BG v R

RE-SENTENCE

1. The nature and circumstances of the offending are set out in full in the judgment of Wilson J. On any view, the offending was objectively serious. The actions of the applicant involved repeated acts perpetrated on the victim, all of which constituted a gross breach of trust. As one might expect, the effects on the victim have been significant.
2. The entirety of the applicant's offending was extremely serious, although that in count 7 was, by its very nature, particularly abhorrent, and was committed in circumstances where the victim had unequivocally communicated his lack of consent. That was ignored by the applicant who demanded, in an aggressive tone, that the victim participate in anal intercourse.
3. The offending in count 7 was immediately preceded by that in count 6, which involved the applicant demanding an assurance from the victim that the offending would remain confidential between them. The sentencing judge found that the victim thought that the applicant might hurt him, or even kill him, if he did not comply with his demands. There was no challenge to that finding and it is one that I have similarly reached. There is authority for the proposition that for the purposes of an offence of having sexual intercourse with a child under 10, [12] the use of threats or pressure, which are made before or after the offence to attempt to ensure the victim's compliance, is relevant to an assessment of the objective gravity of the offending. [13] There is no cogent reason why that principle should not apply to the applicant's offending as well. [14]
4. Further, it is apparent that the applicant had taken the victim on a short overnight trip for the sole purpose of retrieving a truck which had been repaired. [15] In those circumstances, the applicant's possession of a quantity of condoms tends to indicate that the offending was the subject of some degree of planning.
5. The applicant pleaded guilty to the offences on the day fixed for his trial. A discount of 10% is appropriate to reflect the utilitarian value of his pleas. Whilst those pleas carry with them some indication of remorse, it is significant that in recorded conversations with the victim prior to his arrest the applicant made a number of attempts to justify his behaviour, asserting on one occasion that the offending had been motivated by a desire to "be closer" to the victim, and asserting on another occasion that his ingestion of alcohol and prescription medication may have played a role in his conduct. In these circumstances I have reservations as to whether the applicant is truly remorseful for his offending.
6. In terms of evidence of character, the applicant has a criminal history which contains two entries for driving offences, and an entry for the possession of an unregistered firearm which was dismissed. He is entitled to the benefit of the fact that he has no significant history of prior offending. However in my view, the weight that can be attached to that factor is necessarily limited. This is so, firstly because of the limited nature of the character evidence itself, and secondly because of the characteristics of the offending to which I have referred.
7. Tendered before the sentencing judge were two reports of Luke Brabant, Psychologist. In the first of those reports dated 20 May 2019, Mr Brabant recommended that the applicant be referred for individual psychological treatment to address his post-traumatic stress disorder and history of trauma, (conditions which arose principally from his previous employment as an undertaker), along with what he described as the applicant's "general deficiencies in coping skills". Mr Brabant expressed the view, which has not been challenged, that the applicant would benefit from some psychological intervention to increase his insight into his offending, and to develop a risk management plan. Mr Brabant considered that such treatment would more likely be available to the applicant in the community. This supports a finding of special circumstances.
8. A sentencing assessment report which was before the sentencing judge determined that the applicant was at a low risk of re-offending, a conclusion which was generally consistent with the results of testing reported by Mr Brabant in the first of his reports. In these circumstances I accept the applicant's risk of re-offending is low. I am also satisfied that providing he undertakes treatment of the kind recommended by Mr Brabant, the applicant's prospects of rehabilitation are generally favourable.
9. Three affidavits were read in the event that the Court came to re-sentence, namely: 1. the applicant, affirmed 11 May 2020; 2. the applicant's father, affirmed 20 May 2020; and 3. the applicant's son, affirmed on 20 May 2020.
10. Over and above the issues in respect of which Mr Brabant thought the applicant was in need of further treatment, the applicant's affidavit makes reference to a number of health issues including a longstanding back complaint following surgery many years ago. [16] The applicant also stated that he suffers from carpal tunnel syndrome which requires surgical intervention which is not available in custody. I have taken these matters into account. However, in circumstances where there is no evidence of the practical effect of either of these conditions, the weight can be attributed to the affidavit is limited.
11. The affidavits of the applicant's father and son generally go to the issue of the hardship which is being felt by each of them as a result of the applicant's incarceration. Whilst I do not seek to minimise the significance of those matters, I am not satisfied that they are properly regarded as exceptional. [17]
12. Bearing in mind all of these matters, and in the fresh exercise of the sentencing discretion, I would propose the following indicative sentences: 1. Count 2 - 12 months' imprisonment; 2. Count 4 - 3 years and 6 months' imprisonment; 3. Count 6 - 2 years and 4 months' imprisonment; 4. Count 7 - 6 years' imprisonment. [18]
13. I would impose an aggregate sentence of imprisonment of 8 years and 6 months. Giving effect to my finding of special circumstances I would impose a non-parole period of 5 years and 7 months.
14. With these matters in mind I propose the following orders: 1. Leave to appeal is granted. 2. The appeal against sentence is allowed. 3. The sentence imposed in the District Court of NSW is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment for 8 years and 6 months to commence on 15 December 2018 and to expire on 14 June 2027 with a non-parole period of 5 years and 7 months' imprisonment, to commence on 15 December 2018 and to expire on 14 July 2024.
15. WILSON J: On 14 June 2019, the applicant, BG, was sentenced by his Honour Judge Williams SC after pleading guilty in the District Court sitting at Lismore to a number of sexual offences committed by him against his 15 year old stepson. His Honour imposed an aggregate sentence of 9 years imprisonment, with a non-parole period ("NPP") of 6 years. The sentence commenced on 15 December 2018, and will expire on 14 December 2027. The applicant is eligible for release to parole on 14 December 2024.
16. The offences and indicative sentences were: Count Offence Maximum Penalty & SNPP Indicative Sentence 2 Aggravated indecent assault (person under 16 years) 10 years imprisonment, standard non-parole period ("SNPP") of 8 years 14 months with a NPP of 10 months s 61M(2) of the Crimes Act 1900 (NSW) 4 Aggravated sexual intercourse with person aged 14 to 16 years old (under authority) 12 years imprisonment, no SNPP 3 years, 7 months s 66C(4) of the Crimes Act 1900 (NSW) 6 Inciting act of indecency in circumstances of aggravation (under authority) Five years imprisonment, no SNPP 2 years, 5 months s 61O(1) of the Crimes Act 1900 (NSW) 7 Aggravated sexual assault (person under the age of 16 years) 20 years imprisonment, SNPP of 10 years 6 years, 3 months with a NPP of 4 years 4 months s 61J(1) of the Crimes Act 1900 (NSW) Form 1 (attaching to count 7) Intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) 5 years imprisonment and/or 50 penalty units, no SNPP N/A

1. The applicant seeks leave to appeal against the aggregate sentence imposed upon him, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), advancing a single ground concerning the asserted failure of the sentencing judge to take into account the applicant's good character.

The Proceedings before the District Court

1. On 8 April 2019, the applicant entered pleas of guilty to four counts on the indictment presented against him, on what would have been the first day of his trial. He acknowledged his guilt in respect of another offence, intimidation, and asked that the offence be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when sentence was imposed for count 7. The matter was adjourned for sentence.
2. On 14 June 2019, the matter came before the sentencing judge for hearing. At the conclusion of evidence and submissions, judgment was given ex tempore and sentence imposed.

The Crown Case on Sentence

1. Part of the material tendered by the Crown was an agreed statement of facts, which his Honour accepted as establishing the facts of the offences. What follows is drawn from it.
2. The complainant was born in November 1997, being 15 years of age at the time of the offences.
3. In 2002, his mother commenced a relationship with the applicant, and the couple had a child in 2003. The applicant, the complainant's mother, their son, and the complainant and his two older siblings (the applicant's stepchildren), lived together in a small town in the Newcastle area for a number of years from 2005.
4. In 2013, the applicant worked as a truck driver. In July 2013, the applicant and the complainant went on a trip together to collect the applicant's truck from Singleton. The complainant was 15 years old at the time of this trip and at school, undertaking Year 10. The applicant asked the complainant's mother if he could take the complainant with him, and she agreed, thinking it would allow her husband and son to "bond". The applicant asked the complainant by text message if he would like to accompany him to Singleton, and the boy agreed.
5. At about 4.30pm on 21 July 2013, the complainant finished his shift at a grocery store where he worked part-time after school. He met the applicant at a nearby train station and the two caught a train to Singleton, arriving at around 7.00pm. They walked to a motel and the applicant took a room. The room had one single bed and one double bed.
6. At about 7.30pm, they left the motel and the applicant went to a nearby hotel where he consumed alcohol. He directed the complainant to order some takeaway food from a local restaurant, and wait for him outside the hotel. When the applicant emerged from the hotel, he and the complainant returned to the motel room and shared the takeaway meal. The applicant had purchased a "six pack" of beer, consuming four beers at the motel. The complainant had a few sips from a beer offered to him by the applicant, but did not like the taste. They each showered, and watched television. The offences were committed thereafter in the motel room.
7. The applicant told the complainant to get a box from the applicant's bag. The boy located a box, which the applicant confirmed was the correct box. It contained condoms. The applicant took a condom out of the box, handed it to the complainant and told him to put it on. The applicant said, "You're starting to get to an age where you need to know these things". The complainant pulled down his underwear and put the condom on. He felt "confused and uncomfortable". He thought that the applicant probably wanted to teach him how to put a condom on, but thought that this could have been done in other ways.
8. The applicant asked the complainant if he had put the condom on; the complainant said he had, although it was difficult as his penis was flaccid.
9. The applicant told him to come over to his bed, and he inspected the complainant's penis. The applicant then played a pornographic film on his laptop computer for the complainant to watch. Referring to the complainant's penis, the applicant said, "Let me have a look", and peered at the complainant's penis. Using his right hand the applicant took hold of the boy's penis to inspect it, looking at it with the condom in place. This conduct was reflected by count 2, a charge of aggravated indecent assault, the aggravating feature being the boy's age.
10. The complainant took the condom off.
11. The applicant said, "Oh no, what's wrong with ya. You should be able to get it hard easy at your age". The applicant shook his head in disbelief.
12. He leant over and took hold of the complainant's penis with his hand, and then put his mouth over it. The complainant protested, "whoa, what the fuck". He felt worried and scared. The applicant sat up and asked him what he had said; the complainant told him "nothing" as he was frightened of being punished for swearing. The applicant told him that "the tongue was delicate" and that, when it was on his penis, he "should be able to get it up easily". This act of fellatio was count 4; the circumstance of aggravation was that the complainant was under the applicant's authority.
13. The complainant asked if he could go back to bed, but the applicant told him that he "needed to learn this". The complainant asked if he could try himself in the bathroom, and the applicant agreed. The boy went into the shower and tried to get an erection, but was not able to. The applicant entered the bathroom, refusing to leave when the complainant told him to. The applicant said, "I don't know what's wrong with you. Just go to bed".
14. The complainant dressed and went to the single bed. The applicant got into the double bed. About 10 minutes later, the applicant turned a light on and said, "You need to do what I did to you so I know you won't tell anyone". The complainant insisted that he would not tell anyone, but the applicant would not listen, telling the boy "I'm not going to ask you again". The applicant stood up between the two beds, and pulled down his pants, revealing his semi erect penis, and said "righto".
15. The complainant again told his step-father that he would not tell anyone, but the applicant said, "I'm not gonna ask you again. Just do it". The complainant was fearful that the applicant might hurt or even kill him if he did not comply. He got on his knees but, feeling that he would vomit, said, "No I can't do it." This attempt by the applicant to force his step-son to fellate him was reflected by count 6; the circumstance of aggravation was, again, under authority.
16. The applicant replied, "Righto, if you can't do it, you don't have to do anything. Get on the bed". The complainant again assured the applicant that he would not tell anyone, but the applicant insisted that his step-son get on the double bed and pull down his pants. The complainant said "no", but the applicant, in an aggressive tone, demanded that he do it. Fearful, the boy complied, and the applicant pushed on the back of his neck, forcing his head down onto the bed with his neck in a sideways position. The applicant then had forceful penile-anal intercourse with the complainant, continuing for some minutes, and causing the boy pain. Throughout the assault, the applicant kept the pressure on the complainant's neck with his hand. Withdrawing, he ejaculated onto the back of his step-son's upper left thigh. Count 7 reflected this sexual assault. The circumstance of aggravation pleaded was that the complainant was under the age of 16 years.
17. The offence on a Form 1 document, which was taken into account when sentence was imposed for this offence, reflected a threat made by the applicant to the complainant, after he had ejaculated onto the boy's leg. The applicant told him, "If you ever tell anyone this I'll do things to you that you couldn't imagine". He told the boy to "Go in the shower and wash it off."
18. The complainant showered. He was scared and wanted to run away, but was worried that the applicant might beat him up or kill him. He stayed in the motel room.
19. The next morning the applicant and the complainant took a taxi to the place where the applicant's truck was parked, collected it, and drove home. Nothing was said about the sexual assaults of the previous evening.
20. In the following years, although the complainant wished to, he did not disclose what had happened to anyone; he was too afraid that the applicant may harm him, or that nobody would believe him.
21. The complainant's mother and the applicant separated in September 2017. Immediately after the complainant became aware of the separation he told his mother about the assaults, on 16 September 2017. The next day he reported the matter to police.
22. On 27 February 2018, the complainant had a conversation with the applicant over the telephone, a conversation which was lawfully recorded by police. The complainant recounted the assaults to the applicant. The applicant commented little, only saying repeatedly that they should speak in person.
23. On 2 March 2018, the applicant and the complainant met at a public place in the north of the state. The complainant wore a listening device and the conversation he had with the applicant was, again, lawfully recorded. He spoke about the offences that the applicant had committed. The applicant attempted to provide explanations, suggesting that alcohol and prescription medication had played a role. Amongst other things, the applicant said: "I didn't do it to hurt you, you might find this hard to believe or to understand that I actually wanted to be closer to you than anyone else".
24. He indicated that the same thing had been done to him. The applicant said: "You know you and I have never spoken about that night ever since and I feel guilty and I've tried to make it up to you in so many ways."
25. He said: "I'm not blaming, I'm not, I'm not gunna hundred percent blame the alcohol or the [medication] and everything, it just happened, it just happened, that's the best I can explain it".
26. He referred to the night of the offences as "one night" that he had "fucked up".
27. On 16 March 2018, the applicant was arrested by police. He participated in an electronic interview, in which he acknowledged having taken his step-son on an overnight trip to Singleton, but denied the allegations. Despite being told that the recent conversation he had had with the complainant had been recorded, he also denied the admissions he made during it. He was charged.
28. The applicant was taken into custody after his arrest, and remained in custody until he was granted bail on 11 July 2018. His bail was revoked upon entering his guilty pleas on the day fixed for his trial.
29. Other evidence tendered by the Crown included the applicant's criminal and custodial histories, a victim impact statement, and a sentencing assessment report ("SAR").
30. The applicant's criminal history recorded only two drink driving offences, from 1996 and 2002, and a charge of not keeping a firearm safely, which was found proved but dismissed without conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act. There was nothing of note in the custodial history.
31. The victim impact statement recorded the complainant's transformation from a "regular" teenager with an active social and sporting life and a wide group of good friends, to a withdrawn and socially isolated young man, unable to trust others, and afflicted by depression, sleeplessness, intrusive memories, and thoughts of suicide. He continued to be fearful of the applicant.
32. The SAR had been prepared on 13 June 2019. The applicant was noted to be a person with qualifications as a motor mechanic with a solid history of employment in heavy vehicle transport. He had experienced one long term relationship, with the complainant's mother, from which he had a teenage son.
33. Of the offences, the applicant claimed to have no memory. He denied the "offending (sexual) behaviour as described". The author described him as either "unable or unwilling to take responsibility for his actions".
34. Annexed to the SAR was a short report from a clinical psychologist with Corrective Services NSW ("CSNSW"), who prepared the "structured case note" by reference to file material, and without having interviewed the applicant. Using an actuarial risk assessment tool, the author of the note assessed the applicant to pose an "average" risk of sexual recidivism. She noted a reference in a CSNSW file note to the applicant's "partial denial" of the offences, notwithstanding his guilty pleas, and thought that he would benefit from psychological intervention.

The Applicant's Case

1. The applicant did not give evidence.
2. He tendered a forensic psychologist's report, from Mr Luke Brabant, dated 20 May 2019, with an addendum report of 12 June 2019.
3. Mr Brabant took a history from the applicant and, although he observed that the applicant had difficulty in recalling some information or "the timeline" of life events, the following was recorded. The applicant reported a safe and stable home life as a child, without exposure to any sort of neglect, abuse, or illicit behaviour. His parents had been positive influences upon him and, although his mother had died in recent years, he remained close to his father. He had good relationships with a number of siblings.
4. Mr Brabant raised the issue of the sexual abuse the applicant had told the complainant he had himself suffered as a child, but the applicant declined to discuss it. He said it was not something he wished to reflect upon or "process", being "just happy to go to work". Mr Brabant concluded that the applicant's mechanism for coping with psychological distress was "avoidance".
5. The applicant described completing school in year 10, and commencing in employment as a mechanic immediately, continuing in employment in various roles, including in the conduct of his own small businesses. When health issues prevented the applicant from working as a truck driver, he took up employment in a funeral home but, although he enjoyed the work, he found the exposure to corpses traumatic.
6. The applicant referred to various medical issues, such as arthritis and carpal tunnel syndrome, all managed by medication. He used alcohol socially, but did not regard it as problematic.
7. He described a wide and supportive social network. He referred to two important relationships, the second being with the complainant's mother, and mother of his own son. He described a happy relationship with her and gave a confused account of its breakdown. He said that he had been close to his step-children and felt like a father to them.
8. The applicant reported heterosexual orientation and an unremarkable history in that regard. His report was inconsistent with sexual preoccupation, or deviant sexual interests. He presented with a "sound understanding" of sexual consent and the age from which consent can be given.
9. Of the offences committed by him the applicant: […] "provided an ambiguous explanation of his offending and demonstrated limited insight into causal factors. He reported that 'he is not clear of the night or what happened between [him and the victim]'. Whilst not overtly acknowledging sexual contact with the victim, he indicated that it may have occurred in the context of him seeking to educate the victim about safe sex practices".
10. The applicant told Mr Brabant that he was held in protection in custody due to the nature of his crimes, and his access to programmes was limited.
11. The applicant denied any history of mental illness.
12. Mr Brabant thought that the applicant was suffering from post-traumatic stress disorder ("PTSD") linked to his employment in a funeral home, and his exposure to dead bodies. He recommended that the applicant be referred for individual psychological treatment to address his PTSD, "history of trauma", and general deficiencies in coping skills.
13. On administering various actuarial risk assessment measures to the applicant, Mr Brabant concluded that he posed a "below average" risk of sexual recidivism. Any risk scenario would be likely to involve circumstances similar to those surrounding the offences, and a boy of about the same age as the complainant. Mr Brabant noted that there was a risk to the applicant's son, particularly since the applicant did not acknowledge any possibility that he would reoffend.
14. Because of the applicant's "limited insight and vague account of the offences" Mr Brabant found it difficult to identify any "causal factors for his offending behaviour", other than by speculating.
15. The second report prepared by Mr Brabant evidently came about after the applicant's legal representatives spoke to him about his refusal to discuss his asserted experiences of having been himself sexually assaulted as a child. In a second interview the applicant was more forthcoming, telling Mr Brabant that he had been sexually abused by a male neighbour for a number of years, commencing when he was in Year 5 at school [i.e. from about 10 years of age]. He had never told family or friends about this, or complained to his father. The applicant said that he was worried that his father would blame himself for not having protected the applicant. He was also embarrassed. He described a second male perpetrator, a friend who had attempted to sexually assault him when he was about 17 years old. He said he had physically fought this friend off before anything occurred.
16. The applicant was reported as being unable to recall some aspects of this childhood abuse, or what he had felt at the time. Mr Brabant thought this was probably a consequence of "cognitive suppression". As the applicant did not report any shift in his perception of others following the abuse, other than a dislike of homosexuals, Mr Brabant thought that the reported abuse did not have a substantial impact on the applicant's social development. The applicant could not account for the dissonance between his stated dislike of homosexuals and his own homosexual crimes. His account of the offences remained "unclear".
17. The applicant tendered a medical certificate from a general practitioner noting that he was receiving treatment for carpal tunnel syndrome, and degenerative changes in the spine. Investigations for rectal bleeding were in progress. The certificate also noted the medications that the applicant had been prescribed.
18. Justice Health records relied upon by the applicant on sentence referred to his distress on entering custody, and symptoms exhibited by him, consistent with depression.
19. A psychological report concerning the applicant's son, being the child of the complainant's mother, was also tendered. The report noted that the boy was distressed and anxious, following longstanding marital acrimony between his parents, and his father's more recent entry into custody.
20. The applicant tendered a number of testimonials to the sentencing court, including from his father, his son, an employer, friends and neighbours; all were expressed in glowing terms, with various authors pointing to the applicant's good character, family values, and strong work ethic.
21. The applicant's father referred to the applicant's solid work history. He regarded "the charges laid against him [as] not in his nature at all". He noted that the applicant had support and employment on his return to the community.
22. A long term family friend described the applicant as a respectable, hardworking man, for whom the offences were "totally out of character". The author referred to what he perceived to be the impact that the charges had had on the applicant's health; having noticeably lost weight and "sleep".
23. A neighbour told the court in his letter that the applicant was "honest and respectable to deal with". He stated that he was aware of the charges and found them "totally and utterly out of character".
24. A local minister of religion, whom the applicant consulted after having been charged with these offences, observed that he had found the applicant to be polite and respectful, and he appeared deeply committed to caring for his son.
25. A work colleague thought the applicant was professional and possessed "a good moral compass". She thought that he was "a fantastic father and roll [sic] model to his son", always showing him right from wrong.
26. The applicant's young son spoke of his great love for the applicant, and his distress at his incarceration. He believed the incidents were out of character for his father, and that he had shown remorse.
27. An employee reference written by the applicant's former employer (with no reference to the offences, or to the use to which the document was to be put in court) described the applicant as an exceptional member of his team, who was "reliable, punctual, polite, hardworking and an honest man".

The Conclusions of the Sentencing Judge

1. The sentencing judge set out the offences and the relevant maximum penalties applicable to them. Referring to the lateness of the pleas, his Honour observed that he would allow a 10% discount on the sentence that would otherwise have been imposed for the offences in recognition of the utilitarian value of the pleas.
2. The sentencing judge had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. Observing that no penalty other than a term of imprisonment was available, his Honour determined that the sentence should commence on 15 December 2018 to reflect the six months that the applicant had already spent in custody on remand.
3. His Honour briefly summarised the facts of the offences, noting that the trip was suggested by the applicant, and was the first time the applicant had taken the complainant away. The complainant's mother had supported the suggestion, believing it would help the complainant and the applicant to form a bond. The offences were accompanied by intimidation intended to keep the offences secret. It was only after the applicant and complainant's mother had separated that the complainant had felt that he could disclose the offences.
4. The sentencing judge noted that the only matters on the applicant's criminal record were two drink driving convictions, charges from 1995 and 2001.
5. In relation to the weight to be given to the victim impact statement, the sentencing judge said he intended to approach it in accordance with what had been said by Basten JA in R v Thomas [2007] NSWCCA 269: "It will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim".
6. Of the applicant's case, his Honour observed that the applicant did not give evidence, relying instead on histories given by him to others. Although the material was untested by cross-examination, on the basis that it was generally consistent with other objective material, his Honour was prepared to accept it, albeit with a degree of caution.
7. On the basis of the histories, the sentencing judge observed that the applicant had disclosed an assertion of being himself a victim of child sexual abuse, but accepted the applicant's submissions that they "cannot go as far as to assert that that had any causative role in this offending."
8. The applicant's personal circumstances were set out, drawn from the reports of Mr Brabant. The sentencing judge was conscious of the applicant's asserted lack of memory (to Mr Brabant) and denial (to the author of the SAR) of the offences, and noted Mr Brabant's conclusion that the applicant had limited insight into his conduct.
9. His Honour noted the medical reports from Justice Health and other private practitioners, referring to the applicant's continuing back pain due to degenerative spinal changes, and some hand pain being treated by surgery.
10. Favourably to the applicant, the sentencing judge was prepared to treat the psychological report relevant to the applicant's son as establishing "potential hardship to third parties" a matter he was prepared to take into account on sentence.
11. His Honour also took into account "the detailed letter from the offender's son" and, further the references provided by the applicant's father, and all of those who provided testimonials, knowing of the nature of the charges (see [108] below).
12. His Honour pointed to the relevant purposes of sentencing as including: "to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and others from committing similar offences, to protect the community from the offender, to promote [h]is rehabilitation, to make him accountable for his actions, to denounce his conduct and to recognise the harm done to the victim of the crime and the community".
13. The sentencing judge went on to state that: "Both general and specific deterrence should be reflected in the non-parole period: R v X [2003] NSWCCA 56. The non-parole period must reflect the objective gravity of the crime, taking into account the subjective features and it must be the minimum period for which the offender must be kept in detention in relation to the offence: R v Bugmy (1990) 169 CLR 525; Power v The Queen (1974) 131 CLR 623; R v Barakat [2004] NSWCCA 201".
14. The sentencing judge noted that the courts and legislature have stressed that sexual abuse of children is a: "matter of grave concern to the community and the maximum penalties that the legislature has set, reflect the community abhorrence and concern. The age of this offender, the relative absence of a criminal record and the fact that offences may occur spontaneously are common features of many cases where children are subject to sexual abuse by adults."
15. His Honour noted the importance of general deterrence, and that "those who stand in a position of trust to children must be severely punished". The breach of trust was found to be an aggravating factor with respect to counts 2 and 7.
16. Referring to the applicant's inconsistent assertions about the abuse of his step-son, his Honour concluded that it was: "difficult to form a firm view as to whether he is truly remorseful or whether he has pleaded guilty to simply reflect a recognition of a strong Crown case. However, I did take into account that he does not have a significant record of convictions."
17. His Honour concluded that the prospects of rehabilitation were "at least reasonable and the pleas of guilty are to be taken into account as a mitigating factor".
18. The sentencing judge pointed to the need for the Court "to strike a balance between the principle of totality and ensuring that effective punishment is imposed for each individual offence: R v Wheeler [2000] NSWCCA 34." His Honour observed that, while the offences occurred on a single evening, the: "gravity seemed to escalate, culminating in a violent penile-anal sexual assault accompanied by a threat to not disclose to anyone what had happened".
19. Insofar as it was necessary to do so, the sentencing judge concluded that the offending, and particularly count 7, should be regarded as above the mid-range of objective seriousness.
20. The sentencing judge accepted that there was a basis for a finding of special circumstances, "given that this is the first time in custody for this offender and the evidence suggests that there would be a benefit in an extended period of supervision beyond the normal statutory ratio".

The Application

1. If granted leave, the applicant advances a single ground of appeal: "His Honour erred in failing to take into account the applicant's prior good character".
2. The applicant argues that, the offences having been committed on one night in the context of a 15 year relationship between him and the complainant's mother, they were "an aberration", a conclusion consistent with and supported by the testimonials that he relied upon on sentence.
3. Relying on what was said by McHugh J in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, at [23]-[25], and on the observations of Kirby J in Weininger v R (2003) 212 CLR 629; [2003] HCA 14, at [58]-[59], the applicant submits that the offending was out of character and "deserving of leniency".
4. The Crown contends that the sentencing judge specifically referred to the evidence that established the applicant's good character, and to his limited criminal history, and clearly took each of those features into account as matters of mitigation.

Consideration

1. It is important to acknowledge at the outset that the remarks of the sentencing judge were delivered ex tempore, immediately after counsel for the applicant had made her submissions.
2. The matter was heard in the context of a sentencing list before a regional District Court, with the transcript of the proceedings on sentence making clear that there was at least one other sentence matter listed that day before his Honour. It would be uncommon if there were not a full range of other matters also listed, including a trial or trials, appeals, and mentions.
3. His Honour received written submissions from the Crown. The applicant made both written and oral submissions. In his written submissions, the applicant referred to a number of features relevant to the assessment to be made by the court of the objective gravity of the offences, and to "mitigating factors". Of the latter, matters enumerated in s 21A(3) of the Crimes (Sentencing Procedure) Act were referred to, including: "(f) the offender is of good character - the references attest to his hard working nature and his prior good character".
4. In oral submissions, the applicant's counsel gave emphasis to the hardship that would be occasioned to the applicant's son by his incarceration; the opinion of Mr Brabant that the applicant suffered from PTSD, and the applicant's health more generally; the pleas of guilty as evidence of remorse, particularly when coupled with the admissions made by him to the complainant; the isolated nature of the offending conduct; the applicant's good prospects of rehabilitation, given his good character, irrelevant criminal record, and family support; and the fact that there should be a finding of special circumstances, on the basis that the applicant had never previously been imprisoned.
5. His Honour then gave judgment.
6. That context is not unimportant. The observations made in Simkhada v R [2010] NSWCCA 284 at [24]; Rotner v R [2011] NSWCCA 207 at [57]; and R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 at [34]-[35] continue to resonate. Most recently, in Tuncbilek v R [2020] NSWCCA 30 at [50], the point was again made, referring to Speechley: "It is also necessary to keep in mind that the sentencing remarks were delivered ex tempore after the sentencing hearing. In R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, this Court said at [34]-[35]: '34 … the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be "as robustly structured as they might otherwise have been" (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may "lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing" (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]). 35 When considering whether error has been demonstrated in the ways alleged by the Crown, it will be necessary to fairly read his Honour's remarks on sentence, bearing in mind the features of an ex tempore decision.'"
7. It is clear from the transcript of the hearing before his Honour that there were a number of persons present in the court room that day with an interest in the proceedings, including family members of the complainant, and family members of the applicant. By delivering judgment immediately after evidence was taken and submissions delivered, those persons were able to see sentence passed and hear the court's reasons, in the context of the whole of the proceedings they had observed.
8. Had his Honour adjourned the matter for sentence, he would have had the luxury of time for the "refinement of expression" referred to in Speechley, but the benefit of an immediate resolution of the matter for all of those interested in the proceedings would have been lost. That is no small consideration, particularly when sentence is being imposed for child sexual assault offences, which should ordinarily proceed with as little delay as is possible.
9. It is also relevant to bear in mind that the District Court is an extraordinarily busy jurisdiction, where judges routinely deal with a very high number of cases daily. In a regional court, as Lismore District Court is, the daily cases will typically include a trial, requiring the presiding judge to hear matters of shorter duration such as sentence proceedings, at times when the trial has been stood down, during a short adjournment, or at the end of the day. With busy lists of that nature, it is not just desirable to resolve matters quickly, but necessary to do so, lest the court's outstanding lists become unmanageable and waiting times for all litigants unacceptably extended.
10. Of course, none of that is to detract from the important principle that a sentence judgment must make clear the reasons why a particular sentence was imposed, and the factors taken into account in determining sentence: Taylor v R [2018] NSWCCA 255, at [51]-[56].
11. In his ex tempore remarks, his Honour made clear that he had regard to a number of features, each of which was relevant in mitigation of sentence.
12. His Honour observed that the applicant had no relevant record, there being "only […] two convictions for PCA in 1995 and 2001", and stated that he would take into account that the applicant "did not have a significant record of convictions".
13. Although he was entitled, consistent with authority such as R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369, to give little or no weight to the self-report of the applicant to others, his Honour accepted the history that the applicant gave of his personal circumstances to Mr Brabant. That history, cited at some length in the remarks on sentence, included an account of the applicant's solid record of continuous employment; his close and supportive relationships with family, in particular with his father and son; the stable and long term relationship he had enjoyed with the complainant's mother, unmarred by infidelity or domestic violence; the absence of any substance abuse problems; and the applicant's wide and supportive networks of friendships.
14. The applicant's account of himself informed Mr Brabant's opinion that the applicant posed a low risk of sexual recidivism, something his Honour also accepted, notwithstanding the applicant's lack of insight and unwillingness to take responsibility for his actions.
15. The sentencing judge referred specifically to the "detailed letter from the offender's son", which he stated he would "take into account". In that letter, of two and a half closely typed pages, the applicant's teenage son described his father as "a helping caring person"; a "massive role model"; a "good employee" who always took pride in his work; a "calm and cooperative person" who would never intend to hurt anyone, and for whom the offences were out of character; and as an "awesome" person much needed by his son.
16. His Honour continued: "I take account of the reference from [the applicant's] 82 year old father, who speaks highly of him, and offers him continued support. Similar references from a [Mr J] and from [Mr R] assert that the offending is out of character, given their knowledge of this man, speaking highly of him, and all the referees have been made aware of the circumstances of the offending."
17. (In fact, the reference from the applicant's employer appears to have been written in ignorance of the offences to which the applicant had pleaded guilty, but that mistaken observation was favourable to the applicant.)
18. His Honour concluded that the applicant's prospects of rehabilitation "are at least reasonable", a favourable conclusion having regard to the applicant's refusal to confront the reality of his crimes, and his denial of them to police, the author of the SAR and, in part, Mr Brabant.
19. Also favourable to the applicant was the acceptance by the sentencing judge of the applicant's submission that there should be a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act, on the basis that this would be his first experience of prison. Particularly since this Court has consistently made clear that such a finding should not be made on that basis, his Honour's conclusion was clearly beneficial to the applicant.
20. As the applicant submitted, evidence of good character, a feature specifically listed in s 21A(3)(f) of the Crimes (Sentencing Procedure) Act, can result in significant mitigation of sentence: a "morally good person" can be less deserving of punishment (Ryan at [30]); the extent to which specific deterrence must feature in the calculation of an appropriate sentence can be diminished where an offender is of good character; a court may be permitted to extend leniency to an offender that would not otherwise be available; evidence of good character may allow a conclusion to be drawn that the offender has good prospects of rehabilitation; or such evidence may mitigate the extent to which the protection of the community must feature in the determination of sentence.
21. In Ryan, McHugh J referred to the two distinct stages relevant to a sentencing court's consideration of evidence of good character. First, it is necessary to determine whether the offender is of good character, setting aside the offences for which he or she is being sentenced. Second, if the offender is of good character, it is necessary for the sentencing judge to determine the weight to be given to that feature, in mitigation of sentence. As the Court there said, at [25]: "If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances."
22. On a fair reading of the whole of the remarks on sentence delivered by the sentencing judge, it is clear that his Honour accepted that the applicant was a person of former good character, the first step referred to in Ryan. What weight his Honour gave to that feature of the subjective case, having reached that conclusion, was a matter to be determined by him having regard to the overall circumstances of the case, and in accordance with principle; this being the second step referred to in Ryan.
23. To what degree good character will operate in mitigation of sentence is a matter for the sentencing judge. There is no formula or equation or percentage discount that automatically applies when there is evidence before a sentencing court that an offender was formerly a person of good character. It is a matter for the sentencing court to balance an offender's subjective case, including evidence of good character, against the objective seriousness of the offence, and determine a sentence which is proportionate to the gravity of the offending conduct.
24. In R v Van Ryn [2016] NSWCCA 1, R A Hulme (with the concurrence of Leeming JA and Johnson J) restated that principle at [280] thus: "True it is that there were a number of significant matters in the respondent's subjective case that called for not inconsiderable mitigation. But giving due recognition to those matters cannot be allowed to prevail over the well-established sentencing principle described by Spigelman CJ in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15]: 'It is authoritatively established that the common law principle of proportionality, propounded in Veen No 2, requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances. (Hoare v The Queen (1989) 167 CLR 348 at 354.) In a line of cases, commencing with R v Dodd (1991) 57 A Crim R 349 at 354, referred to and affirmed by a five judge bench in R v Whyte (2002) 55 NSWLR 252 at [156]-[158], the proportionality principle is also held to apply so that a sentence should not be less than the objective gravity of the offence requires.'"
25. See also TP v R [2018] NSWCCA 140 at [26]-[27] per Bellew J, with whom White JA and I agreed.
26. In this matter, whilst his Honour did not, in delivering his remarks, specifically refer to s 21A(3)(f) of the Crimes (Sentencing Procedure) Act, or specifically state that the applicant's former good character was a feature of mitigation, it was not necessary for him to do so to make it clear that he had regard to the applicant's good character as a feature which mitigated the sentence to be imposed.
27. Considering the whole of the sentencing remarks, and making due allowance for their delivery ex tempore, I am not persuaded that his Honour did fail to take into account the applicant's former good character. His Honour specifically referred to the evidence of good character - the detailed letter from the applicant's son, the reference from the applicant's father, from Mr J and Mr R and "all the referees [who] have been made aware of the circumstances of the offending", and to the history of his positive lifestyle and circumstances given by the applicant to Mr Brabant - and said he would take that evidence into account.
28. That the evidence did not mitigate sentence as much as the applicant may have hoped it would cannot be wondered at, when the nature and circumstances of the offending are considered.
29. In that regard, it was not necessary for the extent of mitigation afforded the applicant in light of his good character to be great. As in Ryan, the applicant's crimes were very serious sexual offences committed by a person in a position of trust and authority over a child. The remarks of McHugh J at [33] are instructive: "Sentencing is not a mathematical process. Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance. The nature of the offences for which the appellant was being sentenced meant that his otherwise good character could only be a small factor to be weighed in the sentencing process" (footnotes omitted).
30. Child sexual assault offences such as these fall within a category or class of offence where, at common law, good character may carry less weight than it might otherwise have had. The issue was considered by Johnson J (with whom McClellan CJ at CL and Adams J agreed) in R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, at [51]-[52]: "[51] What weight will be given to evidence of good character on sentence depends, to an extent, on the character of the offence committed: R v Smith (1982) 7 A Crim R 437 at 442; Ryan at [143]. [52] In R v Kennedy [2000] NSWCCA 527, Howie J (Simpson J agreeing) referred to factors which operate to afford less weight to prior good character on sentence. His Honour said at [21]-[22]: 'It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed."
31. The passage cited by his Honour from R v Kennedy [2000] NSWCCA 527 is an important one. Each of the features listed by Howie J applies to the offences committed by the applicant: general deterrence is a significant feature in child sexual assault sentencing; the offences are serious and frequently committed by persons of good character; and the applicant's prior good character assisted him in placing him in a position where it was possible for him to commit the offences, since, it need hardly be stated, if the applicant was a person with a history of sexually assaulting teenage boys, the complainant's mother would not have permitted her teenage son to spend a night with him unsupervised.
32. (Although it is of no relevance here, since the sentencing judge made no relevant finding, there is also a statutory rule to similar effect. Section 21A(5A) of the Crimes (Sentencing Procedure) Act provides that good character may not be taken into account in mitigation on sentence for a child sexual assault offence where the court is satisfied that the factor was of assistance to the offender in the commission of an offence.)
33. On that basis, the weight to be given to good character in the applicant's case ought to have been diminished.
34. These were grave crimes involving sexual offending against a child who was entitled to look to the applicant for protection. Instead, the applicant had taken his victim away from his home in circumstances where the sentencing judge concluded there was some evidence of planning. His Honour pointed to the fact that the applicant had suggested the trip to his wife and to the complainant, and had taken with him a box of condoms, and had available to him ready to play on his computer a pornographic video. As the sentencing judge observed, "this was not simply a spontaneous or unplanned event".
35. As a child in a strange town away from family and friends, the complainant was both utterly dependent upon the applicant and, for that reason, completely vulnerable to sexual predation by him. The offences occurred in an atmosphere of aggression and threat, culminating in what the sentencing judge described as "a violent penile-anal sexual assault accompanied by a threat to not disclose". The complainant was thereafter too frightened to tell anyone, until the applicant left the family home having separated from the complainant's mother.
36. There was little or no evidence of remorse. The pleas were entered on the very day that the applicant's trial was to commence and in the face of a very strong Crown case. Despite the pleas, the applicant continued to deny or minimise his conduct. There was no evidence that he ever expressed any regret or concern for the impact that his abuse of a step-son he professed to love had had on the boy. Why he assaulted his step-son in this sickening manner was never explained. That the sentencing judge was prepared to conclude that the applicant had "at least reasonable" prospects of rehabilitation could only have been on the basis of his former good character, since little else supported that conclusion.
37. Particularly when considering these features, the sentence imposed must be concluded to be one which, although giving the applicant the benefit of his former good character, appropriately balanced that feature against the grave nature of the crimes, and the applicant's ongoing denial of them. No error is disclosed.
38. Although I would give leave to advance the appeal, it should be dismissed.

Endnotes

1. See Taylor v R [2020] NSWCCA 46 at [86] per Davies J.
2. At [42].
3. At [43].
4. At [43].
5. At [43].
6. At [49].
7. At [51].
8. At [53].
9. (2000) 206 CLR 267; [2001] HCA 21.
10. At [23] and following.
11. See for example Hudson v R [2016] NSWCCA 278 at [71]-[72].
12. Crimes Act 1900 (NSW) ss 66A.
13. R v AJP [2004] NSWCCA 434 at [25].
14. See R v Nelson [2016] NSWCCA 130 at [23].
15. At [10].
16. At [4].
17. R v MacLeod [2013] NSWCCA 108 at [43]; Hoskins v R [2016] NSWCCA 157 at [63].
18. Taking into account the matters on the Form 1. 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: 13 November 2020