[2014] NSWCCA 82
Chiro v The Queen (2017) 260 CLR 425
[2017] HCA 37
DL v The Queen (2018) 266 CLR 1
[2018] HCA 26
DS v R (2012) 221 A Crim R 235
Source
Original judgment source is linked above.
Catchwords
[2014] HCA 2
Bland v R (2014) 241 A Crim R 51[2014] NSWCCA 82
Chiro v The Queen (2017) 260 CLR 425[2017] HCA 37
DL v The Queen (2018) 266 CLR 1[2018] HCA 26
DS v R (2012) 221 A Crim R 235[2012] NSWCCA 159
Elias v The Queen (2013) 248 CLR 483[2013] HCA 31
Gal v R [2015] NSWCCA 242
Goodbun v R [2020] NSWCCA 77
Hamra v The Queen (2017) 260 CLR 479[2017] HCA 38
Higgins v R [2020] NSWCCA 169
Hili v The Queen (2010) 242 CLR 520[2010] HCA 45
Hitchen v R [2010] NSWCCA 77
Hogan v R (2008) 186 A Crim R 52[2008] NSWCCA 150
Hordern v R [2019] NSWCCA 210
IS v R [2011] NSWCCA 142
KBT v The Queen (1997) 191 CLR 417[1997] HCA 54
KMC v Director of Public Prosecutions (SA) (2020) 94 ALJR 415[2020] HCA 6
KRM v The Queen (2001) 206 CLR 221[2001] HCA 11
LA v R [2013] NSWCCA 146
Langbein v R (2008) 181 A Crim R 378[2008] NSWCCA 38
Mills v R [2017] NSWCCA 87
Mokhaiber v R [2011] NSWCCA 10
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Paxton v R (2011) 219 A Crim R 104
[2004] NSWCCA 5
R v Gavel (2014) 239 A Crim R 469
[2014] NSWCCA 56
R v Hamieh [2010] NSWCCA 189
R v JCW (2000) 112 A Crim R 466
[2000] NSWCCA 209
R v Manners [2004] NSWCCA 181
R v McNaughton (2006) 66 NSWLR 566
[2006] NSWCCA 242
R v Nelson [2016] NSWCCA 130
R v Speechley (2012) 221 A Crim R 175
[2012] NSWCCA 130
R v Van Ryn [2016] NSWCCA 1
R v Woods (2009) 195 A Crim 173
[2009] NSWCCA 55
R v Wright [2017] NSWCCA 102
Rainbow v R [2018] NSWCCA 42
S v The Queen (1989) 168 CLR 266
[1989] HCA 66
Skocic v R [2014] NSWCCA 225
Tepania v R (2018) 275 A Crim R 233
[2018] NSWCCA 247
The Queen v De Simoni (1981) 147 CLR 383
Judgment (9 paragraphs)
[1]
The Applicant's Subjective Circumstances
As noted earlier, the Applicant was born in 1964. He was aged between 41 and 43 years at the time of the incidents which gave rise to the offence and was 55 years old at the time of sentence.
The Applicant has a prior criminal history for drink driving in 1981, 1989 and 2008 and offences of driving whilst licence cancelled (in 1992) and driving whilst suspended (in 2006). He has no prior convictions of a sexual nature.
The Applicant did not give evidence at the sentencing hearing.
Tendered in the defence case on sentence in the District Court were a report dated 28 August 2019 of Dr Katie Seidler, forensic psychologist, together with letters from the Applicant's mother, his son and his partner in the period 1991 to 2006, together with a certificate dated 2 August 2019 confirming that the Applicant had completed (in custody) the Positive Lifestyle Program conducted by the Salvation Army.
[2]
Victim Impact Statement
A victim impact statement dated 12 August 2019 was read by the victim (then 28 years old) at the sentencing hearing.
She stated that she was "a survivor of childhood sexual abuse". The victim described eloquently the impact upon her of the Applicant's offending conduct which had caused psychological and emotional suffering and undermined her trust in others. She stated that, at the time of the abuse, she "felt extremely confused and conflicted about what I could do about it".
The victim recounted a range of damaging consequences of the Applicant's offending conduct with her stating that she had "received a diagnosis of PTSD with Complex Trauma" which manifested itself in various ways. She stated that "My entire engagement with life and society has been deeply impacted due to the crime committed against me".
The victim stated that the "purpose of me making this victim impact statement is for me to finally have a voice for when I didn't have one". She stated that the Applicant's actions "had a profound and negative effect on my life".
[3]
The Sentencing Hearing and Sentencing Remarks
The sentencing hearing proceeded before his Honour Judge Robison on 30 August 2019. A number of documents were tendered in the Crown and defence cases. The victim read the victim impact statement. No oral evidence was adduced.
The Crown furnished detailed written submissions on sentence. Counsel for the Applicant did not provide written submissions but a document containing a number of suggested comparative cases was provided to the sentencing Judge together with certain sentencing statistics for offences under s.66C(3) Crimes Act 1900.
Oral submissions were made on sentence. At the conclusion of the sentencing hearing, his Honour stood the matter down until later in the day for the purpose of sentencing the Applicant by way of ex tempore sentencing remarks.
It is apparent from the structure of the ex tempore sentencing remarks that his Honour was utilising various documents which had been provided during the sentencing hearing including the Statement of Agreed Facts and the Crown written submissions on sentence.
It is necessary to keep in mind that the sentencing remarks were delivered ex tempore soon after the hearing. In R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, this Court said at [34]-[35]:
"34 … the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be 'as robustly structured as they might otherwise have been' (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may 'lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing' (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]).
35 When considering whether error has been demonstrated in the ways alleged by the Crown, it will be necessary to fairly read his Honour's remarks on sentence, bearing in mind the features of an ex tempore decision."
As Spigelman CJ observed in R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [48] with respect to ex tempore sentencing remarks "the conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed".
[4]
Some General Observations Concerning Sentencing for Persistent Sexual Abuse of a Child Under s.66EA Crimes Act 1900
Before moving to consider the grounds of appeal, it is appropriate to make some general observations concerning sentencing for offences of persistent sexual abuse of a child under s.66EA Crimes Act 1900.
The Original s.66EA Enacted in 1998
Section 66EA was inserted in the Crimes Act 1900 by the Crimes Legislation Amendment (Child Sexual Offences) Act 1998. In the second reading speech concerning that legislation, the Attorney General, the Hon JW Shaw, said that the proposed offence under s.66EA was "based upon an important recommendation" of the Wood Royal Commission into the New South Wales Police Service, the Paedophile Inquiry where the Royal Commissioner "considered it 'essential' that New South Wales introduce the offence of persistent sexual abuse of a child" (Hansard, Legislative Council, 20 October 1998).
In R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5, Sully J (Barr J and Newman AJ agreeing) noted (at [9]-[10]) the origin of s.66EA, which had been introduced to overcome (in the area of child sexual offences) the decision of the High Court of Australia in S v The Queen (1989) 168 CLR 266; [1989] HCA 66 with respect to the need for particularisation of specific offences.
At the time of the Applicant's offending conduct in 2006 and 2007, s.66EA was in the following terms:
"66EA Persistent sexual abuse of a child
(1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years.
(2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.
(3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales.
(4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.
(5) A charge of an offence against this section:
(a) must specify with reasonable particularity the period during which the offence against this section occurred, and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.
(6) In order for the accused to be convicted of an offence against this section:
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and
(b) the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need not be so satisfied about the dates or the order of those occasions, and
(c) if more than 3 such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same 3 occasions, and
(d) the jury must be satisfied that the 3 such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section.
(7) In proceedings for an offence against this section, the judge must inform the jury of the requirements of subsection (6).
(8) A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section. This subsection does not prevent an alternative verdict under subsection (10).
(9) A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of that sexual offence.
(10) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence against this section, committed a sexual offence, the jury may acquit the person of the offence charged and find the person guilty of that sexual offence. The person is liable to punishment accordingly.
(11) Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions.
(12) In this section:
child means a person under the age of 18 years.
sexual offence means any of the following:
(a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A,
(b) an offence of attempting to commit an offence referred to in paragraph (a),
(c) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b)."
[5]
Ground 1 - The Sentencing Judge Erred in Taking into Account that the Applicant was in a Position of Authority Over the Victim
Submissions for the Applicant
Mr Funnell, counsel for the Applicant, referred to the Crown written submission in the District Court on the question whether the Applicant was in a position of authority. It was submitted that the finding of the sentencing Judge that the Applicant was in a position of authority (ROS27 at [76] above) involved error as this constituted a finding that the aggravated form of ingredient offence under s.66C(4) Crimes Act 1900 had been committed with this finding being, in turn, an infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
Although the sentencing Judge did not refer to s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999, it was submitted that the sentencing Judge had in fact made a finding that the Applicant had abused a position of authority in relation to the victim with this being contrary to the Crown submission made at the sentencing hearing.
Counsel for the Applicant submitted that the sentencing Judge had in fact made a finding which treated the ingredient offences as being s.66C(4) offences for which the maximum penalty (if prosecuted separately) was imprisonment for 12 years, with this approach breaching the principle in The Queen v De Simoni.
Submissions for the Crown
The Crown noted the submission of the Crown at first instance which was that the aggravating factor in s.21A(2)(k) did not apply in this case. However, the Crown submission in the District Court made clear that the Applicant had taken advantage of the victim's youth and the Applicant's position within the family in circumstances where there was "a clear power imbalance between the victim and the offender".
The Crown submitted that, in making the presently impugned finding (ROS27 at [76] above), the sentencing Judge was adopting the Crown submission which did not involve the error asserted by the Applicant in this Court.
The Crown submitted that various findings made by the sentencing Judge on this topic amounted to a breach of authority "in ordinary parlance" in the sense described in Rainbow v R [2018] NSWCCA 42 at [31].
The Crown submitted that no error had been demonstrated on the part of the sentencing Judge as asserted in this ground and that there was no infringement of the principle in The Queen v De Simoni.
Decision
[6]
Ground 2 - The Sentencing Judge Erred in Failing to Assess the Objective Seriousness of the s.66EA Offence or, Alternatively, Failed to Consider the Nature of the Ingredient Offences when Considering the Objective Seriousness of the s.66EA Offence
Submissions of the Applicant
Counsel for the Applicant submitted that there was a degree of uncertainty in the sentencing Judge's finding that the objective seriousness "was fairly and squarely within the midrange of objective seriousness for each of these offences" and that "each of the offences themselves was very serious" (ROS25-26 at [75] above). It was submitted that his Honour had not made a finding concerning the objective seriousness of the s.66EA offence itself.
Counsel also submitted that the sentencing Judge did not undertake any independent evaluation of the factors giving rise to the gravity of the s.66EA offence itself. It was submitted that his Honour did not consider the relevance to objective seriousness of the fact that the ingredient offences were under s.66C(3) Crimes Act 1900 with this being, it was submitted, an important feature given the wide range of offences (and maximum penalties) covered by a s.66EA offence: R v Fitzgerald; R v Manners at [34]; Mills v R at [2].
It was submitted that the sentencing Judge had given a bare recital of the facts which was not sufficient: R v Cage [2006] NSWCCA 304 at [17].
It was submitted that there had been a failure to make an assessment of objective seriousness of the s.66EA offence with this being an essential part of the sentencing process so that error had been demonstrated.
Submissions of the Crown
The Crown submitted that the assessment of objective seriousness made by the sentencing Judge was sufficient in this case, noting that a s.66EA offence does not carry a standard non-parole period.
It was submitted that it was necessary to read his Honour's express finding concerning objective seriousness in the context of the whole of his Honour's ex tempore sentencing remarks. There had not been a bare recital of the facts by the sentencing Judge. Reference was made to the findings of fact made by his Honour with a number of particular findings being made in the course of the factual narrative.
The Crown submitted that his Honour complied with the law in making an assessment of objective seriousness of the s.66EA offence in accordance with what had been said in R v Fitzgerald.
[7]
Ground 3 - The Sentence Imposed on the Applicant is Manifestly Excessive
Submissions for the Applicant
Counsel for the Applicant accepted that, on account of the age difference between the Applicant and the victim, the duration of offending and the modes of sexual intercourse involved, this s.66EA offence was unquestionably serious. Counsel accepted, as well, that the ingredient counts were representative so that the Applicant was not entitled to leniency in accordance with the principles in R v JCW.
Whilst accepting that there was some grooming, it was submitted that the offending did not occur against a background of physical violence or coercion and that the victim was towards the upper limit of the age range for a s.66EA offence.
Whilst acknowledging the limitations of sentencing statistics, counsel referred to sentencing statistics which revealed, of the 108 offenders sentenced for s.66C(3) offences between January 2008 and 24 September 2018, 94.5% received a head sentence of seven years' imprisonment or less and, of these 108 persons, only two received head sentences greater than the one imposed upon the Applicant: PB v R [2016] NSWCCA 258; Hordern v R [2019] NSWCCA 210.
It was submitted that the sentencing statistics demonstrate that the sentence imposed upon the Applicant lay at the very top of the range for offences contrary to s.66C(3).
Counsel for the Applicant referred to a number of sentencing decisions for offences under s.66EA which had been relied upon in the District Court together with a number of additional sentencing decisions for offences under s.66C(3) Crimes Act 1900, being R v Boulad [2005] NSWCCA 289, Mokhaiber v R [2011] NSWCCA 10, LA v R [2013] NSWCCA 146, PB v R, R v Wright [2017] NSWCCA 102 and Hordern v R.
Having regard to the objective seriousness of the Applicant's offence, his subjective circumstances and other findings made by the sentencing Judge, it was submitted that no reasonable exercise of sentencing discretion would result in a starting point (before application of the 20% discount) of 13 years and five months with a non-parole period of eight years and nine months.
It was submitted that the sentence was plainly unjust and that this Court should intervene and resentence the Applicant.
Submissions of the Crown
The Crown submitted that caution should be exercised in the use of sentencing statistics noting the frequently expressed reservations as summarised in Goodbun v R [2020] NSWCCA 77 at [257]. It was noted that sentencing statistics relied upon by the Applicant related to s.66C(3) offences and not offences under s.66EA Crimes Act 1900.
[8]
Conclusion and Orders
The Applicant has not made good any of his grounds of appeal.
I propose the following orders:
1. grant leave to appeal against sentence;
2. appeal against sentence dismissed.
ROTHMAN J: I agree with Johnson J.
[9]
Amendments
04 November 2020 - Typographical error on coversheet
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: 04 November 2020
PB v R [2016] NSWCCA 258
R v Boulad [2005] NSWCCA 289
R v Cage [2006] NSWCCA 304
R v D (1997) 69 SASR 413
R v DM [2018] NSWDC 62
R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v Hamieh [2010] NSWCCA 189
R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209
R v Manners [2004] NSWCCA 181
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Nelson [2016] NSWCCA 130
R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
R v Van Ryn [2016] NSWCCA 1
R v Woods (2009) 195 A Crim 173; [2009] NSWCCA 55
R v Wright [2017] NSWCCA 102
Rainbow v R [2018] NSWCCA 42
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
Skocic v R [2014] NSWCCA 225
Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Vasilevski v R [2019] NSWCCA 277
Wakeling v R [2016] NSWCCA 33
Wright v R [2019] NSWCCA 134
Texts Cited: ---
Category: Principal judgment
Parties: Anthony Joseph Burr (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr N Funnell (Applicant)
Mr GA Newton (Respondent)
Having regard to the grounds of appeal, it is appropriate to set out parts of his Honour's sentencing remarks.
His Honour commenced the sentencing remarks by stating that the Applicant stood for sentence "in relation to a very serious offence of persistent sexual abuse of a child" (ROS1). His Honour noted the maximum penalty for the s.66EA offence and observed, amongst other things, that a number of persons who had provided character testimonials were in Court, with this being undoubtedly a factor leading his Honour to deliver ex tempore sentencing remarks so that a range of persons with a close interest in the proceedings could hear what was said. This is a principal purpose of sentencing remarks being delivered orally in the presence of those with a direct interest in the outcome: R v Hamieh [2010] NSWCCA 189 at [29].
His Honour then recited the facts of the offences utilising the Agreed Statement of Facts for this purpose (ROS2-18). In the course of reciting the agreed facts of the offences, the sentencing Judge made comments from time to time with respect to particular aspects of the facts, as the following extracts demonstrate.
After reciting the facts referred to earlier in this judgment (at [19]), his Honour observed (ROS8-9) (emphasis added):
"The offender told the victim that 'If anyone ever asks about us, just tell them I'm your dad. They wouldn't understand'. I pause to reflect upon that quote because that clearly indicates to me that there was at least some inkling, as Mr Funnell [counsel for the Applicant] very carefully submitted, of some awareness that things were not right.
Indeed, they were not right. Indeed, none of this was right at all. The facts go on to say that on several occasions, the offender had sexual intercourse with the victim while she was wearing her school uniform. I am mindful of the age of the victim at that time and indeed all of the other times, together with the age of the offender. A considerable difference in age I must say. In 2006 when she was in year nine, the offender bought her Stay Up Stockings and suspender belts. There were occasions when the victim forged notes to her school to allow her to leave early with the offender. The offender also wrote notes and signed them with the victim's mother's name. The police obtained the victim's school records and the victim identified seven notes that the offender wrote or signed pretending to be from the victim's mother. The victim forged 11 notes pretending to be from her mother, and all notes were dated from 16 February 2006 to 5 December 2007, when she was in years nine and ten at school."
His Honour then continued (ROS9) (emphasis added):
"It is very clear to me when I read these facts, that there was a considerable amount of control which emanated from the offender towards this very young vulnerable victim, and that is glaringly obvious I must say on any fair assessment of these facts on an objective basis. Yes, I do consider that there was an element of grooming which lead up to this and indeed during the course of these appalling events.
Then there are some facts about the contraceptive pill and that around the beginning of 2006, the offender expressed concern that the victim could fall pregnant. He repeatedly told her that she should ask her mother to take her to see a doctor and request a prescription for a contraceptive pill. I draw an inference from that, that no doubt he was intending to engage in such behaviour for the future and was concerned that she may indeed fall pregnant, and that is effectively what para 27 is all about."
By reference to the facts of Incident 4 (at [25]-[26] above), his Honour observed (ROS11):
"I find what the mother did frankly not only surprising but extraordinary, but I cannot say any more than that."
After recounting the factual narrative concerning the victim seeking to avoid the Applicant (see [37] above), his Honour observed (ROS15) (emphasis added):
"The victim realised that the offender was using her purely for his pleasure and felt disgusted. She felt that this was a turning point for her. Without doubt at all, the offender was indeed using this young victim purely for his pleasure. I appreciate that the offender himself entertained an element of remorse and contrition for what he did but not at that time. He did later. I will come back to that in a moment in these remarks.
In 2008, the victim started year 11 at the school named in the facts and as a result of changing campuses she stopped spending so much time with the offender and not surprisingly, after about mid-2008 she was actively avoiding the offender. The sexual relationship between the two was finished before the victim turned 17 years of age and I note what paras 60 and 61 reveals in the facts."
After concluding a recital of the facts, his Honour made the following findings which related to the objective seriousness of the offence and the moral culpability of the Applicant (ROS18-19) (emphasis added):
"I spent a considerable amount of time carefully considering and evaluating those agreed facts. This was a serious, illegal course of conduct perpetrated by the offender against this very young victim over a period of 18 months or thereabouts. The Court does need to assess the objective seriousness of these matters and has done so. The Court is mindful of the period of time [during] which these offences occurred. The Court is mindful of the age of the victim at all relevant times and indeed the offender.
I conclude that there was indeed an element of grooming. The serious nature of each of these offences escalated over a period of time and that needs to be considered when one takes into account, also the moral culpability of the offender."
His Honour referred to the Applicant's "very limited criminal history" with "no offences at all of a like nature on his history" (ROS19).
The sentencing Judge referred to the victim impact statement read by the victim to the Court earlier that day (ROS19-20):
"Included in the material is a victim impact statement from [the victim]. I listened to her very carefully when she read that statement during the time when the Court was closed for that purpose. She spoke from the heart. I consider that what she said was truthful and clearly this has had an effect upon her as it would indeed have an effect on any person in her very vulnerable position at that time and I do indeed take it into account, but I take it into account on the basis that it is something that one would normally expect when it comes to the effect, such appalling conduct against a young vulnerable and perhaps impressionable victim.
There is one matter which I would like to say during the course of these remarks. She indicated in her victim impact statement that she had some underlying feelings of shame, humiliation and guilt. Can I assure her emphatically, she has nothing to be ashamed of whatsoever. None of this was her fault."
The sentencing Judge then had regard to the character testimonials, noting that the authors were present in Court. His Honour referred in some details to the character evidence (ROS20-21).
In referring to this evidence, his Honour observed that it revealed "an element of remorse and contrition" on the part of the Applicant (ROS21). Soon after, the sentencing Judge made the following finding concerning the Applicant's remorse and contrition (ROS22):
"Although he has not given oral evidence about this, I have come to the view that his expression of remorse and contrition is neither feigned nor expedient, it is real and satisfies the mitigating element pursuant to s 21A of the Crimes (Sentencing Procedure) Act."
The sentencing Judge then referred in some detail to the psychological report of Dr Seidler (ROS22-23). His Honour said the following with respect to the Applicant's risk of reoffending (ROS23):
"In para 103 in respect of which I have received some submissions, the author says that he is considered to pose a low to moderate risk of reoffending and it is suggested that he does not present with a general deviance sexual interest in children and young people that would be expected if he presented with paedophilic disorder. I note what she says there about that. There are some recommendations there which I consider are appropriate. I have also had regard to exhibit 3 which was tendered today and I note the email communication from Dr Seidler which refers to the risk assessment and what she has set forth there.
I have taken that into account, I note the submissions about that. One cannot rule out the risk of reoffending. It is certainly there but I would not go so far as to find that it is a high risk of reoffending and that would be against the weight of the evidence in any event. This man certainly does need rehabilitation not only for his benefit but also for the benefit of the community when he is eventually released."
The sentencing Judge then noted that both the Crown and counsel for the Applicant had drawn the Court's attention to a number of authorities with his Honour observing that "each case needs to be determined on its own facts and circumstances" (ROS24).
His Honour stated that he had regard to the submissions made and to relevant sentencing principles, observing (ROS24):
"The punishment should not only fit the crime but it should also fit the offender. They are not mutually exclusive notions. A sentencing judge has to take into account a plethora of factors before determining what an appropriate sentence is. Every case needs to be determined on its own facts and circumstances, mindful at all times of the principles of law."
His Honour explained his reasons for extending a 20% discount for the utilitarian value of the Applicant's plea of guilty (ROS24-25).
The sentencing Judge then made the following finding concerning the objective seriousness of the offence which came under challenge in this Court (Ground 2) (ROS25-26) (emphasis added):
"I have heard a number of submissions about the objective seriousness about the matter. The objective seriousness in my view objectively on any fair reading of the facts themselves indicates that these offences firstly escalated from really, the very beginning of the period of time of the offending. Particularly noting that the offences involving penile vaginal sexual intercourse occurred within a relatively short time of the first period of offending and it escalated from there.
It was regular. It occurred over a period of some 18 or 20 months or thereabouts. All of this period needs to be considered when assessing the objective circumstances. I have noted the competing submissions about that and given the particular age of the offender and the age of the victim at the relevant times, at the end of the day, on fair and appropriate assessment of the objective seriousness as to each of the matters, given what occurred, was fairly and squarely within the midrange of objective seriousness for each of these offences.
I appreciate minds may differ on that but that is my assessment of the matter overall. Each of the offences themselves was very serious and I have taken it into account accordingly."
In the course of addressing a submission advanced by counsel for the Applicant, his Honour said (in comments giving rise to Ground 1) (ROS26-27) (emphasis added):
"One of the submissions which was made by Mr Funnell was that none of the offending involved physical coercion. There is some merit in that submission but there were times when the offender certainly acted within an atmosphere of at least verbal persistence if not coercion of that kind. He persisted with this series of criminal acts over the period of time. There is nothing to indicate at all that the victim instigated any of this, after all, she cannot be blamed for anything whatsoever.
There was a close relationship developed between the two. Mainly at the instigation, in my view, of the offender. There was an element of grooming and that is self-evident from the facts as I have carefully considered. I am mindful of the element of the offences. I am particularly mindful of the fact that and I find it as a fact that he was indeed in a position of authority. I appreciate, again, the age difference between the two. Something in the order of more than 27 years older at the time.
He did take advantage of the familiar relationship and his age in order to have access to the victim and commit to these offences as submitted by the Crown."
Submissions had been made concerning the Applicant being subject to conditional liberty during part of the offending period. On 1 June 2006, the Applicant had been sentenced at the Sutherland Local Court for driving whilst suspended by way of a good behaviour bond for six months under s.10 Crimes (Sentencing Procedure) Act 1999. In that respect, his Honour made the following finding (ROS27):
"For completeness given the period of time when he was on so called conditional liberty, I am not going to take into account any circumstance of aggravation as to that period and it is clear that the Court would need to be satisfied beyond reasonable doubt to find that that is an aggravating feature. The Court has a reasonable doubt about that and in fairness to the Crown it is suggested that it is possible that none of the sexual acts occurred when he was subject to the s 10 bond.
So there is an insufficient evidentiary basis for me to find otherwise so therefore I formally find that there is no aggravation constituted by the offender being on any conditional liberty."
In the course of a number of additional findings or observations, his Honour said (ROS27-28) (emphasis added):
"The risk of reoffending is there, albeit at a low level, and that is matter that has received detailed consideration by Ms Seidler in any event. Returning for a moment to what I said about the coercion aspect of the offender with the victim and I remind myself also of the earlier portion of the facts which involved the offender physically controlling her and those facts really speak for themselves but by and large, it was coercion of another kind.
Undoubtedly, the offender did take steps to conceal the offending from other people. Particularly having regard to what he said to the victim when he was picking her up from school and I have already addressed the victim impact statement. I am mindful of the period of time of about ten to 12 years between the commission of the offence and the offender being charged. General deterrence and denunciation needs to be considered carefully by the Court as well and reflected in an appropriate sentence.
Specific deterrence certainly is there but I consider that there is a means by which specific deterrence can be addressed and that would be by way of intensive rehabilitation and therapy. General deterrence does loom large and the Court should impose a sentence which would send a clear message to likeminded individuals that these matters will be treated very seriously by the Courts indeed.
The offender is now 55 years of age. I note his history of anxiety, depression and social phobia. Mr Funnell correctly said that this is conduct that needs to be denounced and the offender accepts that."
His Honour found special circumstances (ROS28-29):
"I am satisfied that there is a sufficient evidentiary foundation to conclude that special circumstances have been made out. They are comprised of these factual matters.
Firstly, this is the first time he has been placed in the full-time custodial environment. Secondly, I am mindful of his age. Thirdly, the prospects of rehabilitation I consider are reasonable, perhaps, somewhat guarded but I think they are reasonable when one steps back and looks at all of this, particularly the development of insight insofar as the offender is concerned. See the report of Dr Seidler.
I consider that the statutory relationship between the non-parole period and the balance of the term of the sentence I am about to impose should be adjusted to reflect the finding of special circumstances."
In the course of passing sentence, his Honour observed that the total sentence of imprisonment for 10 years and nine months "has been rounded to that term having regard to the utilitarian value" (ROS29).
It was common ground at the Applicant's sentencing proceedings that the "sexual offences" (under s.66EA(12)) which constituted the s.66EA offence in his case arose from 12 separate occasions, occurring on at least eight separate days in a period between 1 January 2006 and 26 August 2007, in which he engaged in conduct in relation to the victim that constituted, in each case, an offence under s.66C(3) Crimes Act 1900 which, if prosecuted separately, was punishable by a maximum penalty of imprisonment for 10 years.
Some Principles Emerging from Sentence Appeals Concerning s.66EA Offences
In the course of describing the operation and effect of s.66EA in R v Fitzgerald, Sully J noted the following features which were relevant to sentence (at 13-(6)):
"(3) If the Crown elects to prosecute only for a section 66EA offence and secures a conviction; or if the Crown elects to charge a section 66EA offence as an alternative charge, and secures a conviction on that alternative charge; then what has been established is not a miscellany of substantive offences contravening such statutory provisions as sections 61J, 61M and 61N of the Crimes Act. What has been established is, rather, one offence contravening section 66EA.
(4) When that position has been reached, and when the particular offender stands for sentence accordingly, the ultimate question for the sentencing Judge is where a sentence that is just according to proper sentencing principles should stand on a statutory scale, the highest point of which is a sentence of imprisonment for 25 years.
(5) It does not seem to me to be logical to answer that question by considering what sentence(s) might or might not, or could or could not, or should or should not, have been passed had the offender been convicted of precisely particularised contraventions of such sections as section 61J, 61M or 61N, those contraventions having been charged as isolated offences.
(6) Is it any more logical to consider what might have been the sentencing outcome had the offender been convicted of such precisely particularised contraventions, those conventions having been charged and proved as representative offences rather than as isolated offences?"
Sully J then referred (at [13]) to the judgment of Doyle CJ in R v D (1997) 69 SASR 413 at 419, which concluded with Doyle CJ saying with respect to sentencing for the South Australian equivalent of s.66EA:
"In this way the Court will still have regard to the duration of the offending, the seriousness of the offences involved and the frequency of the offending, but the Court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima."
Sully J adopted the reasoning of Doyle CJ in this respect and continued (at [13]-[15]):
"I respectfully agree with this reasoning and with the sentencing approach which it approves. In my opinion, there is nothing in the New South Wales section 66EA, just as there is nothing in the South Australian section 74, to suggest that Parliament intended that the sentencing for a course of conduct which has crystallised into a section 66EA conviction, should be more harsh in outcome than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences.
It follows, therefore, that in my opinion the learned sentencing Judge did not err in law in adopting the approach approved by the decision in D.
If that sentencing approach be applied to the given facts of the respondent's case, then the picture which emerges as to the objective criminality of the section 66EA offence, is to the following effect:
· A pattern of sexual abuse extending over a 7 month period.
· A component of that pattern in the form of seven identified instances of such abuse, each of those instances being serious but not in the worst case category.
· A complementary component of the pattern in the form of other instances of abuse which could not be precisely identified or particularised.
· Aggravating circumstances, some of which were admitted and others of which were not admitted.
· An awareness on the part of the offender that what he was doing was wrong; coupled with reactions of revulsion which had led him to make an attempt on his own life."
In R v Manners [2004] NSWCCA 181, Bell J (Howie and Hislop JJ agreeing) said at [21]:
"This Court considered the approach to sentencing for offences contrary to s 66EA in R v Fitzgerald [2004] NSWCCA 5. Sully J (in a judgment with which the other members of the Court agreed) concluded that there was nothing to suggest that the Parliament intended sentencing for a course of conduct that had crystallised into a s 66EA conviction to be more harsh than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences (at paragraph 13 (6))."
Later in R v Manners, Bell J stated at [34]:
"As Mr Cook, who appeared on the respondent's behalf, submitted, s 66EA is capable of applying to a wide range of conduct constituting sexual offences against children. At one end of the scale are offences under s 61JA that carry life imprisonment as a maximum penalty and at the other end of the scale are offences under s 61N(2) that carry a maximum penalty of 18 months' imprisonment. The individual acts particularised in support of this count involved aggravated indecent assaults on a young child. The acts themselves were not in the worst category for offences of this description although the age of the child does not admit of them being viewed as other than serious."
In Langbein v R (2008) 181 A Crim R 378; [2008] NSWCCA 38, McClellan CJ at CL (Hall and Price JJ agreeing) said at [115]-[117]:
"115 The offence of persistent sexual abuse contrary to s 66EA carries a maximum prison term of 25 years. It is a more serious offence than the offences which comprise the individual acts. The first incident alleged in the indictment would have been an offence against s 66A of the Crimes Act which carries a maximum penalty of 25 years and a standard non parole period of 15 years. The second matter would have been an offence against s 61M(2) of the Crimes Act for which the maximum penalty was 10 years imprisonment with a standard non parole period of 5 years. The third matter would have been an offence against s 61J and s 61P of the Crimes Act for which the maximum penalty was 20 years imprisonment with a standard non-parole period of 10 years. The fourth matter would have been an offence against s 66C of the Crimes Act for which the maximum penalty was 20 years and in respect of which there was no standard non parole period.
116 Having regard to the range of penalties in respect of the individual acts the sentence which his Honour imposed was not excessive. The appellant pleaded not guilty and was convicted after trial. There is no indication of any contrition and his prospects of rehabilitation are unknown. The offence continued over a significant period of time. The appellant was in a position of trust to the complainant which was seriously breached.
117 A measure of the severity of the sentence can be gauged by consideration of the penalty which would have been available in relation to the first incident if separately charged. The trial judge found the offence to be in the mid range and in my opinion this would have been an appropriate description of the first incident. A mid range offence would carry the standard non parole period of 15 years. In the present case the overall sentence was 10 years and the non parole period 7½ years. His Honour determined the offence to be within the mid range and in these circumstances the sentence which his Honour imposed was not excessive."
In AC v R [2016] NSWCCA 107, Schmidt J (Bathurst CJ and Wilson J agreeing) said at [5]:
"In Langbein v R [2008] NSWCCA 38; (2008) 181 A Crim R 378 it was observed at [115] that "[t]he offence of persistent sexual abuse contrary to s 66EA carries a maximum prison term of 25 years. It is a more serious offence than the offences which comprise the individual acts." In sentencing an offender for such an offence, the foundational offences must be established beyond reasonable doubt (see ARS v R [2011] NSWCCA 266 at [230]). In this case they were established by the agreed facts."
In Mills v R [2017] NSWCCA 87, R A Hulme J (Leeming JA and Beech-Jones J agreeing), in the context of an appeal against sentence for a s.66EA Crimes Act 1900 offence, said at [64]:
"I have earlier referred to features of the offending that warranted a finding of above mid-range objective seriousness (see above at [53]). In summary, it involved full penile-vaginal intercourse with ejaculation on a regular basis by a father with his daughter when she was aged from 11 to 14. It is true that only three such occasions were particularised in the agreed facts, however the multiplicity of additional offending was not disputed and had a bearing upon the assessment of the objective gravity of the offence. It could not be used to increase the level of punishment: R v JCW [2000] NSWCCA 209; 112 A Crim R 466. It was relevant to 'demonstrate the degree of seriousness with which the charged offence [in this case, read particularised offences] should be viewed': Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [146]."
Soon after, R A Hulme J said at [68]-[71]:
"68 As the Crown contended and the applicant accepted, there is no range of sentence that can be derived from other cases that can be drawn upon to usefully compare the sentence in question. The Judicial Commission of New South Wales' statistical database for offences against s 66EA currently contains only 17 cases in the 7 year period to September 2016. Most of the cases (14) involved pleas of guilty and the sentences range from 5 years to 17 years. Six of these cases were included in the eight summarised in the applicant's written submissions. I respectfully agree with the comment at the end of the summary that they 'demonstrate the varied objective conduct captured by s 66EA as well as the varied personal circumstances of the respective offenders' or, as it was put in oral submissions, 'it's a small sample and they demonstrate diverse [objective] and subjective cases'. (AWS 33; 3.4.17 at T 5.3)
69 It is useful, however, to note the case of Hitchen v R to which the applicant referred. It involved an offender sentenced in the District Court to a total term of 24 years with a non-parole period of 18 years for an offence contrary to s 66EA with sundry other offences relating to child pornography that were the subject of sentences or were taken into account. The sentence for the s 66EA offence was 16 years with a non-parole period of 12 years after a 25 per cent reduction on account of the offender's plea of guilty.
70 The s 66EA offence in that case involved offending over a three year period against a child from when she was aged seven. There were 12 separate occasions of intercourse (oral, vaginal and anal). There were also 36 occasions on which the child was subjected to acts of indecency. Some of the offences were photographed or recorded on video giving rise to some of the child pornography offences. The sentencing judge found that the s 66EA offence was in the worst case category. Howie J in this Court (McClellan CJ at CL and Rothman J agreeing) made the same assessment. Error was found in excessive accumulation of sentences with the result that the overall sentence was reduced to 18 years with a non-parole period of 14 years. The sentence for the s 66EA offence was undisturbed.
71 Reference to a single case provides no basis to draw a conclusion of manifest excess in the present case. However, Hitchen v R does serve to illustrate what a worst category case can be. As bad as it is, the present case is not there, nor very close to it. Yet against the maximum penalty of imprisonment for 25 years, the starting point adopted by the primary judge of 22 years is commensurate with an assessment that it was within that realm. In my view, it was unreasonable to assess the sentence at that level and it follows that the resulting sentence of 16 years and 6 months is manifestly excessive."
In a separate judgment in Mills v R agreeing with R A Hulme J, Leeming JA observed at [2]:
"I have had the considerable advantage of reading the judgment of R A Hulme J in draft. I respectfully agree with his Honour that ground 1 is not made out, for the reasons his Honour gives. There was no error in regarding the offence as being at the 'high range'. That may be seen by having regard to the range of ingredient offences which comprise elements of the offence of persistent sexual abuse of a child created by s 66EA, most of which are less serious than aggravated sexual assaults committed by the offender contrary to s 61J. To my mind, there is force in the submission made by the Crown that s 66EA was 'meant to deal with offending at the lower level'. When one bears in mind the manipulation or pressure which the offender brought to bear upon his daughter to suppress her initial complaint, the continuation of the offending thereafter and the very serious physical and psychological harm his daughter suffered, the conclusion of the primary judge was amply open."
Representative Counts and Sentencing for a s.66EA Offence
The Applicant was to be sentenced upon the basis that his s.66EA offence comprised 12 separate sexual offences under s.66C(3) Crimes Act 1900 in that he had sexual intercourse with the victim who was above the age of 14 years and under the age of 16 years.
These 12 ingredient offences occurred in the course of eight separate incidents over a period of 20 months in 2006 and 2007.
It was common ground that these incidents did not constitute an exhaustive list of the offences committed by the Applicant against the victim, but were themselves representative counts to be dealt with in accordance with the principles stated by Spigelman CJ in R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 at [63]-[68]. The ingredient offences which constituted the s.66EA offence for which the Applicant was to be sentenced were not isolated incidents so that the Applicant was not entitled to assert, as a type of mitigating factor, that the sexual offences which made up the s.66EA offence constituted the entirety of his offending against the victim.
It remained the case, however, that the Applicant was not to be sentenced for other uncharged conduct which lay outside the ingredient offences of the s.66EA offence: AK v R [2016] NSWCCA 238 at [67]-[75]; Mills v R at [64] (see [93] above).
Section 66EA is Replaced in 2018
The original s.66EA Crimes Act 1900, enacted in 1998, was removed and replaced by a new s.66EA as a result of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 which commenced on 1 December 2018. The new s.66EA is in a form recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse and is modelled largely upon the offence found in s.229B Criminal Code Act 1899 (Qld).
Accordingly, the original s.66EA applies to a closed category of offences committed between 1998 and 1 December 2018.
High Court Consideration of Provisions Concerning Persistent Sexual Abuse of A Child
The High Court of Australia has considered provisions of this general type in other States of Australia in a number of decisions including KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54 (s.229B Criminal Code Act 1899 (Qld)); KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 (s.47A Crimes Act 1958 (Vic)); Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 ("Chiro") (s.50 Criminal Law Consolidation Act 1935 (SA)); Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38 (s.50 Criminal Law Consolidation Act 1935 (SA)); DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 (s.50 Criminal Law Consolidation Act 1935 (SA)) and KMC v Director of Public Prosecutions (SA) (2020) 94 ALJR 415; [2020] HCA 6 ("KMC") (s.50 Criminal Law Consolidation Act 1935 (SA)).
In sentencing for a s.66EA offence as enacted in 1998, it may be seen that the offence is comprised of discrete underlying offences rather than a course of conduct per se: Chiro at [22]-[23]; KMC at [6]. Each of the underlying sexual offences comprises an element of the actus reus of the s.66EA offence: KMC at [6].
The nature of a s.66EA offence following the 2018 amendments may be different, based as it is upon an "unlawful sexual relationship" as defined in s.66EA(2) of the new provision. As this judgment is not concerned with sentencing for a s.66EA offence after the 2018 amendments, it is not necessary to consider this aspect further.
A number of the High Court decisions have considered the appropriate course to be taken where a jury trial has taken place leading to conviction, raising the question as to the particular ingredient offences of which the jury was satisfied beyond reasonable doubt and upon which the sentencing Judge should proceed to sentence the offender. Those circumstances do not arise in this case as the Applicant pleaded guilty to the s.66EA offence charged against him with an express admission of the 12 ingredient offences under s.66C(3) Crimes Act 1900.
Assessing the Objective Seriousness of a s.66EA Offence as Enacted in 1998
It may be seen from statements in decisions of this Court concerning sentencing for a s.66EA offence as enacted in 1998 (and before the 2018 amendments) that a number of factors will bear upon an assessment of the objective seriousness of the offence (see [86]-[95] above). These include:
1. the number of "sexual offences" (as defined in s.66EA(12)) which were committed on separate occasions by the offender against the victim - the minimum number of ingredient offences to constitute a s.66EA offence was three and the greater the number of offences beyond that threshold, the more serious the s.66EA offence will be;
2. the nature of the sexual offences committed by the offender against the victim - in this case, each of the 12 offences was an offence under s.66C(3) Crimes Act 1900 for which the maximum penalty was imprisonment for 10 years - the 12 offences included penile-vaginal intercourse, fellatio, cunnilingus, digital penetration of the anus and insertion of a vibrator into the victim's vagina;
3. the age of the victim at the time of the ingredient offences - "child" is defined in s.66EA(12) as meaning a person under the age of 18 years and the younger the victim was at the time of the ingredient offences, the graver the s.66EA offence will be - here the ingredient offences under s.66C(3) applied to a victim between the ages of 14 and 16 years - the younger the victim is in that relatively narrow band period, the more serious the offence;
4. the period of time during which the ingredient offences were committed against the victim;
5. the age of the offender at the time of the commission of the ingredient offences against the victim and the age differential between the offender and the victim during the relevant period;
6. the context in which the offender had access to the victim to commit the ingredient offences over the period of time which constituted the s.66EA offence - if the context involves the offender and the victim being in a family or quasi-family setting, which has a capacity to influence the power differential between the two persons and the susceptibility or vulnerability of the victim, this will elevate the objective seriousness of the s.66EA offence.
Other factors may bear upon an assessment of the objective seriousness of a s.66EA offence depending upon the circumstances of the particular case.
Clearly, a range of other factors, including the offender's subjective circumstances, criminal history and the question whether the s.66EA offence (or any part of it) was committed whilst the offender was subject to conditional liberty will also bear upon sentence. These aspects, however, do not touch upon the assessment of objective seriousness of the s.66EA offence itself.
With these general observations in mind, it is appropriate now to consider the grounds of appeal advanced on behalf of the Applicant.
In approaching this ground of appeal, it is necessary to keep in mind that the sentencing Judge delivered his sentencing remarks ex tempore utilising the Crown sentencing submissions for that purpose. Reference was made to this feature earlier in this judgment (at [57]-[58]).
Section 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 specifies as an aggravating factor that "the offender abused a position of trust or authority in relation to the victim".
It is appropriate to set out parts of the Crown written submission which, I am satisfied, his Honour adopted for the purpose of the sentencing remarks. The Crown written submission included the following:
"6.2 Position of authority
The offender was previously in a domestic relationship with the victim's mother, for a substantial period of time during the offending, the victim resided with the offender at his house and in his interview with police the offender described the victim as being like a daughter to him. The offender is more than 27 years older than the victim. The Crown accepts that that alone is insufficient for the Court to find that the offender abused his position of trust as envisaged by section 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999. However, as noted below, the Crown submits that the offender took advantage of the familial relationship and his age in order to have access to the victim and commit these offences: Henderson v R [2016] NSWCCA 8 at [56] - [57]."
Later in the Crown written submission, in a part which I am satisfied his Honour adopted, it was submitted:
"The Crown further submits that the offender took advantage of the victim's youth and his position within the family. In his interview with police, the offender described the victim as being like a daughter to him. There was a clear power imbalance between the victim and the offender."
Oral submissions made for the Applicant in the District Court did not contest these parts of the Crown written submissions. Accordingly, it is necessary to keep these features of the sentencing proceedings in mind in approaching the present ground.
The sentencing Judge referred to what were uncontested features of the factual circumstances of the s.66EA offence which concerned the relationship between the Applicant and the victim, the context in which the incidents which constituted the offence took place, the power imbalance between them and other features which the Crown had pointed to as involving serious features of the offence.
His Honour's finding in ex tempore sentencing remarks was based upon acceptance of the Crown submission and nothing more. It ought be seen as his Honour referring to features of the offending conduct which could be described, in ordinary parlance, as involving a position of authority by the Applicant with respect to the victim: Rainbow v R at [31]. This phrase must be read in the broader context of his Honour's findings.
I am not persuaded that the sentencing Judge, contrary to the Crown submission, made a finding of the presence of an aggravating factor under s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 in this case. Nor am I satisfied that his Honour has breached the principle in The Queen v De Simoni.
I would reject the first ground of appeal.
The Crown noted the arguments advanced in the District Court with the Crown contending that the objective seriousness of the s.66EA offence should be assessed as "above midrange" and with counsel for the Applicant submitted that the offence was "below midrange" (T25, 30 August 2019). The sentencing Judge assessed the objective seriousness as being "fairly and squarely within the midrange of objective seriousness".
The Crown submitted that no error had been demonstrated in the approach adopted by the sentencing Judge so that this ground of appeal should be rejected.
Decision
Once again, in approaching this ground of appeal, it is necessary to keep in mind that his Honour's ex tempore sentencing remarks are to be read fully and fairly. His Honour was well aware that the maximum penalty for this offence was imprisonment for 25 years and that there was no standard non-parole period, having so noted at the commencement of his sentencing remarks (ROS1).
His Honour recited the Agreed Statement of Facts making a number of additional observations during that process (see [62]-[65] above). After summarising the facts, his Honour stated "I spent a considerable amount of time carefully considering and evaluating those agreed facts" (ROS18 at [66] above).
His Honour then proceeded to address factors bearing upon objective seriousness and moral culpability including the period of time during which the ingredient offences were committed, the ages of the victim and the Applicant, the existence of an element of grooming of a vulnerable victim and the escalation of the Applicant's conduct over a period of time (ROS18-19 at [66], [75] above). Having made a finding that the ingredient offences lay "fairly and squarely within the midrange of objective seriousness", his Honour immediately stated "that is my assessment of the matter overall" and "each of the offences themselves was very serious and I have taken it into account accordingly" (ROS26 at [75] above).
In my view, no error has been demonstrated in his Honour's approach concerning assessment of the objective seriousness of the s.66EA offence. It is noteworthy, as well, that his Honour's finding involved an assessment of the objective seriousness of the offence which lay between the submissions made at first instance by the Crown and counsel for the Applicant.
In addressing grounds of appeal which complained about the characterisation of objective seriousness of offences, this Court said in Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242 at [125]-[126]:
"125 In approaching these grounds of appeal, it is necessary to read fairly the entirety of his Honour's remarks on sentence. A practical approach should be taken by this Court in assessing remarks on sentence, with an emphasis upon substance (and the resulting sentence) and not just matters of form: Corby v R [2010] NSWCCA 146 at [51]. An assessment of objective seriousness is appropriate, although this does not require an elaborate verbal formula: Corby v R at [50].
126 In addition, it is necessary to keep in mind that the characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts, and drawing inferences from those facts, so that this Court is very slow to determine such matters for itself or to set aside the judgment made by a first-instance Judge exercising a broadly based discretion: R v Mulato at [37]. The question is whether the particular characterisation of the objective seriousness of an offence was open to the sentencing Judge."
In Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82, this Court said at [143]:
"Some assessment of objective gravity is appropriate as part of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R at 523 [71]. That said, this does not give rise to an obligation to provide elaborate reasoning in the circumstances of a particular case. It is not necessary to make a finding as to where precisely the offence lay in a spectrum of offending: Khoury v R at 523 [74]; Charbaji v R [2011] NSWCCA 181 at [15]."
His Honour made findings concerning the objective seriousness of the ingredient offences and then a finding concerning the s.66EA offence itself. His Honour's reference to "moral culpability" of the Applicant (ROS18-19 at [66] above) was associated with the finding concerning objective seriousness: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [113]ff. The findings were concise, but no more was required by law. The findings went well beyond a bare recital of the facts.
In Gal v R [2015] NSWCCA 242, Beech-Jones J (Bathurst CJ and Price J agreeing) said at [39]:
"… at a minimum such reasons should state or refer to the essential facts upon which an offender is sentenced and provide at least some assessment of, or reflection upon, the seriousness of the offending conduct."
His Honour's sentencing remarks in the present case complied with this requirement.
As Wilson J (Wright J and myself agreeing) observed in Higgins v R [2020] NSWCCA 169 at [78] "the reference to a position within a range frequently used by sentencing courts to describe the outcome of the assessment of objective seriousness is neither precise, nor prescriptive on sentence".
I do not accept the Applicant's submission that his Honour's sentencing remarks did not comply with what was said by this Court in R v Fitzgerald. As noted earlier, it is clear that his Honour utilised the Crown written submissions for the purpose of his ex tempore sentencing remarks. The Crown written submissions had identified correctly, by reference to what was said in R v Fitzgerald, that the 12 ingredient offences in this case were offences under s.66C(3) Crimes Act 1900 with each carrying a maximum penalty of imprisonment for 10 years. Both the Crown written submissions and a table of comparative cases provided by counsel for the Applicant at the sentencing hearing referred to s.66C(3) and decisions which concerned sentencing for offences of that type. The sentencing Judge was well aware of both the nature of the ingredient offences and where on the scale of seriousness they fell in relation to other offences capable of falling within s.66EA.
The Applicant has not established that his Honour, in some way, failed to have regard to this material for the purpose of assessing objective seriousness as part of the sentencing process.
The Applicant has not established that the sentencing Judge erred in failing to assess the objective seriousness of the s.66EA offence. Nor has the Applicant demonstrated the alternative component of this ground that his Honour failed to consider the nature of the ingredient offences when assessing the objective seriousness of the s.66EA offence.
I would reject this ground of appeal.
The Crown pointed, as well, to the need for care in reliance upon comparative cases on sentence: Wright v R [2019] NSWCCA 134 at [52]. With respect to the Applicant's reliance upon s.66C(3) sentencing cases, the Crown pointed to the fact that these were not cases dealing with s.66EA offences and that there was a range of factors which served to differentiate those decisions from the Applicant's case.
The Crown submitted that a number of features of the Applicant's case serve to demonstrate that the sentence imposed was not manifestly excessive. I will refer to these features when considering this ground of appeal (see [171] below).
Decision
In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (at [443]), R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) summarised the principles to be applied on a sentence appeal where there is a claim of manifest excess:
"When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v R (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59].
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this Court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
Caution should be exercised where a ground asserting manifest excess is supported by sentencing statistics. This is particularly so in this case as the sentencing statistics relied upon by the Applicant concern offences prosecuted under s.66C(3) Crimes Act 1900 and not for s.66EA offences where the ingredient offences are s.66C(3) offences. In Mills v R, R A Hulme J noted at [68] that the limited number of s.66EA sentencing decisions meant that sentencing statistics were of little use (see [94] above).
Further, as Bellew J (Macfarlan JA and Fullerton J agreeing) observed in Skocic v R [2014] NSWCCA 225 at 19-(v):
"(iv) this Court has emphasised the need to adopt a careful approach when asked to have regard to statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another;
(v) the fact that a particular sentence is, by reference to statistics, the highest imposed for a single instance of particular offending does not demonstrate that the sentence is unduly harsh. As a matter of common sense, there will always be one sentence which constitutes the longest sentence imposed for particular offending: Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198 at [75]."
With respect to reliance upon comparative cases, it is appropriate to keep in mind as well the statement of Ierace J (Bathurst CJ and Price J agreeing) in Wright v R at [52]:
"As the applicant recognised, there are limitations to the use of comparative cases; the Court must take a "careful approach" and needs to weigh the similarities and dissimilarities of the objective and subjective circumstances between each case: MLP v R [2014] NSWCCA 183 at [44]. Even so, a close alignment of such circumstances in comparative cases yielding lesser sentences is not determinative of manifest excess. Rather, it is inconsistency in the application of relevant legal principles that is significant: Vandeventer v R [2013] NSWCCA 33 at [43], [45]-[46]."
A number of sentencing decisions for s.66EA offences were referred to the sentencing Judge who had regard to them on sentence. The additional cases referred to in this Court are sentencing decisions for s.66C(3) offences and not s.66EA offences. Sentencing decisions for s.66C(3) offences are not irrelevant. However, the point of the legislature enacting the offence contained in s.66EA was to create a separate offence which involved at least three sexual offences of the specified type being committed against the victim over a period of time (see [82]-[83] above).
The maximum penalty for a s.66EA offence (prior to the 2018 amendments) was imprisonment for 25 years. That maximum penalty represents the legislature's assessment of the seriousness of a s.66EA offence and, for that reason, provides a sentencing yardstick: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. Consideration of sentencing decisions for s.66C(3) offences involves a different sentencing yardstick.
I have considered the sentencing decisions for s.66EA offences relied upon by the Applicant. These were R v Manners, R v Fitzgerald, Hitchen v R [2010] NSWCCA 77, IS v R [2011] NSWCCA 142, ARS v R [2011] NSWCCA 266, DS v R (2012) 221 A Crim R 235; [2012] NSWCCA 159, AC v R [2016] NSWCCA 107, R v Van Ryn [2016] NSWCCA 1, Mills v R and R v DM [2018] NSWDC 62. As might be expected, these cases involved a range of ingredient offences which constituted the s.66EA offence and a variety of objective and subjective considerations which led to the particular sentencing outcome in each case. The sentences imposed in those cases extended from a term of imprisonment for six years with a non-parole period of four years and three months (R v Manners) to a term of imprisonment for 16 years with a non-parole period of 12 years (Hitchen v R).
I do not consider that examination of the sentencing outcomes in these s.66EA cases assists the Applicant in his claim of manifest excess. None of these cases involved a s.66EA offence where there were 12 ingredient offences under s.66C(3) in circumstances where the ingredient offences themselves were representative counts. That feature alone confirms the limited utility in undertaking a close examination of the sentencing outcomes in these other cases.
Rather, the assistance to be provided by the decisions of this Court in sentencing for s.66EA offences lies particularly with respect to consistency in the application of relevant legal principles and not some numerical or mathematical equivalence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [18]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40].
Insofar as the Applicant seeks to rely upon sentencing decisions of this Court for s.66C(3) offences, as noted earlier, caution is required as the sentencing exercises in those cases involved the imposition of sentence for different offences with a different maximum penalty, albeit involving ingredient offences under s.66C(3) Crimes Act 1900. R v Boulad and Mokhaiber v R did not involve commission of offences by a person 27 years older than the victim where the offender had been in a familial relationship which gave him ongoing access to a vulnerable victim as in this case. The other s.66C(3) sentencing decisions merely reveal sentencing outcomes in the particular circumstances of the case which include significantly different features to those which apply to the present case.
I do not consider that the Applicant is assisted to any real extent by comparison between the circumstances of his case and those of other sentencing decisions. The facts and circumstances of each case are different and there is no single correct sentence to be fixed in a particular case.
In my view, the Applicant's claim of manifest excess is best assessed by reference to the circumstances of the present case bearing in mind the features of the offence and other matters which bear upon the imposition of sentence for a s.66EA offence, including the principles emerging from cases such as R v Fitzgerald, R v Manners, Langbein v R and Mills v R.
Reference was made earlier (at [106]) to factors which bore upon the objective seriousness of a s.66EA offence. The Crown pointed to the following features, which I accept as being of particular significance in considering the Applicant's claim of manifest excess:
1. the maximum penalty of 25 years' imprisonment which applied to the s.66EA offence for which the Applicant was being sentenced along with the maximum penalty of 10 years' imprisonment which applied to the ingredient s.66C(3) offences (for a victim aged between 14 and 16 years);
2. the numerous instances of offending being the 12 ingredient offences on at least eight separate days, which far exceeded the s.66EA threshold of three offences;
3. the fact that the ingredient offences themselves were representative of a wider course of conduct so that the principles in R v JCW and AK v R at [67]-[75] were applicable - these 12 ingredient offences, which comprised the s.66EA offence, were not isolated incidents or aberrations and this aspect bore upon the degree of leniency which the Court might extend on sentence;
4. the duration of the ingredient offences which constituted the s.66EA offence was some 20 months, a significant period;
5. the regularity of the offending by the Applicant against the victim;
6. the nature of the sexual offences, involving different forms of sexual intercourse, which escalated over a period of time;
7. the difference in age between the Applicant and the victim of some 27 years was significant;
8. the fact that the Applicant took advantage of his age and his relationship in the family to have access to the victim;
9. the element of control and exploitation that was found by the sentencing Judge to have emanated from the Applicant towards the victim;
10. the grooming that was found by the sentencing Judge to have occurred;
11. the finding of the sentencing Judge that the Applicant was using and exploiting the victim purely for his pleasure;
12. the finding that the Applicant took steps to conceal the offending from other people; and
13. the fact that general deterrence loomed large in matters of this type.
In support of this ground, counsel for the Applicant repeated a submission he had made in the District Court that the offending did not occur against a background of physical violence or coercion (at [150] above).
It will be recalled that the sentencing Judge considered a defence submission that none of the Applicant's offending "involved physical coercion" (ROS26-27 at [76] above). His Honour stated that "there were times when the [Applicant] certainly acted within an atmosphere of at least verbal persistence if not coercion of that kind". His Honour returned to "the coercion aspect" (ROS27-28 at [78] above).
It is not an element of a s.66C(3) Crimes Act 1900 offence that sexual intercourse occurred without the consent of the victim. Accordingly, the absence of physical violence or coercion could not assist the Applicant by way of mitigation of sentence for a s.66EA offence where the ingredient offences were s.66C(3) offences. It would not assist the Applicant on sentence to point to the absence of a feature which, if present, would constitute a more serious offence: Vasilevski v R [2019] NSWCCA 277 at [161]. Having sexual intercourse without consent with a person under 16 years constituted the more serious aggravated sexual intercourse under s.61J Crimes Act 1900 punishable by a maximum penalty of imprisonment for 20 years.
It is important to keep in mind the following statement of Basten JA in R v Nelson [2016] NSWCCA 130 at [23]:
"While acknowledging that lack of consent was not an element of the offences, the sentencing judge placed some weight on the fact that the activity as described by him 'was consensual'. No doubt the use of threats or force in overcoming resistance would be an aggravating factor; however, mere lack of opposition is otherwise irrelevant. The activity was not adequately described as 'consensual'; it might be better described as not being the subject of opposition. To treat that as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour."
What Basten JA stated in this respect in R v Nelson is consistent with earlier statements of this Court in Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77], R v Woods (2009) 195 A Crim 173; [2009] NSWCCA 55 at [53] and Wakeling v R [2016] NSWCCA 33 at [46]-[48].
The approach of the sentencing Judge in this case gave effect to what Basten JA said in R v Nelson concerning harm done to a child victim by unlawful sexual activity.
His Honour had regard to the impact of the offending upon the victim (ROS19-20 at [68] above). The Applicant's repeated criminal conduct over an extended period of time caused harm to the victim: s.3A(g) Crimes (Sentencing Procedure) Act 1999. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, this Court said at [110]:
"This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]."
Having regard to the objective gravity of the s.66EA offence, the Applicant's subjective circumstances and applicable sentencing principles, including the need for general deterrence, the Applicant has not demonstrated that the sentence imposed upon him was unreasonable or plainly unjust.