AJ v R

Court of Criminal Appeal (NSW)|2023-04-05|Before: Button J, Hamill J

HEADNOTE [This headnote is not to be read as part of the judgment] On 27 August 2020, AJ (the applicant) (a pseudonym) was sentenced in the District Court, following a late plea of guilty, for eight offences involving child sexual abuse against the applicant's two children. Six of the offences were dealt with substantively. These included three counts of indecent assault against a child under the age of 16, contrary to s 61M(2) of the Crimes Act 1900 (NSW), and three counts of aggravated sexual assault against a person aged between 10-14 years, contrary to s 66C(2). Two further offences, an aggravated act of indecency (contrary to s 61O(1)) and indecent assault against a child under the age of 16, were taken into account on a Form 1. Following the application of a 10% discount to the starting points of the indicative sentences for the applicant's late guilty plea, he was sentenced to an aggregate term of imprisonment of 17 years 11 months, with a non-parole period of 11 years 8 months. Leave to appeal against sentence was sought initially on a single ground: that the sentencing judge erred in indicating sentences pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedures) Act 1999 (NSW) close to the maximum penalties for the offences which led to error in the process of determining the aggregate sentence. An additional ground of appeal was subsequently relied on by the applicant: the aggregate sentence is manifestly excessive by reason of the error outline in the first ground of appeal infecting the aggregate sentence. Both grounds raised an issue regarding the assumed starting points of the indicative sentences imposed at first instance, namely, whether the imposition of starting points so close to the maximum penalty, in particular for counts 1 and 3, was erroneous, such that the aggregate sentence imposed would also be rendered faulty. The Court held (Button J, with Hamill J agreeing), allowing the appeal, quashing the sentence at first instance, and resentencing the applicant to an aggregate term of 14 years imprisonment, with a non-parole period of 9 years: 1. Grounds of appeal attacking aggregate sentences on the basis of proposed errors in indicative sentences that underpinned them are not prohibited by this Court. The statutory system of aggregate sentencing did not intend to change sentencing law in a way that limited the availability of different kinds of appeal against sentence. Davidson v R [2022] NSWCCA 153; PG v R [2017] NSWCCA 179, applied. 1. It was not appropriate for the sentencing judge to adopt starting points only two months short of the maximum penalty for count 1 and count 3. Though the offending itself was serious, the Court did not accept that an instinctive synthesis of all relevant objective and subjective circumstances could have appropriately resulted in starting points so close to the highest available penalty. Young v R [2021] NSWCCA 163, referred to.

JUDGMENT

SIMPSON AJA: I agree with Button J.
BUTTON J:

The simple proposition of the applicant On 27 August 2020, Judge Shead SC sentenced the applicant (known then and now as "AJ", in order to protect victims of child sexual assault) with regard to eight offences. Six were dealt with substantively, two were placed on two Form 1s, and all of them related to sexual offences that he had committed against his natural daughter ("Debbie") and his natural son ("Sam") (pseudonyms). Each of those children suffered from intellectual disabilities (at the least), and were therefore even more vulnerable than children are usually. The offending occurred when they were in the care of the applicant. Undoubtedly, the offending was an egregious breach of trust, and very grave.

The sentence imposed was an aggregate head sentence of 17 years 11 months, with a non-parole period of 11 years 8 months, controversially backdated to the day of arrest, 2 January 2019. Special circumstances were found, and resulted in a ratio between the latter and the former of a little over 65%.
The first table attached to this judgment sets out the counts and the Form 1 offences attached to two of them; a very brief summary of the facts of each offence (taken from the remarks on sentence, in turn based on Crown submissions at first instance); the maximum penalty and standard non-parole period (SNPP) of each offence; the findings by the learned sentencing judge about objective seriousness of each substantive offence; the indicative sentence before application of a 10% discount for the utilitarian value of a late plea of guilty; and the indicative sentence ultimately provided. Details of the individual offences are set out below.
As the table shows, the starting point for count 1 (rounded down) was 2 months less than the maximum penalty (which is well known to be reserved for a matter in the worst class of case: Ibbs v The Queen (1987) 163 CLR 447 at 451-452.
The sentence for count 3, which had no Form 1 offence taken into account, also commenced from a starting point 2 months short of the maximum penalty of 10 years.
Other starting points, it can be seen, approached the applicable maximum penalty, but did not come as close to it: for example, count 4 possessed a starting point of 16 years 11 months, as against a maximum penalty of imprisonment for 20 years.
In this Court, none of the findings made by the sentencing judge adverse to the applicant were impugned on his behalf. They included that the offending taken as a whole was extremely grave; that a significant period of imprisonment was inevitable; that the victim impact statement from Sam showed that the psychological damage that he had suffered was "devastating" and "long-term"; that one must accept that Debbie will suffer "significant and long-term consequences"; that there had been an obvious abuse of positions of trust and authority; and that the offences had been aggravated by their commission in the home of the victims.
It was also accepted that sentencing for the first three counts was complicated by - with respect to Parliament - the obviously anomalous ratio between the SNPP and maximum penalty. Separately, there can be an appeal against the aggregate sentence only, and not the indicative sentences that make up its substructure.
Even so, the following matters were emphasised for the applicant. The applicant was a mature man who had never been convicted of a crime in his life, let alone a sexual offence, and let alone anything remotely as grave as these offences. His good character had been taken into account by the sentencing judge "in the limited way permitted".
Her Honour found that the applicant was "a low to moderate risk of reoffending" and possessed good prospects of rehabilitation.
The applicant had demonstrated "some insight" into what he had done. He had also "expressed some remorse, albeit broad".
The well-known effects of the recent pandemic upon prison inmates were taken into account by way of judicial notice.
The fact that the offences were bound up in the abuse of prohibited stimulants by the applicant, upon which he was dependent, and which seemingly disinhibited him, impaired his judgment, and increased his sex drive, was not taken into account as an explicit mitigating factor. It was, however, taken into account with regard to the question of rehabilitation and recidivism, as I understand the remarks on sentence, in a way favourable to the applicant.
Finally, as the table below shows, the findings of objective seriousness never went beyond "Just above the mid-range".
In those circumstances, the applicant relied upon the following separate but closely related grounds: Ground 1: The sentencing judge erred in indicating sentences pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedures) Act close to the maximum penalties for the offences which led to error in the process of determining the aggregate sentence. Ground 2: The aggregate sentence is manifestly excessive by reason of the error outline in the first ground of appeal infecting the aggregate sentence.
The submission with regard to both of them may be expressed by way of a simple rhetorical question. In all the circumstances (many adverse to, but some in favour of, the applicant) how can it have been correct for the sentencing judge to have chosen two starting points that were two months short of the applicable maximum penalty? If that question cannot be answered satisfactorily, it was said, then the aggregate sentence is founded on an erroneous substructure, if not manifestly excessive, and this Court should exercise the sentencing discretion afresh.

Resisting submissions of the Crown

The Crown submitted that there was no error that should call for intervention. Instead, in written and oral submissions, all of the starting points were sought to be justified, as follows. (Because to my mind the two grounds are bound up with each other, I shall discuss the submissions of the Crown compendiously.)
The sentencing judge was certainly burdened by, and well aware of, the difficulties in sentencing for certain SNPP offences, in particular s 61M of the Crimes Act 1900 (NSW). Citing RS Hulme J in BT v R [2010] NSWCCA 267 at [41], her Honour observed the "absurd relativity" between the maximum penalty and the very high SNPP for cases in the mid-range of objective seriousness.
Using s 61M as an example - where the maximum penalty is 10 years imprisonment, but the SNPP 8 years - the Crown submitted that imposing the SNPP and adopting the usual proportion between head sentence and non-parole period set out in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) would result in the head sentence being 10 years and 8 months imprisonment; a term higher than the maximum prescribed for the offence.
I understood the submission to be that the two highest starting points relative to maximum penalty may be able to be explained by the SNPP set by Parliament, and the effort of her Honour conscientiously to make sense of it, albeit as a guidepost.
Relatedly, it was argued that the applicant had not demonstrated any House v The King (1936) 55 CLR 499; [1936] HCA 40 error with respect to the indicative sentences provided. Serious Form 1 offences needed to be taken into account in sentencing for counts 1 and 4, and clearly had the capacity to increase the length of the sentence to be indicated. Count 3 received the same indicative sentence as count 1, despite the absence of a Form 1, seemingly to reflect her Honour's finding that the objective seriousness of the offence in Count 3 was above the mid-range. The offending in counts 2, 5 and 6 were arguably less serious than that of the other counts, and proportionally lower indicative sentences were provided in an orthodox way.
The applicant's reliance on Young v R [2021] NSWCCA 163, cited by the applicant as analogous, was also criticised by the Crown, as follows.
In Young v R, error was found by this Court in accordance with the first ground of appeal, in that the sentencing judge had incorrectly applied an SNPP that did not, in fact, apply to the offending conduct.
The second ground of appeal (that the indicative sentence imposed led to error in the process of determining the aggregate sentence, based as here on the allegedly inordinate length of some of the indicative sentences compared to the applicable maximum penalty) did not need to be decided. Nor did the contention of manifest excess in the third ground. However, Beech-Jones J (as his Honour then was) expressed a view on the issue, stating at [85] that the indicative sentences for some counts were indeed excessive: [85] In light of the applicant's success on ground 1 is not necessary to address the complaint of manifest excess in ground 3. The same applies to ground 2 although I observe that the process for fixing indicative sentences for sequences 27, 29 and 26 clearly miscarried. Prior to allowance for the applicant's plea the sentences for those offences were either close to or at the maximum, yet the sentencing judge found that their objective seriousness was either at the mid-range or slightly above the mid-range. No matter what view one took of the applicant's subjective case, those assessments could not justify those indicative sentences.
The Crown submitted that the situation in Young v R significantly differed from that of the present case. A clear House v King error had already been established, and the Court was proceeding to re-sentence. No determination was made as to whether Ground 2 would have, alone, been a sufficient basis for a successful appeal.
Separately, written submissions for the Crown argued that the starting points of indicative sentences are not a basis upon which to determine whether or not the aggregate sentence actually imposed is manifestly excessive. No discount is applied to the aggregate sentence, and it patently cannot be reliably ascertained how multiple indicatives sentences were "factored in" to the final sentence imposed on the applicant. To focus on starting points, it was submitted, would skew the focus of what the Court should be looking at with regard to the second ground: was the aggregate sentence itself manifestly excessive?
In that regard, the applicant was the father of the victims, both of whom were cognitively impaired. The offending involved a significant breach of trust in the victims' own home. The Crown argued that the applicant's offending was very serious, particularly given the substantial vulnerability of the victims, the large age difference between the victims and applicant, the coercion and persistence involved in numerous counts, and the fact that the offending occurred over three and a half years, motivated by the applicant's own sexual gratification. The sentencing judge found that each of the offences fell at or above the mid-range of objective seriousness, with the exception of count two. The applicant's subjective case was not so strong as to significantly mitigate the objective findings. The Crown submitted in short that it was open to the sentencing judge to impose the aggregate sentence in this case.
Written submissions also argued that each offence carried a significant maximum penalty and SNPP, which her Honour was bound to take into account. In fact, it was submitted, it would have been open to her Honour to have allowed far less notional concurrency between the indicative sentences, thereby imposing a greater aggregate sentence, given the grave offending involved two victims abused by their father at different times, on multiple occasions.

Determination

It is trite law that only the aggregate sentence can be impugned directly by an appeal, simply because it is the only sentence actually imposed: see JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]; Kerr v R [2016] NSWCCA 218 at [114].
Having said that, the statutory system of aggregate sentencing was introduced to relieve sentencing judges of legalistic and formalistic requirements with regard to setting cascading or interlocking commencement and expiry dates of sentences: see generally JM v R at [39]; R v Rae [2013] NSWCCA 9 at [43]-[45]; Truong v R [2013] NSWCCA 36 at [231]; and, more recently, Sharma v R [2022] NSWCCA 190 at [4].
It was not intended to change sentencing law substantively, including the availability of different kinds of appeal against sentence: see PG v R [2017] NSWCCA 179 at [90].
It is unsurprising in those circumstances that this Court has shown itself comfortable with grounds that attack aggregate sentences on the basis of the asserted errors in the indicative sentences that underpinned them: for a recent example, see Davidson v R [2022] NSWCCA 153 at [16], [39]-[43].
Here, it was inevitable that, for every offence, a very substantial indicative sentence would be provided, including when compared to the available maximum penalty. But I cannot accept that, with regard to count 1 and count 3, it could have been appropriate to adopt a starting point that was only two months short of the maximum penalty. Grave though the offending was in many ways, and limited though the subjective case was in some ways, I cannot accept that an instinctive synthesis of all relevant objective and subjective circumstances could have led appropriately to such a relationship between the starting point and the applicable maximum penalty.
It is true that the starting points are not the sentences actually indicated with regard to those two counts. That is a further measure of attenuation from the aggregate sentence actually imposed. But a significant reason for the provision of explicit percentage discounts in some circumstances in sentencing is so that one can transparently understand the starting point originally adopted by a sentencing judge before the discount reflecting a mitigating factor was applied. If authority is required for that, it can be found in the seminal case of R v Thomson; R v Houlton (2000) NSWLR 383; [2000] NSWCCA 309 at [162].
Finally, as regards the decision of Young v R, it is true that what his Honour said (with the agreement of Basten and Brereton JJA) was, strictly speaking, obiter dicta. But it has, with respect, significant weight, and in any event, I respectfully agree with it.
Contrary to the submission of the Crown, the starting points of two of the indicative sentences upon which the aggregate sentence is based must be erroneous. Whether that is the result of arithmetical error, or inadequate reflection upon the starting point, or over-emphasis on objective features adverse to the applicant and under-emphasis on subjective features favourable to him, is of little moment. I am satisfied that a significant portion of the substructure upon which the aggregate sentence is based is faulty. That means, in my opinion, that this Court should turn to consider resentence.
Finally, to be clear, the question of whether the aggregate sentence is manifestly excessive need not be determined. All that the parties said about that topic will be reflected upon by me in the process of considering resentence.

Lesser sentence warranted in law?

No further evidence was placed before this Court by either party as against the possibility of it reaching this stage.

Objective features

The thumbnail sketch of the offending that I have provided above should now be expanded upon. The following is derived from the unimpugned findings of the sentencing judge.
The applicant was born in 1980, Sam was born in 2006, and Debbie was born in 2008. Each child is intellectually impaired. As at the time of imposition of sentence, Sam also suffered from many emotional conditions, some of which existed at the time of the offending, and some of which, one can readily infer, developed as a result of, or were exacerbated by, that offending.
By the time of the offending, the victims were living with the mother of the applicant, but would visit him at his home in a suburb of Sydney on the weekends, during which time they were in his care. Their own mother took no part in their care by that stage of their lives.
Regarding the Form 1 offence of aggravated act of indecency, with the victim under the authority of the applicant, on an occasion between May 2015 and September 2016, the applicant yelled out to his children to come and sit with him on a couch in the living room. He sat between Sam, then aged between eight and 10 years, and Debbie, then aged seven or eight years. He encouraged his son to place his hand on the area of the vagina of his daughter, and to rub her vagina on the outside of her clothing for about 10 seconds.
As for count 1, on the same occasion, Debbie had her hand, on the applicant's insistence, on the penis of the applicant, and was moving her hand up and down. He developed an erection. This conduct of the applicant continued for about two minutes.
Turning to count 2, between September 2016 and December 2018, the applicant and his daughter were sitting on a couch in the living room. He grabbed her hand and placed it on the outside of his clothing on his penis. She tried to pull her hand away, but he kept trying to pull it back. By this stage, his penis was exposed. The interaction ended with Debbie getting up and walking away. This was not an isolated incident.
As for count 3, between the same dates, the offender entered Debbie's bedroom, then aged between eight and 10 years. She was not wearing underwear. He placed her onto her hands and knees so that he could see her vagina. He then rubbed and slid his penis on the vagina of his daughter for about 20 or 30 seconds.
The second Form 1 offence, that of aggravated indecent assault, was committed as follows. It occurred in January 2018, when Sam was 11 years old. The applicant and his son were in the bedroom of the former, intending to play a computer game. The offender took Sam's hand and placed it on the penis of the applicant, on the outside of his pants.
Count 4 occurred immediately after that. The applicant made his son bend down. The applicant produced his penis from his pants, and pushed Sam's head to his penis. His son sucked it, to the point of ejaculation.
Count 5 occurred about six months later, in June 2018. Sam was 11 or 12 years old, and he slept over at the home of his father. The two of them were in Sam's bedroom. The applicant placed his son on the bed, and then lay down next to him. The penis of the applicant was exposed. The applicant pushed the head of his son to his penis, and Sam sucked the penis of the applicant.
Count 6 occurred about six months after that. In December of that year, Sam now 12 years of age, was visiting his father. The two of them were in the front room of the home. The applicant told his son to bend down onto his knees, and the applicant pulled out his penis from his pants. He pushed the head of his son towards his penis. Sam tried to avoid that occurring, but the applicant overcame his resistance. Sam sucked the penis of the applicant for about two minutes, up until the point at which the applicant ejaculated into the mouth of his 12-year-old son. Sam said to his father "I don't like that, can you please stop?", To which the offender replied, seemingly sarcastically, "yes boss".
It can be seen then that the offences were committed over a period of about three years, against two separate victims, each of whom was the natural child of the applicant, each of whom was intellectually disabled, and each of whom was in the care of the applicant at the time of the offending.
The offences were disclosed on New Year's Eve 2018. The children were interviewed two days later, on which day the applicant was arrested and a search warrant executed. He engaged in a recorded interview, in which he denied the allegations. As I have said, he has been in continuous custody since then.

Subjective features

Turning from offending to offender, he was aged between 35 and 38 years at the time of the offending, was 40 years at the time of imposition of sentence, and is now aged 43. His background was unremarkable, though featured separation of his parents when he was very young, and estrangement from his father in his teenage years. He claimed to have witnessed domestic violence and to have been the victim of child sexual assault himself when aged 13 years, committed by a neighbouring teenager. He had no intellectual difficulties, and had been employed continuously since school and college. Since being charged with the offences, family contact ceased.
He denied prior sexual deviancy, including acts towards or thoughts about children. Having said that, he conceded to a psychologist that he had obtained sexual gratification from the offending.
As at the date of sentence, the wife of the applicant remained supportive of him, and visited him in custody.
As I have said, the subjective case was that the offending was very much bound up in the use of prohibited drugs; in particular, stimulants. There was evidence that the applicant had used cannabis and alcohol from an early age, but in his late 30s began using cocaine out of curiosity, and developed a habit. From there he moved to amphetamines, and onward to depressants, in order to manage withdrawal symptoms. At the same time, he claimed, he experienced depression, suicidal ideas, and even auditory hallucinations, although the opinion of a psychologist was that the latter was a result of drug abuse, not an inherent mental illness.
In the remarks on sentence, her Honour recounted that the psychologist eventually came to the view that there was "sufficient evidence to provide a diagnosis of paedophilia", although the psychologist was not convinced that there was "an underlying deviant interest".
I have already recounted many of the findings of the sentencing judge, and neither party submitted that this Court would depart from them if we came to resentence. Specifically, I am content to adopt the detailed findings about objective seriousness made by her Honour and summarised in the first table and transposed into the second, along with the findings made about abuse of trust and a position of authority, and the length of time over which the offending was committed. I also adopt the reasonably guarded findings about various subjective matters. I adopt the same utilitarian discount for the pleas of guilty, and I am content to replicate the ratio between aggregate sentence and its non-parole period. Finally, without delving into detail, as her Honour found, the victim impact statement of Sam graphically demonstrates the damage that has been done to him by his own father. Separately, one can readily infer similar damage to Debbie.
Exercising the sentencing discretion afresh, and putting out of my mind the sentences previously imposed, except to the extent necessary to avoid the error that I believe has been established, I would provide the following discounted indicative sentences (they are also to be found in the second table attached to this judgment, which also contains their starting points). I interpolate that, whilst I accept that s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) speaks of strict arithmetical discounts, as a matter of text, context, and purpose, I believe that a small amount of rounding down is appropriate, in order to avoid absurd and unwieldy results.
For count 1, an indicative sentence of 5 years 4 months, with a non-parole period of 3 years 5 months.
For count 2, an indicative sentence of 4 years 11 months, with a non-parole period of 3 years 2 months.
For count 3, an indicative sentence of 6 years 9 months, with a non-parole period of 4 years 4 months.
For count 4, an indicative sentence of 11 years 3 months, with a non-parole period of 7 years 3 months.
For count 5, an indicative sentence of 9 years 10 months, with a non-parole period of 6 years 4 months.
For count 6, an indicative sentence of 10 years 9 months, with a non-parole period of 6 years 11 months.
Finally, reflecting afresh on totality, and seeking to impose an aggregate sentence that reflects the entirety of the offending committed by the applicant as a whole, I would impose an aggregate sentence of imprisonment for 14 years, with a non-parole period of 9 years.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal against sentence upheld, and aggregate sentence previously imposed quashed. 3. The applicant is sentenced to an aggregate head sentence of imprisonment for 14 years, to commence on 2 January 2019 and expire on 1 January 2033, with a non-parole period of 9 years, which will expire on 1 January 2028. 4. The first date upon which the applicant is eligible for possible release to parole is 1 January 2028.
HAMILL J: I have had the advantage of reading the judgment of Button J circulated in draft. I agree with the orders proposed by his Honour and with his Honour's reasons. AJ v R TABLE OUTCOMES AT FIRST INSTANCE (127988, pdf) AJ v R TABLE NEW PROPOSED SENTENCES (129690, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2023

Crimes (Sentencing Procedures) Act 1999(NSW)

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