the need for appropriate punishment and general deterrence for persons sentenced for possession of firearms: R v Krstic [2005] NSWCCA 391 at [14]; R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43 at 234 [73].

60. The Crown submitted that the aggregate sentence imposed in this case was appropriate given the totality of the Applicant’s criminal behaviour and that it had not been demonstrated that the sentence is manifestly excessive.

Decision

61. It is for the Applicant to demonstrate that the aggregate sentence in this case was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 371 [25].

62. Some of the submissions for the Applicant were directed to the indicative sentences, in particular with respect to the first and fourth counts. The ground of appeal which claims manifest excess relates to the aggregate sentence imposed upon the Applicant. As this Court said in Westaway v R [2016] NSWCCA 281 at [17] :

“Where an aggregate sentence is imposed pursuant to s 53A of the Crimes (Sentencing) Procedure Act, the indicative sentences recorded ‘are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence’ (JM v R [2014] NSWCCA 297 at [40] per R A Hulme J). On an appeal against an aggregate sentence ‘the principal focus … of a ground alleging manifest excess … will be whether the sentence reflects the total criminality’ of the offences (Kerr v R [2016] NSWCCA 218 at [114] per Bathurst CJ referring to JM at [40]).”

63. It must be kept in mind that the indicative sentences on the first and fourth counts took into account significant additional offences on the Form 1 in each case. As the sentencing Judge observed, the Form 1 matters were serious separate offences which had the effect of setting a longer sentence for the primary offences in accordance with the principles in Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 426 [23].

64. In the case of each victim, the Applicant’s offences involved a significant breach of trust committed against young girls. Despite the fact that the Applicant was aged between 62 and 65 years at the time of the offences and had health difficulties, he engaged in a repeated pattern of sexual offending against his young victims: R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159 at 549 [89]. He was an active predatory offender despite his years and there was no sign that the offending conduct was likely to cease if there had not been a complaint by Amy in September 2014 about his behaviour: R v Gommeson at 555 [126].

65. With respect to the level of notional accumulation which gave rise to the aggregate sentence, it was necessary for the sentencing Judge to ensure that the ultimate sentence reflected offences committed against two separate victims: R v Gommeson at 553 [113]-[114].

66. The Applicant showed pornographic videos to each victim in a manner which gave rise to the Form 1 grooming offences. Conduct of this type served to prepare each young victim for sexual activity and involved a type of especially perverse cultivation or seduction: R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at 481 [96].

67. I do not consider that sentencing statistics provide any real assistance to the Applicant in this case. There is a particular difficulty in reliance upon sentencing statistics for child sexual assault offences in determining a ground of manifest excess: DV v R [2017] NSWCCA 276 at [277]. Reliance upon bare statistics is rarely useful and this is particularly so where the statistical comparison involves comparison of indicative sentences as opposed to the aggregate sentence.

68. By reference to the Public Defenders’ Sentencing Schedule, the Applicant sought to rely in particular upon the sentences imposed in RJA v R (2008) 185 A Crim R 178; [2008] NSWCCA 89; Allen v R [2010] NSWCCA 47; Jones v R [2012] NSWCCA 262; Essex v R [2013] NSWCCA 11; Ingham v R [2014] NSWCCA 123; MLP v R [2014] NSWCCA 183; KB v R [2015] NSWCCA 220 and TO v R. A comparison of the present case with these decisions does not assist the Applicant in his claim of manifest excess. Each case differs in material respects from the Applicant’s case.

69. This Court has observed that there is difficulty in identifying a sentencing range for s.66A(2) offences: R v Gavel at 483; ZA v R [2017] NSWCCA 132 at [106].

70. Likewise, I do not think that the Applicant is assisted to any extent by a comparison with the sentencing outcomes in other cases under s.66A. Amongst other things, the present case involves firearm and weapon offences as well as child sexual assault offences, all of which were taken into account for the purpose of the aggregate sentence.

71. It is correct that the firearm and weapon offences in this case were not linked to an intention to use those items for criminal purposes. However, that is not an element of those offences. If such an intention was demonstrated, that would be a serious aggravating feature in itself.

72. This Court has emphasised that the offence under s.51D(2) Firearms Act 1969 carries a maximum penalty of 20 years’ imprisonment with a standard non-parole period of 10 years, reflecting the legislature’s concern for this offence: R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 at 288 [66]. In R v Lachlan, Gleeson JA (Garling J and myself agreeing) said at 288 [68]:

“Subsequent cases have emphasised that the possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. Accordingly sentences imposed for such offences must ‘operate as real disincentives to those otherwise attracted to the illegal position of firearms’: R v Mahmud [2010] NSWCCA 219 at [71] (R S Hulme J; Giles JA and Latham J agreeing). See also R v Howard [2004] NSWCCA 348 at [66] (Spigelman CJ; Grove J and Smart AJ agreeing); Dionys v The Queen at [47]-[48] (Hoeben J; McClellan CJ at CL and Adams J agreeing).”

73. In Taylor v R [2018] NSWCCA 50, with the concurrence of Hoeben CJ at CL and Price J, I said at [59]:

“The offence under s.51D(2) Firearms Act 1996  may be committed in a wide range of circumstances. The issue of public safety is a factor of significance with respect to offences under this section. The purpose of s.51D is not limited to the punishment of criminals who warehouse and harbor illegal firearms. The purpose of the prohibition is broader. It extends to the stockpiling of weapons by persons without any further criminal intent: R v Cromarty(2004) 144 A Crim R 515; [2004] NSWCCA 54 at 531 [86]. This is because of the risk that a stockpile, if vulnerable, may inadvertently feed the market in the illegal supply of firearms: R v Cromarty at 531 [86].”

74. The offender in Taylor v R possessed firearms but with no evidence that they were used for or intended to be used for criminal purposes. That proposition applies to the Applicant in this case as well. It is the possession of more than three firearms (one being a pistol) which gives rise to the Applicant’s offence under s.51D(2). It was necessary that the indicative sentence for the s.51D(2) offence (taking into account, as well, the Form 1 matters) be reflected in a meaningful way in the aggregate sentence imposed in this case. The existence of the s.51D(2) offence constituted a significant factor which distinguished the Applicant’s case from other s.66A sentencing decisions.

75. The sentencing Judge had regard to the objective gravity of the offences and the Applicant’s subjective circumstances and the other purposes to be achieved on sentencing for the purpose of s.3A Crimes (Sentencing Procedure) Act 1999. His Honour had regard to the Applicant’s health problems in passing sentence. The Court should approach sentencing in this case upon the basis that the contemporary statutory regime entrusts and empowers Justice Health to take all necessary steps to provide health services to an inmate such as the Applicant whilst in custody: R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at 171 [125]-[126].

76. The aggregate sentence imposed upon the Applicant was a substantial one, but this reflected his serious offending against two young victims over a period of time together with the unrelated firearm offence for which an appropriate aggregate sentence was to be reached which reflected the totality of the Applicant’s offending.

74. It has not been demonstrated that the aggregate sentence imposed upon the Applicant is manifestly excessive.

75. I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.

76. CAMPBELL J: I agree with Johnson J.

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