BR v R

Court of Criminal Appeal (NSW)|2021-07-23|Before: Payne JA, Davies J, Ierace J

The applicant's arrest

As noted, the applicant was arrested on 17 May 2018. He participated in a video-recorded interview during which he denied the allegations against him, although he maintained that years of alcohol and substance abuse had left him with a very poor memory. He was refused bail and held on remand until his sentence.
Police approached CD and XY in May and July 2018 respectively and obtained a statement of complaint from each of them.

The applicant's criminal history

The sentence bundle that was tendered at the sentence hearing by the Crown included the applicant's criminal history. The earliest entries concerned minor matters in the Children's Court. He has convictions as an adult for drug offences, the most serious being concurrent sentences of 3 months imprisonment in 2003 for possessing a prohibited drug and self-administering, or attempting to self-administer, a prohibited drug. He has convictions for driving with a high-range prescribed concentration of alcohol ("PCA") (19 September 1990) and mid-range PCA (15 December 1993). He has convictions for other driving offences, including driving whilst disqualified. The date of commission of his most recent offences, other than for the indecent assault on XY in 2010, was in 2005, for driving whilst disqualified and driving uninsured and unregistered. His custodial history disclosed no disciplinary matters whilst he was detained on remand.

The victim impact statements

Each of the victims wrote a victim impact statement which was tendered and read out at the sentence hearing.
AB referred to the devastating emotional impact of becoming aware, as she grew older, that the applicant's offending behaviour against her was wrong, and how that realisation became a point of differentiation that prevented her from socialising normally. She particularly referred to the damage done by the applicant's offending behaviour to her relationships with her mother and her children, and the lasting serious damage to her mental health in the form of a diagnosis of post-traumatic stress disorder and anxiety that is so severe it requires treatment by medication.
CD stated that her relationship with her mother was so damaged by the applicant's offences against her that she became homeless at 12 years of age and subsequently was made a ward of the State. She was "moved from one foster carer to another" and attended seven different high schools. The applicant's sexual abuse transformed her from a happy child to one who was very angry. She resorted to drugs and alcohol to numb the negative mental states arising from the applicant's assaults. She explained how his destruction of her sense of trust of others had infected her relationships with her own children by her becoming over-anxious for their safety, causing them to distance themselves from her.
XY explained how the applicant's gaining of her trust as his step-grandchild and then exploiting it with his sexual abuse had strained her relationships with her parents and led to her rejecting her grandmother altogether, holding her responsible for not having prevented the applicant from sexually assaulting her. Her capacity to form relationships of trust with males, and to maintain what had been a close and trusting relationship with her father, was seriously damaged. She has struggled with her mental health as she continues to suffer flashbacks to the applicant's offending behaviour, which affects every aspect of her personal and working life.

The case for the applicant

The case for the applicant comprised the tender of a letter from the prison chaplain, a psychologist's report and sworn evidence by him.
The chaplain stated that the applicant had approached him seeking ways to "help him with his life". The applicant completed an eight-week, eight-session program with the chaplain, which involved such issues as "self-awareness", "stress" and "future directions".

The psychologist's report

The applicant tendered a report by a psychologist, dated 11 March 2020. The psychologist interviewed the applicant in prison via an audio-visual link on that date.
In his report, the psychologist related the applicant's account to him of his background and relationship history. The applicant was born and raised in Penrith. He experienced learning difficulties as a child and attended school until the end of Year 9, after which he pursued employment as a factory worker and labourer for five years and then moved to Darwin, where he was employed as a handyman at a Hotel. He returned to Sydney following a death in his family and obtained employment with his brother.
The applicant reported having three significant relationships: with Partner 1, lasting six years; with Partner 2, lasting 17 years; and a third relationship that lasted for one year and produced a child who was aged 15 at the time of the report. The applicant told the psychologist that his two sons from his relationship with Partner 1 contact him regularly.
As to the applicant's history of drug and alcohol use, the psychologist stated: "[The applicant] was first introduced to alcohol at age 11, and commenced smoking cannabis at 13 years old. During his teenage years he also tried other drugs including LSD and cocaine. At 17 he began using [heroin]. At age 20 he gave up cannabis and [heroin] but continued to drink alcohol heavily at times. [The applicant] recognises now the serious impact his early drug and alcohol use had upon his development of mental health issues. He was diagnosed with depression and anxiety but did not consistently follow through with treatment. He was medicated with [Serapax] and [Valium] by doctors but also self-medicated with intravenous methadone and occasional [heroin]."
With respect to the issue of remorse, the psychologist stated: "… [the applicant] states being disgusted by his actions and is deeply remorseful for the impact on the victims. He accepts full responsibility for his behaviours but also recognises that he was not mentally functioning well due to his drug abuse and depression/anxiety. He has been clean of [heroin] for the past twenty years."
The psychologist administered two assessment tools to the applicant, one being the Depression, Anxiety and Stress Scale ("DASS-42"), which he described as a "set of three self-report scales designed to measure the negative emotional states of depression, anxiety and stress". The applicant's scores on the DASS-42 indicated diagnoses of depression (severe clinical range), anxiety (severe clinical range) and stress (moderate clinical range).
The other assessment tool was the Personality Assessment Inventory ("PAI") which the psychologist described as: "… a multi-scale test of psychological functioning that assesses constructs relevant to personality and psychopathology evaluation (eg. depression, anxiety, aggression) in various contexts … The PAI has four kinds of scales: 1) validity scales, which measure the respondent's approach to the test, including faking good or bad, exaggeration, or defensiveness; 2) clinical scales, which correspond to psychiatric diagnostic categories; 3) treatment consideration scales, which assess factors that may relate to treatment of clinical disorders or other risk factors but which are not captured in psychiatric diagnoses (eg. suicidal ideation); and 4) interpersonal scales which provide indicators of interpersonal dimensions of personality functioning."
With respect to the validity scales, the psychologist stated that: "The scores for these indicators fall in the normal range, suggesting that [the applicant] answered in a reasonably forthright manner and did not attempt to present an unrealistic or inaccurate impression that was either more negative or more positive than the clinical picture would warrant."
With respect to the clinical scales, the psychologist reported: "The PAI clinical profile is marked by significant elevations across a number of different scales, indicating a broad range of clinical features and increasing the possibility of multiple diagnoses. The configuration of the clinical scales suggests a person with a history of substance abuse problems who is quite unhappy and pessimistic. His drug use has probably led to severe impairment in his ability to maintain his social role expectations, and his [behaviour] has most likely alienated many of the people who were once close to him. Such setbacks have left [the applicant] with significant guilt and rumination about his life circumstances, and the urge to use drugs may be at the [centre] of many of these ruminations. His depression and drug use may be related in a number of different ways; the depression could be driving the use of drugs or it could be a consequence of the disruption associated with his substance abuse. Regardless of whether the depression is primary or secondary, it has probably left [the applicant] quite pessimistic about his prospects for change or improvement. [The applicant] reports a number of difficulties consistent with a significant depressive experience. He is likely to be plagued by thoughts of worthlessness, hopelessness, and personal failure. He admits openly to feelings of sadness, a loss of interest in normal activities, and a loss of sense of pleasure in things that were previously enjoyed. He is likely to show a disturbance in sleep pattern, a decrease in level of energy and sexual interest, and a loss of appetite and/or weight. Psychomotor slowing might also be expected. [The applicant] indicates that his use of drugs has been sufficient to have had negative consequences on his life. Problems associated with drug use appear to be noteworthy, including strained interpersonal relationships, vocational and/or legal problems, and possible medical complications. [The applicant] reports that his use of alcohol has had a negative impact on his life. Alcohol-related problems are likely, including difficulties in interpersonal relationships, difficulties on the job, and possible health complications. [The applicant] indicates that he is experiencing specific fears or anxiety surrounding some situations. The pattern of responses reveals that he is likely to display significant symptoms related to traumatic stress. He has likely experienced a disturbing traumatic event in the past - an event that continues to distress him and produce recurrent episodes of anxiety. … [The applicant] indicates that he is uncertain and indecisive about many major life issues and has little sense of direction or purpose in his life as it currently stands. According to [the applicant's] self-report, he describes NO significant problems in the following areas: unusual thoughts or peculiar experiences; antisocial [behaviour]; problems with empathy; undue suspiciousness or hostility; unusually elevated mood or heightened activity; marked anxiety; difficulties with health or physical functioning."
The psychologist noted that the applicant did not report thoughts of self-harm or claim to have issues concerning anger management. With respect to his interpersonal and social environment, he stated: "[The applicant's] interpersonal style seems best [characterised] as one of autonomy and balance. With both interpersonal scales scoring in the average range, his assertiveness, friendliness, and concern for others is typical for that of normal adults."
The psychologist's diagnosis of the applicant's current mental state was as follows: "The presentation is consistent with a diagnosis of Major Depressive Disorder, Generalized Anxiety Disorder, Alcohol Dependence and Psychoactive Substance Dependence as classified by the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (DSM-V). These disorders cause impairment in cognitive, emotional and behavioural domains."
As to the applicant's mental state at the time of the commission of the offences, the psychologist stated: "It is my opinion that [the applicant] is (and was at the time of the alleged commission of the offence to which these proceedings relate): cognitively impaired, suffering from a mental illness, and suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person for the purposes of Chapter 3 of the Mental Health Act 2007 (NSW)."

The applicant's evidence

The applicant gave a brief outline of his background, confirming that he was born and raised in Sydney and had various jobs after leaving school, including factory and farm work, and in the building industry.
With respect to the issue of his remorse and acceptance of responsibility, the following exchange occurred: "[Counsel for the applicant]: And what do you say to the complainants or the victims that are now on the screen? [Applicant]: I'd like to say I'm very sorry, I didn't realise … the devastation I was causing. I've got no excuses for my behaviour. I was under the influence of drugs and alcohol most of the time. I don't want to use that for an excuse, I accept full responsibility for what I have done, and I'd like to say I'm very, very sorry. I never realised the damage I was causing. HIS HONOUR: Really? It didn't occur to you that treating young children the way you did would have a life-long effect upon them? [Applicant]: I - like I said, your Honour, I was in a very dark place and was under the influence of drugs and alcohol. HIS HONOUR: Well the drugs you refer to, was that marijuana? [Applicant]: Speed, heroin, marijuana, pills. HIS HONOUR: Anyway you say that they weren't an excuse for what you did, is that right? [Applicant]: No, yes that's right. HIS HONOUR: And you accept full responsibility? [Applicant]: I do accept full responsibility - HIS HONOUR: And the drugs and alcohol … had nothing to do with your offending? [Applicant]: No, I don't want to use any excuses for what I've done."
The applicant essentially confirmed his drug and alcohol history that he had provided to the psychologist, stating that he commenced using cannabis at age 13, "LSD, heroin, speed" at age 17, and that he had been an alcoholic "most of [his] life" until his incarceration. As to his ability to perform the duties required in his employment despite his drug and alcohol use, the following exchange occurred: "HIS HONOUR: So your performance of your occupation was not affected by drugs and alcohol? [Applicant]: No, well I was so used to taking them I was just functioning, it became the normality. HIS HONOUR: So the drugs and alcohol were normal for you and didn't affect your decision-making, is that correct? [Applicant]: It did but it didn't. HIS HONOUR: Well either it did or it didn't, which is it? [Applicant]: Yes, it didn't, your Honour. HIS HONOUR: It did not. So the drugs and alcohol you referred to did not affect your decision-making. …"
As to whether he was using drugs at the times of his offending, the applicant stated: "… I was always using drugs and I was heavily - I drank a lot of alcohol. I was definitely affected by them but I don't want to use this as an excuse."
The applicant was cross-examined on the psychologist's statement in his report, extracted at [68] above, that instead of confining his treatment of his depression and anxiety to the mediation prescribed to him, he had also self-medicated by injecting prohibited drugs: "[Crown]: It's said, this is you, 'He was medicated with Serepax and Valium by doctors but also self-medicated with intravenous methadone and occasionally heroin.'? [Applicant]: No, no, I was talking earlier. I stopped using heroin a number of years ago. then I was diagnosed with depression and anxiety and was put onto anxiety tablets and they were making me worse so I stopped taking them. I was getting more depressed and more depressed on the tablets so that was only a few years back and they weren't doing me any good."
And later: "HIS HONOUR: … you said a moment ago that you stopped using heroin years ago, how long ago did you stop using heroin? [Applicant]: Probably 15 years ago, more, maybe a bit longer. … … HIS HONOUR: And that you then as a result of stopping the use of heroin you became depressed, is that right? [Applicant]: No, it was a number of years later I started with depression, I started finding myself depressed and having anxiety attacks when in groups of people. I sought out help with my local GP which sent me to a psychologist but. Yeah, that's when they put me on the antidepressants but they made it worse so I stopped taking them. But in the whole time like I say I've consistently used speed and alcohol ... HIS HONOUR: So prior to going into prison when did you last use speed? [Applicant]: Well speed I'd settled down on it 'cause I've started getting into my work, like started to realise that I had to put my head down and arse up and start working. I was having a lot of troubles at work, I suppose I was losing my job, I weren't performing proper, so I slowed right down on it you know but alcohol was still a problem. HIS HONOUR: But you were still able to work notwithstanding the alcohol consumption, is that right? [Applicant]: Yes … There was numerous complaints from my workmates about the amounts I was drinking and that on site and what not. I was drinking a lot."
With respect to his experience in gaol, the applicant stated that he had been held in protective custody since the date of his arrest on 17 May 2018, during which time he had been held on remand at Silverwater and Parklea Correctional Centres. He described his experience of incarceration as follows: "I'm … living in danger every day … I see a lot of violence in here on a daily basis. … I don't sleep at night. I'm awake most nights. I'm on blood pressure and anxiety medication. … Because I'm in protection it's very difficult to move us around the prison in a safe environment. … … my anxiety and depression like on the outside I was dealing with it with the alcohol, the speed was definitely taking the anti-depression away and then I come in here and like because of my surroundings, you know all the violence and what not in here, it's a very depressing place and it's brought the anxiety back on again … ."
The applicant said that the response by Corrective Services NSW to the Covid-19 pandemic had resulted in "added extra segregation".
With apparent reference to the courses outlined by the chaplain, the applicant stated that he had completed "self-awareness courses" on remand and, as a result, had "come to an awareness that I done so much wrong and damage". He said he completed all the courses that were available to him as a remand prisoner, which did not include drug and alcohol courses, and that he intended to do others as they became available to him as a sentenced prisoner.

Remarks on sentence

The sentencing judge identified the 13 offences, the maximum penalties and the standard non-parole period that applied to count 13. His Honour listed the 10 additional offences on the Form 1 certificates and stated that he had regard to them in accordance with the approach approved in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (NSW) (2002) 56 NSWLR 146; [2002] NSWCCA 518; namely, by giving greater weight to the need for personal deterrence and the community's entitlement to retribution being extracted for serious offences.
The procedural history was outlined and the agreed facts recounted.

Objective seriousness

The sentencing judge summarised the Crown's submissions as to where each indicted offence should be fixed in the range of objective seriousness; the need for each sentence to reflect considerations of general and specific deterrence; and for an application of the principle of totality.
The sentencing judge noted that counsel for the applicant had taken a global approach to the issue of fixing the appropriate levels of objective seriousness of each offence, by submitting that they fell "either at the mid-range or the low range".
The sentencing judge considered the objective seriousness of each of the 13 counts, setting out the factors that were relevant to each determination. His Honour's conclusion in relation to each count is extracted in the table above at [10].
As part of that exercise, for each offence the sentencing judge noted where the victim's age fell in the age range that was applicable to the offence and the considerable disparity in the ages of the victim and the applicant.

Some offences committed in the victims' homes

His Honour noted that the offending in counts 1, 2, 3, 4, 6 and 7 took place in each victim's home, where they were entitled to have been "safe and secure": CSP Act, s 21A(2)(eb). The offending against AB in counts 5, 8, 9, 10, 11 and 12 took place in the applicant's home which was "a place where his daughter was entitled to feel safe and secure".

An abuse of a position of trust or authority

The sentencing judge found that the applicant's offending in counts 1, 2, 3, 4, 5 and 7 was aggravated by it being an abuse of his position of authority as a "fatherly figure" of each of the victims: CSP Act, s 21A(2)(k). His Honour did not make that finding in relation to counts 6, 8, 9, 10, 11, 12 and 13, since the applicant's position of authority was an element of those offences.
The sentencing judge noted the distinction between the concepts of an abuse of a position of trust and of a position of authority, although they both come within s 21A(2)(k) of the CSP Act and involve similar considerations. His Honour cited authority to the effect that a sentencing judge may have regard to the former concept as an aggravating factor even if the latter concept is an element of the offence, noting, however, that caution is required if they both arise from the same factual matrix: MRW v R [2011] NSWCCA 260 per Bathurst CJ at [77]-[78]; WM v R [2020] NSWCCA 96 per Bellew J (Johnson and Adamson JJ agreeing) at [40].
On this basis, the sentencing judge found that the breach of trust by the applicant significantly aggravated the offending in respect of all three victims: CSP Act, s 21A(2)(k). His Honour stated, at [172]: "Whilst I acknowledge the fact that the abuse of authority and abuse of trust involve similar considerations arising out of the same factual circumstances, I find that the breach of trust in the circumstances of this offending in relation to all 3 complainants is such as to significantly aggravate the offending."
His Honour noted that this abuse of trust was tempered in respect of counts 6, 8, 9, 10, 11, 12 and 13 by the fact that the applicant's position of authority was an element of the offence charged.
In spite of his Honour's express finding of a breach of trust by the applicant in respect of all three victims, in relation to the objective seriousness of count 13, which is the only count concerning XY, his Honour did not specify a breach of trust as a factor, whereas he did so for each of the other 12 counts. In view of his Honour's express finding in the remarks on sentence extracted at [95] above in relation to all three victims, and in the absence of any explanation, this would appear to be an oversight.

The victim impact statements

His Honour summarised the three victim impact statements and concluded that the emotional harm caused to the three victims was substantial and constituted an aggravating factor: CSP Act, s 21A(2)(g). His Honour had regard to them as evidence of the trauma of sexual abuse on children as understood at the time of sentencing, pursuant to s 25AA(3) of the CSP Act.

Multiple victims

The sentencing judge did not consider the fact that there were multiple victims to be an aggravating factor, since the sentence imposed would reflect the offending conduct against all three victims: CSP Act, s 21A(2)(m).

The applicant's criminal record

The sentencing judge found that, although the applicant's criminal history is "relatively extensive", it did not constitute an aggravating factor in the absence of like offences, although it disentitled him to "any leniency which may otherwise be afforded to a person of good character": CSP Act, s 21A(2)(d).

Subjective considerations

The sentencing judge summarised the applicant's evidence as to his family and work history, the physical and medical difficulties he was encountering in prison and his remorse, with a proviso as to the latter, at [93]: "Generally, I accepted the evidence of [the applicant]. He does, however, have a distinct lack of insight. Whilst he now regrets his offending being in custody, he had the opportunity to admit his offending (at least concerning [CD]) on at least 2 occasions, but chose to lie and continue offending against [AB] and [XY]."

The applicant's abuse of prohibited drugs and alcohol

The sentencing judge accepted the applicant's evidence to the effect that he regularly abused drugs and alcohol from the age of 13. His Honour reproduced the passage extracted above at [79] and noted the applicant's evidence that he "never realised the damage (he) was causing", that he was in a "dark place" due to his drug and alcohol use and that "he did not want to use drug use as an excuse for the offending, and wished to accept full responsibility for his actions".
The sentencing judge rejected a submission made on behalf of the applicant that leniency should be afforded on the basis that the applicant was affected by drugs at the time of offending, finding that the applicant's long-term substance abuse was "of little relevance, given that [the applicant] admitted that his drug-use has had little impact on his decision-making" and that, in any event, self-induced intoxication was not to be taken into account as a mitigating factor. His Honour referred to s 21A(5AA) of the CSP Act, which provided as follows: "21A Aggravating, mitigating and other factors in sentencing … (5AA) Special rule for self-induced intoxication In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor."

The applicant's mental health

The sentencing judge referred to the applicant's evidence as to his mental health as follows: "152 Whilst in his evidence [the applicant] referred to experiencing anxiety and depression in the past, the evidence was not sufficiently clear to permit a link to be drawn, even inferentially, between the offending and any mental illness. In fact, [the applicant] stated that he does have anxiety and depression 'due to my surroundings' … that is, being held in custody." (emphasis in original)
Referring to the psychologist's diagnoses, the sentencing judge remarked: "100 Generally, I found the report of [the psychologist] unpersuasive. He diagnosed a Major Depressive Disorder, Generalised Anxiety Disorder, Alcohol Dependence and Psycho-Active Substance Dependence as classified by DSM-5. In making those diagnoses, [the psychologist] failed to refer to any of the criteria for the diagnoses of those conditions. Again, without explanation, [the psychologist] stated that those disorders 'cause impairment in cognitive, emotional and behavioural domains'. 101 Most contentiously, under the heading 'Summary and Recommendations', [the psychologist] expressed the opinion that [the applicant] was suffering from those conditions at the time of the commission of the offences. Given that the assessment by [the psychologist] took place in March 2020 and that [the applicant] failed to provide any complaint contemporaneous with the offending, there is no basis for the opinion expressed by [the psychologist]. 102 Counsel for [the applicant] was told that the Court intended to give little or no weight to the opinion of [the psychologist]. He accepted the obvious limitations in the opinion expressed and did not press a submission that [the applicant's] mental health in any way contributed to the commission of the offences." (emphasis in original)
And later: "139 Counsel for [the applicant] also referred to mental illness, based upon the opinion expressed by [the psychologist]. 140 Counsel for [the applicant] was challenged as to the expertise of the psychologist to provide psychiatric diagnoses, and also as to the relevance of diagnoses made in 2020 to his client's conduct at much earlier times. It was conceded that there was no evidence as to [the applicant's] psychological condition as at the time of the offending. Due to these deficiencies in the opinion of [the psychologist], counsel for [the applicant] was informed that it was my intention to give little or no weight to his report or, more specifically, to his opinion. That was not disputed by counsel for [the applicant] …"
His Honour concluded: "153 This is not a case where the evidence established that [the applicant] suffered from a mental condition which could have the effect of reducing his moral culpability and the need for a sentence to address matters such as general deterrence, retribution and denunciation. It is certainly not a case such as that considered in DPP (Cth) v De La Rosa [2010] 79 NSWLR 1 at 177, where the mental condition contributed to the commission of the offence in a material way. 154 Even taking [the psychologist's] opinion at its highest, it will permit a finding that [the applicant] suffered from the conditions diagnosed as at March 2020 which, according to [the applicant], he attributed to his surroundings. 155 I decline to find that [the applicant] suffered from any mental illness at the time of the offending which in any way contributed to it."
I note that the meaning of the sentence which comprises par [154] of the remarks is unclear; whether the word "even" was unintended or alternatively, whether the word "not" is missing from the phrase "it will permit", so that it should be "it will not permit". Having regard to the last part of the sentence, I assume that the sentencing judge intended to convey a finding that he also disregarded the psychologist's diagnosis of the applicant's current mental state, extracted at [75] above. If this assumption is incorrect, then it nevertheless follows from the alternative meaning that very little weight was given to the diagnosis of the applicant's current mental state.

Protective custody

The sentencing judge rejected a submission that hardship was occasioned to the applicant by the fact of him being in protective custody and that he was likely to remain there for the duration of his imprisonment, and by the impact of the Covid-19 pandemic on prison conditions, explaining: "146 … Protective custody is available to child sex offenders in order to provide them with safety and protection against being assaulted or worse. This child sex offender is in no different position to any other child sex offender when it comes to those arrangements and facilities. As for the COVID-19 submission, no evidence was adduced which would permit a positive finding about hardship to this offender."

Evidence of remorse

The sentencing judge was satisfied that the applicant had accepted responsibility for the offences by reason of his pleas of guilty and his evidence that he did not "want to use any excuses for what [he has] done", in spite of evidence of his drug and alcohol abuse and his mental health issues. The sentencing judge accepted that the applicant had demonstrated genuine remorse, thus satisfying s 21A(3)(i) of the CSP Act.

Prospects of rehabilitation

The sentencing judge acknowledged the fact that the applicant had undertaken a self-awareness course and that he desired to undertake further courses to "try and understand … how I could've caused so much damage to the people I love" but declined to make a positive finding pursuant to s 21A(3)(g) of the CSP Act that the applicant was unlikely to re-offend. His Honour instead found the applicant's prospects of rehabilitation (s 21A(3)(h) of the CSP Act) to be "very much untested" and therefore "guarded".

Special circumstances

The sentencing judge did not consider special circumstances to be warranted (s 44(2) of the CSP Act) and imposed the statutory non-parole period, stating that, in any event, it would meet "any need for rehabilitation".

Delay

Counsel for the applicant at the sentence hearing had submitted that the eight-year delay between the cessation of the offending in 2010 and the applicant's arrest was a mitigating factor because, had he been charged earlier, he would have received a more lenient sentence, since s 25AA of the CSP Act did not commence until 31 August 2018. Section 25AA provided that: "A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence." Further, counsel submitted, the ability for the applicant to rehabilitate successfully had been reduced by reason of the delay.
The sentencing judge noted that the applicant was "not entirely blameless" in the delay occurring, given that he denied the offences in 1995 when confronted by Partner 2 in response to CD's letter, and again in 1997, when police commenced an investigation against him in response to allegations made by CD to her family friend.
His Honour concluded that the delay did not entitle the applicant to any degree of leniency, given the following factors: the delay was for a period of eight years which is considerably less than the period of offending; the submission that the applicant would have received a lesser sentence if he was sentenced in about 2010 involved a "high degree of speculation"; there was no evidence that the applicant's prospects of rehabilitation had been impacted by the delay, nor was there evidence that he had otherwise been prejudiced by the delay; there was no evidence to suggest that the delay had left the applicant in a state of "uncertain suspense"; the delay was not caused by a failure on the part of the authorities to investigate the matter and charge the applicant; and the applicant had enjoyed being a liberty during the period of the delay.

Totality

The sentencing judge acknowledged a submission that the length of the sentence of imprisonment should not preclude the applicant from being released at a time when "he can still make a worthwhile contribution to his life" and responded that a proper application of the principle of totality would "ensure that this sentiment is reflected in the sentence". Similarly, his Honour accepted a submission that the applicant's age was "a relevant consideration in imposing a lengthy sentence", noting that he was mindful of the applicant's age of 54 and that each additional year in custody "represents a significant portion of his remaining life expectancy".
The sentencing judge drew on the remarks of Street CJ in R v Holder (1983) 3 NSWLR 245 at [260] as to how the principle of totality should be applied.

Pleas of guilty

Pursuant to s 25D(2)(c) of the CSP Act, the sentencing judge applied the mandatory 5 per cent discount to the sentence for the utilitarian value of the applicant's pleas of guilty, which he also found to be a mitigating factor pursuant to s 21A(3)(k) of the CSP Act.
The sentencing judge rejected a submission made on behalf of the applicant that it was open to the Court to fix a greater discount than that stipulated by s 25D(2)(c) and that he had facilitated the administration of justice in a way that entitled him to a reduction pursuant to s 22A of the CSP Act, finding that the section was not relevantly engaged because it was intended to apply to an accused making pre-trial disclosures.

Relevant principles of sentencing

The sentencing judge recited the purposes of sentencing pursuant to s 3A of the CSP Act and acknowledged that the applicant was to be sentenced in accordance with current sentencing patterns and practices, rather than those which applied at the time of the offending conduct, pursuant to s 25AA of the CSP Act.

The sentence

As noted, the sentencing judge imposed an aggregate sentence of 30 years imprisonment with a non-parole period of 22 years and 6 months, commencing on 17 May 2018 and expiring on 16 May 2048, meaning that the applicant will be eligible for release to parole on 16 November 2040. Indicative sentences were expressed for each of the 13 counts, which are reproduced in the table at [10] above.

The ground of appeal

The applicant's ground of appeal is as follows: "That in all the circumstances the sentence imposed upon the Applicant as to both the head sentence, and non-parole period, was manifestly excessive."

Law and legal principles

The principles that are relevant to a determination of whether a sentence is manifestly excessive are well established and were summarised by this Court in Ewan v R [2019] NSWCCA 17 at [37]: "The principles concerning whether a sentence is manifestly excessive are well established. Those that are relevant in the present case may be summarised as follows: (1) For a sentence to be 'manifestly excessive', it must be unreasonable or plainly unjust': Dinsdale v The Queen (2000) 202 CLR 321 at [6], [22]; [2000] HCA 54; Baladjam v R [2018] NSWCCA 304 at [259] per Bathurst CJ (Hoeben CJ at CL and Fagan J agreeing); (2) It is not sufficient that an appellate court may have a different view from the sentencing judge as to the appropriate sentence: Lowndes v The Queen (1999) 195 CLR 665 at [15]; [1999] HCA 29; Baladjam at [259]; (3) Intervention is warranted only when the difference in view is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: Dinsdale at [6]; Wong v The Queen (2001) 207 CLR 584 at [58]; [2001] HCA 64; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [59]; [2010] HCA 45; Baladjam at [260]; (4) In other words, it must be shown that the sentence is one that was simply not open to the judge to impose in the exercise of the sentencing discretion: El-Sayed v R [2018] NSWCCA 250 at [41] per R A Hulme J (Basten JA and Hamill J agreeing)."
The reference in the first stated principle to Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 in the extract quoted above is to the following paragraph in the joint judgment of Gleeson CJ and Hayne J, at [6]: "Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."

The applicant's submissions

In written submissions, the applicant submitted that: "… the sentence demonstrates error in the [Dinsdale] sense namely, that the sentence of 30 years with a non-parole period of 22 years and 6 months upon an Applicant of 54 years of age who had pleaded guilty, had long term drug and alcohol dependence and was likely to be in protective custody for the duration of his sentence was, in the circumstances, plainly unjust."
In oral submissions, counsel for the applicant accepted that there was no apparent error in the sentencing judge's reasoning or findings in the remarks on sentence, but that the sentence was "just too severe in the circumstances".
In support of that proposition, reference was made to Cabezuela v R [2020] NSWCCA 107, which was an appeal against conviction and an application for leave to appeal against an aggregate sentence that had been imposed for 27 counts of historical child sexual assault, of which the applicant was convicted at trial. The aggregate sentence imposed was a term of imprisonment for 28 years with an aggregate non-parole period of 18 years. There were four victims, being four sisters. Walton J, with whom Hoeben CJ at CL and Harrison J agreed, referred to the background to the offences as follows: "3 The offences were alleged to have occurred over 15 years, between 1966 and 1981, at the complainants' home in the Illawarra Region, where they lived with their parents who had migrated from Spain in 1962. The complainants' ages ranged from 3 to 13 years of age at the time of the offences and the appellant was aged 27 to 42 years of age during the offending. The offending was said to have begun when the appellant, the complainants' maternal uncle, joined the household. … 6 The charges consisted of 21 indecent assault counts, three counts of carnal knowledge of a girl under 10, one count of rape and two counts of buggery."
At the time of sentence, the applicant was aged 79. He did not otherwise have a criminal record. He had serious health issues, which were described by Walton J, at [94]-[95], as including chronic heart failure, chronic renal failure, type II diabetes and dementia.
There were two grounds to the application for leave to appeal the severity of sentence, although both contended that the aggregate sentence was manifestly excessive. The first was that it was manifestly excessive "per se" and the second was that it was manifestly excessive in light of the impact of the Covid-19 pandemic and the applicant's age and poor health.
The application failed, leave being refused on the first ground and leave being granted and the appeal dismissed on the second.
Counsel for the applicant in the instant case submitted that although comparative sentences must be considered with caution, when regard is had to the similarities and dissimilarities with Cabezuela, the inevitable conclusion is that the sentence handed down to the applicant was manifestly excessive.

The respondent's submissions

The respondent replied to the applicant's written submissions as follows. The quantum of discount of 5 per cent for the late plea was prescribed by s 25D(2)(c) of the CSP Act, which had been applied; there was no scope for a greater discount. The sentencing judge found, in the applicant's favour, that he had accepted responsibility and demonstrated genuine remorse for the offences.
As to the applicant's long-term drug and alcohol misuse, he gave evidence in the sentence hearing that he accepted there was "no connection" between his misuse of drugs and alcohol and his offending. The sentencing judge had noted s 21A(5AA) of the CSP Act so that, in any event, there was no relevant leniency or mitigation to be derived from the applicant's drug and alcohol issues.
The sentencing judge had acknowledged that the applicant was being held in protective custody. The respondent submitted that: "… there was nothing to show a particular hardship to the applicant in that regard. This Court has made clear that it is not automatically assumed that protective custody occasions hardship entitling an offender to some mitigation." (citations omitted)
The respondent concluded that, when considered individually or together, the three matters identified by the applicant do not demonstrate that the sentence was "plainly unjust or manifestly excessive" and if leave to appeal is granted, the appeal should be dismissed.
At the hearing, the respondent acknowledged that it was open to the Court to conclude that the sentence was "stern" but maintained that it was not manifestly excessive. In response to the applicant's reliance upon Cabezuela, the respondent submitted orally that there was little utility in relying upon a single sentence comparative, particularly concerning historical sexual offending with multiple victims and offences. The respondent referred to differences between the two cases concerning the respective sentencing judges' findings. Whereas in Cabezuela the impact of the offending on any victim had not been found to constitute a separate aggravating feature, the sentencing judge in the instant case had made a specific finding to that effect. The offender in Cabezuela had "a significant subjective case" which was comparatively more substantial than that of the applicant, for example, having regard to their respective ages and their states of health. Further, the breach of trust and authority in the relationship of the applicant to the victims that was involved in the offences where a breach of authority was not an element was more onerous, since, it was submitted, the abuse of responsibility of a parent, step-parent and step-grandfather is more egregious than that of an uncle to his nieces.

Consideration

In my view, the sentence imposed in Cabezuela is of little assistance to the applicant's case when allowance is made for the significant features that distinguish it from those that applied to the applicant's sentence, such as their respective ages and states of physical health.
Care must be taken in considering comparative cases involving offences against s 66A of the Crimes Act, since the maximum penalty has been increased on three occasions since the time of the offences of which the applicant was convicted, from 2003 to 25 years and with the introduction of a standard non-parole period of 15 years; from January 2009 to life imprisonment if there were "circumstances of aggravation", which included the child being under the authority of the offender; and from June 2015 to life imprisonment for the offence simpliciter.
I understand the applicant's submission to be, in effect, that the length of the aggregate sentence was inconsistent with appropriate weight having been given to the three factors identified in his submissions, being the applicant's pleas of guilty, his long-term drug and alcohol dependence and the likelihood of him being in protective custody for the duration of his sentence.
The quantum of the discount for the utilitarian benefit of the applicant's pleas of guilty was mandated by ss 25D(1) and (2)(c) of the CSP Act and expressly taken into account by the sentencing judge when determining the indicative sentence for each offence, as his Honour was obliged to do by s 53A(2)(b) of the CSP Act: see for example Khawaja v R [2014] NSWCCA 80 at [17]. No complaint is made by the applicant as to the indicative sentences. Although an indicative sentence cannot be the subject of challenge, it may reveal error in the aggregate sentence imposed: PD v R [2012] NSWCCA 242 at [44].
A plea of guilty is also relevant in the sentencing exercise to the extent to which it manifests remorse: Georgopolous v R [2010] NSWCCA 246 at [10]. The sentencing judge gave full weight to the applicant's remorse, primarily on the basis of his evidence to that effect. The sentencing judge was particularly impressed by the applicant's determination to not avoid responsibility for his offending behaviour by relying on his history of drug and alcohol abuse.
Counsel for the applicant on the application accepted there was no credible evidence of a causal connection between his abuse of drugs and alcohol and the commission of the offences. In view of that acceptance and s 21A(5AA) of the CSP Act, it is not apparent how it could be reasoned that the aggregate sentence does not adequately reflect the sentencing judge's finding that the applicant had regularly abused drugs and alcohol since he was aged 13.
The sentencing judge found that the applicant's circumstances of imprisonment were no different than for other sex offenders and thus did not warrant mitigation. I note recent observations by Bathurst CJ (Garling and Wright JJ agreeing) in Zahab v R [2021] NSWCCA 7 as to the relevance of such evidence on sentence: "47 It is well established that the fact that an offender will be subject to onerous conditions of custody is a factor which can be taken into account as a mitigating factor in sentencing: see C v R; Durocher-Yvon at [20]; Totten at [43]-[44]. … 48 Further, in my opinion the relevant comparison is between the condition in which the applicant is to serve his sentence compared to that of the general prison population, not between persons convicted of similar offences. When offenders of a particular class are housed in similarly onerous conditions the comparison, with respect, would be meaningless. In a concurring judgment in Khalid v R, Harrison J at [101] emphasised that '[i]t is well understood that offenders receive sentences of imprisonment as punishment: they are not imprisoned for punishment'. 49 However, a number of cases have emphasised the need for evidence when the matter is raised. Thus, in C v R, Hoeben JA, with whom the other members of the Court agreed, emphasised the need for such evidence in the following passages at [41]-[42]: '[41] The better view, in my opinion, is that an offender in the position of the applicant during a sentence hearing, if he or she wishes to gain some benefit in the sentencing process because of the conditions under which the sentence is likely to be served, should adduce evidence as to those conditions. If the Crown disputes that evidence, it can call its own evidence, otherwise the evidence of the offender should be given appropriate weight. [42] In this case the only evidence adduced was that the applicant was serving his sentence under some form of protection. There was no evidence as to the nature and extent of restrictions, if any, which were imposed. In those circumstances, the fact that he was serving his sentence under a form of protection should have been taken into account by her Honour but only in a general sense, i.e. that normally some additional restrictions and constraints are imposed upon a person serving a sentence in such a way. If, however, an applicant seeks to have the conditions under which he or she is serving a sentence taken into account in such a way as to have a significant effect on the sentence to be imposed, then some evidence of those conditions needs to be adduced.' See also R v Scott [2003] NSWCCA 28 at [34] per Bell J."
In R v Scott [2003] NSWCCA 28 Bell J said: "26 This Court has held that the circumstance that a sentence of imprisonment is likely to be served in conditions of protection is a matter that is relevant both to a consideration of the length of the term and to the question of whether special circumstances exist to justify a departure from the statutory proportion between the sentence and the non-parole period; R v Burchell [(1987)] 34 A Crim R 148 at 151; R v Boon (unreported), NSWCCA 17 November 1983; AB v The Queen (1999) 198 CLR 111; R v Wahabzadah [2001] NSWCCA 253. In Burchell Hunt J described as a well-known fact that child molesters are subjected to physical assaults by the inmates of regular gaols and that they are usually obliged to serve their sentences under heavy protective guard and often in isolation. … 34 It is appropriate for a sentencing court to take into account the circumstance that a sexual offender may spend his custody in conditions subject to some form of 'protection' status. Evidence as to the likely conditions of custody is important if the Court is to make an informed assessment of the extent to which the offender's custody will be more onerous than that of prisoners housed in the general prison population. The concerns of which Hunt J spoke in Burchell would seem to be significantly lessened for sexual offenders who are placed in special facilities such as the [Malabar Special Programs Centre, Long Bay Complex]. … "
Similar observations as to the importance of evidence of hardship occasioned by protective custody were made in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [179].
As noted, some evidence was adduced from the applicant as to his conditions of incarceration, which is extracted at [83] above, to the effect that he witnessed violence on a daily basis and referred to the difficulty in being moved safely around the prison as a prisoner on protection, the inference being that he was conscious that he would be attacked if he was not securely protected. The extracted passage evidenced an interplay between his experience of the conditions of incarceration and his pre-existing mental state of anxiety and depression.
The sentencing judge's reasoning for rejecting the submission that protective custody entitled the applicant to mitigation of his sentence, which was that he was in no worse position than other child sex offenders being held on protection (see [109] above), was a comparison of the type that was observed by Bathurst CJ at [48] in Zahab as being inappropriate. The applicant was a target because he was on protection, and the fact that he was in no better or worse a situation than fellow sex offenders on protection was beside the point.
Although the applicant's evidence was not detailed as to the restrictions he experienced by being a prisoner on protection, he was at least entitled to it being taken into account in a general sense, as observed by Hoeben JA in C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81 at [42] and noted with approval by Bathurst CJ in Zahab extracted at [143] above.

Determination and re-sentence

I conclude that, in light of the sentencing judge's relevant findings and appropriate weight being attributed to the applicant's continuing classification as a prisoner in protective custody, the aggregate sentence is manifestly excessive.
Accordingly, I would grant the applicant leave to appeal and uphold the appeal. The applicant is to be re-sentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
The sentencing judge made findings as to where in the range of objective seriousness each of the offences lay. Although it was unnecessary for his Honour to make a scaled assessment of objective seriousness, except in respect of count 13 because it had a standard non-parole period (Sivell v R [2009] NSWCCA 286 at [32]), it is helpful that his Honour has done so. I have read and considered all the evidence that was before the sentencing judge and I make the same findings in respect of each offence. In relation to count 13, I take into account the applicant's abuse of the trust that was reposed in him.
I make the same findings as the sentencing judge in respect of the applicant's abuse of his position of trust or authority. In relation to the victim impact statements, I similarly conclude that the harm occasioned to the three victims by the applicant's offences was substantial and constituted an aggravating factor. I add my own expression of sympathy to them, for the suffering that they have endured and continue to experience.
I make the same findings as the sentencing judge in respect of the relevance of the applicant's criminal record not being an aggravating factor but denying him leniency. I add that, even though s 21A(5A) of the CSP Act was not submitted to be applicable, good character is of little relevance in cases of repeat offending of child sexual assault over an extended period: R v Van Ryn [2016] NSWCCA 1 at [286].
In relation to the issue of the applicant's abuse of drugs and alcohol throughout the period of offending, I would not find that the applicant's denial of it being relevant as determinative of that issue. However, I infer from the fact that there was a period of approximately 20 years between his first and last offence of child sexual assault that he had multiple opportunities over that period to reflect on his offending behaviour. Assuming he was under the influence of drugs and/or alcohol for some or all of the offences, the period of offending deprives that assumption of any utility in explaining why he continued to offend. I note, as well, s 21A(5AA) of the CSP Act.
I find that the applicant is genuinely remorseful and take it into account as a mitigatory factor pursuant to s 21A(3)(i).
I take into account the fact that the applicant had been held in protective custody at Silverwater and Parklea Correctional Centres for the approximate period of two years from the time of his arrest until the sentence hearing, and that he is likely to remain in protective custody for the duration of his imprisonment. There is little evidence as to the nature of the constraints of protective custody on the applicant, so I take it into account in a general sense. I also take into account, in a general sense, the restrictive consequences to the applicant of the management of Covid-19 in the prisons in which he has been accommodated.
I accept the psychologist's diagnoses of the applicant suffering from a major depressive disorder and a generalised anxiety disorder and the evidence to the effect that he was first diagnosed with those conditions well before his arrest. I accept that they were enlivened and exacerbated by the applicant's imprisonment, in particular, that as a prisoner on protection, his awareness that he is a continuing target for violence from prisoners in the general prison population, should they gain access to him.
I make the same determination as the sentencing judge of the indicative sentences, making an allowance of the 5 per cent discount for the late pleas of guilty. In relation to count 13, which had a standard non-parole period and therefore requires the sentencing court to identify an indicative non-parole period (s 54B(5) of the CSP Act), I make the same findings as the sentencing judge, namely, I fix the objective seriousness as below mid-range because of the duration of the offending and the extent of the physical contact between the applicant and the victim (XY) and nominate an indicative non-parole period of 1 year 3 months.
I reflect the factors of the applicant's likely protective custody for the duration of his sentence and its exacerbation of his mental condition in a finding of special circumstances warranting a modest reduction of the ratio of the non-parole period to the balance of term, pursuant to s 44(2) of the CSP Act.
I would impose an aggregate sentence of 28 years imprisonment, commencing on 17 May 2018 and expiring on 16 May 2046. I would set a non-parole period of 20 years, so that the applicant would be eligible for release to parole on 16 May 2038.
I propose the following orders: (1) Leave to appeal granted; (2) Appeal allowed; (3) Quash the sentence imposed in the District Court on 25 June 2020; (4) In lieu thereof, the applicant is sentenced to 28 years imprisonment, commencing on 17 May 2018 and expiring on 16 May 2046, with a non-parole period of 20 years, expiring on 16 May 2038.

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Solicitors: Van Houten Law (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2018/00235223; 2018/00207895; 2018/00154461 Decision under appeal Court or tribunal: District Court Citation: [2020] NSWDC 335 Date of Decision: 25 June 2020 Before: Wilson SC DCJ File Number(s): 2018/00154461

Judgment

PAYNE JA: I have read the decision of Ierace J in draft. I agree with the orders proposed by his Honour and with his reasons.
The sole ground of appeal is that the sentence imposed by Wilson DCJ was manifestly excessive. That finding, manifest excess, like manifest inadequacy, is a conclusion. Despite the gravity and extent of the offending in this case, a sentence of 30 years with a non-parole period of 22 years and 6 months following a plea of guilty in the subjective circumstances of the offender was, as Ierace J explains, manifestly excessive.
There is one additional matter I wish to address. The approach of the sentencing judge to the evidence of the psychologist, Peter Jenkins, cannot be supported. It may be correct, as his Honour opined, that Mr Jenkins, a psychologist, was not in as good a position as a psychiatrist to express opinions about depression, anxiety and the satisfaction of the various DSM-5 requirements. I have made various criticisms of the evidence of psychologists, as compared to psychiatrists, in a related area: State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603.
But in the present case, the psychologist's report was tendered without objection. The criticisms made by the sentencing judge of that evidence were not raised by the Crown. Although no ground of appeal addressed this issue, I regard the sentencing judge's trenchant criticisms of Mr Jenkins' evidence as unwarranted.
On resentence, I agree with the analysis of Ierace J.
DAVIES J: I agree with Ierace J.
IERACE J: The applicant seeks leave to appeal against a sentence of imprisonment imposed on him in the District Court by his Honour Judge Wilson SC ("the sentencing judge") on 25 June 2020 for 13 child sexual offences, committed between 1991 and 2010: R v BR [2020] NSWDC 335. All were the subject of guilty pleas. Ten of the offences were committed against the applicant's biological daughter ("AB"), two against a stepdaughter ("CD") and one against a step-granddaughter ("XY"). Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), the applicant is not named in order to protect against identification of the victims.
His Honour imposed an aggregate sentence of 30 years imprisonment, commencing on 17 May 2018 and expiring on 16 May 2048, with a non-parole period of 22 years and 6 months. The applicant will be eligible for release to parole on 16 November 2040.
The applicant's sole ground of appeal is that the sentence imposed was manifestly excessive.

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