AH v R

Count 1

1. When the victim was 9 years old, the applicant exposed his penis to her and told her to kiss it. She did as she was told. He then told her to close her eyes and open her mouth, which she did. He placed his penis into her mouth for a short period before she pulled herself away. The victim's mother was at home at the time, but in another room.
2. The other offences occurred in the applicant's bedroom when he directed the victim to follow him there.

Count 2

1. When the victim was 9 years old, the applicant exposed his penis and began to masturbate in front of her. He asked her to get him a face washer. He then asked her to touch his penis, but she refused and moved away. He ejaculated into the face washer and she left the room.

Count 3

1. This offence occurred in April 2012, when the victim was aged 9, on an occasion when her mother was out. She and the applicant went to his bedroom and got onto his bed. He pulled up her top to expose her breasts and began to kiss her on the stomach and breasts. After a period of time he allowed her to leave the room.

Count 4

1. In December 2012, when she was aged 10, the applicant directed the victim to lie on his bed. He lay beside her and exposed his penis, telling her to kiss it. Instead, she touched his penis for a short period before getting off the bed and leaving the room.

Form 1 offences

1. These offences occurred when the victim was 10 years old, on an occasion when she was at home alone with the applicant. Again, she followed him to his bedroom at his direction. At the doorway he stopped and tongue kissed her for several seconds before she pulled away. She followed him into the room and climbed onto the bed. He pulled her dress up over her face and her shorts down. She said, "No," and left the room.
2. The offending ceased when the victim summoned the courage to tell her mother what had happened. When her mother confronted the applicant, he immediately admitted what he had done.
3. The sentencing judge saw the offence the subject of count 1 as objectively the most serious. Her Honour noted, however, that the act of fellatio was brief, the applicant did not ejaculate, and it was not accompanied by force or threats. The offences of aggravated indecent assault on the Form 1 she saw as less serious than the offences on the indictment but, of course, they had to be reflected in the sentence on count 1. In relation to counts 2 and 3 her Honour noted as an aggravating factor that the victim was under the applicant's authority: s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999. She did not take that factor into account in respect of counts 1 and 4, as it was an element of the offence charged. However, she observed that all the offences were a gross breach of trust by the applicant.
4. As to count 2, her Honour noted that the victim felt able to refuse the applicant's request that she touch his penis. Counts 3 and 4 she described as relatively brief episodes, while noting that they were committed when the victim was 10 years old, considerably short of the upper limit of 16 years for those offences.
5. Generally, her Honour described the offences as "opportunistic rather than premeditated."

Subjective case

1. The applicant is now 42 years old. He has no prior convictions. His subjective case was entirely favourable, and was summarised briefly, but adequately, in her Honour's remarks on sentence.
2. He had previously been married and there is a child of that relationship. There is a 1 year old son from his relationship with the victim's mother, from whom he is estranged. His own family remains supportive of him. He was educated to Higher School Certificate standard, has served in the reserve defence forces, and has a creditable employment history.
3. Her Honour found him to be genuinely remorseful, and to have very good prospects of rehabilitation. She noted the opinion of a psychiatrist, Dr Andrew Ellis, who provided a report, that he was suffering a major depressive episode at the time of sentence. In that report Dr Ellis assessed him at low risk of reoffending, and he was willing to engage in appropriate treatment.
4. Her Honour saw his early pleas of guilty as consistent with his remorse and acceptance of responsibility for his offences, and recognised the utilitarian value of those pleas by a 25% reduction of sentence. Her Honour also found special circumstances, noting that he would benefit from a longer period of supervision on parole after his release from an inevitably lengthy custodial term.

The application

1. Counsel for the applicant, Mr Warwick Hunt, argued four grounds of appeal. Ground 1 challenges her Honour's assessment of the objective gravity of the offences, and ground 3 asserts that her Honour failed to give appropriate weight to the applicant's subjective case. I see these grounds more as arguments in support of ground 4, which is that the aggregate sentence is manifestly excessive, and I shall consider those three grounds together. Before doing so, however, it is appropriate to deal with ground 2, which raises a discrete issue concerning the applicant's good character.

Character

1. The ground is that her Honour erred in finding that the applicant's good character was of assistance to him in the commission of the offences. This requires consideration of s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999, which provides: "(5A) In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence."
2. In the present case, applying that subsection, her Honour found that the applicant's lack of prior convictions was not a mitigating factor on the basis that "his good character was a factor which was of assistance to him in the commission of these offences." However, the basis of that finding is not explained.
3. Mr Hunt submitted that the applicant's good character played no part in his obtaining access to the victim. He was not exercising a role in the community which might have afforded him access to children, such as a teacher, sports coach or pastor. He also contrasted the present case with O'Brien v R [2013] NSWCCA 197, a case involving the sexual abuse of a girl by an offender who had befriended her family. Adamson J, with whom Latham J and I agreed, noted at [25] that he had been a responsible and helpful member of his community, and observed at [39] that he had "used his good character to gain access to the victim and to gain her trust."
4. The Crown prosecutor in this court argued that the finding was open to her Honour, noting the applicant's relationship with the victim's mother, the period of time over which the offences were committed and the breach of trust which they involved. She referred to the following passage from the judgment of Fullerton J, with whom Spigelman CJ and Barr J agreed, in R v PGM [2008] NSWCCA 172, 187 A Crim R 152 at [44] (162-3): "In this case, while his Honour was entitled to take the respondent's previous good character into account, to afford it 'very significant weight,' in my view, failed to recognise the pattern of repeat offending over a period of seven months in the course of an ongoing relationship between the respondent and the child - a relationship which was deliberately fostered by him for his own sexual gratification. Where these features are present a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending, perhaps in the expectation that the child may not see the offending conduct as wrong thereby both avoiding detection and maximising the opportunity for repeated offending, diminishes the mitigating impact of a finding of good character (see R v Kennedy [2000] NSWCCA 527 at [21] and R v ABS [2005] NSWCCA 255 where at [25] Buddin J emphasised that repeat offending in the context of sexual offences deprives on offender of a claim for leniency that might otherwise be available where the offending was spontaneous and only involves an isolated incident)."
5. PGM was decided before s 21A(5A) came into operation, and the decision does not address the particular issue raised by the subsection. The passage from the judgment of Fullerton J remains relevant to an assessment of the significance of good character in child sexual assault cases, and is clearly apposite in the present case. However, it is not relevant to the particular issue raised by subs (5A), which is directed to the question whether an offender's good character facilitated his commission of a child sexual offence.
6. Mr Hunt's argument on this ground should be accepted. Whatever be the ambit of subs (5A), it is not applicable to the present case. Obviously, his relationship with the victim's mother and the trust which that engendered created an environment in which the offences could be committed. It does not appear to me, however, that his good character could be said to have assisted his commission of the offences. This ground is made out.

Manifest excess?

1. Ground 2 having been established, this court's discretion to re-sentence is enlivened. That being so, it is not strictly necessary to decide the remaining grounds. However, it is appropriate to refer to them briefly.
2. Mr Hunt submitted that the aggregate sentence was manifestly excessive, as were the indicated sentences. He argued that each of the offences was in the lower range of gravity of offences of its kind, and challenged her Honour's general observation that all of the offences were "clearly objectively very serious as they involve a child aged only 9 or 10 at the relevant time." Her Honour referred to a victim impact statement made by the victim but said that no such statement was required "to understand the effects of such sexual abuse on young children, as they are well established."
3. In my view, however, her Honour's description of the offences as objectively very serious was no more than a general observation about the undoubted gravity of offending of this kind, whatever the particular incidents of it might be. As I have recorded above, her Honour went on to examine the objective gravity of each offence, noting features of each of them which tended to mitigate its seriousness. As I have said, she characterised the offences generally as opportunistic, while emphasising the gross breach of trust which they certainly involved. It appears to me that her Honour made a careful, and sound, assessment of the seriousness of the offences.
4. Mr Hunt argued that the aggregate sentence failed to give appropriate weight to the applicant's favourable subjective case. There can be no doubt that her Honour had regard to that subjective case and made findings favourable to the applicant, particularly on the issues of remorse and rehabilitation. Mr Hunt noted that her Honour had referred to the depressive illness which the applicant was suffering at the time of sentence, but argued that she had failed to have regard to an observation in the report of Dr Ellis that the applicant felt that he "may have been depressed in mood" at the relevant time, although "this was not as severe or pervasive as his current presentation." Very little can be made of that material. I cannot accept Mr Hunt's argument that it might invoke the principles relating to the bearing of mental illness upon general deterrence enunciated in cases such as R v Engert (1995) 84 A Crim R 67.
5. Finally, Mr Hunt referred to the indicated sentences for counts 2, 3 and 4, and noted that each of those offences could have been dealt with summarily. This was not a matter which had been raised before her Honour. That is a significant factor, although it is not necessarily fatal to the argument: cf Bonwick v R [2010] NSWCCA 177, per Davies J (with whom McClellan CJ at CL and James J agreed) at [44]. However, the status of those terms as indicative sentences should not be overlooked. They are not themselves appellable, although they may be a guide as to whether error is established in the aggregate sentence: JM v R [2014] NSWCCA 297, per RA Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) at [40]. The indicated sentence for count 1 was 8 years with a non-parole period of 6 years, so that it appears that the effect of the other three sentences was to increase the head sentence by 2 years and the non-parole period by 6 months. It is difficult to see how the possibility of those offences being dealt with summarily could have ameliorated that outcome.
6. As her Honour said, count 1 was clearly the most serious of the offences and, in sentencing for it, the matters on the Form 1 were to be taken into account. The other offences, while considerably less seriousness, called for a significant measure of further punishment. As a reflection of the whole of the applicant's criminality, the aggregate sentence was not manifestly excessive.

Lesser sentence warranted?

1. The vital question is whether this court should exercise its discretion any differently: Kentwell v The Queen [2014] HCA 37, 88 ALJR 947. While affording appropriate weight to the applicant's subjective case, the nature of the offences, the age of the victim, the period over which they were committed and the serious breach of trust involved justifies the aggregate sentence of imprisonment for 10 years with a non-parole period of 6 ½ years which her Honour imposed. In my view, no lesser sentence was warranted. In arriving at this conclusion, I have taken into account an affidavit of the applicant read in this court in which he expresses his remorse for his offences and discloses that he is on protection, is undergoing psychological counselling for his depression, is willing to participate in any treatment program available to him in custody and upon his release, and continues to enjoy family support.
2. I would grant leave to appeal but dismiss the appeal.
3. FULLERTON J: I agree with Hidden J.

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