BM v R

Court of Criminal Appeal (NSW)|2023-02-08|Before: Mitchelmore JA, Walton J, Adams J, O'Brien AM

Solicitors: H & H Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2020/45828 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 23 August 2021 Before: O'Brien AM J File Number(s): 2020/0045828

HEADNOTE [This headnote is not to be read as part of the judgment] BM ("the applicant") pleaded guilty to one count of sexual intercourse with a child under 16 years contrary to s 61D(1) of the Crimes Act 1900 (NSW) ("Crimes Act") and two counts of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act ("the offences"). The offences were committed between 25 October 1984 and 31 March 1990. On 23 August 2021 the applicant was sentenced by O'Brien AM DCJ to an aggregate sentence of 7 years' imprisonment with a non-parole period of 4 years and 3 months. By way of two Form 1s, the sentence took into account two additional offences of sexual intercourse with a child contrary to ss 61D(1) and 66A of the Crimes Act. The facts of the offending can be briefly summarised as follows. The three counts and two Form 2 offences each consisted of a separate occasion of sexual intercourse by digital penetration. Aside from the applicant digitally penetrating the victim's vagina during each offence, he also committed other sexual acts including rubbing the victim's clitoris, directing the victim to wash his penis and get into bed with him and lying on top of the victim while they were both unclothed from the waist down. These five offences were committed between 1985 and 1990 when the victim was between 5 and 10 years of age. The offences took place while the victim was in the care of the applicant, four times at a home which the applicant shared with the victim's sister, and once at a local swimming pool. The applicant sought leave to appeal from his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on two grounds. First, that the sentencing judge erred in the assessment of the objective seriousness of Counts 2 and 3 (two counts of sexual intercourse with a child under the age of 10 years contrary to s 66A of the Crimes Act). Secondly, that the sentence was manifestly excessive. The principal issues on appeal were: 1. whether the sentencing judge erroneously assessed Counts 2 and 3 as being of too high a level of objective seriousness, which was argued on the basis of two contentions: 1. whether the sentencing judge's reference to "legislative guideposts" constituted a reference to the current maximum penalty and standard non-parole period in s 66A and indicated that his Honour had mistakenly sentenced on the basis of these penalties ("the legislative guideposts issue") 2. whether the sentencing judge erred by not expressly placing significance on certain stated factors when assessing objective seriousness and by not explicitly stating the extent to which certain factors separately contributed to the assessment of objective seriousness ("the explicitness of factors issue") 1. whether the sentence was unreasonable or plainly unjust in light of the following contentions: the objective seriousness of Counts 2 and 3 were lower than that determined by the sentencing judge, the applicant's subjective factors should have been given more weight, specific deterrence had little application and some emphasis upon concurrency was called for ("the manifest excess issue") The Court held (Walton J, Mitchelmore and N Adams JJ agreeing), granting leave to appeal against the sentence but dismissing the appeal: 1. The sentencing judge did not err in assessing the objective seriousness of Counts 2 and 3 as being, respectively, slightly below the mid-range and about the mid-range for offences of their type. This assessment was open to the sentencing judge. Such descriptors of range are neither prescribed nor precise and should not be held to an unduly technical standard: Walton J at [45]-[46], [56]-[58], Mitchelmore JA at [1] and N Adams J at [71] agreeing. Salafia v R [2015] NSWCCA 141, applied. Bektasovski v R [2022] NSWCCA 246; Towse v R [2022] NSWCCA 252, referred to.

As to the legislative guideposts issue 1. The applicant failed to establish their contention that in the assessment of objective seriousness the sentencing judge erroneously applied the maximum penalty of life imprisonment and standard-non parole period of 15 years which formed part of s 66A of the Crimes Act at the time of sentencing and not at the time of the applicant's offending. Read as a whole, the sentencing judge's statement of reasons made clear that his Honour was consciously and correctly applying the maximum penalty of 20 years which applied to s 66A offences at the time of the applicant's offending. His Honour's reference to the importance of "legislative guideposts" was not a specific reference to, or evidence of his application of, the increased maximum penalty and the standard-non parole period applicable to offences committed at the time of sentencing: Walton J at [34]-[40], Mitchelmore JA at [1] and N Adams J at [71].

As to the explicitness of factors issue 1. As well as taking into account a wide range of factors relevant to the assessment of objective seriousness, the sentencing judge sufficiently took into account the factors which the applicant alleged his Honour failed to place express significance upon: the victim's age and the nature of the sexual intercourse being digital penetration, not penile-vaginal intercourse. The sentencing judge was not required to explicitly state to what extent each factor separately contributed to the overall assessment of objective seriousness: Walton J at [50]-[55], Mitchelmore and N Adams JJ agreeing. 2. With regards to factors which may have been absent from the offending (force, the use of threats or pressure to ensure the victim's compliance and subsequent silence), the identification of factors absent from the offending, which if present would have made the offence more objectively serious, did not make the offence less serious than it was: Walton J at [47], Mitchelmore JA at [1] and N Adams J at [71] agreeing. TM v The Queen [2018] NSWCCA 88; Mills v R [2017] NSWCCA 87; Mammone v R [2013] NSWCCA 95; Saddler v R (2009) 194 A Crim R 452; [2009] NSWCCA 83, applied.

As to the manifest excess issue 1. The applicant's aggregate sentence was not unreasonable or plainly unjust and the sentencing judge did not misapply principle in assessing the objective seriousness or subjective factors of the applicant's offending. The sentencing judge took into account the need for a degree of concurrency and accumulation and general deterrence and found that there were special circumstances involving a significant downward adjustment to the non-parole period to approximately 60% of the aggregate head sentence: Walton J at [65]-[70], Mitchelmore JA at [1] and N Adams J at [71] agreeing. Markarian v The Queen (2005) 228 CLR 357; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Vuni v R [2006] NSWCCA 171; Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, discussed.

JUDGMENT

MITCHELMORE JA: I agree with Walton J.
WALTON J: By a Notice of Application for Leave to Appeal filed on 16 August 2022, BM ("the applicant"), sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 2012 (NSW) against a sentence imposed upon him in the District Court of New South Wales on 23 August 2021.
The applicant pleaded guilty to three counts of sexual intercourse with a child ("the offences"). The applicant sought that two additional offences be taken into account by way of a Form 1 attached to Counts 2 and 3 of the offences. The offences were committed between 25 October 1984 and 31 March 1990.
The applicant was sentenced by his Honour Judge O'Brien AM ("the sentencing judge") to an aggregate sentence of 7 years' imprisonment with a non-parole period of 4 years and 3 months to commence on 23 August 2021 with the non-parole period expiring on 22 November 2025 and the head sentence to expire on 22 August 2028. A finding of special circumstances was made by the sentencing judge.
The Crown helpfully provided a table setting out the specific offences, maximum penalties and indicative sentences provided by the sentencing judge. That table appears below: Counts Indicative terms Count 1 - Sexual assault (category 3) - sexual intercourse with a person under the age of 16 years Crimes Act [1900 (NSW)] s 61D(1) 2 years and 8 months imprisonment Maximum: 10 years imprisonment Count 2 - Sexual intercourse with a child under the age of 10 years Crimes Act [1900 (NSW)] s 66A Taking into account the Form 1 (see below) - 4 years imprisonment Maximum: 20 years imprisonment Count 3 - Sexual intercourse with a child under the age of 10 years Crimes Act [1900 (NSW)] s 66A Taking into account the second Form 1 (see below) - 4 years and 6 months imprisonment Maximum: 20 years imprisonment Form 1 attaching to Count 2: Sexual intercourse with a person under the age of 16 years Crimes Act [1900 (NSW)] s 61D(1) Maximum: 10 years imprisonment Form 1 attaching to Count 3: Sexual intercourse with a child under the age of 10 years Crimes Act [1900 (NSW)] s 66A Maximum: 20 years imprisonment

Grounds Of Application For Leave To Appeal

The applicant sought leave to appeal with respect to two grounds as follows: 1. The sentencing judge erred in the assessment of the objective seriousness of Counts 2 and 3. 2. The sentence was manifestly excessive.

Objective Factors

A statement of agreed facts was provided to the sentencing court upon the entry of the applicant's pleas of guilty. The objective facts may be summarised from that foundation as follows: 1. The applicant was born on 4 September 1964. The victim was born in April 1980. The applicant commenced a relationship with the victim's older sister (who was 16 years older than the victim) in 1984 and they married in 1987. The applicant committed the offences against the victim between 1985 and 1990 when she was between 5 and 10 years of age (paragraph 2 of the agreed facts); making the applicant between 20 and 25 years old at the time of the offending. 2. By Count 1 the applicant was charged with sexual intercourse with a person under the age of 16 years: Crimes Act 1900 (NSW) ("Crimes Act") per s 61D(1). The maximum penalty for the offence at the time of the offending was imprisonment for 10 years. The victim was at the unit of the applicant and her older sister between 1984 and 1986 when she was aged 4, 5 or 6 years old. The applicant was in the bath with the victim when he leaned forward and washed the victim with soap, touched her vagina and then put his fingers inside her vagina. She felt the fingers inside and felt like her vagina was burning. He then told the victim to wash his penis. The victim held his penis in her hand but does not recall if she washed it. The victim made a complaint to her sister and she confronted the applicant, but he denied wrongdoing and was given the benefit of the doubt by her. The victim became clingy with her sister and did not want to sleep alone in the spare room, instead wanting to sleep next to her sister on the floor of her bedroom. 3. By Count 2, the applicant was charged with sexual intercourse with a child under the age of 10 years: Crimes Act per s 66A. The maximum penalty for that offence was imprisonment for 20 years. Between 1987 and 1989, when the victim was about 7, 8 or 9 years old, the applicant took her to a local swimming pool to train for a swimming carnival. When they were both in the water, with other people in the pool, he held her facing away from him, pulled her swimming costume to the side and put his fingers inside her vagina and touched her clitoris. Afterwards she was moody and withdrawn, would not go to bed unless her parents lay down with her and often wrapped herself in a doona and lay at the end of her parents' bed or on the floor next to them, which was unusual behaviour for her. 4. The Form 1 attached to Count 2 concerned sexual intercourse with a person under the age of 16 years: Crimes Act per s 61D(1). The maximum penalty for that offence was imprisonment for 10 years. Between 1985 and 1987, when the victim was aged 5, 6 or 7 years old, she was in her sister's pool with the applicant when he positioned her in front of him, pulled her swimming costume to the side and put his fingers inside her vagina. His fingers were there for a short period of time. The victim recalled that he may have rubbed her clitoris. 5. By Count 3, the applicant was charged with sexual intercourse with a child under the age of 10 years: Crimes Act per s 66A. The maximum penalty for that offence was imprisonment for 20 years. Between 1987 and 1990, when the victim was about 7, 8 or 9 years old, she was staying at her sister's home which was a townhouse bought by her sister and the applicant, who were living together. Her sister was not at home. The applicant was on the couch with the victim and he was naked from the waist down. The victim had no pants on. The applicant was lying on top of her and was touching her vagina with his hand. He rubbed her clitoris and then put his fingers inside her vagina, which went on for a short period of time. When the victim's parents pulled up outside in their car, the applicant quickly picked up his pants from the floor and ran into the bathroom to put them on. The victim picked up her clothes and put them on before her parents entered the house. This was the last time the victim saw the applicant. 6. The Form 1 attached to Count 3 concerned sexual intercourse with a child under the age of 10 years, Crimes Act per s 66A. The maximum penalty for that offence was imprisonment for 20 years. Between 1987 and 1990, when the victim was aged 7, 8 or 9 years old, she was staying at the townhouse bought by the applicant and her sister and had slept on a mattress on her sister's side of the bed. When her sister was getting ready for work, the applicant told the victim to jump into bed with him, which she did. Once her sister left, the applicant started rubbing the victim's clitoris and then put his fingers inside the victim's vagina. 7. The victim made a complaint to her close friend in 1990 that the applicant had sexually assaulted her. This was relayed to the victim's sister, who confronted the applicant. He did not deny the allegations and offered to seek help, saying he had been abused as a child. 8. The sister went with him to a psychiatrist for treatment for paedophilia, but they separated in 1990 and divorced in 1992. Disclosure was made to the Department of Community Services, but the family then moved. Subsequently, as an adult and after discussion with her sister, the victim made a police statement in 2018, following which the applicant was arrested in February 2020. He was interviewed by police and denied touching the victim inappropriately.

Subjective material

Both parties provided summaries of the subjective material before the sentencing court which were largely consistent. The following is a summary of the subjective material on sentencing: 1. The applicant was relatively young at the time of the offences, being between 20 and 25 years of age. 2. The applicant had no other criminal record and had not reoffended for more than 31 years. 3. The applicant had a relatively stable home life, although the family moved regularly due to his father's occupation as a bank manager. 4. The applicant had a difficult time at school where he was subjected to physical and verbal abuse. As a child he had difficulty making and maintaining friendships with his peers. He was sexually abused for approximately one year at the age of nine or ten years by an older boy. 5. The applicant had been working all his adult life as a nurse and reported to the forensic psychologist Ms Delphine Bostock that he enjoyed working in this capacity. He ceased work after he was charged in February 2020, when he was working as a nurse in a hospital cardiac unit. 6. The applicant had a history of anxiety and depression and was first diagnosed with these conditions in 2016. In 2016, he was admitted to a psychiatric inpatient facility for three weeks and diagnosed with major depressive disorder following a stressful episode while working as a hospital operating theatre coordinator. His depression was ongoing to the time of sentence. The applicant was in the extreme range for severe depression, the mild range for anxiety and the moderate range for stress when examined on 10 August 2021 by the forensic psychologist for the purposes of preparing a report for sentence. 7. The applicant had three significant personal relationships in his life. His first marriage with the victim's sister effectively broke down because of the offending conduct. He had a second relationship from the mid-1990s to 2000. His most recent relationship with his current wife commenced in the early 2000s. His wife had a daughter aged eight years at the commencement of their relationship and he remained in occasional contact with his stepdaughter. After the pressure of the proceedings impacted their relationship, he separated from his wife although they remain in some contact. 8. The applicant expressed remorse and pleaded guilty to the offences, albeit at a late stage once his matter was listed for trial. The forensic psychologist assessed the applicant as possessing a low risk of recidivism. The sentencing judge assessed the applicant as possessing good prospects of rehabilitation. The forensic psychologist noted that the applicant possessed positive social influences that promoted prosocial values, had demonstrated capacity to be part of a supportive intimate relationship, had no obvious emotional identification with children or evidence of hostility towards women and had demonstrated long-term concern for the welfare of others.
Special circumstances were found by the sentencing judge based on a combination of factors: that this was the applicant's first custodial sentence, his age and the COVID-19 restrictions at the time of sentencing making it likely that custody would be somewhat more onerous for him, that his mental health concerns were not likely to improve in a custodial setting, and that he possessed good prospects of rehabilitation.

Findings Of The Sentencing Judge

The sentencing judge commenced his reasons for sentence by setting out the three offences for which the applicant pleaded guilty and the maximum penalty for these offences at the time they were committed. Relevant to the first ground of appeal, his Honour stated that the two offences contrary to s 66A of the Crimes Act "as then enacted" carried a maximum penalty of 20 years imprisonment, and the offence contrary to s 61D(1) of the Crimes Act carried a maximum penalty of 10 years imprisonment. When seen in the context of the whole of the reasons for sentencing, in my view, his Honour's reference to "as then enacted" should be understood as meaning enacted at the time of the applicant's offending.
The sentencing judge noted that at the time of the offending contrary to s 61D(1), the Parliamentary reform had not yet occurred which introduced s 66A and significantly increased the maximum penalties for sexual offences against children. His Honour specified that offences against s 66A "now attract a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment, indicating the seriousness with which offending of this type is regarded". Relevant to the applicant's argument concerning his Honour's subsequent reference on page 13 of the reasons for sentence to "legislative guideposts" (as extracted at paragraph25 of my judgment), this discussion at page 2 of his Honour's judgment was his Honour's first of four references (prior to page 13) to the importance of legislation as a guidepost in the sentencing exercise.
The sentencing judge outlined the two Form 1 arrangements applicable to the offender and stated that they required an appropriate increase in the sentence for the principal offence to which they each attached in comparison to the sentence that would otherwise be imposed for each principal offence without a Form 1 attached.
The sentencing judge allowed a 10% discount for the applicant's pleas of guilty.
The sentencing judge presented the mandatory considerations required by the exercise of sentencing, namely, the offender's subjective circumstances, the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"),the objective seriousness of the offence assessed with "reference to the maximum penalties prescribed by the Parliament at the time of the offending", the facts and circumstances of the offending, relevant common law principles and applicable sections of the Sentencing Act. Again, relevant to the applicant's argument concerning his Honour's subsequent reference on page 13 to "legislative guideposts", this discussion at page 3 of his Honour's judgment was his Honour's second of four references (prior to page 13) to the importance of legislation as a guidepost in the sentencing exercise.
His Honour described his Honour's responsibility as sentencing judge as being mandated to undertake a comprehensive process of considering "all the relevant factors" before undertaking "an instinctive synthesis" and making a "value judgment as to what is an appropriate sentence having regard to all the factors of the case including the offender's subjective circumstances".
His Honour then set out the agreed factual circumstances which have been earlier discussed in this judgment.
The sentencing judge noted that s 25AA of the Sentencing Act required the Court to sentence the applicant in accordance with the sentencing patterns and practices which were current at the time of sentencing and to have regard to the trauma of sexual abuse on children as understood at the time of sentencing. I pause here to note that on 18 October 2022, s 25AA(1) was removed and reinserted at s 21B(1). Counsel for the applicant contended that the sentencing judge may have misapplied s 25AA. I will return to this in my consideration.
The sentencing judge acknowledged the "ongoing and significant harm done to children who are the victims of sexual assault". His Honour listed some of the current sentencing practices which his Honour would have regard to while sentencing the applicant, including the discount for a guilty plea, the purposes of sentencing within s 3A of the Sentencing Act, that imprisonment is a last resort as per s 5 of the Sentencing Act, aggravating and mitigating factors within s 21A of the Sentencing Act so far as they are relevant, and the fixing of a non-parole period, if necessary, by reference to the statutory ratio or by a finding of special circumstances.
Relevant to the applicant's argument in Ground 1 of the appeal concerning his Honour's subsequent reference on page 13 to "legislative guideposts", this stage of his Honour's reasoning at pages 10 to 11 of his Honour's judgment was his Honour's third of four references (prior to page 13) to the importance of legislation as a guidepost in the sentencing exercise.
His Honour then discussed the relevant general principles of sentencing and assessed the objective seriousness of the applicant's offending. His Honour noted the community's "abhorrence" of sexual assault of children and emphasised that the seriousness of this type of offending was reflected in both the maximum penalties and "the binding authorities". This discussion on page 11 was his Honour's fourth of four references (prior to page 13) to the importance of legislation as a guidepost in the sentencing exercise.
His Honour then explained that general deterrence was a primary consideration in sentencing sexual assault against children given the vulnerability of children, and that the Court needs to protect children, particularly when preyed upon sexually by adults who occupy a position of trust.
His Honour acknowledged that the detailed circumstances of such offending, including how it took place, its duration, the degree of coercion or enticement, and the precise nature of the assault were relevant to the assessment of objective seriousness. His Honour distinguished between digital penetration and penal/vaginal intercourse, noting that the former would "usually be regarded as less serious", "dependent on all the circumstances surrounding the offending". Relevant to the applicant's argument on the first ground of appeal, his Honour went on to consider all the circumstances of the applicant's offending, including its occurrence on five discrete occasions involving digital penetration of relatively short duration.
His Honour noted the offending was opportunistic but not isolated and was satisfied that it occurred over a period greater than one year, noting that the agreed facts identify the time period of offending as being between 1985 and 1990.
His Honour noted the applicant's significant breach of trust, being the young victim's brother-in-law, and their power imbalance. His Honour concluded that the offending was objectively serious, emphasising the significant long-term physical and psychological harm to children who are sexually assaulted by adults.
His Honour drew upon RC v R; R v RC [2020] NSWCCA 76 ("RC v R") to discuss the principles to be applied in sentencing for a s 66A(1) offence. Extracted below is the key passage upon which part of the applicant's first ground of appeal was argued: The Court there [in RC v R] observed that the starting point for a sentencing judge in cases such as this, is that the maximum penalty is now one of life imprisonment, with a standard non-parole period of 15 years. As I have earlier noted, while the relevant maximum penalty for the section 66A offences this offender faces is 20 years imprisonment given the time at which the offences were committed, the importance of the legislative guideposts prescribed by the Parliament cannot be understated.
I will return to this statement, and the applicant's argument concerning the purported referents of "legislative guideposts", in my consideration.
His Honour extracted from RC v R Justice Wilson's statement that stern sentences are needed for child sexual abuse in order to protect children, and the legislative guideposts "demonstrate the very grave view taken by Parliament and the community of offences contrary to s 66A". His Honour outlined a list of factors which RC v R presented as being particularly relevant when assessing the gravity of a s 66A offence: the child's age, any pain occasioned, the place of offending (being more serious if in the victim's home) and whether the offender abused a position of trust they held. His Honour stated that these factors were also relevant to assessing the objective seriousness of the s 61D(1) offence in Count 1. His Honour went on to analyse these four factors in relation to the detailed circumstances of the applicant's offending. This led to his Honour's conclusion that the objective seriousness for each of Counts 1 and 3 was at about the mid-range for offences of their type and Count 2 was slightly below the mid-range of objective seriousness for offences of its type.

Consideration

The applicant relied on two grounds of appeal. The first ground was that the sentencing judge erred in his assessment of the objective seriousness of Counts 2 and 3. The second ground was that the sentence was manifestly excessive. I shall address these grounds seriatim.

Ground 1: The assessment of the objective seriousness of Counts 2 and 3.

Counsel for the applicant developed two primary contentions in support of this ground. The first contention was that the sentencing judge erroneously sentenced the applicant for Counts 2 and 3 by reference to the maximum penalty and standard non-parole period of s 66A in the Crimes Act at the time of sentencing, as opposed to the maximum penalty at the time of the applicant's offending. It was claimed that the sentencing judge, therefore, did not abide by ss 25AA(2) and (4) of the Sentencing Act.
This contention was entirely based on the sentencing judge's statement (at page 13 of his Honour's judgment) that "the importance of the legislative guideposts prescribed by the Parliament cannot be understated" which was said by the applicant to be a reference to the current maximum penalty and standard non-parole period for the offence.
The applicant's contention, in that respect, was advanced despite the immediate context surrounding His Honour's statement, in which his Honour introduced RC v R and distinguished the current maximum penalty of life imprisonment in s 66A from "the relevant maximum penalty" of "20 years imprisonment" which the applicant faced "given the time at which the offences were committed".
Counsel for the applicant contended that the plural noun "legislative guideposts" could only sensibly refer to the maximum penalty of life imprisonment and the standard non-parole period of 15 years which applied to s 66A offences at the time of sentencing, but not at the time of the applicant's offending. The first basis given for this submission was that the sentencing judge made this statement in the context of a reference to RC v R and subsequently excerpted from RC v R a quotation in which Justice Wilson used the phrase "legislative guideposts" with reference to the maximum penalty of life imprisonment and the standard non-parole period of 15 years applicable in that case. The second basis given was that the sentencing judge's use of the plural term "guideposts" necessarily referred to not just a singular maximum penalty, but to the maximum penalty of life imprisonment and the standard non-parole period of 15 years.
This contention is unpersuasive.
When read in the context of the sentencing judge's statement of reasons as a whole, his Honour's use of the term "legislative guideposts" did not, in my view, refer to the particular provisions (the maximum sentence of life imprisonment and the standard non-parole period of 15 years) which Justice Wilson used the phrase with reference to in RC v R.
That conclusion is available having regard to three aspects of the sentencing judgment. First, the sentencing judge's use of the plural form of "legislative guideposts" logically refers to his Honour's past discussions of "maximum penalties", a phrase which his Honour presented twice in the plural form. As I flagged above, when summarising the reasoning of the sentencing judge, his Honour's judgment discussed the importance of legislative guidelines for sentencing four times prior to the quotation excerpted at paragraph 25 of my judgment above (see pages 2, 3, 10 and 11 of his Honour's judgment). In two of these discussions, at pages 3 and 11, his Honour used the phrases "the maximum penalties prescribed by the Parliament" and "the maximum penalties that have been prescribed by the Parliament". This phrasing is substantially identical to that in the contentious statement: "the legislative guideposts prescribed by the Parliament". (My emphasis.)
This repetition of near-identical language supports reading the plural "legislative guideposts" in the contentious statement as a reference to the plural "maximum penalties" which his Honour's statement of reasons had previously introduced twice. This is further evident because the contentious statement opens with the words "As I have earlier noted". Hence when his Honour continued the sentence by stating "the importance of the legislative guideposts prescribed by the Parliament cannot be understated", "legislative guideposts" referred backwards to the statutory provisions (and most notably, the "maximum penalties") which his Honour had acknowledged as the essential guides for the Court's sentencing exercise.
Second, it is most likely that "legislative guideposts" was stated in the plural because his Honour was sentencing for two different types of offences with different maximum penalties, namely the ss 61D(1) and the 66A offences.
Third, in the contentious sentence extracted at paragraph 25 of my judgment, his Honour's use of the word "while" to introduce the maximum penalty of 20 years imprisonment applicable to the applicant's s66A offending emphasised his Honour's acknowledgment that the applicable legislative guideposts in a generic sense - including the relevant maximum penalty of 20 years imprisonment - remain important and must guide the Court's sentencing exercise even though the maximum penalties for offences committed at a later date than the applicant's have since increased.
Above and beyond what the sentencing judge was referring to by "legislative guideposts", when his Honour's entire statement of reasons is read, it is implausible that his Honour erroneously applied a maximum penalty of life imprisonment and a standard non-parole period of 15 years when sentencing for Counts 2 and 3. This is because on four occasions (at pages 1, 2, 3 and 12) his Honour stated that a maximum penalty of 20 years applied to the applicant's s 66A offences in Counts 2 and 3, and to the s 66A offence in the Form 1 attached to Count 3. The two times that his Honour referred to a maximum penalty of life imprisonment and a standard non-parole period of 15 years for s 66A offences (on pages 2 and 13), his Honour distinguished these penalties as applying to offences committed "now" [at the time of sentencing], which made clear that his Honour understood that these penalties did not apply to the applicant's offending.
The second contention for Ground 1 was that the sentencing judge erred by not stating the extent to which all of the relevant factors were taken into consideration in the assessment of the objective seriousness of Counts 2 and 3. Counsel for the applicant contended that, if the sentencing judge had taken into account all the factors relevant to assessing the objective seriousness of Counts 2 and 3, it was not open for his Honour to come to the finding his Honour did in relation to objective seriousness, and that his Honour must have erred in that assessment. The applicant's written submissions listed eight relevant factors which bore upon the objective seriousness of the offending upon Counts 2 and 3 which the applicant alleged were inappropriately or inadequately assessed by the sentencing judge. There are two broad groups of these factors.
First, the applicant took specific issue with how the sentencing Judge assessed four of these factors in terms of objective seriousness ("the four factors"). These four factors and the errors claimed were: 1. With respect to the age of the victim it was submitted that the sentencing judge did not expressly place any significance on the victim being at the high end (between 7 and 9 years of age) of the range of ages provided for by the offence. 2. With respect to the nature of the sexual intercourse it was submitted that the sentencing judge did not state how the circumstances surrounding the offending affected the assessment of objective seriousness. That is, the sentencing judge did not explain whether he had assessed the digital penetration as being less serious than penile/vaginal intercourse, and if not, what elements of the circumstances caused him to regard the digital penetration as being more serious than such an act might usually be taken to be. 3. With respect to the degree of force or coercion it was submitted that the sentencing judge did not state the extent to which this factor was taken into consideration in the assessment of objective seriousness. 4. With respect to the use of threats or pressure before or after the offence to ensure the victim's compliance with the demands made, and subsequent silence, and any immediately apparent effect on the victim it was submitted that the sentencing judge did not state the extent to which this factor was taken into consideration in the assessment of objective seriousness.
The applicant's written submissions listed four other factors which the sentencing judge expressly made findings upon (how the offences took place and the period of the offending) or took into consideration (the extent of harm to the victim and breach of trust). The applicant's submissions in this respect appeared to contend that, while these other factors were expressly discussed or taken into consideration, the sentencing judge nonetheless erred in not explicitly stating to what extent these factors contributed to his Honour's assessment of objective seriousness.
Counsel for the applicant contended that, because of the treatment by the sentencing judge of these eight factors (and particularly because of the relative age of the victim, the digital penetration, the short time period of each offence, the spontaneity and the lack of any threat or coercion), the objective seriousness of Counts 2 and 3 fell between low and mid-range seriousness as submitted in the Crown's submissions to the sentencing judge. Counsel for the applicant contended that the sentencing judge erred in assessing the objective seriousness of Count 2 as slightly below the mid-range and Count 3 as being about the mid-range.
The assessment of the objective seriousness of an offence is a process involving the application of principle to facts established by the evidence. It is a broad discretionary process that relies upon a consideration of all relevant features of the offending. An appellate Court should not intervene unless specific error of the sort referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 ("House v The King"), is established: Mulato v R [2006] NSWCCA 282 at [37] and [45]-[46], cited in R v Ferguson [2022] NSWCCA 147 at [59].
In that light, I agree with the observations of Wilson J in Salafia v R [2015] NSWCCA 141 at [88] (with whom Hoeben CJ at CL and Hall J agreed): Complaints concerning error in the assessment of objective seriousness cannot be made good simply by pointing to some differing assessment that could arguably have been made. The question is whether or not the characterisation of the gravity of the crime was open to the sentencing judge.
Similarly, the objective gravity of an offence is not to be assessed by the absence of features that would elevate the offence to a different level of seriousness: TM v The Queen [2018] NSWCCA 88 at [65] (per Hoeben CJ at CL with whom Walton J and R A Hulme J agreed). Further, it does not follow that merely because a matter of aggravation is not established beyond reasonable doubt, mitigation is established for the same subject matter: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [66]-[69] (per French CJ, Bell, Gageler, Keane and Nettle JJ). The fact that it is possible to identify factors which were absent, which if present would have made the offence more objectively serious, does not make the offence less serious than it is: Mills v R [2017] NSWCCA 87 at [57] (per R A Hulme J with whom Leeming JA and Beech-Jones CJ at CL agreed); Mammone v R [2013] NSWCCA 95 at [35] (per Latham J with whom Button J and Grove AJ agreed) and Saddler v R (2009) 194 A Crim R 452; [2009] NSWCCA 83 at [3] (per Grove J with whom Price J agreed).
It follows that there is a flaw in the foundation for the argument advanced by the applicant with respect to the second aspect of this ground. Contentions by the applicant that the sentencing judge erred in taking into account the absence of an aggravating feature of the offending (presumably as a mitigating feature) and the absence of an explicit statement of the extent to which the sentencing judge may have taken into account various factors, do not avail as grounds of appeal against the determination by a sentencing judge as to the objective seriousness of the offences of the applicant.
Some brief further attention may be given to errors said to be found in the assessment of the four factors.
Turning firstly to the age of the victim, it may be noted at the outset that the sentencing judge did take into account the age of the child victim in a context where Counts 2 and 3 gave a broad age range between 7 to 9 years for Counts 2 and 3 (although Count 2 was accompanied by the Form 1 offence where the age range of victim of the offence was between 5 to 7 years).
In my view, it was clear that the sentencing judge was cognisant of the age of the victim in respect of each offence and took that factor into account. He was also entitled to take into account that, by the time of the Count 3 offending, the applicant had been offending against the victim since she was five years old. Count 3 and the Form 1 offence attached to it, were examples of repeat offending, even after the applicant had been confronted about his wrongdoing.
As to the nature of the sexual intercourse involved in the offending, the applicant accepted that the sentencing judge had correctly stated the test with respect to the assessment of the objective seriousness of an offence involving digital penetration of the vagina. Hence, his Honour noted that offences of digital penetration were generally less serious than penile-vaginal intercourse, but this assessment depended on all of the circumstances surrounding the offending. Nonetheless, it was submitted that the sentencing judge did not state just how the circumstances surrounding the offending affected the assessment of the objective seriousness because of the nature of the sexual intercourse.
In my view, his Honour's clear statement that each act of sexual intercourse involved digital penetration and the implicit acknowledgement of the absence of penile-vaginal intercourse, when read in the light of his Honour's correct statement of principles (and his Honour's statement that the penetration appeared to have been of a relatively short duration), should give rise to a conclusion that his Honour was not only aware that the digital penetration might be less serious than penile-vaginal intercourse, but that his Honour sentenced upon that basis.
Further, if the question raised by the applicant be the extent to which his Honour took into account this factor, then the contention runs headlong into the issues of law and principle which I have earlier discussed, namely that a sentencing judge is not compelled to explicitly state to what extent each factor separately contributes to the overall assessment of objective seriousness. However, there is a further consideration.
As the Crown correctly pointed out, the sentencing judge took into account a range of factors referable to the nature of the sexual intercourse, such as the significant difference in age between the applicant and the victim, the power imbalance between them, the accompanying breach of trust due to family relationships, and that the victim was abused in homes in which she ought to have been able to feel secure, as well as in public places when she was being supervised by the applicant and was entitled to rely on him to care and protect her. The victim was young and vulnerable at the time of the offending which was repetitive. All of these factors were relevant to the assessment of the objective seriousness of the offences and were, in fact, assessed by the sentencing judge together with the type of sexual intercourse involved.
Finally, reference should be made to the challenge by the applicant to the sentencing judge's findings as to the range of objective seriousness found by the sentencing judge as to Counts 2 and 3.
In many respects, the criticism of the range found by the sentencing judge is undermined by the aforementioned rejection of the challenge by the applicant to particular aspects of the assessment of the objective seriousness by the sentencing judge.
Nonetheless, as the Crown correctly submitted, caution needs to be exercised when analysing descriptions of objective seriousness based upon ranges so as to avoid an unduly technical and artificial approach. There is no hard and fast legal definition of the expressions used by his Honour to describe the range, for example, as "slightly below the mid-range". The exercise is largely evaluative (see Towse v R [2022] NSWCCA 252 at [12] per Basten AJA with whom Davies J and McNaughton J agreed) and judges may differ as to the expressions used in describing essentially the same assessment of objective seriousness (see Bektasovski v R [2022] NSWCCA 246 at [11] (per Beech-Jones CJ at CL).
In my view, Ground 1 of the appeal should be rejected.

Ground 2: The sentence was manifestly excessive

Counsel for the applicant submitted that the sentence of 7 years 9 months reduced to 7 years after a 10% discount for a plea of guilty was "unreasonable or plainly unjust", and that some other sentence less severe was warranted in law and should have been passed. Four contentions were developed in support of this ground.
The first contention restated the argument for the first ground, namely, that the objective seriousness of Counts 2 and 3 fell between low and mid-range.
The second contention emphasised the applicant's subjective factors, including his lack of criminal record, the childhood abuse and bullying he experienced, his lifelong employment and loss of employment due to the offences, his mental health problems, his marital breakdowns due to the offences, his remorse, low risk of recidivism and good prospects of rehabilitation, the delay between the time of offending and sentencing, and the likelihood the applicant would suffer greater hardship in custody as a 57 year old. I note that all these subjective factors were expressly discussed by the sentencing judge in considerable detail, except for the delay which was implicitly acknowledged.
The third contention was that, while sentencing principles relating to general deterrence applied, sentencing principles relating to specific deterrence had little application due to the applicant's low risk of recidivism and lack of reoffending for over 30 years. I note that the sentencing judge stated that general deterrence was "a primary consideration" and did not afford the same primacy to specific deterrence.
The fourth contention was that the principles of totality called for some emphasis upon concurrency given that the five isolated acts occurred over a period of approximately five years involving the same victim. I note that the sentencing judge acknowledged "the need for some concurrence".
By contending the exercise of the sentencing discretion below resulted in a sentence which was manifestly excessive, the applicant must be taken as asserting the sentencing process was attended by the last mentioned error in House v The King at [505], such that a sentence is manifestly excessive where the applicant shows that the sentence is "unreasonable or plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [25] (per Gleeson CJ, Gummow, Hayne and Callinan JJ); Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 ("Obeid") at [443] (per R A Hulme J, with whom Bathurst CJ, Leeming JA and Hamill J agreed). This has to be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Markarian at [27]; Vuni v R [2006] NSWCCA 171 ("Vuni") at [33] (per Hoeben J (as his Honour then was), with Tobias JA and James J agreeing); Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL, with whom Rothman and R A Hulme JJ agreed). It is not to the point that the Court might have exercised the sentencing discretion differently: Obeid at [443].
Intervention is not warranted simply because the sentence is "markedly different" from sentences that have been imposed in other cases: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 ("Wong") at [58]; Obeid at [443]. Rather, there must be some misapplication of principle to warrant intervention, even if when and how principle was misapplied is not apparent from the reasons given in the impugned judgment: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong at [58].
I do not consider that the applicant has established this ground having regard to my findings as to Ground 1 and to the following: 1. It is true that the applicant was young, but his offending occurred between 20 years of age and 25 or 26 years of age at the time of the offending. Thus, the applicant was an adult during the course of the offending. Further, he was settled and married for much of the offending, had bought a house with his wife and was in secure employment. 2. As noted above, the applicant was in a position of trust with respect to a very young, vulnerable victim. 3. The offending was largely opportunistic. Ms Bostock, the forensic psychologist, stated that a definitive opinion could not be given as to the causes of the offending without further expert explanation because the applicant lacked insight. 4. The offending occurred in a family context with multiple offences over a period of time. Count 1 resulted in the victim experiencing pain. 5. As I noted earlier, some of the offences occurred in homes where the victim should have felt safe. 6. There were significant features of the subjective factors relied upon by the applicant, including that he had lost his career in nursing and suffered psychological impacts, but those factors cannot overpower the significance of the objective seriousness of the offending and may not be described as exceptional. 7. No complaint was made as to the discount for the pleas of guilty. 8. The indicative sentences for Counts 2 and 3 reflect that there were Form 1 offences attached to them. 9. There was a need for notional partial accumulation of the indicative terms, given the number of offences. 10. The sentencing judge took into account special circumstances, involving a significant downward adjustment to the non-parole period to approximately 60% of the aggregate head sentence.
These were all factors taken into account by the sentencing judge.
The comparative cases relied upon by the applicant, namely Ja v R [2021] NSWCCA 10 and Pizzimenti v R [2017] NSWCCA 231, do not establish, in the light of the foregoing analysis, that the applicant's aggregate sentence was unreasonable or plainly unjust. I agree with the submission of the Crown that these two cases referred to by the applicant could not establish a sentencing range that would assist the Court in its determination of the second ground of appeal.
In my view, Ground 2 of the appeal should be rejected.

ORDERS

The orders I propose are as follows: 1. Leave to appeal granted. 2. The appeal is dismissed.
N ADAMS J: I agree with Walton J for the reasons provided by his Honour.

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Criminal Appeal Act 2012(NSW)

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