Brown v R

Ground 2 When there is a challenge to a finding of fact, such as a finding as to the prospects of rehabilitation, the question is whether the finding was open on the material before the sentencing judge: at [39]. The sentencing judge was not bound to accept the opinion of the psychiatrist as to prospects of rehabilitation. The sentencing judge and the psychiatrist perform different roles. The sentencing judge is required to consider a number of factors when assessing prospects of rehabilitation not just the opinion of a medical expert. The applicant did not establish that a finding of fact was not open to the sentencing judge: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [131] and see [40]-[43].

Ground 3 Having regard to all of the facts and circumstances, the aggregate term imposed is obviously high when compared to other similar cases. It is more similar to cases involving a greater number of offences occurring at different times or offences involving violence. The sentence imposed was not merely stern but was so high as to be plainly unjust. Ground 3 has been made out: see [58] - [59]. The Court resentenced the applicant an aggregate sentence of a term of imprisonment of 3 years and 3 months commencing on 10 February 2022 and expiring on 9 May 2025 with a non-parole period of 2 years. The non-parole period expires on 9 February 2024: at [64]-[65].

JUDGMENT

1. LEEMING JA: I agree with Cavanagh J.
2. GARLING J: I agree with Cavanagh J.
3. CAVANAGH J: The applicant seeks leave to appeal against the sentence imposed upon him by Judge G O'Rourke SC in the District Court of New South Wales on 16 March 2023.
4. The applicant pleaded guilty to two offences of sexual intercourse with a child between the ages of 14 and 16 contrary to s 66C(3) of the Crimes Act 1900 (NSW) ("Crimes Act"). Her Honour took into account two further offences on a Form 1 and sentenced the applicant to an aggregate term of imprisonment of 4 years and 9 months, with a 3-year non-parole period commencing on 10 February 2022. The sentence expires on 9 November 2026. The applicant will first be eligible for parole on 9 February 2025.
5. The applicant seeks leave to appeal on three grounds, being: 1. the sentencing judge erred in assessing the objective seriousness of the offending; 2. the sentencing judge erred in assessing the applicant's rehabilitative prospects; and 3. the sentence is manifestly excessive.

Circumstances of the offending

1. The applicant was sentenced based on agreed facts. At the time of the offending the victim was 14 years of age and in Year 10 at school. The applicant was 54. "Flingster" is an internet chat site. The applicant's account said he was "interested in young boys". He used a false name.
2. On 31 January 2022 the victim exchanged messages with the applicant on Flingster and Snapchat, during which the applicant showed the victim his genitals on video by tilting the camera down. The applicant asked if the victim wanted to meet up. He replied "sure". They arranged to meet at Marks Park in Sydney's east. The victim arrived at the park ahead of the applicant, having told his parents he was meeting a friend. He waited in the toilets for the applicant and let him in when he arrived.
3. The victim was nervous and wanted to leave but stayed because he did not know how to say that he wanted to leave. The applicant entered the toilet cubicle and saw the victim. He locked the door of the cubicle and touched the victim. He tried to take the victim's shirt off but the victim said he did not want to do that. The applicant then pulled his pants down and sat on the toilet with his penis exposed. The victim performed oral sex on him for a short time. The victim was on his knees. That conduct constitutes sequence 2, being the first offence.
4. The applicant then pulled the victim's pants down and performed oral sex on the victim. That conduct constitutes sequence 3, being the second offence.
5. Sequence 4 (taken into account on the Form 1) was constituted by the applicant touching the victim on the back and placing a finger into his anus whilst performing oral sex on him. Sequence 5 (also taken into account on the Form 1) was constituted by the victim performing oral sex on the applicant and the applicant ejaculating into the victim's mouth.
6. After all of this had occurred, the victim walked home and the applicant drove home. The applicant subsequently sent the victim a message saying "that was pretty awesome. Thank you". The applicant and the victim shared further messages, included the applicant asking the victim, "are you 15 or 14?". The victim replied, "14 turning 15". The applicant relied, "cool, well you now have the record for my youngest ever".
7. When the victim returned home, he told his father about his "friend" and his problems and went to bed. The victim's mother subsequently found the messages between the applicant and her son on the victim's phone. The police were contacted the next day. The applicant was arrested and participated in an Electronic Record of Interview with Suspected Person ("ERISP"). He provided additional background information to the offending and further information as to the exchanges between the applicant and the victim and whilst they were in the toilet at Marks Park.
8. When asked, "How old do you think [the victim] was?", the applicant said "Well, to be honest, I wasn't really paying any attention to his face. I couldn't even tell you if he was wearing a mask or not, I assume he was of age, like, I knew he wasn't 30 or anything". When asked if the victim told him his age, the applicant said, "Not that I recall, if he did, he didn't tell he was under age, let's put it that way. I might've asked if he was over 16 or something like that". He said further, "I don't believe I knew his age at the time of the conversation prior to meeting up".
9. Despite what was said in the interview, by the time of the sentencing hearing it was an agreed fact that the applicant knew the victim was not 16 or older.

Remarks on sentence

1. In assessing the objective seriousness of the offences, the sentencing judge referred to a number of relevant factors, including: 1. there was a 40-year age gap between the victim and the applicant; 2. the victim and the applicant were not known to each other. They met a few hours prior to the offending conduct on Flingster; 3. the applicant knew the victim was not 16 or older when he entered the the cubicle and saw the victim; 4. the applicant locked the door of the toilet. The sentencing judge accepted that this was not to keep the victim in but to keep others from disturbing them; 5. all of the offences occurred over a single period of time of approximately one hour; 6. each instance of sexual intercourse was of short duration; 7. the offending conduct was opportunistic to a degree, although the applicant was required to drive to Tamarama; 8. each act could be described as non-oppositional; and 9. the applicant did not wear a condom. The victim was therefore potentially exposed to sexually transmitted infection.
2. After referring to the nature of the acts performed, her Honour then found that despite the applicant's submission that the victim was a willing participant in the offences, the victim realised he was in too deep but in light of his age, maturity and experience, he did not know how to extract himself from the situation.
3. Her Honour referred to Bell v R [2019] NSWCCA 251 at [29]-[34] and the principle that consent is not a mitigating factor in child sexual assault offences. Her Honour then accepted that whilst there was no evidence of coercion, objective seriousness is to be assessed with reference to what is involved and not the absence of features which would serve to aggravate the seriousness of the offence. Her Honour accepted that the offences were "well within the mid-range".
4. After acknowledging that regard must be had to the harm to the victim and the community through such offending, her Honour turned to the applicant's subjective features. The applicant relied on a psychiatric report of Dr Furst dated 23 February 2023. The applicant did not give evidence on sentence. As her Honour observed, the applicant came from a good and stable home. He had stable and responsible employment. He was described by his family and friends as honest, hardworking and loyal. The offences were said to be out of character. He had no history of major mental illness.
5. Dr Furst did not consider that the applicant met the criteria for the diagnosis of any specific mental illness. The applicant acknowledged his guilt to Dr Furst, stating "I did it, there is no excuse for it, it is wrong". He accepted that he would access the Flingster website every week or two and that he was attracted to young boys. Based on the results of the Static-99R assessment, the applicant posed an average risk of re-offending. Dr Furst was of the view that the applicant presented an average to below average risk of reoffending.
6. Having considered the applicant's subjective case, her Honour then referred to the important principles which apply to sentencing for child sexual assault, including that such offending has profound and deleterious effects upon victims for many years, if not for the whole of their lives:
7. Her Honour observed that there were no aggravating features, the offender had pleaded guilty and was entitled to a 25 per cent discount on his sentence. The applicant had no criminal history and was a person of good character, which her Honour took account of as a mitigating factor, although she also observed that the commission of sexual offences against children are often committed by people of good character.
8. After referring to the opinion of Dr Furst and the support the applicant has in the community, her Honour found the applicant's prospects of rehabilitation to be moderate. Her Honour rejected the submission that the absence of substantial injury or emotional harm should be a mitigating factor on sentence. Her Honour accepted that the applicant had shown remorse and made a finding of special circumstances justifying the variation of the statutory ratio.

Ground 1 - Objective seriousness

1. The applicant submits that the sentencing judge erred in assessing the objective seriousness of the offences as within the mid-range. In his written submissions, he identifies two bases for that submission, being: 1. on the applicant's analysis, the assessment of objective seriousness was very much determined by the large age difference between the applicant and the victim. The applicant submits that the other matters mentioned by the sentencing judge did not add much to the seriousness of the offending. The applicant accepts that the significant age difference marks the offence as more serious than equivalent offences committed by a person in their teenage years or even in their twenties or thirties, but that factor alone cannot put the offences in the mid-range of objective seriousness; and 2. secondly, the applicant submits that the sentencing judge had insufficient regard to the victim's role in arranging the meet-up at Marks Park. The applicant submits that the positive steps taken by the victim throughout the episode cannot be ignored.
2. The applicant submits that the offences are below the mid-range of objective seriousness.
3. The Crown disputes that the finding of objective seriousness was based on such a narrow range of factors, identifying the following factors as being relevant to the assessment of objective seriousness: "a. The age of the victim at 14; b. The age gap of 40 years; c. The meeting through an online forum; d. The applicant's knowledge of the victim's age when he first met him in the public toilet; e. The applicant's locking of the cubicle, only to ensure privacy; f. The limited duration of each offence; g. The opportunistic nature of the offending (with some effort to drive to the location); h. The non-oppositional nature of the sexual acts; i. The lack of condom, and exposure to sexually transmitted disease [in a case of fellatio]; j. The offending being discovered by the victim's parents; k. The particular facts of each of the sexual acts; l. The victim's nervousness, and his desire to leave, and inability to explain that he wanted to leave; m. Authority relating to consent in child sexual assault offending; n. The maximum penalty available."
4. The Crown submits that two particular factors underline the correctness of the finding on objective seriousness, being the exploitative nature of the offending and the degradation of the victim by the offending.
5. As is often said, the assessment of objective seriousness is quintessentially a matter for the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ and at [46] per Simpson J (as her Honour then was).
6. It is an evaluative process akin to fact-finding or the exercise of a discretion and is only reviewable in accordance with the principles in House v R (1936) 55 CLR 499; [1936] HCA 40.
7. Further, and particularly relevant to this appeal, is the statement of this Court in McDowall v R [2019] NSWCCA 29 per Adamson J (as her Honour then was) at [35]-[36], to the effect that there is no obligation to classify the objective seriousness by reference to some scale: Sharma v R [2017] NSWCCA 85 at [63] per R A Hulme J with Beazley P and Walton J agreeing. The obligation is to identify the facts, matters and circumstances which bear on the assessment of objective seriousness.
8. The applicant's contentions under ground 1 are based on a particular interpretation of the remarks on sentence which is not apparent from her Honour's remarks. That is, the applicant seeks to establish that, although her Honour listed all of the relevant factors, she did not then take account of all of those factors.
9. In my view, there is no basis for that submission. Indeed, the contention of the applicant that the sentencing judge should have assessed the objective seriousness as just below the mid-range rather than well within the mid-range exemplifies the difficulties the applicant faces on ground 1. The difference is not significant and is based on a suggestion that the sentencing judge should have re-weighted the relevant factors albeit her Honour did not indicate what weight she gave to the particular factors.
10. An appeal based on the weight given to a particular factor is notoriously difficult because, as occurred in this matter, a sentencing judge is not required to weigh each factor or apply some sort of scaling process. Her Honour did not do so in this matter and I do not accept the applicant's attempt to reconstruct the sentencing judgment to support his submissions.
11. In my view, there is no merit to ground 1.

Ground 2 - Prospects of rehabilitation

1. The applicant submits that the sentencing judge erred in finding that his prospects of rehabilitation were "moderate". The applicant submits that this finding could only have been based on a consideration of comments made by the applicant in the aftermath of the offences, including that he sat in his car feeling excited by them and the victim had "the record" for the applicant's "youngest ever". The applicant submits that the sentencing judge erred in failing to have proper regard to the risk assessment undertaken by Dr Furst.
2. After applying the Static-99R diagnostic tool and his own clinical judgment, Dr Furst concluded that the applicant's risk of reoffending was average to below average. The applicant submits that this difference is important and suggests that her Honour was bound to provide some explanation for making a different finding to that suggested by Dr Furst.
3. I do not agree. Firstly, the opinion of an expert such as Dr Furst is only one aspect of the evidence which her Honour was required to consider. It needed to be weighed with all of the other evidence: Stoeski v R [2014] NSWCCA 161 at [38] per Adamson J.
4. Further, her Honour was not bound to accept the opinion by the psychiatrist as to prospects of rehabilitation. An expert psychiatrist performs a different function from that of a sentencing judge in the sentencing process. The expert psychiatrist has regard to any testing which the applicant might have undergone as well as the findings on clinical examination and analysis of the information provided by the offender. The expert psychiatrist offers an opinion based on the tools available to that psychiatrist. The sentencing judge forms a view as to the facts. An offender's prospects of rehabilitation is a question of fact.
5. Plainly, her Honour took a different view to that of Dr Furst as to the significance of the applicant's comments about his interest in young boys and his comments about the experience after the offending. Her Honour was required to form her own view as to the significance of the various factors which led to the finding of fact about the applicant's prospects of rehabilitation. Her Honour may have placed more weight on the factors which she identified than Dr Furst did. She was not bound to adopt Dr Furst's opinion.
6. When there is a challenge to a finding of fact, such as a finding as to the prospects of rehabilitation, the question is whether the finding was open on the material before the sentencing judge: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [131]; Azzopardi v R [2019] NSWCCA 306 at [36]-[39].
7. In my view, the applicant has not established that the finding was not open to her Honour. Her Honour explained why she disagreed with the opinion of Dr Furst and identified the features of the applicant's post-offence conduct which were of concern. I reject the submission that her Honour failed to adequately explain why her opinion differed from that of Dr Furst. It is apparent on the face of the remarks on sentence. The applicant has not established ground 2.

Ground 3 - Manifest excess

1. The relevant principles governing a complaint that a sentence is manifestly excessive were stated in Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: "[59] As was said in Dinsdale v R, '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say in Wong, '[i]ntervention is warranted only where the difference 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'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that 'the sentence imposed in these matters is so far outside the range of sentences available that there must have been error'."
2. In Kirby v R [2021] NSWCCA 162, Beech-Jones J, said at [45]: "[45] In the case of an appeal from an aggregate sentence, the indicative sentences are not appellable in their own right but they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; 'JM') although, even if an indicative sentence is considered excessive, that is not determinative (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252] -[254]). The ultimate question will be 'whether [or not] the aggregate sentence reflects the totality of the criminality involved' (JM at [40])."
3. The applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
4. A finding of manifest excess is a conclusion. It may be made in circumstances in which no specific error is identified but the sentence is so far outside the range that some error must be implicit.
5. In his written submissions, the applicant sought to use the points submitted under grounds 1 and 2 to demonstrate the manifest excess of the sentence but emphasised that he could still succeed on ground 3 even if he did not succeed on grounds 1 and 2. However, during the applicant's oral submissions, it was suggested that success on ground 3 would be dependent upon succeeding on grounds 1 and 2.
6. That submission may have been ineloquently expressed. I mean no criticism in that regard but, in order to succeed on a manifest excess ground, it is not necessary to establish a specific error. Indeed, ordinarily, a ground asserting that a sentence is manifestly excessive should be advanced only where specific error is not identified: Pleasance v R [2016] NSWCCA 113 at [110]; Hurmz v R [2017] NSWCCA 235 at [20]; Muniandy v R [2021] NSWCCA 305 at [78]. Success on ground 3 is not dependent upon success on either ground 1 or 2, albeit the applicant might seek to rely on the matters arising under those grounds to demonstrate why the sentence is manifestly excessive.
7. Bearing in mind the applicant's written submissions and the Crown's acceptance that ground 3 remained available despite the applicant's statement during oral submissions (which occurred during exchanges with the Bench during the hearing), I do not take the applicant to be abandoning ground 3 if he is not successful on either ground 1 or 2. As much was made clear by the Crown, who addressed this ground.
8. The applicant was sentenced to an aggregate sentence of 4 years and 9 months. The sentencing judge provided indicative sentences of 3 years and 6 months imprisonment in respect of sequence 2, and 3 years and 9 months imprisonment in respect of sequence 3. Although the offending occurred as part of a single encounter, the aggregate sentence was thus a full 12 or 15 months longer than either indicative sentences, thereby reflecting a substantial degree to which the sentences were not concurrent. An appeal does not lie from the indicative sentences but consideration of the indicative sentences may be relevant in considering an appeal based on manifest excess. The undiscounted starting points of the indicative sentences were imprisonment for 4 years and 8 months and 5 years respectively.
9. As I have already observed, the sentencing judge found that the offences were "well within the mid-range". The offences occurred within a single course of conduct within a short period. Her Honour found that the applicant's prospects of rehabilitation were moderate. The applicant had an otherwise strong subjective case. He had no criminal history and was a person of prior good character. This was accepted by the Crown. Indeed, the Crown stated "[i]t's also accepted by the respondent that the sentence was relatively stern, the comparator sentences that are raised by the applicant may be somewhat compelling…".
10. The applicant submits that having regard to a number of cases said to be comparable, the total sentence should be viewed as plainly unjust. In this regard, the applicant relied on a number of cases, including Kenny v The Queen [2010] NSWCCA 6 ("Kenny"); R v Dagwell [2006] NSWCCA 98 ("Dagwell"); R v Wright [2017] NSWCCA 102 ("Wright"); Alarcon v The Queen [2018] NSWCCA 298 ("Alarcon"); Beavis v The Queen [2018] NSWCCA 248 ("Beavis"); Blackett v The Queen [2021] NSWCCA 210 ("Blackett"); O'Brien v The Queen [2013] NSWCCA 197 and R v RD [2014] NSWCCA 103.
11. Perhaps the case with the most similarity is Kenny. In Kenny, the offender was 33 years old and the victim was 15 years and 8 months old. The offender pleaded guilty to two counts under s 66C(3) of the Crimes Act. The offending arose out of a single episode in a hotel room with a pre-planned meetup. The offender received an aggregate sentence of 2 years with a non-parole period of 1 year and 3 months for one count and a 4-year good behaviour bond for the other count. The offender did not have the benefit of the 25% discount for an early plea.
12. In Wright, the offender was 42 and the victim was 14. The offender was convicted of four counts under s 66C(3) of the Crimes Act as well as an offence of procuring a child for unlawful sexual activity contrary to s 66E(2). The offender received a 15% discount. He had a criminal history. He was sentenced to 3 years and 3 months imprisonment with a non-parole period of 1 year and 10 months. On a Crown appeal, this Court accepted that the sentence was inadequate but declined to intervene.
13. In Alarcon, the offender received a sentence of 6 years and 4 months imprisonment in respect of one offence under s 66C(3) of the Crimes Act, one offence under s 61M(2) and one offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The offence was found to be very serious. It involved the offending taking the victim away from her friends and having non-consensual intercourse with her, during which the victim screamed. This case is also not an apt comparator.
14. In Beavis, the offender was 39-40 years of age. He was convicted of aggravated and indecent assault contrary to s 61M(1) and three counts of sexual intercourse with a child between 10 and 14 contrary to s 66C(2). The offending involved aggravating features and violence. The victim had resisted. The offender received a sentence of 7 years imprisonment with a non-parole period of 4 years and 2 months.
15. In Blackett, the offender committed four offences under s 66C(3) of the Crimes Act, one offence of indecent assault under s 61M(2) and one offence of possessing child abuse material. The s 66C(3) offences occurred on different occasions. The offender was sentenced by this court. After noting indicative sentences amounting to 12 years in total, the offender was sentenced to an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and 3 months.
16. Whilst it is necessary to bear in mind that every case is different and an assessment of comparable cases is sometimes of limited utility, the cases to which I have referred tend to demonstrate that the sentences of a comparable length to that imposed upon the applicant generally have been imposed in respect of either a greater number of offences, more serious offending or offending which involved some form of violence.
17. Whilst no appeal lies from the indicative sentences, in my view, the indicative sentences are too high for offending which was described as well within the mid-range and in circumstances in which the applicant has a strong subjective case. There are no aggravating features.
18. Sexual offences committed against children constitutes serious offending and, in this case, no sentence other than a term of imprisonment would be justified. Further the sentence must reflect the total criminality, that is the conduct involved in all of the offending. However, having regard to all of the facts and circumstances, the aggregate term imposed is obviously high when compared to other similar cases. It is more similar to cases involving a greater number of offences occurring at different times or offences involving violence.
19. Whilst the applicant has not demonstrated any specific error, in my view, the sentence imposed was not merely stern but was so high as to be plainly unjust. Ground 3 has been made out.
20. In all those circumstances, it is necessary to resentence the applicant.

Resentencing

1. The applicant relied on two affidavits for the purposes of resentence dated 20 October 2023 and 1 November 2023, although there is substantial overlap between the two.
2. In his affidavit of 1 November 2023, he refers to the number of times he has been moved whilst in custody and a period where he was locked in his cells for 16 days at Goulburn Correctional Centre due to staffing issues. He refers to the work he has undertaken whilst in prison and the further education he is undertaking, such as a business traineeship. He is attempting to enrol in a criminogenic course. He sought access to a counsellor. He refers to the support he has waiting for him in the community and his wish to resume employment.
3. I adopt the sentencing judge's findings of fact. They were agreed. I also adopt the sentencing judge's finding on objective seriousness. As I have already indicated, the applicant has a strong subjective case and I adopt the sentencing judge's findings in this regard, except that I would find that the applicant's prospects of rehabilitation are good. It seems to me that his continuing strong community support, his good behaviour in custody coupled with his efforts in custody and his willingness to pursue courses and counselling to obtain a greater understanding of his offending, all suggest that his prospects of rehabilitation are good. I adopt the sentencing judge's finding on special circumstances.
4. The applicant is entitled to a 25% discount on account of his early guilty plea. The indicative sentences I would have imposed would be: 1. Sequence 2 (taking into account sequence 5 on the Form 1): 2 years and 6 months imprisonment; and 2. Sequence 3 (taking into account sequence 4 on the Form 1): 2 years and 9 months imprisonment.
5. The order I would propose would be an aggregate sentence of a term of imprisonment of 3 years and 3 months commencing on 10 February 2022 and expiring on 9 May 2025 with a non-parole period of 2 years. The non-parole period would expire on 9 February 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2023