The appeal
9 There are four grounds of appeal advanced by the applicant. I am not persuaded that any of them justifies the intervention of this Court. It must be remembered that the offence carries a maximum penalty of 25 years imprisonment. Of particular significance in this case is the standard non-parole period of 15 years.
10 It was agreed before the sentencing judge by counsel for the applicant that the applicant had committed a mid-range offence. The consequence would be that allowing, as his Honour did for the maximum discount for the guilty plea but leaving aside any other matters the appropriate non-parole period was of the order of 11 years. This must be compared with the non-parole period which his Honour imposed which was 8 years 3 months and 13 days. Although the applicant was a person of prior good character and his Honour found that he has good prospects of rehabilitation (which was not challenged by the Crown in this appeal) and allowing for the fact that the offence was spontaneous or opportunistic and the applicant has shown remorse, the sentence which his Honour imposed was in my opinion clearly within the appropriate range.
11 The first ground of appeal is concerned with his Honour's characterisation of the offence as being "at least" in the mid-range of objective seriousness. His Honour recorded the concession made by counsel for the applicant that the offence fell within the mid-range but elsewhere in his remarks on sentence said that the offence "is correctly placed in my opinion by both counsel at least in the mid-range of objective seriousness." It was submitted that this statement was not entirely correct, the suggestion being that counsel for the appellant did not accept that the offence may have fallen above the mid-range.
12 The relevant portions of his Honour's remarks are firstly:
"This of course is a very serious offence. The Crown has characterised it in the mid-range of objective seriousness. Mr Stewart (for the prisoner) said he could not resile from that and indeed I find that this conduct of this crime is in the mid-range of seriousness."
13 Later he said:
"As I said, I have found this (offence) is at least in the middle range of objective seriousness."
14 This Court has previously indicated that a finding expressed as to the objective seriousness of an offence in general terms, without a clear statement as to the level of objective seriousness of the offence is not satisfactory. The statement which his Honour made could suggest that he had concluded that the offence fell above the mid-range but has not identified the extent to which this was the case. When an ambiguous expression is used by a sentencing judge it does not enable the offender or this Court to understand the sentencing judge's conclusion as to the seriousness of the offence which is fundamental to the sentence which was ultimately imposed. In R v Knight, R v Biuvanua [2007] NSWCCA 283 Howie J, with whom both Hidden J and myself agreed, said:
"The judge described the objective seriousness of the offence committed by Ms Knight as 'at least in the mid-range of objective seriousness'. The Crown on this appeal conceded that 'her Honour correctly assessed the objective seriousness of the offending.' With respect to both the judge and the Crown Prosecutor, it is impossible to understand how such an assessment fulfils the obligation on a trial judge in applying the standard non-parole provisions to assess the objective seriousness of the offence committed. Presumably the judge thought that the offence was somewhere above midrange but believed that she did not have to assess the exact level of seriousness because it was sufficient that she found it was 'at least mid-range.' But with respect, if that is how her Honour approached the matter, she was clearly in error. Although such an assessment cannot made with absolute precision, it must at least indicate whether the offence is assessed as below, of, or above midrange of seriousness with some indication as to the degree to which it departs from the midrange if that is the finding."
15 See also R v Mitchell, R v Gallagher [2007] NSWCCA 296 and Rawlings v R [2006] NSWCCA 84.
16 Although his Honour's remarks are ambiguous I do not believe this has occasioned any error in the sentence which was imposed. If his Honour had determined to sentence the applicant for an offence falling above the mid-range a greater penalty than that which he imposed would have been appropriate.
17 The second ground of appeal argues that the sentencing judge wrongly confined himself to the consideration of the plea of guilty as the only reason to depart from the standard non-parole period.
18 The applicant is correct in emphasising that his Honour only expressly identified the plea of guilty as a reason for departing from the standard non-parole period. However, if his Honour had in fact confined his consideration to the guilty plea, as I have indicated, a non-parole period of the order of 11 years would have been the result. The non-parole period which his Honour imposed was significantly less than 11 years and accordingly it is apparent that his Honour, although not expressly indicating that he had taken this course, did have regard to other matters when determining the appropriate sentence.
19 It is important for this Court to again emphasise that it is necessary for sentencing judges to take care in identifying the matters which have been of significance when arriving at the sentence imposed on an offender. Only if this is done will it be possible to understand the judge's reasons for arriving at the sentence and enable effective review by this Court. The obligation to give reasons is fundamental to the judicial process.
20 In support of the third ground of appeal the applicant submitted that his Honour had had regard to irrelevant and/or inaccurate material. In particular complaint was made about the fact that his Honour said when determining the appropriate penalty:
"One would have to infer that there is no one who wants to speak on his behalf because the crime is found to be so despicable."
21 It was submitted that this was not an accurate statement because there was evidence before the sentencing judge that his sister-in-law had reported to the officer who had prepared the pre-sentencing report that prior to his arrest the applicant appeared to be "an excellent husband and an excellent father." Although the sister-in-law made this comment there is every reason to accept that since the offence had become known the applicant has been ostracised by his family and the community. This was only to be expected and the finding which his Honour made was in my view appropriate. It was not at odds with the sister-in-law's statement.
22 The final ground of appeal was the general submission that the sentence was manifestly excessive. As I have already made plain in my view this submission cannot be sustained. The applicant drew attention to some previous decisions where offenders have been sentenced for a breach of the same statutory provision. However, two of the cases involved fellatio and the offences were of quite significantly different character (RJA v R [2008] NSWCCA 137; Eedens v R [2009] NSWCCA 254). The applicant also referred to two cases involving penile penetration of the vagina of a young girl (RJA v R [2008] NSWCCA 137; MLP v R [2006] NSWCCA 271) where sentences comparable to that imposed on the applicant were imposed.
23 The offence which the applicant committed involved a gross breach of trust. It is true that the offence was spontaneous and involved a single event. However, the complainant who was only 6 years of age, was told to strip naked and was penetrated when screaming and crying and imploring the applicant not to continue. The age of the applicant was significant confirming her particular vulnerability: see R v Pearson [2005] NSWCCA 116 at [33]-[35]; MLP v R (2006) 164 A Crim R 93 at [22] and R v PGM (2008) 187 A Crim R 152 at [36]-[38]. The offence in the present case was of a degrading nature being one of anal intercourse: R v Russell (unreported, NSWCCA, 21 June 1996).
24 In my judgment the sentence imposed on the applicant was within the sentencing judge's discretion and no error has been identified. Even if I had found an error I am satisfied that no lesser sentence was warranted in law.
25 Although I would grant leave to appeal the appeal should be dismissed.
26 JAMES J: I agree with McClellan CJ at CL.
27 ROTHMAN J: I agree with McClellan CJ at CL.
**********