BB v R

The Submissions Before the Sentencing Court

1. The applicant submitted that these were offences of the lowest order of gravity as there was no sexual motive involved in their commission. Relying on the decision of Harkin v R (1989) 38 A Crim R 296 Senior Counsel for the applicant argued that the intentional touching of AB's genital area established the elements of the offence, but that there was no intention thereby to obtain sexual gratification. It was submitted that the applicant's motive was innocent if misguided, that being to "bond" with his daughter following his divorce. Senior Counsel said: "Our submission is that an important reason, the most important reason why each of these offences falls towards the lower end of the range, is that your Honour would not be satisfied beyond reasonable doubt, indeed your Honour would not be satisfied to any standard, that the offender intended to or did obtain sexual gratification from committing any of the offences. And if your Honour finds that, that I submit must reflect significantly upon the offender's moral culpability. The fact that an offender is motivated, has such a motivation, is an aggravating factor and the basis of that submission is found in the authorities, particularly the authority of RC at para 18 of my original submissions, the absence of motive lessen the objective gravity of the crime".
2. Four decisions of this Court were relied upon as providing authority for that proposition: R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep); Trevor Essex v R [2013] NSWCCA 11; R v Toohey [2019] NSWCCA 182; and RC v R; R v RC [2020] NSWCCA 76 (referred to in the passage extracted above).
3. The applicant contended that the sentencing judge should accept the contents of his interview with the police as evidence of the truth of the assertions that he there made, particularly to the effect that what had occurred with his daughter was a "game" or "ritual". He acknowledged, however, that some of the things that the applicant had told the police were inconsistent with the Statement of Agreed Facts. That the authors of the testimonials tendered on the applicant's behalf had described the relationship between the applicant and AB as a positive one was pointed to as evidence that supported a conclusion that the offences was simply "a ritual or a game between them". It was argued that: "[…] his belief about her enjoyment is relevant to an assessment of the nature of the offence and in particular whether it was in fact a ritual between them".
4. Ultimately, the applicant argued that the sentencing court should assess the offences as falling at the very lowest level of gravity and, taking into account the strong subjective case, it was open to the court to impose a Community Corrections Order upon him.
5. The Crown contended that the offences were accompanied by a sexual motivation and were much more serious than the applicant submitted, having been committed in AB's home, by a person in a position of trust, and leading to significant harm to AB. The applicant's portrayal of his conduct as a game was said by the Crown to represent an attempt by him to minimise his crimes, demonstrating his failure to fully accept responsibility for it. The Crown argued that the offences fell at the middle of the range of objective gravity and the sentence imposed should comprehend the need for denunciation of the crimes, recognition of the harm done, and have the effect of deterring others from like crimes. The Crown argued that the threshold provided by s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been well and truly crossed, with a stern sentence required.

The Remarks on Sentence

1. Having received evidence and heard submissions on 2 October and 16 October 2020, the sentencing judge imposed sentence on the applicant on 26 November 2020. After setting out the agreed facts of the offences, his Honour turned to the contents of the interview between the applicant and police, setting them out almost in their entirety. His Honour noted that the court had received a victim impact statement that was read by AB, and then referred to the medical reports from Dr Parker and Professor Scott. The same level of detailed attention was given by his Honour to the evidence tendered to the court on the applicant's behalf, and to the submissions of the parties.
2. The sentencing judge appeared to accept that the applicant had formerly been a man of "impeccable character" who had been dedicated to his family and children and was devastated by the loss of contact with them. His Honour observed that "all of the testimonials confirm the [applicant's] remorse for his offending".
3. As to the objective gravity of the offences and referring to the broad spectrum of sexual misconduct covered by s 61M(2), his Honour concluded that the applicant's crimes fell towards the "upper part of the low range" of objective gravity. The sentencing judge did not accept the applicant's claim to police in his interview that the first incident of genital touching, at Thredbo, occurred when he was rubbing sorbolene cream into chafed areas of his daughter's upper thighs and genitals, but nevertheless was not satisfied to the criminal standard that the applicant intended to or did obtain sexual gratification from his conduct. He noted, however, that the contact was skin to skin, and AB had been seven years old at the time.
4. His Honour noted that count 2 (with respect to which two further offences were taken into account) had occurred at a time when AB was in her father's bed having been frightened by a "scary movie" and also involved skin to skin contact with AB's genitals, with the applicant repeatedly asking the child if what he was doing felt good. The remaining offences, counts 3 to 7 and the four offences taken into account (two of which were attached to count 3) were all similar in nature. In findings that were highly favourable to the applicant the sentencing judge concluded: "I am not satisfied beyond reasonable doubt that the offender intended to, or did obtain sexual gratification from committing the offences. Rather, he had a misconceived belief that this 'ritual' assisted in him bonding with his daughter in circumstances where he had separated from her mother. My finding that the offences were not committed for sexual gratification reduces the gravity of the offending below that of an offence where sexual gratification is found to be the motivation for the commission of the crime, 'and to no small extent' (reference omitted)."
5. His Honour further concluded that the conduct did not constitute "sexual grooming".
6. Less favourably to the applicant, the sentencing judge found that the lengthy period over which the applicant assaulted his daughter elevated the gravity of the course of conduct represented by the charged offences, and that "[i]t still constituted very serious offending".
7. The sentencing judge concluded that the offences were aggravated by having been committed in AB's home, by her father, who abused a position of trust and authority in so doing, and that the offences caused significant emotional harm. His Honour observed that: "[…] it is axiomatic that general deterrence, denunciation, and the protection of the community are all relevant in sentencing for offences involving child sexual abuse."
8. The sentencing judge found that, whilst the applicant had minimised his conduct when interviewed by police, he had come to accept full responsibility for his crimes and was remorseful. He was a man of good character with no prior criminal history. His Honour declined to make a finding pursuant to s 21A(5A) of the Crimes (Sentencing Procedure) Act to the effect that the applicant's good character had aided him in the commission of the offences and could not be treated as a mitigating factor.
9. His Honour described the subjective case as "significant", noting that the applicant, a man of excellent character, was "highly regarded by his peers in the legal profession". He was assessed as having good prospects of rehabilitation. The applicant's depression was treated as a mitigating feature, reducing the importance of both specific and general deterrence to "a certain extent", and causing any custodial sentence to weigh more heavily upon him. His Honour was not satisfied, however, that the applicant's depression contributed to his offending conduct.
10. Some weight was given to the fact that the applicant had suffered as a consequence of the criminal proceedings against him, losing "his professional career, [with] consequential loss of income, reputation and standing in the community stemming from this offending". His Honour was not, however, satisfied that this "extra-curial punishment" went beyond the consequences that might be reasonably expected following his conviction for child sexual offences.
11. The sentencing judge noted the delay between the commission of the offences and prosecution, but concluded that it was not a mitigating feature as it was largely attributable to the applicant avoiding detection for his crimes.
12. His Honour took into account the adversity faced by any person subject to a custodial sentence because of the restrictions made necessary as a consequence of the COVID-19 pandemic.
13. The utilitarian value of the applicant's pleas of guilty entered prior to his trial date was assessed as warranting a discount on the sentences that would otherwise be imposed of 20%.
14. The sentencing judge concluded that: "Whilst there are significant subjective considerations to be taken into account, the appellate courts have held that subjective considerations must not be allowed to cause inadequate weight to be given to the objective circumstances of the case - see Kearsley v R, supra, per Macfarlan JA at [14]. Given the objective seriousness of the offending, the number of representative offences and the period of time over which the offending took place, together with the significant harm caused to the victim of these offences, I am satisfied that the threshold contained in s 5 of the CSPA has been crossed, and no sentence other than imprisonment is appropriate in the circumstances. I therefore reject the submission made on behalf of the offender that an appropriate disposition here would be by way of a community correction order pursuant to s 8 of the CSPA."
15. Having determined to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act, the following indicative sentences were announced: "(1) Count 1 - 9 months imprisonment (2) Count 2 - 2 years imprisonment (3) Count 3 - 2 years imprisonment (4) Counts 4-7 - 1 year and 6 months imprisonment on each count."
16. Referring to the principles in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, at [27], his Honour concluded that some accumulation of penalty was warranted.
17. A finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act was made, based upon the applicant's age and depression, and the hardship those features would cause to a person entering a custodial environment for the first time.
18. The sentence of 4 years imprisonment with a NPP of 2 years was imposed.

The Application to this Court

1. The applicant pleads that "the sentence imposed was manifestly excessive".
2. Accepting that no appeal lies against the indicative sentences announced by the sentencing judge, he submits that the assumed "starting point" for the sentences indicated was too high and, bearing in mind the conclusions favourable to the applicant that were reached by the sentencing judge, the sentence is unfair and unjust. The applicant referred the Court to a number of other sentencing decisions to demonstrate the asserted unfairness of the sentence imposed upon him.
3. The Crown submits that, accepting the findings of fact made by the sentencing judge, the applicant faced sentence for seven offences that carried a maximum penalty of 10 years imprisonment, with a further four such offences taken into account, in circumstances where there had been a grave abuse of trust, and significant harm done. Citing EG v R [2015] NSWCCA 21 at [42], the Crown submitted that sexual offending against children must be dealt with by stern sentences, to deter others from committing such crimes. It argued that the sentencing decisions advanced by the applicant as comparable could not be regarded as such, and failed to support the contention that the sentence imposed was outside an ascertainable range.

Determination

1. The applicant's argument, broadly, was that, bearing in mind the favourable findings of fact made by the sentencing judge, the assumed starting point of the sentence - asserted to be five years imprisonment - was too high, and led to error in the aggregate sentence, a proposition supported by considering other "comparable" cases.
2. The applicant's contention that the "starting point" of the sentence imposed upon him was one of five years imprisonment must be viewed with considerable caution. The 20% discount for the utilitarian value of the pleas can be assumed to have been applied by the sentencing judge to the indicative sentences, rather than to the aggregate sentence, consistent with authority. In JM v R (2014) (2014) 246 A Crim R 528; [2014] NSWCCA 297, R A Hulme J (Hoeben CJ at CL and Adamson J agreeing) held at [39] that indicative sentences must be assessed by taking into account such matters in Part 3 or elsewhere in the Crimes (Sentencing Procedure) Act as are relevant. That necessarily includes any reduction in sentence to be applied because of a plea of guilty: s 21A(3)(k) and s 22 of the Act. That approach has been regularly applied in this Court since JM was handed down: see for example R v Cahill [2015] NSWCCA 53, at [107] - [109], per Johnson J, with whom Leeming JA and Schmidt J agreed; Glare v R [2015] NSWCCA 194, per Hamill J at [12], with whom Leeming JA and Fagan J agreed; and Ibbotson (a pseudonym) v R [2020] NSWCCA 92, per Leeming JA at [6] and [8]; Rothman J at [72], and N Adams J at [138].
3. The principle was discussed in Elsaj v R [2017] NSWCCA 124 by Hoeben CJ at CL (with whom Bathurst CJ and McCallum J agreed) at [56]: "Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes it clear that discounts for a guilty plea are to be applied to the indicative sentences, not the aggregate sentence. To the extent that there is any doubt on that issue, it has been resolved by such cases as R v Nykolyn [2012] NSWCCA 219, Subramaniam v R [2013] NSWCCA 159, JM v R [2014] NSWCCA 297 and R v Cahill [2015] NSWCCA 53. There is in fact no 'starting point' in respect of the aggregate sentence imposed in this case, either notionally or otherwise. The aggregate sentence represents the result of the instinctive synthesis of sentencing principles by the sentencing judge having regard to the particular facts of this case and the indicative sentences. The indicative sentences are those which he would have imposed had the aggregate sentencing procedure not been available."
4. Elsaj was applied and confirmed by the majority, Button and N Adams JJ, in PG v R (2017) (2017) 268 A Crim R 61; [2007] NSWCCA 179 at [76], and later in Berryman v R [2017] NSWCCA 297 (per Leeming JA, Bellew and Lonergan JJ). Like JM, Elsaj and PG have been applied in numerous decisions of this Court since each was handed down, including TL v R [2017] NSWCCA 308 at [102] - [103] per Davies J, with whom Hoeben CJ at CL and Adamson J (on this point) agreed; and Davies v R (2019) 277 A Crim R 1; [2019] NSWCCA 45 at [38], per Basten JA, Johnson and R A Hulme JJ agreeing on this point.
5. The applicant referred the Court to Chartres-Abbott v R [2021] NSWCCA 239 as supportive of his proposition that it was open to apply the discount to the aggregate sentence, at least to the extent of facilitating comparison between the sentence imposed upon him and those imposed in other "comparable" cases. In Chartres-Abbott v R Brereton JA (with the agreement of Campbell and Hamill JJ) said, at [23]: "The applicant received a discount of 25 percent for his early pleas of guilty. Based on that, his counsel submitted that the "starting point" for the head sentence was eighteen years and eight months. The Crown submitted that this was misconceived, as discounts for a guilty plea are applied to the indicative sentences and not to the aggregate sentence. While it is correct that the prevailing view is that discounts for a guilty plea are to be applied to the indicative separate sentences rather than to the aggregate sentence, it does not follow that for the purpose of comparison with other cases the approach advanced on behalf of the applicant is impermissible. Plainly, in comparing aggregate sentences in one case with those in others, regard must be had to whether or not the sentence followed a plea of guilty, and the discount that was allowed. While I acknowledge that 'the determination of an aggregate sentence is not merely the sum of its parts', particularly in a case such as the present, where the same 25 percent discount was applicable to each offence, there is little difficulty in reasoning that it was reflected commensurately in the aggregate sentence. That is, it follows as a matter of logic that, had the applicant not received a discount of 25 percent on each of the indicative sentences, the aggregate sentence would have been lengthier by a corresponding proportion. At least for the purpose of comparison with other sentences, it is reasonable to proceed on the basis that but for his plea of guilty the aggregate sentence would have been in the order of eighteen years and eight months" [footnotes omitted].
6. I do not understand Brereton JA to be contradicting the long and well-considered line of authority that commenced with JM as to the requirement for any discount on sentence to be applied to the indicative sentences in cases where an aggregate sentence is imposed. To the extent that his Honour found it useful in the matter there under appeal to determine a presumed starting point of sentence by increasing the aggregate sentence by the discount announced, the same approach is not helpful in this matter. Indeed, having regard to the obligation on a sentencing court to consider at least notionally questions of concurrency and accumulation in determining an aggregate sentence which properly reflects the overall criminality, it is difficult to see how it could be useful in many sentencing appeals, to aid in making comparison with other cases or otherwise.
7. In the applicant's case, the sentencing judge was obliged to assess the indicative sentences for each offence, apply the discount he regarded as proper for the utilitarian value of the pleas, and then determine an aggregate sentence appropriate in all the circumstances to reflect the total criminality in the totality of offences: Vaughan v R [2020] NSWCCA 3 at [90] - [91] (Johnson J, Macfarlan JA and R A Hulme J agreeing). There is little value in my respectful opinion in approaching that sentence as a figure from which a "starting point" can be determined.
8. The indicative sentences may be a guide to whether error has been established, as stated in JM at [40(11)].
9. Although the applicant argued that there was some level of disconnection between the favourable findings and the indicative sentences, that is to overlook the totality of the findings of the sentencing judge. It must be accepted that the findings made by his Honour were very generous to the applicant. In circumstances where the applicant had developed a "ritual" that continued for more than a year of touching his naked or semi-naked seven to eight year old daughter's genital area when the two were alone in his bed, whilst repeatedly asking her if the touching felt good, the sentencing judge was prepared to conclude that the applicant's only motivation for such conduct was to "bond" with AB. However, favourable as that conclusion was to the applicant's case, it should not and cannot be equated to an acceptance that these crimes were anything other than offences of sexual misconduct against a child.
10. An offence of indecent assault is one in which a sexual character or overtone is inherent. Where the assault involves touching the genitals (or breasts or anus) of the victim, the sexual character of the act is capable of being established merely by reference to the part of the body touched. It is only where the act relied upon in proof of the charge does not involve touching a sexualised area of the body and the sexual connotation of the act is thus not necessarily clear that the Crown must rely upon other circumstances to establish a sexual motivation, if the charge is to be proved: Harkin at 301.
11. Because a sexual connotation is a necessary part of an offence of indecent assault, care must be taken in extrapolating from sentencing decisions in sexual assault cases. The applicant relied upon the decisions referred to at [38] above to argue that an indecent assault which is not committed to obtain sexual gratification is necessarily less serious than one committed expressly for that reason. Each of those decisions, however, refer to offences involving sexual intercourse; they differ from an offence of indecent assault because for sexual assault it is not necessary to establish a "sexual connotation" or the reason for penetration by an act of sexual intercourse. By way of contrast, a "sexual connotation" is essential if an assault is to be indecent, as noted in one of the decisions relied upon by the applicant, RC v R; R v RC at [129] - [131] per Wilson J, with whom R A Hulme and Hamill JJ agreed.
12. Because of the sexual connotation which must be present in cases of indecent assault, even a supposed absence of sexual motivation cannot greatly affect the objective gravity of the crime. As Howie J said in Mayall v R [2010] NSWCCA 37, with the agreement of James and Davies JJ, at [43] - [45]: "The applicant submits that the offences fell well below the mid range of seriousness for offences under this section. I do not agree. Touching a child on the outside of her vagina and under clothing for a significant period of time is a serious example of an offence under this section. True it is that matters of aggravation that could have made the offence more serious were absent, but had any of them been present the offence would probably have been high in the mid range of seriousness or above it. The absence of aggravating features does not mitigate the seriousness of the offence actually committed. I do not accept that the offending was mitigated because the touching of the children was relatively brief. I do not understand that the effect upon the child depends upon the length of time of the abuse. In any event, neither of the offences could be called fleeting. In both cases the applicant progressed from touching the child on the bottom to moving around to the vaginal area. They were not momentary aberrations. The suggestion that they occurred because he was tired, even if accepted, was hardly a mitigating factor. Nor is it a matter of mitigation that a child is sexually abused even though the abuser does not obtain any sexual satisfaction. It is the harm to the child that is the nub of the offence." [Emphasis added]
13. Mayall correctly states the law in my respectful opinion.
14. The sentencing judge understood that these were offences of sexual misconduct, properly referring to them as falling within the category of cases that constitute such conduct, at [149] of his remarks on sentence. He considered them to represent "very serious offending", particularly having regard to the grave breach of trust by a father, and the very great harm caused to AB.
15. Having given the applicant the benefit of a number of favourable conclusions, including to diminish the requirement for a strongly deterrent sentence, the sentencing judge was still fully aware that the applicant stood to be sentenced for multiple counts of aggravated indecent assault, with four more offences to be taken into account, that had been committed upon a vulnerable young child by a person she should have been able to trust not to harm her. His Honour was correct to conclude that "no sentence other than imprisonment" could be imposed.
16. Whether the sentence of four years imprisonment with a two year NPP is manifestly excessive falls to be assessed in accordance with the principles summarised by R A Hulme J, with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed, in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443], noting that the onus is on the applicant to establish that the sentence was unreasonable or plainly unjust.
17. A sentence of four years imprisonment to reflect the criminality involved in these offences is one which cannot be regarded as manifestly excessive in my conclusion. That is particularly so when the very generous variation to the statutory ratio, reducing the NPP to only 50% of the sentence, is considered.
18. Nor does consideration of those cases referred to by the applicant as demonstrating the unjustness of the sentence imposed upon him cause me to question that conclusion. At least in part that is because none of the decisions pointed to are truly comparable with the present matter. Further, three cases involving dissimilar facts and circumstances do not establish a range of sentence that can usefully inform this Court in determining the question of manifest excess.
19. R v Stoupe [2015] NSWCCA 175 was a Crown appeal against inadequacy of sentence imposed upon a 27 year old man (at the time of the offending), formerly of good character, for one count contrary to s 91K(3) of the Crimes Act 1900 (NSW) relating to footage the respondent took of an 8 year old child using a toilet, and three counts of aggravated indecent assault contrary to s 61M(2), all referable to the respondent's acts in rubbing the genitals and anal area of the 8 year old child underneath her clothing. The offences occurred over a period of less than four months. The respondent was a child-care worker responsible for the welfare of the victim at the time. An aggregate sentence of 16 months with a NPP of 8 months was imposed at first instance but that sentence was quashed on appeal as manifestly inadequate. On re-sentencing the applicant, this Court imposed a term of 4 years imprisonment with a NPP of 2 years and 6 months.
20. The applicant points to features of his case not shared by the respondent in Stoupe to argue that his case was of lesser seriousness, being the finding that the conduct was held to be in the mid-range of objective gravity; that the sentencing judge concluded that s 21A(5A) of the Crimes (Sentencing Procedure) Act applied; that the standard NPP was eight years and not five; and that, although no finding was made as to a motive of obtaining sexual gratification, such a finding "would have been inevitable". What he does not highlight in that analysis is that the applicant faced far more charges than did the respondent in Stoupe, including four offences on two Form One documents; that his offending conduct continued over a much greater period of time; that the breach of trust was far graver in his case than in Stoupe; and that the harm done to AB by the applicant was found to be significant.
21. Little or nothing can be drawn from the sentence passed in Stoupe; it is in no way truly comparable to the applicant's case.
22. In Scott v R [2020] NSWCCA 81 this Court quashed the sentence imposed at first instance on the ground that it was manifestly excessive. Having been found guilty at trial, the applicant in Scott had been sentenced to an aggregate sentence of 6 years imprisonment with a NPP of 3 years and 6 months for 3 counts of aggravated indecent assault contrary to s 61M(2) and one count of sexual intercourse with a child under 10 years contrary to s 66A(1) of the Crimes Act. The eight year old victim was the granddaughter of the applicant, and the offences occurred when she stayed overnight with her grandparents from time to time. The applicant "kissed" the victim's perianal area on three occasions and her vagina, thus constituting cunnilingus and sexual intercourse for the purposes of s 66A(1), on one occasion. The offences were held to be "almost fleeting", of less than 10 seconds duration, and there were no signs of distress caused to the victim. On re-sentence this Court imposed a term of imprisonment of 5 years imprisonment with a NPP of 2 years and 6 months.
23. The applicant points to this matter as more objectively serious than his own crimes, and highlights the absence of any reduction in sentence to recognise pleas of guilty; the eight year standard NPP that applied to the s 61M(2) offences; and the more serious s 66A(1) offence which was comprehended by the penalty. As with Stoupe, however, there are a number of features of this matter which limit its utility as a comparator. Whilst there was a more serious crime in the mix of offences for which sentence was imposed, there were far fewer offences of aggravated indecent assault, three as opposed to eleven (including the four counts taken into account on sentence). All offences were assessed as falling at the lowest level of gravity. The offences occurred over a period of weeks, rather than over an extended period, in excess of a year. The applicant in Scott was an elderly man in very poor health for whom, the Court concluded, prison would be a very great hardship, including placing him at some risk because of his asthmatic condition at a time when COVID-19 remained a concern. The relationship of trust was not as significant between a grandfather and granddaughter as between that of a father and daughter.
24. I do not regard Scott as supporting an argument that the sentence imposed upon the applicant was unfair or unjust.
25. The third case relied upon by the applicant to point to the harshness of the sentence imposed upon him is R v O [2005] NSWCCA 327. In that case this Court allowed a Crown appeal on the ground of manifest inadequacy. The effective sentence imposed at first instance was one of 4 years imprisonment with a NPP of 2 years for one offence contrary to s 66A (verdict after trial), two offences contrary to s 61M(2) (verdict after trial), and a further offence contrary to s 66A (to which a plea of guilty was entered). The first s 66A offence involved the digital penetration of the applicant's eight year old step-granddaughter, on an occasion when the child was staying with the applicant and her grandmother. The last also involved digital penetration of the same child, although earlier in time, when she was aged five or six years. The two offences contrary to s 61M reflected the applicant's conduct in fondling the penis of a nine year old boy who was staying at the house as a family friend, on one occasion after having pulled the boy's pants down, and on the other on the outside of his clothing. A final offence was taken into account on sentence, it being an aggravated indecent assault of a six year old girl. The applicant had squeezed the child's vagina on the outside of her skirt on an occasion when she walked past him. On appeal this Court quashed the sentence imposed at first instance, imposing instead a total effective sentence of 5 years imprisonment with a NPP of 2 years and 6 months.
26. The applicant submits that the offending in R v O was more serious than that committed by him and the outcome is incongruous with the sentence imposed upon him. It may be accepted that some of the offending in R v O was more serious, involving as it did digital penetration, but the balance of the crimes were less serious, and there were fewer offences committed by the respondent. Further, there was not the same relationship of trust, and the offences seem to have been isolated. Little can be drawn from this decision.
27. None of these decisions are realistically comparable with the offences or circumstances of the applicant. They do not provide any basis for concluding that the aggregate sentence imposed upon him is manifestly excessive.
28. Having considered all of those matters raised by the applicant I do not regard the sentence imposed upon him to be unfair or unjust to him. Although I would grant leave to appeal, the appeal should be dismissed.

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