DE v R

Background

1. On 29 October 2019, a jury found the applicant guilty of one offence of sexual intercourse without consent and one offence of assault with an act of indecency. Both offences were committed against the same victim as part of one course of conduct on the morning of 9 July 2017.
2. The sentence hearing before Lerve DCJ took place on 25 March 2020. On 9 April 2020, his Honour imposed concurrent sentences as set out in the table below. Count Offence Sentence 1 Sexual intercourse without consent contrary to s 61I of the Crimes Act, for which the maximum penalty is 14 years' imprisonment with a standard non-parole period of 7 years. 4 years and 9 months commencing on 17 October 2019 and expiring on 16 July 2024, with a non‑parole period of 3 years and 3 months expiring on 16 January 2023. 2 Assault with an act of indecency contrary to s 61L (now repealed) of the Crimes Act, for which the maximum penalty was 5 years' imprisonment. 15 months commencing on 17 October 2019 and expiring on 16 January 2021.

Application for leave to appeal

1. In April 2020 the applicant filed a notice of his intention to appeal against conviction and to apply for leave to appeal against sentence.
2. After various extension applications had been granted until 29 April 2021, a further extension application was filed on 27 April 2021. It appears that this extension application was not determined by the time the applicant eventually filed a notice of application for leave to appeal against sentence on 13 May 2021.
3. On 11 June 2021 the Registrar approved the extension application of 27 April 2021, further extending the life of the notice of intention to appeal to 30 June 2021.
4. Accordingly, the fact that the notice of application for leave to appeal was filed out of time on 13 May 2021 appears to have been retroactively cured by the Registrar's approval of the extension application on 11 June 2021.

Ground of appeal

1. An amended notice of application for leave to appeal was filed on 23 August 2021. That amended notice raised only one ground of appeal that the sentence for count 1 was manifestly excessive.
2. In order to consider this ground, it is necessary to review the sentencing judge's remarks on sentence in some detail.

Remarks on sentence

1. Lerve DCJ commenced his remarks on sentence by noting the findings of guilt in relation to the two counts and the fact that there could be no discount for a plea of guilty. His Honour also noted the maximum penalty and the standard non-parole period for the sexual intercourse offence and the maximum penalty for the indecent assault offence.

Factual findings as to the offending

1. The learned sentencing judge then set out the facts, consistent with the verdicts of the jury, which he found proved beyond reasonable doubt. Those findings relevantly included what follows.
2. The applicant and the victim were known to each other and both lived in Bourke in north-western New South Wales. The offending occurred on 9 July 2017. The previous evening there had been a party to celebrate the victim's sister's 21st birthday at the victim's home. While the party was proceeding, the applicant came by and was invited into the yard by the sister of the victim. In the course of the night, there was a power outage at the house.
3. Although the victim had had a number of alcoholic drinks at the party, she was not particularly or overly intoxicated and eventually went to bed fully clothed in her bedroom. In the early hours of the morning of 9 July 2017, the victim woke to find the applicant immediately next to her on the bed in a "spooning" position. Her pants were unzipped. The applicant had his hand in the victim's pants and was digitally penetrating her vagina. The applicant then took the victim's hand and placed it around his penis, which he had exposed from his clothing, and said to her "Do you want me to lick your mick?". Despite the power outage, there was enough light coming from the streetlights for the victim to recognise the applicant as someone she knew.
4. The victim became immediately and significantly distressed and, when she realised what was happening, she turned around and told the applicant a number of times to get out. The victim's sister also told the applicant to get out. There was an immediate complaint.

Assessment of objective seriousness

1. Lurve DCJ then turned to consider the objective seriousness of the offending and commenced by noting that it occurred in the victim's home and therefore the statutory aggravation factor in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) was made out. It was also observed that: the offending occurred in the victim's bedroom in the early hours of the morning; the digital penetration occurred when the victim was asleep; and the indecent assault was a serious example of such an offence.
2. The sentencing judge gave some detailed consideration to the authorities which establish that it is inappropriate to attempt to rank different forms of sexual intercourse in some form of hierarchy and that the objective seriousness of such offending is to be determined according to the entirety of the facts and circumstances of the case in question.
3. His Honour found that the offending was opportunistic and certainly not planned.
4. At this point, the sentencing judge considered what he described as "a complicating factor in making a determination of the objective seriousness of the matter", namely the applicant's cognitive or intellectual impairment. Because there are some difficulties with his Honour's comments in this regard, it is helpful to quote the findings at some length. At [17]-[19] of the remarks on sentence, it was said: "[17] I will deal in greater detail with the report of Ms Lucas of Duffy Robilliard Psychologists when dealing with the subjective case. However, on the issue of assessment of the objective seriousness of the matters she says at para 69 on p 10 of the report: 'In addition to the mental health difficulties he described he presented with extremely low cognitive function. The level of his intellectual function would satisfy the criterion necessary for diagnosis of an intellectual disability. As such his problem solving capacity and ability to appraise situations and make good decisions would be considered reduced' [18] At paragraph 34 she sets out that the offender's full scale IQ was 55; that placed him in the lowest 99.9% of intellectual function as compared to others in his age. At para 76 (p 11) she says, 'Other custodially based treatment alternatives for people with intellectual disability/cognitive impairment who offend and who need an intensive treatment tailored to their unique responsivity issues in a controlled safe environment should be explored and considered'. [19] With a finding that the offender had a full scale IQ of 55, it is a little surprising that the author of the report is not clearer about a finding or diagnosis of intellectual disability. However, the matters from the report that I have extracted are such that I am prepared to find on the balance of probabilities that the offender has an intellectual disability. The extent of that disability is not otherwise described in the report."
5. The sentencing judge's comment in [19] that "it is a little surprising that the author of the report is not clearer about a finding or diagnosis of intellectual disability" presents difficulties for a number of reasons. First, the passage from Ms Lucas's report is not accurately quoted in [17] of the remarks on sentence. Ms Lucas's report did not say that his level of intellectual function: "… would satisfy the criterion necessary for diagnosis of an intellectual disability." (Emphasis added.)
6. Rather, par 69 of the report actually included a diagnosis of a specific, identified disability in the following terms: "The level of his intellectual function would satisfy the criterion necessary for diagnosis of an Intellectual Developmental Disability." (Emphasis added.)
7. Secondly, his Honour's comment in [19] that "[t]he extent of that disability is not otherwise described in the report" is difficult to reconcile with the detailed consideration of the applicant's cognitive function in pars 32-46 of Ms Lucas's report. 1. At par 33, Ms Lucas reported that the applicant was assessed using the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV) as being within the "Extremely Low range of intellectual functioning". 2. At par 34, Ms Lucas gave the quantitative result for his full IQ score, being 55, which she said placed him in the lowest 99.9% of intellectual functioning, as the sentencing judge acknowledged. In addition, at par 35, she also provided a qualitative assessment that this meant that the applicant "would experience significant difficulties in keeping up with his peers in a wide variety of situations that require thinking and reasoning ability". 3. At par 38, Ms Lucas recorded that the applicant's verbal reasoning abilities were calculated to be "within the extreme low range of performance and above that of only 0.5% of his peers (95% confidence interval score range 57-68)" which suggested to Ms Lucas that the applicant "would have difficulty in keeping up with his peers in situations that require verbal skills". 4. At par 40, it was noted that the applicant's ability and perceptual reasoning placed him in the extremely low range and "above approximately 2% of his peers (95% confidence interval score range 64-77)" and, at par 41, although a diverse set of abilities was displayed in this regard, his abilities in visual information processing requiring abstract reasoning skills were "an area of relative weakness for him". 5. At par 43, in relation to his working memory, Ms Lucas recorded that the applicant performed better than around 1% of his peers in this area, with a 95% confidence interval score in this domain of 58-72, which placed his performance within the extremely low range. 6. At par 45, Ms Lucas noted her opinion that in relation to processing speed or an individual's ability to process simple or routine visual material in an efficient manner, the applicant was in the extremely low range as compared with his peers where he performed better than approximately 0.1% of that normative group. Ms Lucas also gave his processing speed index score as 55 (95% confidence interval score range 47-63). 7. Finally, at par 46, Ms Lucas recorded that the "observations made during the testing conducted and his patterns of response suggested that [the applicant] was applying himself to the best of his ability" and "[t]he result of embedded measure analysis similarly indicated [he] had put forth sufficient effort for the results of the cognitive assessment to be considered a valid reflection of his cognitive ability".
8. Since the sentencing judge made a finding at [19] of his sentencing remarks that the applicant had an intellectual disability, it is understandable that there was no ground of appeal challenging this finding. Nonetheless, the sentencing judge's comments might provide a basis for concern that the sentence may have been imposed as a result of an incomplete or faulty recollection of Ms Lucas's evidence, although his Honour evidently accepted that evidence.
9. His Honour then observed that the significance of the fact that the applicant had "an intellectual disability" was to be found in the judgment of Johnson J (Payne JA and Simpson AJA agreeing) in Tepania v R [2018] NSWCCA 247 at [112] where it was held, in effect, that in assessing the objective gravity of an offence regard may be had to factors personal to the offender that were causally connected with, or materially contributed to, the commission of the offences, including mental impairment.
10. Given the reliance upon Tepania v R, the sentencing judge's earlier finding that the applicant's intellectual disability was "a complicating factor in making a determination of the objective seriousness of the matter" was only consistent with his Honour's accepting that the applicant's intellectual disability was causally connected with or materially contributed to the offending.
11. Noting all the circumstances of the offending, the sentencing judge concluded that the sexual intercourse without consent offending was "below mid-range, but not significantly so", and the indecent assault was "at the lower end of the mid‑range". There was no challenge to these assessments.

Criminal history

1. As to the applicant's age and criminal history, it was noted that the applicant was 37 at the time of the offending and had a number of convictions including for possession of a prohibited drug, larceny, break and enter offences, domestic violence offences, resisting police and some traffic offences.
2. It was concluded that the applicant's criminal history did not entitle him to any particular leniency but that it could not be considered an aggravating factor either.
3. It was also noted that the applicant was on a good behaviour bond pursuant to s 9 of the Sentencing Procedure Act for a high range prescribed concentration of alcohol offence at the time of the offending and that, accordingly, the statutory aggravating factor in s 21A(2)(j) of the Sentencing Procedure Act was made out.

Victim impact statement

1. The sentencing judge recorded that the victim read a comprehensive victim impact statement via audio-visual link. The statement was said to have spoken eloquently of the type of short and long-term emotional harm this offending has on victims. Nonetheless, it was noted that the Crown did not press for a finding that the statutory aggravating factor of the victim having suffered substantial emotional harm was made out. The sentencing judge did, however, accept the Crown's submission that the contents of the victim impact statement should be taken into account pursuant to s 3A(g) of the Sentencing Procedure Act.

Subjective case

1. Lerve DCJ commenced his consideration of the applicant's subjective case by observing that the applicant gave evidence at the sentence hearing in which he said that he told the psychologist, Ms Lucas, the truth. It was noted that the applicant's evidence was that he was indigenous and was born and grew up in Bourke, that his father died when he was a baby and that he was raised by his grandparents but from about the age of 12 or 13 he began living on the streets.
2. The remarks on sentence then recorded the following: "[29] I intervened at this point and attempted to get more information from the offender, who on my assessment was very reluctant to say anything critical of his upbringing or background. That is understandable on a number of levels including culturally. The [applicant] remained reluctant and maintained that he commenced living on the streets because he just felt that he was getting no love. From my experience in western New South Wales I suspect very strongly that there are issues beyond what details were given by the [applicant] but it is not something of which I can take judicial notice. The reluctance, or at least what I perceived as reluctance, may also be in part due to the issues of intellectual functioning highlighted by Ms Lucas."
3. As I understand it, in making these comments at [29], the sentencing judge was indicating that he was properly aware of, and took into account, issues involved in assessing evidence given by indigenous witnesses concerning culturally sensitive family and community matters and by persons with an intellectual or cognitive impairment. It was far from clear, however, what was meant by the observation that "[f]rom my experience in western New South Wales I suspect very strongly that there are issues beyond what details were given by the [applicant] but it is not something of which I can take judicial notice". In addition, it is difficult to understand how and to what extent these issues were taken into account in making findings as to the applicant's subjective case for the purposes of the sentencing exercise at hand.
4. His Honour then observed that the evidence continued and included the points which I have set out below. 1. The applicant got to know other street kids and would steal food to survive. 2. His mother had a new partner and they were drinking all the time and the applicant commenced using cannabis and alcohol in his teenage years. 3. While he was living on the streets he became involved in a fight that resulted in his being admitted to intensive care, but his mother did not visit him while he was in hospital. 4. He stopped living on the streets when he started shearing, and he was then able to provide for his family. He spoke fondly of shearing and indicated he would like to go back to shearing on his release. 5. The applicant has three children. The eldest, a boy, was born when the applicant was 18, but he has not spoken to that son for about two years. 6. He was able to buy a house in Bourke but regrettably the house burnt down, and as he was uninsured he essentially lost everything. The applicant told Ms Lucas that when his house burnt down his drinking became worse. He had been under the influence of alcohol at the time he committed the offences on his record. 7. The applicant has lived in Sydney, where he worked on a concrete factory, but he said that he did not feel safe in Sydney. 8. The applicant said that he had done some literacy and numeracy courses in jail, and it was observed that he appeared to be genuinely pleased when he said that he could now write letters to his family. 9. The applicant said that he was motivated by his family to go back to work as a shearer when he is eventually released and maintained he would stay off drugs and alcohol. 10. The applicant found that training every day while in custody assisted with stress. 11. The applicant said that his parents were not big drinkers or drug users, that he went to live on the street because he felt left out, and that there was some overcrowding in the house. 12. The applicant's one attempt at rehabilitation in 2007 was not successful.
5. It appears that the sentencing judge generally accepted the applicant's evidence.
6. After referring to the parties' submissions concerning the application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, his Honour stated: "[38] It is not without significance that the offender is indigenous and grew up in Bourke. He was living on the streets in his teenage years. There is the issue of the stability provided by his grandparents but clearly there is a reason why he went to live on the streets. It is clear enough that his mother rejected him noting that she did not visit him in hospital after suffering a significant injury. On balance I find what has come to be called the 'Bugmy principles' enlivened but they do not achieve anywhere near the same weight in this case as they might in others coming from Bourke or other isolated areas of far western New South Wales."
7. It is understandable that there was no ground of appeal challenging the finding, which was in the applicant's favour, that "the 'Bugmy principles' [were] enlivened". Nonetheless, it is not clear what was intended by, or what effect was given to, the subsequent comment by the sentencing judge in [38] that these principles "do not achieve anywhere near the same weight in this case as they might in others coming from Bourke or other isolated areas of far western New South Wales". This is especially so in light of the stated inability in [29] to take judicial notice of the "issues beyond what details were given by the [applicant]" suspected by the sentencing judge based upon his "experience in western New South Wales".
8. At this point, the sentencing judge returned to the question of the applicant's intellectual disability as follows, at [39]: "[39] I have already extracted those parts of the report of Ms Lucas going to the intellectual disability of the offender. It is within my experience that a diagnosis of intellectual disability is usually and generally stated a little more clearly and more definitely in reports. Nevertheless I am satisfied on balance that the offender has an intellectual disability."
9. As with the comments of the sentencing judge at [19] of his remarks quoted above, it appears that his Honour's conclusion that the applicant's diagnosis of intellectual disability was not stated with what he considered was the usual clarity and definiteness may have been based on an imperfect recollection of the detail and definite opinion in Ms Lucas's report. Nonetheless, a finding of intellectual disability was reiterated.
10. The sentencing judge than referred to the High Court's decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [54] in relation to whether it was necessary, when an offender relied on a mental condition as a mitigating factor, that there be some causal connection between the condition and the offending. His Honour concluded in effect that in a case such as the present, which involved an offender who was "mentally retarded" (to use the expression adopted by the High Court and the sentencing judge), the issue of a causal connection did not necessarily achieve the same significance as with matters involving another mental condition. It is not clear why such a conclusion would be relevant in the present case where his Honour's findings in relation to objective seriousness were based on an acceptance that the applicant's intellectual disability was causally related to the offending, as noted above.
11. The principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa) at [177]-[178] were then quoted and the sentencing judge concluded that those principles were enlivened, thus "reducing the offender's moral culpability and the impact of general deterrence on the ultimate sentence to be imposed." His Honour immediately went on, however, to state that there was "the complicating factor of the [applicant's] significant intoxication with alcohol, which is also part of the consideration of this issue". It is noted that at this point the sentencing judge did not make or refer to any particular findings about the applicant's level of intoxication at the time of the offending nor were specific findings in that regard made at any other point in the remarks on sentence.
12. Returning to Ms Lucas's report, the sentencing judge noted that the applicant's living on the streets and receiving a severe injury while doing so were included in the report. As to the issue of the applicant's lack of literacy or numeracy skills raised in the report, his Honour noted that these issues were being addressed by the applicant in custody. It was also noted that the applicant had limited formal education.
13. It was found that the applicant commenced using alcohol when he was 14 and illicit drugs when he was 18 or 19 years of age, and it was noted that Ms Lucas's report said that the applicant's daughter was taken by Family and Community Services in 2017 to live with the applicant's mother because of his drug use.
14. His Honour also recorded Ms Lucas's opinion that, at the assessment, there were no signs or reports of thought disorder or other psychotic phenomena either in the present or in the past.
15. It was noted that Ms Lucas said that the applicant advised that his recollection of the night of the offending was impaired by his significant intoxication by alcohol and drugs and that he maintained an inability to recall the offending. In addition, it was said that the applicant maintained that intoxication had also been a factor in other offending, which was consistent with his evidence given at the sentence hearing.
16. In light of Ms Lucas's assessment that the applicant was at an average risk of reoffending, his criminal history and the fact that the offending took place while he was subject to conditional liberty, the sentencing judge was unable to find on balance that the applicant was unlikely to reoffend.
17. His Honour also said that there was no material or evidence on which he could make a finding on balance that the applicant was remorseful.
18. Lerve DCJ noted that Ms Lucas said that the substance abuse should be addressed as part of his rehabilitation plan and, although the applicant had serious limitations in cognition, he showed insight into the association between his offending and substance abuse.
19. His Honour declined to take into account the issue of intellectual impairment or disability as a justification for a finding of special circumstances because it had already been taken into account in moderating the sentence and to do so would be double counting. Nonetheless, it was accepted that there would be a need for ongoing extensive and intensive supervision to ensure that the applicant was able effectively to get treatment for issues related to alcohol and substance abuse. This conclusion was ultimately given effect to by way of a finding of special circumstances.
20. As to rehabilitation, his Honour was of the opinion that it was "simply too early to tell whether there are good prospects of rehabilitation", and he declined to make a finding on balance that the offender had good prospects of rehabilitation.

Statistics

1. The sentencing judge referred to the statistics that had been provided and noted that: "… [i]n respect of the s 61I offence of a sample of 25 cases the total sentence ranges between 3 years and 10 years, with seven cases i.e. 28% receiving a sentence of 3 years. The non-parole periods range between 18 months and 7 years, with 24% (six cases) receiving a non-parole period of 2 years".
2. His Honour warned himself as to the limited use to which those statistics could legitimately be put.

Accumulation and concurrency

1. In regard to accumulation and concurrency, his Honour concluded that concurrent sentences should be imposed since: (1) the offences were very closely connected and arose out of one course of conduct that would have lasted some minutes; and (2) the sentence for the sexual intercourse without consent offending adequately and properly reflected the criminality involved in the indecent assault.

"General Remarks"

1. Under the heading "General Remarks", his Honour set out the purposes of punishment in s 3A of the Sentencing Procedure Act and referred to s 5 of that Act. It was accepted that there must be a sentence of imprisonment and it must be full-time imprisonment.
2. It was noted that the agreed position was that the sentence should commence on 17 October 2019.

Sentence

1. The sentences set out above were then imposed and his Honour noted that the non-parole period was approximately 68% of the total sentence, which reflected a finding of special circumstances for the reasons stated earlier.

Was the sentence manifestly excessive?

1. There was only one ground of appeal which was that the sentencing for the sexual intercourse without consent offence of 4 years and 9 months was manifestly excessive.
2. There was no dispute between the parties as to the applicable principles in relation to the question of whether a sentence was manifestly excessive.

Submissions

1. The core of the applicant's submissions was that the sentence of imprisonment for 4 years and 9 months "might be regarded as stern yet unremarkable for an offender of 'normal' intelligence, where a court is seeking to achieve a 'typical' level of punishment, denunciation and general deterrence", but that in the applicant's case a sentence of such length failed to reflect the findings as to his intellectual disability, his reduced moral culpability, and the reduced significance of punishment, retribution, denunciation and general deterrence in the circumstances. Thus, it was contended that the sentence imposed was plainly unjust "for this offence and this 'mentally retarded' offender" (emphasis in original).
2. Mr Quilter of counsel, who appeared for the applicant, also referred to a schedule setting out the sentences in a selection of 29 cases generally involving sexual intercourse without consent with sleeping victims. In two of the cases the offender had an intellectual disability, namely Badans v R [2012] NSWCCA 97 (Badans) and Elwood v R [2019] NSWCCA 315 (Elwood). It was submitted that, although the cases referred to in the schedule did not definitively establish that the sentence in the present case was manifestly excessive, they tended to confirm that the sentence for this particular offender with his intellectual disability was manifestly excessive.
3. The Crown submitted that the sentence in the present case would not be viewed as stern and that, even if it were, it was not outside the range of sentences reasonably available so that it would be concluded that there must have been an error. As to the schedule of cases relied upon by the applicant, it was submitted that 9 cases involved a longer sentence than the applicant's, in 3 cases the length of the sentence was broadly similar and in 17 cases the sentence was shorter than the applicant's. As to those 17 cases, it was noted that: 1. 8 cases predated the introduction in 2003 of the standard non-parole period for the s 61I offence; and 2. of the remaining 9 cases, 5 involved offenders with no prior criminal record or no significant record, in 2 cases it was not clear whether the offender had any prior convictions, in 3 cases there had been a plea of guilty, none of the 9 cases involved an offender on conditional liberty, and in 1 of the cases the sentence was after the introduction of the standard non-parole period in 2003 but prior to Muldrock.
4. The Crown's submissions also included detailed consideration of Badans and Elwood. It was submitted that, given the particular circumstances of those cases, they did not demonstrate that the applicant's sentence was manifestly excessive. It was also submitted in effect that, as a whole, the schedule of cases did not indicate that there must have been some error of principle in the imposition of the sentence on the applicant.
5. Finally, it was submitted that while there had been a finding that the applicant's offending was below mid range but not significantly so, that his moral culpability was reduced on account of his intellectual disability and that the Bugmy principles were enlivened, the following factors must also be considered: 1. the applicant's record did not entitle him to any leniency; 2. he was on conditional liberty as a result of a s 9 bond at the time of the offending; 3. his significant intoxication with alcohol was a "complicating factor"; 4. there was no remorse; 5. there was no finding of good prospects of rehabilitation; and 6. there was no finding that the applicant was unlikely to reoffend.
6. It was then submitted in substance that, taking into account those matters and the nature of the offending and bearing in mind the maximum penalty and standard non-parole period, the sentence imposed on the applicant was not unreasonable or plainly unjust and it was a sentence which was open in the exercise of the sentencing judge's discretion.

Consideration

1. As noted above, the principles concerning whether a sentence is manifestly excessive were not in dispute. They have been helpfully summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "● Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. ● Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. ● It is not to the point that this Court might have exercised the sentencing discretion differently. ● There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. ● It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
2. These principles reflect the fact that the imposition of a sentence involves the exercise of a discretionary power and that, in order to succeed on appeal against sentence, it must be established that some error of the type identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 has occurred. Where no patent error is identified and the ground relied upon is that the sentence is manifestly excessive, an appellant has to establish that the sentence is unreasonable or plainly unjust, or outside the range of sentences reasonably available in all the relevant circumstances of the particular case, so that it can be inferred that some error has occurred even though the error cannot be specifically identified.
3. The factors identified in the sentencing judge's remarks on sentence as relevant to the sentence for the sexual intercourse without consent offence included, in addition to the statutory guideposts of a maximum penalty of 14 years' imprisonment with a standard non-parole period of 7 years, the following unchallenged matters: 1. the objective seriousness which was found to be below mid range but not significantly so in light of the following: 1. the nature of the offending by way of digital penetration; 2. the fact that the offending took place in the victim's bedroom in her home; 3. the fact that the offending was opportunistic and certainly not planned; and 4. the fact that the applicant's intellectual disability was causally connected with or materially contributed to the offending; and 1. the applicant's subjective circumstances, namely that: 1. his age and background attracted the operation of the principles in Bugmy v The Queen; 2. he has an Intellectual Developmental Disability with extremely low cognitive functioning such that he falls within the lowest 99.9% of intellectual functioning as compared with others of his age, and this disability was causally related to the offending so that in accordance with the principles in De La Rosa at [177]-[178] the applicant's moral culpability and the impact of general deterrence were both reduced; 3. his record did not entitle him to any leniency; 4. he was on conditional liberty as a result of a good behaviour bond, in relation to high range prescribed concentration of alcohol offending, at the time of the sexual intercourse offending; 5. his significant intoxication with alcohol was a "complicating factor"; 6. there was no material or evidence on which a finding on balance that the applicant was remorseful could be made; 7. it was too early to tell if the applicant had good prospects of rehabilitation and a finding to that effect was not made; and 8. although the sentencing judge apparently accepted Ms Lucas's conclusion that the applicant was "at an average risk of re‑offending", his Honour was unable to find that the applicant was unlikely to reoffend.
4. In relation to the nature and extent of the applicant's intellectual disability and its causal role in the offending, although the sentencing judge's findings may have been based on an imperfect recollection of the definitiveness and detail of Ms Lucas's evidence as revealed in [17], [19] and [39] of the remarks on sentence, it was accepted that the applicant's moral culpability and his suitability as a vehicle for general deterrence were reduced in the present case to a significant extent.
5. Similarly, although there was some lack of clarity in relation to the basis for the finding that the principles in Bugmy v The Queen were engaged and the weight attributed to those principles in the present case (given the sentencing judge's comments at [29] and [38] of his remarks), those principles nonetheless required the effects of profound deprivation to be given full weight in the determination of the appropriate sentence in every case including the present: Bugmy v The Queen at [42] and [43]. It was clear that the sentencing judge was well aware of those principles.
6. Based on the Judicial Information Research System (JIRS) statistics relating to s 61I (for one offence only, with prior convictions but for different types of offending and after a plea of not guilty) referred to by the sentencing judge in his remarks, it can be observed that the applicant's sentence of 4 years and 9 months was greater than the sentence imposed in 64% of cases. Moreover, the non-parole period of 3 years and 3 months in this case was greater than the non-parole period in 80% of such cases. As observed by Hoeben J (as his Honour then was) in Windle v R [2011] NSWCCA 277 at [62], it must be accepted that such statistics are a "blunt instrument", especially since there are no details as to the objective gravity of the offending in each case nor is there any indication of the offenders' subjective circumstances, apart from the fact that there was only one offence, the offenders had prior convictions for other offences but of types different from offending under s 61I and the offenders were not entitled to any discount for a plea of guilty. Nonetheless, the statistics provide support of some substance for the applicant's submission that for an offender without an intellectual disability and without significant factors that attract the principles in Bugmy v The Queen, a sentence of the length imposed on the applicant was towards the sterner end of the range for offending of this type.
7. Furthermore, it appears to me that in a case such as the present where the objective seriousness of the offending was below mid range, the applicant's moral culpability and the significance of general deterrence were substantially reduced and the deprived upbringing and other circumstances of the applicant were to be given full weight in accordance with the principles in Bugmy v The Queen, even taking into account the aspects of the applicant's case tend against mitigation of the sentence, the statistics suggest, with some force, that the sentence of 4 years and 9 months with a non-parole period of 3 years and 3 months was outside the range of sentences reasonably available in the particular circumstances of the present case and that some unidentifiable error must have occurred.
8. A consideration of the two comparable cases involving offenders with intellectual disabilities, Badans v R [2012] NSWCCA 97 and Elwood v R [2019] NSWCCA 315, confirms me in that view.
9. In Badans, the offender was found guilty of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act and was sentenced to imprisonment for 3 years with a non-parole period of 1 year. The offending occurred after a party at the house of a friend of the complainant. The offender was a work colleague of the complainant's previous boyfriend. The complainant, who was "pretty drunk", eventually went to her friend's bedroom to sleep wearing a T-shirt, boxer shorts and underpants. She fell asleep immediately. The next thing she recalled was waking up with the offender on top of her and having sexual intercourse with her. Soon after the offender left the room, the complainant complained to her friend.
10. Relevantly, the Crown appealed against the sentence on various bases including that the trial judge erred in finding and taking into account as a relevant factor that the appellant's intellectual disability contributed to the commission of the offence so as to reduce his moral culpability. The trial judge's findings in relation to the offender's intellectual disability were summarised by this Court on appeal as follows: "[58] … He has an intellectual capacity at the lower 5% of the normal range for the population which places him at a degree of intellectual disability but does not classify him as intellectually disabled (ROS p 3); he is functionally illiterate and as a result of learning difficulties has suffered a degree of social rejection throughout his life so as to have a very low level of social functioning (ROS pp 3, 5); his understanding of consent is limited and his understanding of social situations is poor (ROS p 4); his intellectual disability causes shyness and social isolation (ROS p 15)."
11. The trial judge's relevant finding in Badans was that the offender's "intellectual and social functions had some but not an overwhelming effect on the commission of the offence", and, on appeal, this finding was held to be available on the evidence. Her Honour's reasoning in that case also took into account: "[71] … the appellant's prior good character and that he had no record of previous convictions (ROS p 9); the low risk of the appellant re-offending as assessed by the psychiatric evidence (ROS pp 9-10); and the appellant's lack of remorse explained by his intellectual disability and emotional immaturity (ROS p 9)."
12. The sentence in Badans was found not to be manifestly inadequate having regard, among other things, to: 1. the offending being assessed as "below mid-range seriousness but not at the lowest range"; and 2. the offender's personal circumstances, which called for a "very much reduced non-parole to parole period ratio" and for the imposing of a lenient sentence, well below the standard non-parole period.
13. Although the circumstances of the applicant in the present case differed from those of the offender in Badans insofar as the latter had the benefit of prior good character, a low risk of reoffending and the trial judge's acceptance that his intellectual disability partly explained his lack of remorse, there was no suggestion in Badans that the principles in Bugmy v The Queen were applicable. Furthermore, the intellectual disability of the offender in Badans was materially less severe than that of the applicant in the present case. The offender in Badans was in the lowest 5% of intellectual functioning as compared to the applicant who is in the lowest 0.1%.
14. Contrary to the Crown's submission, the sentence of 3 years with a non-parole period of 1 year in Badans, in my view, tends to indicate that the sentence in the present case of 4 years and 9 months with a non-parole period of 3 years and 3 months was outside the range of available sentences.
15. In Elwood v R [2019] NSWCCA 315, the offender sought leave to appeal against the sentence imposed on him after he pleaded guilty to one count of sexual intercourse without consent contrary to s 61I and to one count of contravening an apprehended domestic violence order (ADVO) on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). As a result of his plea, he was entitled to a discount of 15%. Originally, after an offence of common assault had been taken into account on a Form 1, the offender was sentenced to an aggregate sentence of 4 years and 6 months with a non-parole period of 3 years (with indicative sentences of 4 years and 2 months with a non‑parole period of 2 years and 9 months for the s 61I offence and 10 months for the breach of the ADVO). The offender was also serving another sentence of 19 months and 6 days with a non-parole period of 13 months and 12 days imposed in the Local Court for grooming a child under 16 for unlawful sexual activity contrary to s 66EB(2) of the Crimes Act.
16. On appeal, it was held that the sentencing judge in that case erred by failing to give effect to the findings of special circumstances in relation to the overall effective sentence taking into account the sentence for the child grooming offence. The ground of manifest excess was not required to be addressed. The offender was re-sentenced by this Court to an aggregate term of imprisonment of 3 years and 2 months with a non-parole period of 1 year and 8 months.
17. In Elwood, the offender's intellectual functioning was described as follows, at [32]: "… the [offender's] full score IQ was estimated to be 71, placing him in the Borderline descriptive category, falling on the cusp of the Extremely Low to Borderline range. This would position him below 97% of his peers."
18. Further, the circumstances were described, at [40], as: "… the [offender's] partner loudly voiced her lack of consent to anal penetration but [he] persisted forcing his finger into her anus causing her pain. While the assault was of apparently short duration, neither that fact nor the fact that the applicant's finger was used reduces the objective seriousness of the offending".
19. In addition, the relevant circumstances in Elwood included the following: 1. the offender's circumstances attracted the operation of the Bugmy principles; 2. the offender's record substantially attenuated any leniency; 3. the offender was genuinely remorseful; 4. the offender had "very guarded prospects of rehabilitation"; and 5. a finding of special circumstances was made on the basis of age, increased hardship in custody from his compromised level of cognitive impairment, and the need for partial accumulation and an extended period on parole to facilitate rehabilitation and reintegration.
20. Once again, it can be seen in the present case that the applicant's Intellectual Developmental Disability is materially more severe than that of the intellectual disability of the offender in Elwood. The circumstances of the offending were also materially different as were the other offences for which the offender was sentenced or which were taken into.
21. A significant part of the Crown's submissions in relation to Elwood was that: "[t]he overall sentence of 3 years and 2 months (38 months), after a 15% discount for the plea of guilty, would indicate a starting point sentence of approximately 45 months. This compares to the 57-month total sentence imposed upon the applicant. … Given the much stronger subjective case for the offender in Elwood and the finding the objective criminality was similar to the finding of objective criminality for the applicant, the Crown submits the overall sentence of 3 years and 2 months (after a 15% discount) does not demonstrate the sentence imposed on the applicant was manifestly excessive."
22. There are at least two problems with this submission. First, the aggregate sentence of 38 months in Elwood related to and reflected not only the offending contrary to s 61I but also the offending involved in the breach of the ADVO and the assault. In addition, the aggregate sentence in Elwood took into account the finding of special circumstances, in the context of the pre-existing sentence for the child grooming offending. Thus, the offending involved (directly and indirectly) in Elwood was materially different in nature and extent from the offending involved in the present case. Secondly, it has been recently observed by this Court in BB v The Queen [2021] NSWCCA 283 at [68] (Wilson J, Bathurst CJ and Wright J agreeing) that it is difficult to see how it could be useful to determine a "presumed starting point" for an aggregate sentence for the purpose of making comparisons with other cases, especially having regard to the obligation on a sentencing court to consider at least notionally questions of concurrency and accumulation in determining an aggregate sentence that properly reflects the overall criminality.
23. If the indicative sentence of 3 years with a non-parole period of 18 months for the offending contrary to s 61I in Elwood were considered, that would yield a pre-discount starting point of approximately 3 years and 6 months and a non‑parole period, preserving the ratio, of 1 year and 9 months. When that notional starting point is compared with the sentence in the present case of 4 years and 9 months with a non-parole period of 3 years and 3 months, it does not establish that the present sentence (involving an offender with a more significant intellectual disability and otherwise somewhat similar subjective circumstances, apart from remorse) was within the range of available sentences in the particular circumstances of the applicant's case. If anything, in my view, it tends to suggest that the applicant's sentence was outside the range of sentences available in the applicant's case.
24. In relation to the other 27 cases referred to in the parties' submissions, the differing circumstances and the fact that they did not apparently involve offenders with significant intellectual disabilities renders those cases of quite limited assistance in relation to the issue of whether the applicant's sentence was manifestly excessive. Nonetheless, the sentences in many of those cases were substantially less than that imposed on the applicant, which also tends in favour of, rather than against, the conclusion that the applicant's sentence was outside the range of available sentences.
25. In all the circumstances, in my opinion the sentence of 4 years and 9 months imposed on applicant was unreasonable or plainly unjust and bespoke error, even though the particular error was not apparent from the sentencing remarks. Accordingly, I would grant leave to appeal and uphold the appeal on the basis that the sentence was manifestly excessive.

Re-sentence

1. Since the appeal should be upheld on the ground raised by the applicant, the Court's task is now to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the factors that the Sentencing Procedure Act and any other Act or rule of law require or permit, as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [42] (French CJ, Hayne, Bell and Keane JJ).
2. Once the process required by Kentwell has been undertaken, if the Court is of the opinion that some other sentence, generally less severe, is warranted in law and should have been passed, it is required to quash the sentence imposed and sentence the applicant accordingly, and otherwise the appeal is to be dismissed, under s 6(3) of the Criminal Appeal Act.
3. DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9] (Bell, Keane, Nettle, Gordon and Edelman JJ) establishes that this Court's sentencing discretion is to be exercised having regard to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings and any relevant evidence of post-sentence conduct.
4. None of the learned sentencing judge's factual findings, his assessment of objective seriousness or other conclusions was challenged in this matter. They have been set out above. Except for the matters specifically arising out of the further evidence referred to below, I have taken his Honour's findings, assessments and conclusions into account when considering re-sentencing. In particular, I have adopted the sentencing judge's assessment of the objective seriousness of the sexual intercourse offending as below mid range but not significantly so, the conclusion concerning the applicant's significant intellectual disability (which diminishes his moral culpability and renders him an unsuitable vehicle for general deterrence) and the factors which attract the operation of the principles in Bugmy v The Queen in the present case, to which I have given full weight. In addition, I have adopted the sentencing judge's reasoning and approach to the question of the concurrency of the sentence for the indecent assault.
5. The applicant's evidence, if the Court came to re-sentence, was contained in the affidavit of his solicitor, Ms Gemma Campagna, affirmed on 28 October 2021. That affidavit relevantly established that confirmation has been received from the National Disability Insurance Scheme (NDIS) that the applicant's NDIS plan was approved, as set out in the attachment to the NDIS letter of 27 August 2021. The NDIS letter also indicated that funding for the year ending 27 August 2022 for the purposes of the applicant's NDIS plan was available to a total of $66,590.95. In addition, there was a letter dated 25 October 2021 from a special support co-ordinator from Central West Support Coordination, Ms Heather Bevan, giving more details concerning how the NDIS funding could be used to support the applicant on his release. The support available could assist the applicant with attending appointments with his general practitioner, complying with parole reporting obligations, obtaining drug and alcohol counselling and treatment from specialists such as an occupational therapist, a psychologist or a behaviour clinician as required. In addition, the support could be used to assist the applicant with seeking and obtaining employment.
6. Further, there was a letter from Mr Adam Darlington of AJ Darlington Shearing Services dated 26 October 2021. Mr Darlington stated that he had been a shearing subcontractor for 15 years organising shearers and fit hands for laborious work in harsh conditions. He indicated that he had known the applicant for over 10 years and that the applicant's uncle had worked with Mr Darlington for the past 10 years. Mr Darlington said that he worked on sheep shearing 12 months of the year and that shearers were very hard to come by, "especially experienced ones like [the applicant]". Mr Darlington said that a person of the applicant's experience could make anywhere between $400 and $900 a day. Further, Mr Darlington said that he had met many of the applicant's family over the years before meeting the applicant and they were some of the best shearers and best company he had worked with and that shearing was "in his family's blood". Finally, Mr Darlington observed that he and many others were anticipating the applicant's return to his busy shearing team.
7. In my view, this plan and the availability of funding, together with the professional support available and the offer of employment where the applicant is well-known and valued, will have the effect of markedly improving the applicant's prospects of rehabilitation and significantly reducing his risk of reoffending, compared with the findings made by the sentencing judge in those regards.
8. I would make a finding of special circumstances justifying a departure from the statutory ratio between the head sentence and the non-parole period on the bases set out above and having regard to the availability of NDIS funding and support and the prospect of employment.

Sentence

1. Having undertaken the task required by Kentwell and bearing in mind the purposes of sentencing in s 3A and the other requirements of the Sentencing Procedure Act and the relevant principles concerning sentencing as well as the objective circumstances of the applicant's offending and his subjective case in light of the latest material available, I am of the view that a sentence of imprisonment for 3 years and 6 months commencing on 17 October 2019 and expiring on 16 April 2023, with a non-parole period of 2 years and 3 months expiring on 16 January 2022, should be imposed. This non-parole period is approximately 64% of the sentence and gives effect to the finding of special circumstances referred to above.

Proposed orders

1. Accordingly, I propose that the orders of the Court should be: 1. The applicant has leave to appeal. 2. The appeal is allowed. 3. The sentence imposed on 9 April 2020 in respect of count 1 is quashed. 4. In lieu of that sentence, the applicant is sentenced to a term of imprisonment comprising a non-parole period of 2 years and 3 months commencing on 17 October 2019 and expiring on 16 January 2022 with a balance of the term of 1 year and 3 months expiring on 16 April 2023. The applicant will first be eligible for release on parole on 16 January 2022.
2. WILSON J: I am grateful for the detailed account of the facts and circumstances of this matter set out by Wright J in his judgment. Like the Chief Justice, however, and for the reasons his Honour has given in his judgment, I do not regard the sentence imposed upon the applicant as one which was unjust or unfair. I agree with the orders proposed by Bathurst CJ.

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: 21 December 2021