DC v R

Judgment

1. ROTHMAN J: I have had the benefit of reading in draft the reasons for judgment of Yehia J. I agree with the orders proposed by her Honour and with her Honour's reasons.
2. WILSON J: I have had the benefit of Justice Yehia's judgment in draft and I agree with the orders her Honour proposes.
3. As her Honour concluded, error must be found in the orders of the sentencing Judge because of the misapprehension his Honour's reasons reveal as to the standard non-parole period applicable to sequences 13 and 14. That error was one his Honour was led into by the parties appearing before him on sentence.
4. It is important in sentence matters that legal representatives provide the court with accurate information as to matters of law. Sexual offences constitute a category of crime where legislative change has been frequent, and frequently significant, and there is a particular responsibility upon counsel in such matters to ensure that the relevant law has been carefully ascertained and the court properly assisted. Errors of this nature which, by resulting in an appeal, no doubt cause additional distress to any complainant and stress to the applicant, would then be avoided.
5. Whilst the error requires this Court to re-sentence the applicant as Yehia J has concluded, no lesser aggregate sentence is warranted in law than that imposed at first instance. These were extremely serious sexual offences involving two children, and repetitive and persistent criminality, of a high order. Yehia J has proposed that a finding of special circumstances should be made, with a lesser non-parole period consequentially fixed. I agree with her Honour, for the reasons she has given.
6. YEHIA J: By Notice of Appeal filed 14 October 2022, DC ("DC" or "the applicant") seeks leave to appeal from the aggregate sentence imposed on him by his Honour Judge King SC ("the sentencing Judge") in the District Court at Sydney on 3 September 2021, in relation to a series of sexual offences committed against two victims, RC and KT.
7. The applicant pleaded guilty in the Local Court. The indicative sentences were discounted by 25% to reflect the utilitarian value of the pleas. The following table sets out the sequences, offences, the maximum penalties, standard non-parole periods ("SNPP"), and the indicative sentences, in respect of each offence: Sequence Offence Maximum Penalty and SNPP Indicative Sentence Offence in relation to RC Sequence 21 Persistent sexual abuse of a child aged under 16, contrary to s 66EA(1) of the Crimes Act 1900 (NSW) ("Crimes Act"). Maximum penalty: 25 years' imprisonment. 9 years and 9 months imprisonment. No SNPP. Offences in relation to KT (KT was 10 years old at the time of each offence) Sequence 8 Aggravated indecent assault (child under 16), contrary to s 61M(2) of the Crimes Act. Maximum penalty: 10 years imprisonment. 2 years imprisonment, with a non-parole period of 18 months imprisonment. SNPP: 8 years imprisonment. Sequence 13 Sexual intercourse with a child of or above 10 years and under 14 years in circumstances of aggravation (under authority), contrary to s 66C(2) of the Crimes Act. Maximum penalty: 20 years imprisonment. 7 years imprisonment, with a non-parole period of 5 years and 3 months imprisonment. No SNPP. Sequence 14 Sexual intercourse with a child of or above 10 years and under 14 years in circumstances of aggravation (under authority), contrary to s 66C(2) of the Crimes Act. Maximum penalty: 20 years' imprisonment. 7 years imprisonment, with a non-parole period of 5 years and 3 months' imprisonment. No SNPP. Sequence 15 Attempted sexual intercourse with a child of or above 10 years and under 14 years in circumstances of aggravation (under authority), contrary to s 66D of the Crimes Act. Maximum penalty: 20 years' imprisonment. 6 years and 6 months imprisonment. No SNPP. Sequence 12 Aggravated indecent assault (child under 16), contrary to s 61M(2) of the Crimes Act. Maximum penalty: 10 years imprisonment. 18 months imprisonment, with a non-parole period of 13 and a half months imprisonment. SNPP: 8 years imprisonment. Sequence 16 Aggravated indecent assault (child under 16), contrary to s 61M(2) of the Crimes Act. Maximum penalty: 10 years imprisonment. 2 years imprisonment, with a non-parole period of 18 months imprisonment. SNPP: 8 years imprisonment.

1. On 3 September 2021, the applicant was sentenced to an aggregate term of imprisonment of 13 years and 6 months, with a non-parole period of 10 years imprisonment, commencing on 23 April 2021. The non-parole period expires on 22 April 2031. The aggregate head sentence expires on 22 October 2034.
2. As the Notice of Intention to appeal was filed out of time, the applicant requires an extension of time within which to file the notice. That application is not opposed. For the reasons which follow, there should be an extension of time, leave to appeal should be granted, and the appeal allowed. While the aggregate sentence is an appropriate proportionate sentence, special circumstances exist warranting a reduction of the non-parole period.

Offences Against RC

1. In early 2010, RC (then aged 14 years old) moved into a caravan on the front lawn of the home of the applicant's then-partner, MS. The applicant lived elsewhere. During a camping trip that took place on 28 July 2020, after the applicant's 33rd birthday, the applicant told RC that he "wanted her". [1] It was also noted that there was flirting and "touchy-feely stuff going on" [2] between them. The sentencing Judge noted that RC indicated that she thought that the applicant and her may have kissed once, but nothing else happened. After the camping trip, while RC was still 14 years old, she went to the applicant's residence. Both the applicant and RC were on the applicant's bedroom floor. The applicant removed his and RC's clothing. RC sat on top of the applicant. The applicant had penile-vaginal intercourse with RC, and subsequently ejaculated onto her body.
2. A couple of days later, MS's daughter attended the applicant's residence and upon her arrival, she saw RC sitting on the applicant's lap. The applicant and RC informed MS's daughter that: "…you know that they really liked each other and wanted to be in a relationship, and he was over mum and didn't know how to break it to mum because [RC] was living with us..." [3]
3. MS's daughter returned home and informed her mother.
4. The applicant's then-partner came to learn of the applicant's interest in RC, at which point she confronted him. MS also attempted to bring RC back to her residence, but RC would not leave. The applicant said words to the effect: "It's all good, I'll take good care of her, we want to be together and there's nothing you can do about it." [4]
5. MS contacted police who attended, and removed, RC from the applicant's home and returned her to the home of MS. RC then went to live with her parents.
6. A couple of days after her 15th birthday, RC returned to live with the applicant. The applicant thereafter maintained an unlawful sexual relationship with RC from the day after her 15th birthday until just before her 16th birthday, that is, between 24 August 2010 and 22 August 2011. RC described that the sexual relationship started "pretty much straight away". [5]
7. During that period, the applicant had penile-vaginal intercourse with RC on an ongoing and regular basis. RC told police that they would have sex daily. The intercourse was "whenever and whatever [the applicant] wanted". [6] RC described the intercourse as "pretty rough" [7] at times, with the applicant throwing RC around and pulling her hair. The applicant ejaculated inside RC's vagina on occasion while, at other times, he would "pull out" [8] before ejaculating on her body. RC told police that the sex would happen at "any time of the day" [9] and "at least every day" [10] (Sequence 21). The applicant is 18 years older than RC.

First Occasion

1. The applicant's offending, in relation to KT, took place on four separate occasions in 2014. KT was 10 years old at the time of each offence. The applicant was approximately 36 or 37 years old and 26 and a half year's older than KT. A year earlier, in 2013, the applicant had commenced a relationship with KT's mother, which continued until 2018. They had a son together, who was born in 2015.
2. On the first occasion, sometime in 2014, KT's mother left KT in the care of the applicant. The applicant and KT were seated on a couch in the lounge room watching television. The applicant rubbed KT's vagina on the outside of her clothing. The applicant persisted despite KT getting up and moving away. The applicant pulled KT towards him and instructed her not to move, before removing KT's pants and again rubbing her vagina, this time touching her skin directly (Sequence 8). After the applicant stopped, he told KT not to tell anyone.

Second Occasion

1. A week later, while he was again caring for KT, the applicant led KT to his bedroom under the pretence of showing her something on his phone, before asking her to fellate him. When KT refused, the applicant grabbed her hair and forced KT to her knees where KT performed fellatio on him (Sequence 13). After some time, KT pushed the applicant away. The applicant picked KT up before placing her on the bed, removing her clothes, and performing cunnilingus on her (Sequence 14). He then attempted, unsuccessfully, to insert his penis into her vagina and have penile-vaginal intercourse with her. KT described the applicant putting his penis "against the hole…bit of [her] vagina", [11] which hurt but did not penetrate her. As he did so, he touched her bottom and breasts (Sequence 15).

Third Occasion

1. On another occasion, KT sought comfort in the bed that her mother shared with the applicant after having a nightmare. The applicant rubbed KT's vagina on top of her clothing for approximately 10 minutes (Sequence 12). KT indicated that this incident occurred before the tonsillitis incident and after the second and third occasions.

Fourth Occasion

1. In December 2014, while KT was sick with tonsilitis and was sleeping on the lounge, she woke to the applicant playing with her vagina. He rubbed KT's vagina both on the inside and outside of her clothing (Sequence 16). KT's brothers were at home at the time but were outside gardening. KT recalled that the applicant "…started playing with my vagina…and I woke up to him…" [12]

The Compliant to Police, Arrest and ERISP

1. On 28 November 2019, KT's mother, SH, took KT to Maitland Police Station, where she was interviewed. The applicant was arrested at Maitland Police Station on 5 December 2019. He participated in an electronically recorded interview in which he denied the allegations, but admitted to having rubbed KT when she was in bed with him and SH in circumstances where he was sedated by medication and thought she was SH. [13]

Ground of Appeal

1. The applicant relies on a single ground of appeal, namely, that for two offences, the sentencing Judge took into account a non-existent SNPP.

Applicant's Submissions

1. Sequences 13 and 14 were offences against s 66C(2) of the Crimes Act, which specifies a maximum penalty of 20 years imprisonment. The offences were specified as having occurred between 31 December 2013 and 1 January 2015. At the time the offences were committed, there was no SNPP.
2. On 29 June 2015, the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) ("Child Sex Offences Amendment Act") commenced. Schedule 2 of the Child Sex Offences Amendment Act had the effect of inserting a SNPP of nine years for offences against s 66C(2).
3. At the time of the amendment, Parliament also inserted Part 27, clause 68 into Schedule 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), which states: Part 27 Provision consequent on enactment of Crimes Legislation Amendment (Child Sex Offences) Act 2015 68 Standard non-parole periods The amendments made to this Act by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 do not apply to offences committed before the commencement of the amendments.
4. S 25AA of the CSPA provides: (1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. (2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing. [14]
5. The applicant submitted that it follows that the nine year SNPP did not have a retrospective effect and did not apply to sequences 13 and 14 in this case.
6. The sentencing Judge was wrongly informed that a nine year SNPP applied. His Honour wrongly took into account a SNPP of nine years in determining the appropriate indicative sentences in relation to sequences 13 and 14. The applicant relies on the sentencing Judge's remarks on sentence, where his Honour: 1. referred to a nine year SNPP as applying to these two offences; 2. stated that the SNPP, where applicable, remains a relevant guidepost even where there has been a plea of guilty; and 3. specified an indicative non-parole period for these charges. A requirement that only applies to offences that carry a SNPP: see s 54B(4) of the CSPA.
7. The applicant submitted this was an error that affected the indicative sentences for sequences 13, 14, and the aggregate sentence. Furthermore, it was submitted that a lesser sentence is warranted at law and that this Court would find special circumstances. In sentencing afresh, it was submitted that the applicant's childhood background, as well as his overall neuropsychological profile, should result in some reduction in moral culpability and the emphasis to be given to punishment and general deterrence. The applicant submitted that a finding of special circumstances was warranted.
8. In support of that contention, the applicant relied upon the remarks of Simpson J (as her Honour then was) in R v Millwood [2012] NSWCCA 2 at [69] (Bathurst CJ and Adamson J agreeing): "I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been 'tragic and dysfunctional'. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders."

Respondent's Submissions

1. The respondent conceded the ground of appeal.
2. The respondent accepted that it is open to this Court to find that the ground of appeal is made out and that the error is such that this Court must exercise the sentencing discretion afresh. The respondent submitted that in exercising the discretion afresh, this Court would conclude that no other (lesser) sentence is warranted at law and, accordingly, would dismiss the appeal.

Applicant's Subjective Case

1. The applicant did not give evidence in the sentencing proceedings. He relied on a report of Sarah Brann, Forensic Psychologist, dated 24 May 2021. The applicant also relied on and a report of Lisa Zipparo, Clinical Neuropsychologist, dated 24 June 2021, as well as brief medical records produced by Greta Medical Centre.
2. The applicant was born in 1977. He was 44 years old at the time of his sentence and between 33 and 37 years old when he committed the subject offences. The applicant has prior convictions for offences including common assault (2008, 2009 and 2012), possess prohibited drug (2008), and a driving offence (1999).
3. The applicant grew up on the Central Coast of New South Wales as one of seven children. He had close relationships with both parents but said they harboured "deep, dark family secrets". [15] The applicant's parents died within six months of one another in 2013 or 2014, after the offending against KT. The applicant reported being disciplined with a jug cord and wooden spoon. Ms Brann concluded that the applicant's account suggested he was exposed to "avoidant forms of coping and suppressing emotions". [16]
4. When the applicant was aged five, his nine year old sister had her leg amputated after doctors mistakenly applied a plaster too tightly to her leg. The applicant was bullied at school about his sister's disability. A few years after his sister lost her leg, his oldest sister suffered a drug overdose. She had run away from home at the age of 15, worked in Sydney as a sex worker, and developed a serious drug addiction. The applicant remembered driving to Sydney in the middle of the night to visit his sister in hospital.
5. The applicant's eldest brother, who was 14 or 15 years older than him, was violent at family events. The applicant reported being scared of his brother as a child. His brother committed a driving-related homicide whilst intoxicated, which led to a significant court case as well as emotional and financial stress to the family. In 2020, the applicant learned this brother had sexually abused three of his sisters during their childhood, the accounts of which are detailed in the reports of Ms Brann and Ms Zipparo.
6. The applicant attended two primary schools and two high schools. He achieved average grades and left school at the age of 14. He was expelled for threatening to shoot a teacher after the teacher publicly humiliated him. He did not have access to a firearm.
7. After leaving school, the applicant worked in various positions, including at a sawmill, commercial fishing, painting, game harvesting, and at an abattoir. He also started his own painting and gardening business.
8. The applicant provided a history of infrequent alcohol consumption but reported having drunk excessively on several occasions during the period of his sexual offending. He began smoking cannabis at age 14 and has continued to do so daily since that age.
9. Between 2010 and 2014, the applicant reportedly smoked two grams of cannabis per day, 3.5 grams of methylamphetamine (ice) every three days and used hallucinogens (acid) on weekends. The applicant reported abstinence from all substances since his arrest in 2019 and told Ms Zipparo that "he had never accessed drug and alcohol counselling but had always managed to stop abusing substances when he decided to do so". [17]

Neuropsychological Assessment by Lisa Zipparo

1. Ms Zipparo noted that the applicant described symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder (PTSD). She administered a PTSD checklist, the results of which indicated the following: "The ICD-111 identifies Complex PTSD (CPTSD) as a new condition which describes the effects of persistent and pervasive interpersonal trauma in childhood. It described CPTSD as PTSD symptoms with the addition of three symptom clusters being affect dysregulation, negative self-concept and/or disturbed relationships. DC endorsed significant symptoms of PTSD, which together with his lifelong history of anxiety, depression and substance abuse, his history of dysfunctional relationships and poor psychosocial adjustment, are likely a result of a traumatic and dysfunctional upbringing and meet criteria for a diagnosis of CPTSD." [18]
2. Ms Zipparo reviewed the applicant's neuropsychological profile and opined: "Current neuropsychological testing found that DC is functioning in a low range of intellectual ability being in the Borderline range, placing him in the bottom 7 per cent of the population. DC's cognitive abilities were largely commensurate with his intellectual function, being mainly in the Borderline to Low Average range. There were no observed impairments of memory function, with his verbal memory in the Average range and his visual memory in the Borderline to Low Average ranges, which was below his verbal memory but not sufficiently reduced to be impaired. DC showed poor skills in mental flexibility and problem-solving, being unable to find all potential solutions and tending to repeat incorrect responses." [19]
3. In summary: "DC's neuropsychological profile is one of a person with low intellectual capacity, and difficulties with executive functioning, including poor mental flexibility, problem-solving and impulse control. However, his day-to-day memory function is not impaired and his perceived problems with memory are most likely due to his high levels of anxiety." [20]
4. Ms Zipparo stated: "We know that people who are exposed to sexual abuse as children are more likely to become offenders themselves. However, it is difficult to ascertain the nature and degree of DC's exposure to the sexual abuse that occurred in his family given the dissociative amnesia which he reports around relevant autobiographical information. Nevertheless, it is critical that any treatment programs that DC undertakes to address his sex offending behaviour explore and address his potentially significant trauma history." [21]
5. In light of the applicant's impulsivity and "significant difficulties regulating his behaviours", [22] Ms Zipparo recommended that the applicant consult a psychiatrist for appropriate treatment of his anxiety disorder. She was also of the view that the applicant would benefit from participating in a child sex offender therapeutic program, whether in a custodial or community setting. In the long-term, in order to reduce the applicant's risk of reoffending, he will require intensive ongoing trauma-informed psychotherapy to "help address his dissociative amnesia from childhood events and to assist him to address psychological issues caused by his likely traumatic upbringing". [23]

Psychological Assessment Report by Susan Brann

1. Sarah Brann explored the applicant's attitudes towards his offending and found that his account of the offending "lacked accountability". [24] He presented with "offence-related cognitive distortions", [25] and he lacked insight into his position of power and authority in comparison to the youth and immaturity of the victims. Regarding RC, Ms Brann stated: "While DC's plea acknowledges wrongdoing, his account of the offending lacked accountability and he presented with a number of offence related cognitive distortions, which are not uncommon in untreated sexual offenders. He engaged in victim-blaming and shaming by suggesting that his first victim initiated the sexual contact with him and that she was sexually promiscuous. … DC claimed that he was not aware of the first victim's age and took no accountability for it being his responsibility to ascertain the age of people he chose to have sexual contact with. He also externalised blame onto the victim's caregivers by stating that, 'they dropped her off at my house' after the victim reportedly had an argument with her mother at a time when DC had been consuming alcohol and was reportedly intoxicated. He stated, '[a]fter that, she lived with me'. This seemingly demonstrated poor boundaries, particularly if he experienced sexual attraction towards the victim, and he acknowledged that he had kissed her on a camping trip prior to this. DC did not acknowledge his role in allowing this to happen or his decision-making or lack of assertiveness to set healthy boundaries around this by refusing to let the victim stay at his home. He stated that, '[i]t was odd to have her living with me'. Further, DC stated: 'I don't really know how the sexual behaviour came about, it was a two-way street'. He stated that he never discussed his first victim's age with her or clarified it with anyone else and assumed that she was of legal age to engage in sexual contact." [26]
2. In relation to the offending against KT, Ms Brann observed: "…that on one of the four occasions of sexual offending, he mistakenly touched the victim's buttocks when the victim was sleeping between himself and the adult partner. He offered that he was taking heavy medications and that when he realised, he 'stopped straight away'. He again engaged in victim-blaming by claiming the victim entered the bathroom while he was showering, despite him having locked the door and reportedly telling the victim to get out." [27]
3. Ms Brann opined: "DC lacks insight into his position of power and authority as an adult male in comparison to the young age and immaturity of his victims, which is further exacerbated by his role as the victim's stepfather. DC offered that with the benefit of retrospect, he wishes that he had avoided the situation, that he does not know why he did not. DC stated that his victims may have experienced mental harm. He presently lacks awareness of potential victim impacts and would benefit from increasing his insight into this by sex offending intervention." [28]
4. Ms Brann administered risk assessments that placed the applicant in the "average risk category" [29] and "moderate risk category" [30] relative to other sexual offenders. Ms Brann concluded: "On the STABLE-2007, DC scored 10, which places him in the moderate risk category relative to other sexual offenders. His identified dynamic risk factors were: hostility towards women, general social rejection, lack of concern for others, impulsiveness, poor problem-solving skills, sexual preoccupation/high sex drive, deviant sexual interest, problems cooperating with supervision. "The STABLE-2007 can be combined with the STATIC-99R to provide a composite assessment of risk/needs and to produce standardised estimates of sexual recidivism. DC's composite assessment places him in Risk Level Ill - Average priority category for supervision and intervention in comparison to other sexual offenders assessed using these measures. Individuals in Risk Level Ill typically have multiple criminogenic needs, varying in severity in psychological, interpersonal and lifestyle domains. These needs are likely to be barriers to effective use of any available prosocial resources and strengths. The rate of sexual reoffending is equal to the average rate of sexual reoffending. Approximately half will transition to Level II (Below Average risk) within a year or two of receiving a sufficient dosage of treatment, making positive life changes and remaining offence-free in the community. The longer an individual remains offence-free in the community they continue to reduce their risk of further sexual offending. Based on the results of a composite risk assessment that considers both static and dynamic risk, out of 100 sexual offenders with the same risk level as DC. Between 4 and 11 committed a further sexual offence (excluding breaches) within five years. These are empirically derived figures that assist in estimating DC's likely sexual offending risk. In summary, the results of risk assessments indicate that DC has a moderate number of identified risk and treatment needs that are likely to require a moderate level of intervention to target and reduce his sexual offending-related risk." [31]
5. Neither Ms Brann nor Ms Zipparo commented on any direct nexus between the applicant's mental and cognitive impairment and the offending conduct.

In Relation to RC

1. The sentencing Judge assessed the objective seriousness of the offence of persistent sexual abuse of a child under 16 (Sequence 21) as falling towards the upper end of the mid-range of objective seriousness. In making that determination, his Honour had regard to the following factors: 1. there were many occasions of penile-vaginal intercourse; 2. each penetrative act would have constituted an offence against s 66C(3) with a maximum penalty of 10 years imprisonment, which is towards the lower to mid-range of offences covered by s 66EA; 3. the sex was at times rough, and it occurred whenever the applicant wanted it; 4. the offending occurred over one year; 5. the victim was aged 15; 6. the applicant was 33 and, therefore, 18 years older than the victim; and 7. the applicant was not in a position of authority over the victim.
2. For the first four months of the period over which the applicant offended against RC, the applicant was on conditional liberty in the form of a 7 month suspended sentence imposed on 17 May 2010 in respect of an offence of common assault (domestic violence), contrary to s 21A(2)(j) of the CSPA.
3. In determining the objective seriousness of the offence, contrary to s 66EA of the Crimes Act, the sentencing Judge stated: "I have, in particular, had regard to the factors referred to in Burr v R [2020] NSWCCA 282 as relevant to assessing its objective seriousness. As to the number of sexual offences, the offender had penile-vaginal sexual intercourse with RC on an ongoing and regular basis throughout the course of each month over the course of a year. Clearly, the agreed facts accept that the offending occurred on many, many occasions by way of penile-vaginal intercourse." [32]

Offences committed against KT

1. The sentencing Judge assessed the objective seriousness of each of the offences committed against KT as follows: 1. sequence 8 (aggravated indecent assault), the first incident involving KT, fell at the mid-level of objective seriousness; 2. sequences 13 and 14 (sexual intercourse with a child between 10 and 14 years) and Sequence 15 (attempted sexual intercourse with a child between 10 and 14), involved a mid to high level of objective seriousness; and 3. sequences 12 and 16 (aggravated indecent assault), the third and fourth incidents involving KT), involved a low to mid-level of objective seriousness.
2. For the indecent assault offences, the sentencing Judge took into account the following factors: 1. the victim was aged 9 or 10 in circumstances where the offence provision covers children under 16; and 2. the nature of the conduct on each occasion, including the fact that sequences 8 and 12 involved skin-to-skin contact, and the fact that sequence 8 extended to the applicant persisting after the victim moved away from him.
3. For the sexual intercourse and attempted sexual intercourse offences, the sentencing Judge took into account the following factors. 1. The victim was aged 10, which is at the bottom of the 10 to 14 age range covered by the offence provision; 2. On one occasion, the applicant persisted, by pushing the victim to her knees by grabbing her hair, despite the victim's resistance; and 3. In respect of sequence 15, his Honour had regard to the fact that the applicant touched the victim's bottom and breasts during and after the attempted vaginal intercourse.
4. The sentencing Judge observed that each of the offences committed by the applicant against KT involved a breach of the position of trust he held within KT's family unit, contrary to s 21A(2)(k) of the CSPA, and occurred in KT's home, contrary to s 21A(2)(eb) of the CSPA.
5. The sentencing Judge considered the Victim Impact Statements of RC and KT but did not find the harm occasioned constituted an aggravating factor.

Other Relevant Findings of the Sentencing Judge

1. The sentencing Judge made several findings concerning the applicant's subjective case. The applicant's past criminal history was "not of any significant adverse effect in relation to sentencing for this matter". [33]
2. The sentencing Judge summarised the applicant's subjective case and the expert reports tendered on his behalf. His Honour concluded that the material did not disclose an environment of systemic or endemic abuse, or any particular social disadvantage or deprivation as would operate to reduce the applicant's moral culpability. The applicant's background did not reduce his moral culpability in the sense described in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 73 (Bugmy), but his background was "still relevant to the instinctive synthesis of determining the sentence". [34] The sentencing Judge stated: "The background as described by the offender is far removed from the background in the authority of Bugmy, where it was held that because of the effects of profound childhood deprivation, because the effects of profound childhood deprivation don't diminish with the passage of time, then it is right to speak of giving full weight to the offender's deprived background in every sentencing decision, but the work that the offender's background, in this case, has to do in terms of reducing his moral culpability is not present here as was the case in Bugmy. It was held in the case of Bugmy that it was because of the profound childhood deprivation experienced by the offender that the offences largely took place. Because of that deprived background, he was unable to control his violent impulses, and therefore they had a direct link to the offending themselves and were, to a degree, causative of the offending themselves, and that was the factor in Bugmy that reduced his moral culpability. That's certainly not the case here." [35]
3. The applicant presented a moderate risk of reoffending, and the sentencing Judge assessed the applicant's prospects of rehabilitation as "guarded". [36] The applicant had not expressed remorse or contrition concerning any of the offences.
4. In an exchange with the Crown, the sentencing Judge noted that there was no diagnosis of PTSD: "O'CONNOR: Your Honour, there's no error in the submission of the Crown, but did your Honour intend to address the issue of the diagnosis - or actually doesn't quite amount to a diagnosis of PTSD, and whether or not your Honour has made a finding in relation to whether that affects the weight to be given on general deterrence or whether it affects his moral culpability as contended by the defence in this matter. HIS HONOUR: Yes, I think, Mr Crown, what I did indicate is that the highest it went was that it was likely, not that there was any actual diagnosis of what was referred to by Ms Zipparo as complex PTSD, and there is no evidence that even if he suffered from complex PTSD, it had any causative relationship to this offending or in any way would reduce his moral culpability for the offences." [37]
5. The applicant had engaged in victim-blaming in respect of both victims and continued to lack awareness of the potential impacts of his offending. Although the applicant's level of intellectual functioning may have some impact on his level of insight, the sentencing Judge noted that it was evident that the applicant appreciated, at the time of the offending, that he was committing offences.
6. The evidence relating to the applicant's background and his psychological and neuropsychological profile was not taken into account to reduce the applicant's moral culpability or the weight to be afforded general deterrence. Instead, the sentencing Judge took into account these factors as relevant to the instinctive synthesis of determining the appropriate sentence. [38]
7. The indicative sentences were discounted by 25% to reflect the utilitarian value of the plea of guilty. In relation to totality, the sentencing Judge observed that the aggregate sentence needed to reflect that there was offending against two entirely separate victims; that the offence concerning RC took place over a one-year period; and that the offences committed against KT comprised four separate occasions.
8. The sentencing Judge declined to find special circumstances (other than rounding down the non-parole period) noting that the applicant did not require treatment for drug and alcohol issues and the aggregate sentence itself incorporated a significant period on parole that was likely to exceed the necessary period of supervision.

Re-sentence

1. Where error is established, it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the purpose of sentencing and the factors that the CSPA, and any other Act, or rule of law, require or permit: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
2. The applicant takes no issue with several findings made by the sentencing Judge. In particular, the applicant does not challenge the assessment of objective seriousness made in relation to each offence. Insofar as it is necessary to do so, I agree with the assessment of objective seriousness made by the sentencing Judge in each case.
3. The applicant's neuropsychological profile reveals symptoms consistent with complex PTSD and intellectual functioning in the borderline range. Neither expert commented on a direct nexus between those conditions and the applicant's offending conduct. The sentencing Judge did not find any causal relationship between the applicant's mental health, impaired intellectual functioning, and the offences that were committed. Although this finding was not challenged by a specific ground of appeal, the applicant urges this Court, on re-sentence, to make a finding that the applicant's moral culpability is reduced as is the weight to be afforded punishment and deterrence.
4. The ways in which mental disorders, intellectual impairment and similar conditions may impact the exercise of sentencing discretion have been considered in many previous cases. In R v Israil [2002] NSWCCA 255, Spigelman CJ explained at [22]-[26]: "In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion. To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry, supra, at [254]: '… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.' I agree with the observations of Malcolm CJ in Lauritsen at [48]: '… mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence.' Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it: '… specific deterrence may be more difficult to achieve and is often not worth pursuing as such.' (Tsiaras, supra, at 400) Finally, a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served. (See Tsiaras, supra, at 400). However, in Lauritsen at [51], Malcolm CJ noted that this factor, identified by the Victorian Court of Appeal in Tsiaras, may not represent the law in Western Australia. It is unnecessary to determine whether this is the law in New South Wales. It appears to have been regarded as material in this Court in R v Jiminez [1999] NSWCCA 7 at [25]. I see no reason why this would not be so, but the matter was not fully argued."
5. The relevant principles were summarised by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194 at [177]: "Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]). It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50-51; R v Israil (at [22]); R v Pearson (at [42]); R v Henry (2007) (at [28]). It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: R v Tsiarias (at 400); R v Jiminez (at [25]); R v Israil (at [26]); R v Henry (2007) (at [28]). It may reduce or eliminate the significance of specific deterrence: Courtney (at [14]); R v Tsiarias (at 400); R v Israil (at [25]); R v JW (at [192]). Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: R v Israil (at [24]); R v Henry (2007) (at [28]). Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence [2005] NSWCCA 91 per Spigelman CJ (at [23]-[24])."
6. A reduction in moral culpability results where an offender's mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending.
7. The sentencing task should not be approached in "an unduly technical or restrictive way": see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence.
8. While a sentencing Judge should not become preoccupied with the issue of "causation" as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing).
9. Having considered the psychological and neuropsychological material, I am not persuaded that the applicant's overall neuropsychological profile operates to reduce his moral culpability or the weight to be afforded punishment and general deterrence.
10. The applicant's overall criminality demonstrates a persistent course of sexual offending against two children, one being 10 years old at the relevant time. The applicant engaged in sexual intercourse with RC over a period of one year. His sexual misconduct in respect of RC was not impulsive, nor demonstrative of impaired mental flexibility.
11. The applicant's criminal acts against KT were persistent and, on occasion, involved the use of force. Furthermore, the behaviour involved some deliberation and a breach of trust that is inconsistent with impulsivity.
12. The applicant's reliance upon a disadvantaged childhood as operating to reduce his moral culpability and the emphasis on punishment and deterrence is also unpersuasive. Although the applicant reported several difficult experiences in childhood, which included his sister's drug overdose and his oldest brother's erratic and violent conduct, the account of sexual abuse of his sisters was only revealed to him in 2020. [39] The evidence does not establish that he was aware of the sexual abuse in the household during his childhood over the time he committed the offences.
13. There is no evidence that the applicant was himself sexually abused as a child. To conclude, at this stage, that any dissociative amnesia around relevant autobiographical information is suggestive of having been sexually abused as a child, is highly speculative.
14. The applicant's childhood background, mental health issues and low intellectual functioning are all matters relevant to the process of instinctive synthesis in determining a proportionate sentence. The sentencing Judge had regard to the applicant's background and the expert reports in determining the aggregate sentence. I cannot agree with the applicant's contention that a lesser aggregate sentence is warranted. The applicant's crimes are very serious, involving persistent sexual misconduct against two children. In respect of one victim, aged 10 years at the time of the offending, the applicant breached the position of trust he enjoyed within KT's family unit.
15. I am, however, satisfied that special circumstances exist warranting a variation of the statutory ratio.

Special Circumstances

1. A finding of special circumstances, which permits an adjustment downwards of the non-parole period, is a discretionary finding which must rest on a conclusion that the offender's circumstances are sufficiently special to warrant its exercise: see Kelloway v R [2016] NSWCCA 95 at [21]; R v Fidow [2004] NSWCCA 172 at [22]. There is no statutory prescription of the matters which might constitute special circumstances: see R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25.
2. In R v Simpson (2001) NSWLR 704; [2001] NSWCCA 534 at [54] (Simpson), this Court considered the proper approach to be adopted in relation to the issue of special circumstances. The scope of the considerations relevant to the determination of special circumstances encompass the full range of issues that are relevant to the determination of the minimum period of actual incarceration. The exercise of discretion must ensure that the non-parole period reflects the minimum period of incarceration which the offender must serve for the crimes, given all the relevant circumstances of the case.
3. In many cases, the requirements of rehabilitation and the desirability of a longer period of supervision to achieve rehabilitation will give rise to a finding of special circumstances. However, it is not the only perspective. In Simpson, Spigelman CJ at [59], observed: "The words 'special circumstances' appear in numerous statutory provisions. They are words of indeterminate reference and will always take the colour from their surroundings. The sentencing context in which they appear in the present legislation must be understood against the background of a long-standing line of decisions in the High Court…which emphasises that the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought be the minimum period of actual incarceration. The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected."
4. Ms Brann and Ms Zipparo observed that the applicant would benefit from undertaking a sex-offender program. Such treatment is essential given the applicant's lack of insight and "victim blaming". [40] It is also recommended that the applicant receive ongoing psychotherapy in relation to his reported amnesia of childhood events.
5. The requirement for treatment may not, by itself, have been sufficient to constitute special circumstances, given that the sentence imposed would provide a considerable period of supervision. However, there are several additional factors that, in combination, warrant a finding of special circumstances and a variation of the statutory ratio.
6. The applicant's mental health issues and impaired intellectual functioning are relevant to the hardship that the applicant will experience in custody. The absence of an opinion from Ms Brann and/or Ms Zipparo that the applicant's time in custody will be more onerous does not prevent this Court, on re-sentence, from making such a finding if it is available on the evidence.
7. This is the first time that the applicant serves a term of full-time imprisonment. His intellectual shortcomings and mental health issues are likely to make it difficult for him to negotiate many of the challenges that present in custody. The applicant has already been the victim of physical violence in prison [41] and has been locked in for days at a time as a result of COVID-19 restrictions.
8. The affidavit of DC, affirmed on 13 January 2023, is tendered on the usual basis. The applicant has been assaulted three times since being in custody, once while on remand at Shortland Correctional Centre and twice at Junee Correctional Centre (Junee). The applicant was locked in for 28 days at the Metropolitan Remand and Reception Centre (MRRC) while he was on remand. He was locked in for 56 days while held at Junee. The applicant continues to suffer from anxiety, although he is prescribed antidepressants. His sister, with whom he had a close relationship, died whilst he was in custody. He could not attend her funeral.
9. The applicant's impulsivity, poor behavioural regulation, and compromised executive functioning, are more likely to render him vulnerable in an environment that involves forced association, exposure to violence and intimidation, loss of privacy, and loss of personal autonomy.
10. Furthermore, given the lengthy period the applicant will spend in custody, he will require a longer than usual additional term to readjust to life in the community. This is particularly so given his low intellectual functioning. The combined force of these factors warrants a finding of special circumstances and a variation to the statutory ratio.
11. Accordingly, I would propose the following orders: 1. The time within which to file the Notice of Intention to Appeal is extended. 2. Leave to appeal granted. 3. The appeal allowed. 4. The sentence imposed by King SC DCJ on 3 September 2021 in the District Court of New South Wales is set aside. 5. In lieu thereof, the applicant is re-sentenced to an aggregate term of imprisonment of 13 years and 6 months, commencing on 23 April 2021, and expiring on 22 October 2034. 1. Pursuant to s 44(2A) of the CSPA set a non-parole period of 9 years imprisonment, commencing on 23 April 2021. 2. The earliest date the applicant will be eligible to be released on parole is 22 April 2030. 3. Pursuant to s 53A(2)(b) of the CSPA, record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows: Sequence Offence Indicative Sentence Sequence 21 Persistent sexual abuse of a child aged under 16, contrary to s 66EA(1) of the Crimes Act. 9 years and 9 months imprisonment. Sequence 8 Aggravated indecent assault (child under 16), contrary to s 61M(2) of the Crimes Act. 2 years imprisonment, with a non-parole period of 18 months imprisonment. Sequence 13 Sexual intercourse with a child of or above 10 years and under 14 years in circumstances of aggravation (under authority), contrary to s 66C(2) of the Crimes Act. 7 years imprisonment. Sequence 14 Sexual intercourse with a child of or above 10 years and under 14 years in circumstances of aggravation (under authority), contrary to s 66C(2) of the Crimes Act. 7 years imprisonment. Sequence 15 Attempted sexual intercourse with a child of or above 10 years and under 14 years in circumstances of aggravation (under authority), contrary to s 66D of the Crimes Act. 6 years and 6 months imprisonment. Sequence 12 Aggravated indecent assault (child under 16), contrary to s 61M(2) of the Crimes Act. 18 months imprisonment, with a non-parole period of 13 and a half months imprisonment. Sequence 16 Aggravated indecent assault (child under 16), contrary to s 61M(2) of the Crimes Act. 2 years imprisonment, with a non-parole period of 18 months imprisonment.

Endnotes

1. Remarks on Sentence dated 3 September 2021 (ROS) 3 at [7].
2. Ibid.
3. ROS 4 at [9].
4. ROS 4 at [10].
5. ROS 4 at [14].
6. ROS 5 at [18].
7. ROS 6 at [18].
8. Ibid.
9. Ibid.
10. Ibid.
11. ROS 9 at [40].
12. ROS 10 at [49].
13. ROS 10 at [54].
14. The Crimes (Sentencing Procedure) Act 1999 (NSW) ss 25AA(1)-(2) was repealed on 17 October 2022.
15. ROS 19 at [53].
16. Susan Brann, Psychologist Assessment Report (24 May 2021) (Brann Report) at [10].
17. Lisa Zipparo, Neuropsychological Assessment Report (24 June 2021) (Zipparo Report) 4.
18. Zipparo Report 9.
19. Zipparo Report 8.
20. Zipparo Report 9.
21. Ibid.
22. Zipparo Report 8.
23. Zipparo Report 9-10.
24. Brann Report at [37].
25. Brann Report at [60].
26. Brann Report at [37].
27. Brann Report at [38].
28. Brann Report at [40]-[41].
29. Brann Report at [51].
30. Brann Report at [53].
31. Brann Report at [53]-[56].
32. ROS 11 at [54].
33. ROS 17 at [54].
34. ROS 27 at [54].
35. Proceedings on Sentence (POS) dated 27 August 2021, 18: 34-48.
36. ROS 27.
37. ROS 28-29.
38. ROS 27.
39. Brann Report at [11].
40. Brann Report at [30].
41. ROS 21. 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: 12 April 2023