Clarke v R

JUDGMENT

1. BEECH-JONES CJ at CL: I agree with McNaughton J and the orders her Honour proposes.
2. McNAUGHTON J: Darrell Charles Clarke ("the applicant") seeks leave to appeal against the sentence imposed upon him after he was found guilty by Bennett SC DCJ on 14 May 2020 following a judge alone trial in the District Court of New South Wales of three counts involving sexual offending against children as follows: 1. Count 1: Between 1 January 2016 and 26 October 2016, he had sexual intercourse with TO, a child then under the age of ten years, namely six or seven years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 2. Count 2: Between 1 January 2016 and 26 October 2016, he assaulted TO and at the time of that assault committed an act of indecency on TO, a child then under the age of 16 years, namely six or seven years, contrary to s 61M(2) of the Crimes Act. This offence carries a maximum penalty of 10 years' imprisonment and a standard non-parole period of 8 years. 3. Count 3: Between 23 October 2016 and 26 October 2016, he had sexual intercourse with SO, a child then under the age of ten years, namely four years, contrary to s 66A(1) of the Crimes Act. This offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
3. The applicant was sentenced on 19 October 2020 to an aggregate sentence of 12 years' imprisonment with an aggregate non-parole period of 8 years' imprisonment commencing on 27 October 2016. The indicative sentences were: 1. Count 1: 8 years imprisonment with a non-parole period of 5 years imprisonment; 2. Count 2: 6 years imprisonment with a non-parole period of 3 years imprisonment; and 3. Count 3: 10 years imprisonment with a non-parole period of 6 years imprisonment.
4. The grounds of appeal are: 1. His Honour erred in determining that each offence fell "within mid-range" of objective seriousness. 2. The sentence imposed was manifestly excessive.
5. Application for leave to appeal was filed significantly out of time. It is apparent from the affidavit provided by the current solicitor for the applicant that no delay is attributable to the current solicitor or barrister. I am of the view that leave to appeal out of time should be granted.
6. For the reasons set out below, however, I am of the view that neither of the grounds have been made out, and the appeal should be dismissed.

Brief history of the proceedings

1. The history of the matter appears from the sentencing remarks, which can be briefly summarised as follows. This appeal arises from a sentence imposed following the second trial of these charges faced by the applicant. The first trial was before Noman SC DCJ and a jury. Her Honour's remarks on sentence were before Bennett SC DCJ when his Honour came to sentence the applicant. Albeit finding in relation to each of the same offences that they were "below the mid-range of objective seriousness", Noman SC DCJ imposed the same aggregate sentence of 12 years with a non-parole period of 8 years and indicated the same indicative sentences as Bennett SC DCJ.
2. The applicant successfully appealed his convictions to this Court following the trial before Noman SC DCJ. The matter was remitted to the District Court for re-trial by Bennett SC DCJ, sitting as a judge alone.
3. The transcript of the evidence of the two complainants from the earlier trial was before Bennett SC DCJ by way of the JIRT interviews, as well as examination and cross-examination undertaken in the absence of the jury by way of the pre-recording process.
4. The applicant did not give evidence at the trial or in the sentencing proceedings, although his account was before the Court as he had participated in an interview with the police, an edited version of which was tendered in the trial and played. At the time of that interview only SO's allegations had been made. He expressly denied wrongdoing towards her. He has since maintained he is not guilty of any of the charges.

Brief facts

1. The sentencing judge set out a summary of the facts in his remarks on sentence. He also referred to his verdict judgment in those remarks. The following facts are taken from both documents.
2. TO and SO were the grandchildren of Leone. [1] Leone lived downstairs from the applicant in a block of flats. Leone was friends with the applicant, and he regularly visited her unit. Leone and the applicant sometimes shared meals, and they would sit on her balcony where he smoked, and they would consume alcohol.
3. Leone had visits from her family including her mother Anne (the great grandmother of SO and TO), her sister Janet, and her daughter Anne-Marie (SO and TO's mother). TO was born in early 2009 (six or seven years old at the time of the offences) and SO was born late in 2011 (four years old at the time of the offence). SO and TO had two other siblings, R and J.
4. In October 2016, Anne, Janet, Anne-Marie, SO and J came to stay at Leone's unit. During this time, the applicant visited and met Leone's family including SO. He had met Anne-Marie on a previous visit.
5. There was background evidence that SO had sat on the applicant's lap on occasions in the lounge room or on the balcony and he was said to have taken her to his unit and given her lollies. There was other background evidence about SO having a bath at Leone's unit, and Anne-Marie hearing her scream. When Anne-Marie went to the bathroom, SO told her that she put shampoo in the bath and it had gone into her "rude part". The applicant was present at the time. He is said to have gone to the doorway of the bathroom, saying the words, "just give me a look, I used to be an ex-nurse", to which Anne-Marie said "no" and told him to leave and closed the door.
6. As to Count 3, on one occasion during this stay, while the applicant and SO (then four years old) were alone in a room in Leone's unit, the applicant put his hands down her underwear and penetrated her genitalia, rubbing it with his hand. He had his penis exposed at the time and asked her to touch it. She did not touch it.
7. Count 4 on the indictment was in the alternative to Count 3. It alleged aggravated indecent assault if the court was not satisfied beyond reasonable doubt that there had been penetration of the genitalia. Bennett SC DCJ found Count 3 to be satisfied, but commented: "[…] it is impossible to say that [the penetration] extended into more than the genitalia and whether it penetrated her vagina within. I was satisfied that there was penetration to the extent sufficient to satisfy the definition of sexual intercourse in its extended form."
8. To this extent, it can be noted that the sentencing judge's finding was more benign than that of Noman SC DCJ who had found there was penetration of SO's vagina.
9. TO made her allegations after SO's came to light. In around November 2016, Anne-Marie was at home in Muswellbrook when TO came to her and informed her that the applicant had offered her money and asked her to touch his penis. This was not the subject of evidence by TO and did not result in a charge. Anne-Marie contacted the Family and Community Services Helpline, after which investigators were engaged. TO was interviewed by the Newcastle Child Abuse Squad on 3 February 2017 (when she was around nine years of age). This account led to the first two counts on the indictment.
10. As to Count 1, TO said she was visiting her nanny (Leone), and a man put his hands down her pants. She was trying to stop him. He touched her on the inside of her rude part with his fingers. She said that she told him to stop but he kept doing it. This happened upstairs in the man's unit and he lived upstairs from her nanny who was downstairs having a shower when it happened.
11. As to Count 2, TO gave an account of an occasion when she was inside the man's unit, having a drink of cordial, and he was trying to pull down her pants. She said "stop, stop" but he kept doing it and pulled down her pants and touched her on her "bum" (using her words), using his finger. The applicant exposed his penis. The sentencing judge was not satisfied the applicant's penis was erect. He had his clothes half off, his pants pulled down to his knees and had no shirt on.

Remarks on Sentence

1. After a summary of the facts, the sentencing judge noted the maximum penalties and the standard non-parole periods, together with how these matters were properly to be taken into account. His Honour noted the fact that the applicant had not pleaded guilty, but that he had facilitated the process of justice because he had elected to have a judge alone trial during the COVID-19 pandemic.
2. In considering the objective gravity, the sentencing judge noted the Crown submissions in relation to the vulnerability of SO and TO by reason of their young age to the effect that children at the lower end of the range are generally likely to be less mature and more vulnerable than older children within the same age group. As to Counts 1 and 3, SO was aged four at the time of the alleged offence, significantly below the age limit of 10 relevant to the section of the Crimes Act under which the charge was brought. TO was six or seven years of age, still three to four years below the age threshold. As to Count 2, TO was six or seven years old, significantly below the age threshold of 16.
3. The sentencing judge also noted the Crown submission that the offending involved a breach of trust, as well as the disparate age of the applicant (56 years old at the time of the offences) as compared to TO and SO.
4. In noting that the offences did not involve violence, his Honour accepted the Crown submission that the absence of violence cannot mitigate the misconduct.
5. At this point of the remarks, the sentencing judge accepted the Crown submission that the offences fell within the mid-range of objective seriousness.
6. The sentencing judge also acknowledged the two victim impact statements tendered by the Crown.
7. His Honour then dealt in some detail with the sentence remarks of Noman SC DCJ following the jury trial.
8. Like Noman SC DCJ, the sentencing judge found that SO was entitled to feel safe within the family environment. Further, whilst the offending against TO occurred in the applicant's unit, the sentencing judge found it was within the community that the apartments or flats provided, and she was also entitled to a sense of safety.
9. The sentencing judge did not find, taking the same view of the evidence on this point as Noman SC DCJ, that the applicant had initiated the association with the family for the purpose of gaining access to the children. His findings also accorded with those of Noman SC DCJ in concluding that the offences were impulsive and opportunistic.
10. However, unlike Noman SC DCJ, the sentencing judge did find there to have been a breach of trust and disagreed with Noman SC DCJ that the offences were below mid-range in terms of objective seriousness.
11. There were differences in findings by the two judges which pulled in different directions. His Honour (as noted) found the offending involved a breach of trust, whereas Noman SC DCJ did not. However, on the other hand, Noman SC DCJ found there to have been penetration of SO's vagina as well as TO's, whereas, the sentencing judge only found vaginal penetration in the case of the older child, TO. In addition, Noman SC DCJ found that the redness and soreness detected by a doctor who examined SO was occasioned by the offending, whereas this finding was not made by the sentencing judge.
12. As to the breach of trust, his Honour stated that the breach of trust he found was not an "aggravating factor" (apparently referring to the statutory aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW)): [2] "because of the relationship between the offender and these victims did not transcend the usual duty of care arising between people in particular circumstances. The phrase that is often used within another context is of situational vulnerability of which I find there is evidence here within the context of these offence provisions."
13. It is not immediately apparent why the sentencing judge found that the breach of trust in this matter did not reach the statutory threshold. In any event, it appears from the remarks as a whole that the sentencing judge did find a breach of trust in the manner identified above and treated it as a factor which increased the objective seriousness of the offences.
14. The sentencing judge acknowledged that "minds will differ when assessing objective gravity", noting that it was always a matter of judgment according to the particular case at hand.
15. The sentencing judge then went on to consider the applicant's subjective circumstances. At the time of sentence he was 60 years of age. He had a reasonably lengthy criminal history starting as a juvenile. There was no sexual offending on his record at all. As an adult, he had convictions in the Local Court for a number of driving and alcohol related offences, and also malicious injury and trespass offences. In the District Court he was convicted of offences including break, enter and steal, and was imprisoned for aggravated dangerous driving causing death for six years with a non-parole period of four years and six months.
16. The sentencing judge noted that it was clear that alcohol had been a problem for him through his life.
17. A psychological assessment written for Noman SC DCJ was tendered over objection as part of the Crown case on the basis that there was a need to review what was said by Noman SC DCJ, who had the report before her. The sentencing judge noted that it dealt with his family, his parents' divorce when he was aged nine, his move to live with his uncle for a period and then living out of home from 15 years of age. A number of his close family died of cancer and his sister died in a car collision. He shared a closed bond with a younger sister who suffers from epilepsy.
18. The sentencing judge also noted the psychological report included that the applicant had lived on his own for over 30 years without any history of significant relationships. He had a (then) 34-year-old daughter living in Queensland with a son, but he had had no contact with her since his incarceration.
19. The sentencing judge also noted discussion in the psychological report of the applicant's guilt and distress associated with an event said to be from his childhood involving a notorious murder of a child, Vicki Barton, in the Blue Mountains. He apparently felt partly responsible for her being preyed upon by the murderer as he contended that he was supervising a number of children (while he himself was only aged 9) when she disappeared. The sentencing judge noted that his account did not sit well with contemporaneous reports from the time but accepted (in accordance with the Crown submission) that he might have subjectively developed a false memory in relation to this matter, rather than being deliberatively manipulative.
20. The psychological assessment indicated he had a low average to average range of intellectual functioning. The applicant reported a number of instances of him being sexually assaulted as a child though the sentencing judge noted his accounts in this report were vague.
21. The report suggested he would meet the criteria for alcohol use disorder in sustained remission in a controlled environment with elevated symptoms of depression, anxiety, and stress on a background of post-traumatic stress from childhood. The applicant was assessed as having sufficient cognitive capacity to engage in treatment regarding alcohol use and sexual offending.
22. The applicant's case included: 1. Justice Health documents, which included: 1. A record of him seeking an increase in his anti-depressant medication on 12 May 2020, proximate to the time of the second trial; and 2. Clinical notes referring to significant trauma background with Post Traumatic Stress Disorder and a referral to a psychologist for that purpose; 1. A report dated 8 September 2020 by a neuropsychologist who conducted an assessment by audio visual link on 4 September 2020. This recorded his background in similar terms to the other history with some additional detail as follows: 1. The traumatic events which were suffered by him included many instances of sexual abuse as follows: 1. Molestation by his father's friend at the age of six. After telling his father what had occurred, his father "told the guy off" and then sat down and had a beer with the perpetrator. 2. At the age of eight, he was sexually abused by one of his brother's girlfriends. He was "caught in the act", blamed for the misconduct and called a "dirty little boy". 3. At the age of 12, he was sexually assaulted by a neighbour, a local bus driver, who gave him free bus rides, and he would often stay at the man's house. 4. The applicant was angry towards the adults in his life including his parents. His mother left the home when he was 10 years old, leaving him with his alcoholic father. When his mother arranged for him to stay with a strict uncle, he "got sick of being bashed and picked on" and ran away at the age of 15. He was sent to a "boys home" at the age of 16 where he was sexually assaulted by the director of the institution. 5. The deaths of two childhood friends were noted, including that of Vicki Barton (as referred to above). He also described to the report writer witnessing another traumatic death when a high school friend committed suicide. 1. Some of the history provided to this report writer was noted to be "not entirely consistent" with that contained in the earlier psychological assessment. 2. The sentencing judge noted the report also included the following: 1. "Mr Clarke continued to deny the current offences. He said that his own childhood abuse had caused him such lifelong harm that it would [be] 'unthinkable' that he would cause the same harm to someone else. He would not be drawn on the circumstances surrounding the offences." 2. Research indicated that up to 75% of all perpetrators of child sexual abuse are themselves victims of child sexual abuse. 1. The sentencing judge viewed the report "with some circumspection in light of the contrasts to which I have alluded in respect of the Vicki Barton murder". His Honour further noted that courts are "urged to employ circumspection" when an offender does not enter the witness box to allow their account to be tested under cross-examination or researched further, citing R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144 at [57].
23. The sentencing judge accepted that the applicant had challenges in his formative years but did not accept the circumstances recounted in relation to Vicki Barton. Further, he stated there was insufficient material in relation to the alleged history of the "sexual assaults and misuse by his family" to make any definitive findings as to any impact upon him.
24. The sentencing judge referred to a further report from Jessica Pratley, a forensic and clinical psychologist dated 23 June 2020, containing a similar history to the previous reports. The applicant also told Ms Pratley that he did not commit the offences. He accepted that if he did abuse the victims as alleged, they would be absolutely traumatised.
25. In other material before the sentencing judge, there was a handwritten document by the applicant, claiming that he had been threatened by three young inmates in his pod in prison to the effect that he should leave or they would bash him. It was confirmed that he had been in the Special Management Area Placement ("SMAP") for the previous four years. There was also a report, signed 8 August 2020, involving an alleged assault but the report was equivocal as to whether it actually evidenced an assault.
26. The sentencing judge pointed to documents relating to the applicant's risk assessment. He was said to be of an average risk of recidivism, and moderate risk for sexual violence. There was further discussion of factors that would provide protection from further misconduct.
27. Also tendered on his behalf were certificates dating back to 2001 showing various qualifications and indicating a willingness and capacity to work if given the opportunity.
28. The sentencing judge also took into account a report by Dr Andrew Ellis, a forensic psychiatrist, as to the mental health issues arising for NSW prisoners from the COVID-19 pandemic. The sentencing judge stated that although those factors did not persuade him to impose a lesser sentence than Noman SC DCJ, it supported the finding of special circumstances on the basis of issues including the restrictions on the applicant's sister visiting him in custody.
29. The remarks then noted the submissions made on behalf of the applicant, including the submission that the objective gravity of the offences fell towards the bottom end of the range. The applicant had submitted that the objective gravity would be worse if there were repetitive episodes of abuse or the use of violence. The sentencing judge endorsed the Crown submissions on this point and stated that the absence of some aspect aggravating the objective gravity did not of itself serve to reduce the objective gravity below that which is the appropriate finding in respect of each charge.
30. The applicant's criminal history was regarded by the sentencing judge as neutral. Although not a person of good character, there was no comparable behaviour in his past offending.
31. On sentence, the applicant submitted that his alcohol abuse went to his capacity for self-control or appreciation of the wrongfulness of his conduct. The sentencing judge stated it was difficult to make any assessment in that regard in the absence of the applicant's recognition and insight into the misconduct of which he was found guilty. It was also noted that if he was intoxicated at the time of the offence, s 21A(5AA) of the Crimes (Sentencing Procedure) Act was engaged.
32. As to hardship in custody, the sentencing judge found that the applicant at least had some subjective concern about his safety in light of the nature of his offences, noting however, he had already availed himself of some of the protective measures such as the SMAP accommodation.
33. As to other matters raised on behalf of the applicant, the sentencing judge noted the significant gap in offending by the applicant from 2004. In relation to the applicant's dysfunctional upbringing, the sentencing judge did not find sufficient connection between the material attributed to him in the reports and the offending.
34. The sentencing judge concluded that he should impose the same sentence as that imposed by Noman SC DCJ, finding that sentence to be "correct" (meaning, presumably, that he reached the same sentence after exercising his independent discretion) allowing for the differences between the two judgments.

Appeal Ground 1: His Honour erred in determining that each offence fell "within mid-range" of objective seriousness

Argument on appeal

1. The applicant contended that the offences were isolated incidents and there was no suggestion of any other inappropriate conduct involving either victim.
2. In relation to Counts 1 and 3 (the s 66A(1) offences), the applicant relied on Fagan J's judgment in TO v R [2017] NSWCCA 12; (2017) 265 A Crim R 191 ("TO") (Price and Button JJ agreeing). Fagan J stated at [252] that whilst there is a significant variation in the degree of objective seriousness which may be exhibited, and that every case was "appalling", an offence may "be much worse when accompanied by violence and induced fear or when it is part of a repetitive course of abuse." Other variables set out by the applicant by reference to TO (at [262]-[278]) included the age of the victim relative to 10; the duration of the offending; the type of sexual intercourse involved and the extent of the penetration; whether the offending was isolated or formed part of a course of systemic abuse over a period of time; whether the offender threatened the victim to keep silent; whether the threat effected the discovery of the offending; whether the offending was opportunistic or planned; and whether the offending involved grooming or a breach of trust.
3. The applicant submitted that against these principles the objective seriousness of Counts 1 and 3 were "well below the mid-range of objective seriousness" (noting too that Count 1 was less serious than Count 3 primarily because of the older age of the complainant involved).
4. The applicant noted the offending in each case was opportunistic and not planned; there was no grooming; as regards SO, it was not possible to say that any penetration occurred beyond the minimum required to satisfy the definition of sexual intercourse; the offending in each case was not accompanied by any violence or threat and did not result in any physical injury to either complainant.
5. Noting that the offending in each case involved a digital penetration of the complainant's genitalia, the applicant contended that there is an unresolved debate in the authorities as to whether digital penetration in itself is less serious than other forms of sexual intercourse: R v Hibberd [2009] NSWCCA 20 at [21]; (2009) 194 A Crim R 1 (Tobias JA) but cf [27] (James J); MH v R [2011] NSWCCA 230 at [37]-[38] (RS Hulme J) but cf [1] (Campbell JA). The applicant also noted the principle stated by Hoeben CJ at CL in Simpson v R [2014] NSWCCA 23 at [30] that the objective seriousness of sexual offences depends on all the circumstances of the case, and is not limited to the nature of the particular act. Other factors, including, the degree of violence, physical hurt inflicted, any circumstances of humiliation and the duration of the offence are important.
6. In light of these principles, the applicant pointed to the following factors which indicated the subject offending to be well below the mid-range of objective seriousness: 1. The offending involved isolated acts of digital penetration where the extent of the penetration was the minimum required; 2. The acts were not accompanied by any violence, physical hurt or injury, force, threats or humiliation; 3. The offending was opportunistic and did not involve grooming; and 4. The duration of the offending was short.
7. As to Count 2 (the s 61M(2) offence), the applicant pointed to the statement of principle from R v PGM [2008] NSWCCA 172 at [31]; (2008) 187 A Crim R 152 (affirmed in Corby v R [2010] NSWCCA 146 at [72] and Bonwick v R [2010] NSWCCA 177 at [34]) to the effect that: "it is of considerable significance when assessing the objective seriousness in the indecent assault of a child to consider the actual character of the assault, including the degree of physical contact involved".
8. It was contended by the applicant that notwithstanding the relevance of other factors, including age and the surrounding circumstances, to the assessment of gravity, the offending in Count 2 was at the low end of the range of objective seriousness as the offending was limited to the applicant momentarily touching the victim's exposed bottom with his finger.
9. The Crown submitted that the finding in relation to objective gravity was open to the sentencing judge. Matters highlighted by the Crown included the following.
10. First, the offending could not properly be characterised as isolated in light of the number of offences committed by the applicant. Second, that it was digital penetration (in relation to Counts 1 and 3) fails to take into account the overall context. As stated in Adam Jolly v R [2013] NSWCCA 76 at [72]; (2013) 229 A Crim R 198 and R v Ronald King [2009] NSWCCA 117 at [36], the nature of sexual intercourse should not be considered in isolation and then ranked in some form of hierarchy. Third, an act of assault, including sexual or indecent assault, is inherently violent. The absence of more serious aspects of offending does not sound in mitigation: R v BA [2014] NSWCCA 148 ("BA") at [33]. Fourth, that there were no threats is not unexpected or indeed necessary where the victims are so young and vulnerable: BA at [33] (McCallum J). Fifth, that there was no injury is again merely an absence of a more serious aspect of offending that does not sound in mitigation.
11. Further, whilst the sentencing judge found there was no grooming and the Crown did not traverse that determination, it was noted that there were various instances of conduct in the nature of grooming in relation to SO which may increase the objective gravity of the offending including the applicant having SO sit on his lap on the balcony or in the grandmother's lounge room; giving SO sweets at his apartment; and asking to "look" at her in the bath, saying "I used to be an ex-nurse".
12. As to the duration of the offending, the Crown submitted that whilst relevant it is not ordinarily a factor which reduces the objective seriousness: R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16].
13. In addition, the Crown pointed to the following factors as being relevant to an assessment of objective seriousness such that the determination made by the sentencing judge was open to him: 1. The age and vulnerability of the victim within the range of ages specified by an offence, recognising the vulnerability of younger victims: PWB v R [2011] NSWCCA 84 at [12]; (2011) 216 A Crim R 305. SO was 4 years old - significantly younger than the threshold limit of 10 years for the s 66A offence. TO was 6 to 7 years old - also significantly younger than the threshold limit of 10 years for the s 66A offence and 16 years for the s 61M offence. 2. Comparative age which in this case was a distance of generations. The applicant was 56 years old at the time of the offending. A significant age gap adds to the seriousness of the offending because of the degree of exploitation of the youth of the complainant: Chamseddine v R [2017] NSWCCA 176 at [56] ("Chamseddine"). 3. Abuse of trust - as an adult neighbour who engaged with the family of the victims, the applicant was in a position of trust.

Consideration of Ground 1

1. An appellate court should be "very slow" to set aside a finding in relation to objective seriousness made by a sentencing judge exercising a broadly based discretion. In order for the applicant to succeed, it must be shown that the finding that the offending was "within mid-range" was not open to the sentencing judge (Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) ("Mulato"); Lees v R [2019] NSWCCA 65 at [55]; Magro v R [2020] NSWCCA 25 at [31]; Fuller v R [2022] NSWCCA 203 at [80]). As further stated by Simpson J in Mulato at [46]: "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v R [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
2. In my view, the finding of the mid-range of objective seriousness was open to the sentencing judge for each of the offences.
3. As to all of the counts, the youth of the victims was marked. The applicant was an experienced, worldly and mature adult, both mentally and physically. The girls, on the other hand, were very young: of infant school age (TO) and of preschool age (SO). When preyed upon by a mature adult, such extreme youth affords little, if any, agency. In those circumstances, the lack of any violence or threat by the applicant is of minimal relevance because in order to offend, the perpetrator simply needs to leverage his power arising from a combination of his relative size, weight, verbal acuity, and maturity.
4. It is clear, too, that in this case the victims' grandmother allowed the victims to be alone in the presence of the applicant on more than one occasion. It is clear there was an abuse of trust.
5. The passage from BA at [33] (McCallum J) is apposite: "The primary focus of the submissions put forward on behalf of the offender at first instance was the contention that there was a complete absence of many of the 'typical aggravating features in cases such as this'. The judge accepted some aspects of that submission. In particular, in reaching her conclusion as to the seriousness of the offences, her Honour recorded the absence of any suggestion that the offender used force or a threat of force. The use of force would have been an aggravating factor but I do not think its absence could sustain the conclusion that the offending was at the lower end of the range. An aspect of the seriousness of sexual offences committed against young children is that their youth and inexperience deprives them of the capacity to resist or protect themselves. The fact that an adult entrusted with the care of a child is able to prey upon the child's trust and vulnerability to commit sexual offences without resort to the use of force is hardly a mitigating factor. It speaks of a pernicious abuse of trust."
6. In addition, given the applicant was convicted of three counts, the offending could not be said to be isolated.
7. Further, in relation to both Counts 1 and 2, the sentencing judge found that the applicant continued to assault TO in the face of opposition. For Count 1, his Honour found that the applicant put his hands down the pants of TO who was trying to stop him. He touched her on the inside of her rude part with his fingers. She said that she told him to stop but he kept doing it. For Count 2, the applicant was trying to pull down TO's pants. She said "stop, stop" but he kept doing it and pulled down her pants and touched her on "bum" (using her words), using his finger.
8. Lastly, it is well recognised that sexual offences against children are objectively serious and cause significant harm: Chamseddine at [50].
9. In my view, in light of the combination of these factors, it cannot be said that the finding that each offence fell "within mid-range" of objective seriousness was not open to the sentencing judge.
10. Ground 1 is not made out.

Appeal Ground 2: The sentence imposed was manifestly excessive

Argument on appeal

1. In addition to the factual propositions highlighted by the applicant in relation to Ground 1 of the appeal, subjective matters were also relied upon by the applicant in contending that the aggregate sentence was manifestly excessive.
2. The subjective matters were summarised by the applicant as follows: 1. The applicant had a challenging upbringing. 2. He was a victim of extensive sexual abuse at a young age. 3. He experienced several traumatic events in his life. 4. Whilst he had a criminal record, none of the offending was for comparable offences and thus was "neutral". 5. The prior offending indicated that alcohol had been a "burden" throughout his life and had resulted in the "most serious misconduct". 6. Hardship in custody gave rise, at least subjectively, to concerns about the applicant's safety in light of the type of offences of which he had been convicted. 7. The facilitation of justice by agreeing to a judge-alone trial during the pandemic should have been brought into account. 8. A finding of special circumstances was warranted.
3. In light of these findings, the applicant contended that the head sentence of 12 years with a non-parole period of 8 years was manifestly excessive.
4. The applicant also pointed to the indicative sentences (albeit acknowledging they were not to be the subject of the appeal) in helping to explain how the manifestly excessive aggregate sentence was reached.
5. The applicant provided updated statistics following the hearing of the appeal, albeit the numbers of cases remained small.
6. The applicant also provided a small number of so-called comparable cases to support his contention of manifest excess.
7. In submitting that the aggregate sentence was not manifestly excessive, the Crown pointed to factors including: 1. The importance of general deterrence, denunciation and protection of the community in child sexual abuse sentences. 2. The profound and deleterious effect such offending has on child victims. 3. The penalties and the standard non-parole periods which indicate the gravity with which the legislature views such offending; and which provide guideposts in the sentencing exercise. 4. The absence of any discount for a plea of guilty given the convictions followed a trial. 5. The age, including the relative age, of the victims. 6. The position of trust of the applicant. 7. The applicant's history of alcohol abuse was properly excluded in relation to the offending itself: s 21A(5AA) Crimes (Sentencing Procedure) Act.
8. The Crown submitted that there was limited value in the consideration of sentencing statistics, especially in relation to offences of sexual offending against children given the age of victims and facts of offending vary widely. The Crown also distinguished the comparative cases relied upon by the applicant.

Consideration of Ground 2

1. The principles concerning manifest excess were summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86] (Payne JA, R A Hulme and Garling JJ): "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) 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; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) 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; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust."
2. In my view, the applicant has not established that the sentence imposed was unreasonable or plainly unjust.
3. It is important to note that all sentences were imposed after a trial. Two of the three offences carry a maximum penalty of life imprisonment, and all carried significant standard non-parole periods. The setting of the maximum penalty at life imprisonment for the s 66A(1) offences signals the extreme seriousness with which the community, through the legislature, views these offences. The maximum penalties together with the standard non-parole periods provide important guideposts in the sentencing exercise.
4. As noted in relation to Ground 1, the victims were very young. At the time of each offence, the applicant was in a position of trust which he abused. In both the offences in relation to the victim TO, he did not cease the offending when confronted with opposition but continued even after she told him to stop. The offending was not a one-off aberration.
5. The principles of general deterrence, denunciation and protection of the community must be properly reflected in child sexual abuse sentences.
6. I did not find the statistics assisted the applicant's argument. The most recent statistics show a significant component of sentences for the offences were as heavy or heavier than the relevant indicative sentences in this case.
7. Further, the comparative sentences relied upon by the applicant do not demonstrate that the sentence is unreasonable or plainly unjust. Dealing with each one briefly, I note the following: 1. R v JJ [2019] NSWCCA 148 ("JJ") involved two offences contrary to s 66A(1): cunnilingus on a 6-year-old victim (with a maximum penalty of 25 years and a standard non-parole period of 15 years); and digital penetration (causing pain) on a 9-year-old victim (with a maximum penalty of life imprisonment and a 15 year standard non-parole period). A Crown appeal was upheld and the respondent was re-sentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years. In both instances, the offending ceased on complaint by the victim (unlike two of the three offences committed by the applicant). Further, the age of the victims in the present application is significantly different compared to the victims in JJ. 2. RC v R; R v RC [2020] NSWCCA 76 ("RC") involved a single count against s 66A(1) where the 74-year-old respondent digitally penetrated the anus of his 5-year-old grandson during a bath (the respondent was 76 at sentence). This Court found the 18 months Community Correction Order to be manifestly inadequate but dismissed the appeal in the exercise of residual discretion, indicating the Court would have imposed a sentence of 3 years with a non-parole period of 1 year. The sentencing judge found the act to have been spontaneous and fleeting without a sexual component. It caused pain. Unlike the subject offences, the offence in RC was isolated and transitory. Further, the respondent in RC was otherwise of good character, there was no sexual motivation and he suffered from a series of mental and physical health issues. 3. Scott v R [2020] NSWCCA 81 involved 4 counts with the victim being the respondent's 8-year-old granddaughter: a single count under s 66A(1) and three counts under s 61M(2). The first count involved him kissing the victim directly on her vagina at a sleepover; the others involved him kissing her near her vagina at a sleepover. On appeal, the sentence was reduced to 5 years with a non-parole period of 2 years and 6 months. The offences were of short duration. In relation to the most serious offence, the applicant stopped when asked. His subjective case was compelling including that he was otherwise of good character, he had made "remarkable" contributions to the community over many years, and at 71 years of age, he had medical problems which could lead to problems in custody because of the COVID-19 pandemic.
8. In any event, such a small selection of cases, with quite different features, could not establish that the sentence imposed in this case was unreasonable or plainly unjust: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [25]. Further, as stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]: "In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts'. But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence'. (Emphasis added.) When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'." (Footnotes omitted.)
9. Ground 2 is not made out.
10. The orders I propose are: 1. Leave to appeal granted. 2. Appeal dismissed.
11. R A HULME AJ: I agree with McNaughton J.

Endnotes

1. All the names relating to the children are pseudonyms to protect the childrens' identity.
2. The subsection reads: "the offender abused a position of trust or authority in relation to the victim" 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: 07 July 2023