Director of Public Prosecutions (NSW) v TH

Director of Public Prosecutions (NSW) v TH - [2023] NSWCCA 81 - NSWCCA 2023 case summary — Zoe

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] The respondent, TH, pleaded guilty to four sexual offences committed against his stepson, BH, over a four-year period. The offending involved 1 count of sexual intercourse with a child under 10 years (Crimes Act 1900 (NSW), s 66A(1)) (count 1), 2 counts of aggravated sexual intercourse with a child between 10 and 14 years (s 66C(2)) (counts 2 and 3) and 1 count of intentionally carry out a sexual act with a child between 10 and 16 years (s 66DE(1)(a)) (count 4). Three additional sexual offences were taken into account on a Form 1 (the Form 1 offences). On 14 October 2022, Flannery DCJ sentenced the respondent to 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months. The respondent formed a relationship with BH's mother in November 2009 and married in November 2016. The respondent frequently engaged in sexual acts and intercourse with BH when they were alone in BH's home. At the time of offending, BH was aged between 7 or 8 and 12 years. The Crown appealed under s 5D of the Criminal Appeal Act 1912 (NSW) on the sole ground that the aggregate sentence was manifestly inadequate. The Crown made five related contentions: the indicative sentences did not reflect the objective seriousness of the offences; the aggregate sentence involved an excessive degree of concurrency; the Form 1 offences should have had a greater impact on the aggregate sentence; the aggregate sentence failed to adequately reflect the impact and trauma of the victim; and the aggregate non-parole period did not reflect the total criminality involved. The Court held (per Beech-Jones CJ at CL, Garling and Yehia JJ agreeing), allowing the appeal and setting aside the sentence imposed:

The indicative sentences for counts 1−3 were well below any conception of the proper range of sentences for such offending. This is only reinforced by considering the indicative sentences enunciated by this Court in previous cases dealing with ss 66A and 66(C)(2) offences and the fact that associated with each of counts 1−3 was a very serious Form 1 offence. It almost inevitably follows from the manifestly inadequate nature of the indicative sentences on counts 1−3 that the aggregate sentence is also manifestly inadequate: [56]−[58]. TO v The Queen (2017) 265 A Crim R 191; [2017] NSWCCA 12; RH v R [2019] NSWCCA 64; Facer (a pseudonym) v The Queen (2019) 279 A Crim R 156; [2019] NSWCCA 180; Merkel v R [2019] NSWCCA 212; R v DN [2023] NSWCCA 39; Dinsdale v The Queen (2000) 202 CLR 321; [2002] HCA 54; Lee v R [2020] NSWCCA 244, considered. Aryal v R [2021] NSWCCA 2, approved.
Even if it was concluded that the indicative sentences were not manifestly adequate, the aggregate sentence still did not "reflect… the total criminality involved". The indicative non-parole period for count 3, being 3 years and 7 months, was only 11 months less than the total non-parole period: [58]. JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297, applied. R v Brown [2012] NSWCCA 199, considered.
Given the aggregate sentence is inadequate by many years and the serious nature of the offending, the Court intervened and resentence the respondent: [71]. CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, applied.

[5]

The Offences

The offences were described in an agreed statement of facts tendered before the sentencing judge.
The respondent was born in 1982 and was aged between 34 and 38 years at the time of his offences. As noted, the victim was his stepson. He was born in May 2007 and was aged between 9 and 13 years old at the time of the offences. The respondent formed a relationship with BH's mother in November 2009. They married in November 2016. On 14 May 2020, BH's mother reported the respondent to the police.
Under the heading "Uncharged" (ie, uncharged acts), the statement of agreed facts note that the respondent commenced offending against the victim when he was aged 7 or 8 (ie, in 2014 or 2015). The respondent came into the victim's bedroom and exposed his penis to the victim through his bathrobe. The victim told him to stop.
Some months prior to the respondent's marriage to BH's mother in November 2016, the victim and the respondent sat together on a couch and watched television. The respondent undressed himself and the victim. They were both naked on the couch. According to the agreed facts, the respondent made the victim "play" with the respondent's nipples and penis. The victim touched the respondent's penis with his hands. At the time of the offence the victim was 9 years old. The respondent's conduct constituted an offence of committing an act of indecency with a child under the age of 10 years contrary to (former) s 61O(2) of the Crimes Act 1900 (NSW). This offence was included on a notice filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") and attached to count 1 on the indictment ("a Form 1").
Count 1 on the indictment was committed in November 2016 about a week before the respondent married the victim's mother. The victim was still 9 years of age. The respondent and the victim were in a shed in the garden of his home. They were both fully clothed. According to the agreed facts, the respondent exposed his penis from his pants and the "victim titled his neck back and the [respondent] put his penis in the victim's mouth". The offence ceased when they were disturbed by a relative approaching the shed and calling out to them. The agreed facts record that "[t]his was not the only occasion that the victim performed fellatio on the [respondent] in the shed when the victim was 9 years old." The conduct of the respondent in having the victim perform fellatio on him was an offence of having sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act.
Counts 2 and 3 on the indictment were committed in November 2019. The victim was 12 years old. The respondent and the victim were at home. The victim was in his bedroom. The respondent sent the victim a message on "Snapchat" in which he told the victim he was "trying to jerk off but he couldn't cum" and "asked the victim to engage in sexual activity with him in exchange for fifteen dollars". The respondent went to the victim's bedroom. The victim undressed. The respondent took him into his bedroom and showed him videos and photographs of naked women. According to the agreed facts, the respondent told him that the photographs were of "girls that I talk to on Snapchat". The victim responded "Why are you texting other girls? You have my mum".
The respondent placed the victim on the bed. The respondent undressed, "climbed on top of the victim" and "positioned his face between the victim's thighs". The respondent put his hands on the victim's legs and held them down. The respondent "positioned his penis on the victim's face". The respondent performed fellatio on the victim. The respondent then placed his penis in the victim's mouth and the victim performed fellatio on the offender. The conduct of the respondent in fellating the victim constituted count 2 on the indictment, being an offence of aggravated sexual intercourse with a child above the age of 10 years and under the age of 14 years contrary to s 66C(2) of the Crimes Act with the circumstance of aggravation being that the victim was under his authority (s 66C(5)(d)). The conduct of the respondent in having the victim perform fellatio on him was another offence under s 66C(2) which was included in a Form 1 attached to count 2.
The agreed facts record that the respondent then turned the victim over and pushed his legs up. The respondent inserted his penis into the victim's anus. The agreed facts record that the "victim screamed because this caused pain". He told the respondent to "stop" but the respondent did not say anything. This conduct of the respondent constituted another offence under s 66C(2) and was count 3 on the indictment.
In what the agreed facts describe as an "uncharged" act, the victim "performed fellatio on the respondent and masturbated the respondent with his hands". The respondent then reinserted his penis into the victim's anus and ejaculated inside. The respondent then placed lubricant on a vibrator and inserted it into the victim's anus. The conduct of the respondent in reinserting his penis and then a vibrator into the victim's anus constituted another offence under s 66C(2). This was included on a Form 1 attached to count 3. The agreed facts note that "this was the only time that the [respondent] used a vibrator on the victim" and the "only time that the [respondent] ejaculated in the victim's anus".
Count 4 was committed on the evening of 17 April 2020. At one point after the victim's mother and brother had gone to bed, he was playing pool with the respondent. The respondent told the victim that, if he won the game, the victim would have to "get nude". The victim undressed. According to the agreed facts, "[t]he victim went around the pool table to the [respondent]… [the respondent] looked at the victim in a way that made the victim feel uncomfortable." The victim returned to his side of the table and dressed.
At around 12.30am the victim's mother woke. She heard the respondent and the victim on the verandah. She pulled back the curtains. She saw that the respondent's penis was exposed through the fly section of his pyjamas and the victim masturbating the respondent. This conduct of the respondent constituted count 4 on the indictment, being an aggravated offence of intentionally carry out a sexual act with a child above the age of 10 and under 16 years of age contrary to s 66DE(1)(a) of the Crimes Act. The circumstance of aggravation was that the victim was under the respondent's authority (s 66DE(2)(d)).
The agreed facts record a further "uncharged" act of the respondent, namely that the victim, who was fully clothed, placed his backside against the respondent's exposed penis and the respondent "rubbed the right side of the victim's bottom with his right hand". The respondent held a can of beer in his left hand.
The victim's mother came out onto the verandah. The agreed facts record that the respondent placed his penis back inside his trousers and "shrugged his shoulders". The victim's mother told the victim to go to bed. She confronted the respondent. She asked "[w]hy is my son jerking you off?". The respondent responded, "he does that from time to time" and that it had only been happening for a "couple of weeks". He said to the victim's mother, "[y]ou know he is a fairy right?".
The agreed facts record that in the following days the victim's mother spoke to him about the respondent's offending. On 24 April 2020, the victim and the respondent exchanged messages in which the respondent asked the victim what he told his mother. The respondent sent the victim a "pornographic image of an erect black penis". The victim showed his mother the image. The victim's mother confronted the respondent about it, who said, "I thought it would be funny [to send the message]". The victim's mother then took him for a drive and asked him for his phone. As noted above (at [6]), she approached the police on 14 May 2020. Two days prior, the respondent texted the victim's mother stating "I'm so sorry" and "I'm so sorry to have caused this mess". He asked whether he was going to jail. He responded to a text asking how he could have acted as he did by stating, inter alia, "I was drunk and I didn't know what was what".
The agreed facts include the following notation: "Context Evidence The offences described above, to the which the [respondent] pleads guilty and/or acknowledges guilt, were not isolated acts. The [respondent] frequently engaged in sexual activity with the victim when the victim was between 7 or 8 and 12 years of age. This included the types of sexual acts and intercourse described in these agreed facts. This would occur when nobody else was at home. Sometimes the [respondent] would bribe the [victim] with money. The [respondent] told the victim, "Don't tell your mother otherwise I'll get in trouble for it". The [respondent] also sent the victim pornography."

[6]

The Indicative Sentences

As noted, the respondent received an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months. Pursuant to s 53A(2)(b) of the Sentencing Act, the sentencing judge was required to indicate the sentences that would have been imposed had separate sentences been imposed instead of an aggregate sentence.
The offences, including the Form 1 offences, the maximum penalties, any applicable standard non-parole period, the sentencing judge's finding of objective seriousness and the relevant indicative sentence are set out in the following table (which is a modified version of a table provided by the DPP): Count Offence Time Particulars Objective Seriousness Finding Maximum Penalty Indicative sentence Form 1 taken into account on Count 1 Commit act of indecency with child under 10 years of age Months before November 2016 Respondent undressed himself and the victim in the loungeroom and made the victim touch the respondent's nipples and penis (victim's home) 7 years Taken into account on Count 1 Former s 61O(2) Crimes Act (victim aged 9) No SNPP 4 years and 6 months Count 1 Sexual intercourse with a child under 10 years of age November 2016 The victim performed fellatio on the respondent in a shed Just under the mid-range of objective seriousness Life imprisonment NPP: 2 years and 9 months S 66A(1) Crimes Act (victim aged 9) SNPP: 15 years (pre-discount on account of the plea of guilty: 6 years, NPP: 3 years 8 months) 4 years Aggravated sexual intercourse with a child above 10 years of age and under 14 years of age (being under his authority) The respondent performed fellatio on the victim in the respondent's bedroom (victim's home) 20 years NPP: 2 years and 5 months Count 2 S 66C(2) Crimes Act November 2019 (victim aged 12) Just under the mid-range of objective seriousness SNPP: 9 years (pre-discount: 5 years 4 months, NPP: 3 years 3 months) Form 1 taken into account on Count 2 Aggravated sexual intercourse with a child above 10 years of age and under 14 years of age (being under his authority) November 2019 The victim performed fellatio on the respondent in the respondent's bedroom (victim's home) 20 years Taken into account on Count 2 S 66C(2) Crimes Act (victim aged 12) SNPP: 9 years 6 years Count 3 Aggravated sexual intercourse with a child above 10 years of age and under 14 years of age (being under his authority) November 2019 The respondent inserted his penis into the victim's anus in the respondent's bedroom (victim's home) In the mid-range of objective seriousness 20 years NPP: 3 years and 7 months S 66C(2) Crimes Act (victim aged 12) SNPP: 9 years (pre-discount: 8 years, NPP: 4 years 9 months) Form 1 taken into account on Count 3 Aggravated sexual intercourse with a child above 10 years of age and under 14 years of age (being under his authority) November 2019 The respondent inserted a vibrator into the victim's anus in the respondent's bedroom (victim's home) 20 years Taken into account on Count 3 S 66C(2) Crimes Act (victim aged 12) SNPP: 9 years Count 4 Aggravated intentionally carry out a sexual act with a child above 10 years of age and under 16 years of age (being under his authority) April 2020 The victim masturbated the respondent whilst they were playing a game of pool on the back verandah (victim's home) Just under the mid-range of objective seriousness 5 years 15 months S 66DE(1)(a) Crimes Act (victim aged 12) No SNPP (pre-discount: 20 months)

[7]

Before addressing the sentencing judge's reasons and findings, the significance of the Form 1 offences and uncharged acts to the sentencing exercise should be noted.
First, the Form 1 offences can be taken into account on sentencing as demonstrating an "additional need for personal deterrence and retribution" in respect of the substantive offences on the indictment (Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [23] (Bathurst CJ); see also [64] (Basten JA), [104] (Hoeben CJ at CL) and [154] (Garling J); "Abbas" and Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]; "Attorney General's Application"). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter (Attorney General's Application at [18]).
However, the inclusion of an offence on a Form 1 does not of itself increase the assessment of the objective seriousness of the substantive offence (Singh v R [2021] NSWCCA 96), although the facts and circumstances of the Form 1 offence (or uncharged acts) may be relevant to the assessment (see Ragg v R [2022] NSWCCA 150 at [38]−[47]; "Ragg"). For example, such circumstances might place the substantive offence in context (LN v R [2020] NSWCCA 131 at [54] per Basten JA; "LN") or, if they involve the infliction of harm on the victim immediately prior to the substantive offence, they might demonstrate the victim's vulnerability when the substantive offence was committed (LN at [159]; Ragg at [44]).
Second, uncharged acts that amount to an offence cannot be taken into account in the manner identified by Abbas and Attorney General's Application for Form 1 offences, ie, they are not matters that warrant additional need for personal deterrence and retribution. However, the facts and circumstances of that conduct can otherwise be considered in the same way that the facts and circumstances of Form 1 offences can be considered. Hence, in LN at [159], Hamill J identified four particular respects in which the uncharged assaults on the child in that case were available to be used in sentencing the offender for that child's murder, namely: "(1) To establish that the murder was not an aberration in an otherwise blameless life or to deny leniency on the basis that LN was otherwise a person of good character… (2) To dispel any suggestion that the [murder] was an isolated incident. (3) [To support] findings as to the applicant's motive and state of mind at the time of the murder… (4) To establish that the victim was vulnerable and that the offender knew that the victim was vulnerable because she and her co-offender caused that vulnerability by the commission of the earlier assaults."
While this passage is not to be taken as an exhaustive description of the potential relevance of uncharged acts in the sentencing process it is sufficient to describe the relevance of the facts and circumstances of the uncharged acts (and the Form 1 offences) to the sentencing of the respondent in this case. The fact that the respondent engaged in serious and continual sexual abuse of the victim over many years destroys any suggestion that he is to be treated as a person of good character and that any of these offences was an isolated incident. Further, they emphasise the vulnerability of the victim and give context to the offending in reinforcing what the substantive offences suggest, namely, that for a sustained period the respondent sexualised the victim and treated him as a sexual object.

[8]

The Sentencing Judgment

In the sentencing judgment, her Honour recounted the facts of the offences consistently with that set out above. One matter noted by the Crown was that her Honour did not describe the Form 1 offence committed in relation to count 3. However, at the commencing of the reasons, her Honour noted that there was a Form 1 offence attached to each of counts 1, 2 and 3 and that her Honour proposed to take them into account "in the way set out in the guideline judgment", which appears to be a reference to Attorney General's Application. Her Honour described the offences as "self-evidently very serious".
Bearing in mind the various factors identified in R v AJP (2004) 158 A Crim R 575; [2004] NSWCCA 434 as well as the respondent's breach of trust, that the offences were "not isolated examples", that each offence occurred in the victim's home and that the victim was either aged 9 or 12 at the time of each offence, her Honour found counts 1, 2 and 4 were "just under the mid-range" of objective seriousness for such offences and count 3 "in the mid-range". Otherwise, I note the following seven matters about the sentencing judgment.
First, her Honour noted the effect of the victim impact statement which "sets out the many deleterious ways in which the [respondent's] serious criminal conduct has affected [the victim's] life and will no doubt continue to do so", including the "loss of his relationship with his mother". His statement describes his loss of trust in all men and how he had to move away from his hometown, losing his friends and lifestyle. He said that his "mum doesn't answer my phone calls anymore". As noted below, his mother has maintained her relationship with the respondent.
Second, her Honour was not satisfied that the respondent's lack of prior convictions and good character assisted him to commit the offences (Sentencing Act, s 21A(5A); see Bhatia v R [2023] NSWCCA 12).
Third, her Honour described the respondent's subjective case. As at the date of sentencing, the respondent was 39 years of age. He is Indigenous and was raised by his grandfather and mother, although for a period of time he believed his grandfather was his father. Her Honour found that his grandfather and mother are still supportive of him. His grandfather has dementia. At the time of sentencing his mother was gravely ill. The respondent left school during Year 11 and obtained technical qualifications. He had a good work history and no prior convictions. He had three significant relationships including with the victim's mother. She agreed to stay in a relationship with the respondent.
Fourth, the sentencing judge found that the respondent was sexually abused by a teacher when he was nine years old and "remains haunted by the memories" of that incident. In his early adolescence "he saw his friend crushed by a temporary roof". Her Honour found that "[t]hese experiences led to him becoming withdrawn and anxious". The respondent told a psychologist that he committed the offences when he was encountering problems with sexual intimacy in his marriage but also accepted in his evidence to the sentencing judge that he had a sexual interest in children.
The sentencing judge accepted the psychologist's opinion that "at the time of the offending the [respondent] met the criteria for the diagnoses of major depressive disorder and post-traumatic stress disorder" and that there was a nexus between his childhood trauma and the development of mental ill-health conditions associated with alcohol and drug addictions, which in turn "affected his adaptive thinking, decision-making, consequential reasoning and judgment which has an impact on his overall level of functioning and provides the context in which his offending occurred". Ultimately, her Honour found that the respondent's "mental health and… social isolation caused by the trauma he experienced as a child, contributed to the offences in a material way" such that that "his moral culpability is reduced to an extent and he is a somewhat less appropriate vehicle for general deterrence than a person without these issues" (emphasis added). These findings were not challenged on appeal, although they still leave considerable scope for the determination of the extent of the respondent's moral culpability and the weight to be attached to general deterrence.
Fifth, her Honour found that "with appropriate treatment [the respondent] has reasonable prospects of rehabilitation" and did "not consider that [the respondent's] mental health issues means that he is greater danger to the community". Her Honour also found that he "has provided some evidence of remorse in what he said to the victim's mother about his behaviour and what he said during his evidence". The latter is a reference to his evidence before the sentencing judge in which he stated, "I've destroyed [the victim's] life pretty much, for the rest of his life".
Sixth, her Honour accepted that the respondent's mental health issues and the effect of pandemic restrictions were such that a "custodial sentence has and will weigh more heavily on him".
Seventh, her Honour made a finding of "special circumstances" for the purposes of s 44(2A) of the Sentencing Act based on the matters put forward by counsel, namely the respondent's prospects of rehabilitation, his need for treatment, the effect of custody given his mental health issues, the effects of pandemic restrictions and that this would be his first time in custody.

[9]

Comparable Cases

Before addressing the submissions, it is appropriate to note various decisions of this Court that were referred to by the parties. The DPP submitted that they provide guidance on the appropriate range of sentences for offences of the kind under consideration in this case. One of those cases, Gibbons (a pseudonym) v R [2019] NSWCCA 150, can be put aside as it involved multiple offences under s 66A(2) of the Crimes Act which were assessed as being "almost within the worst category" (at [26]).
In TO v The Queen (2017) 265 A Crim R 191; [2017] NSWCCA 12 ("TO"), the offender was convicted after a trial of one count of aggravated sexual intercourse with a child under the age of 10 contrary to s 66A(2) of the Crimes Act, one count of attempting to have sexual intercourse with a child under the age of 10 contrary to s 66B of the Crimes Act and one count of assaulting a child under the age of 10 with intent to have sexual intercourse contrary to s 66B of the Crimes Act. The offence under s 66A(2) carried a maximum penalty of imprisonment for life with a standard non-parole period of 15 years imprisonment. The offences under s 66B carried a maximum penalty of 25 years imprisonment with no standard non-parole period.
The victim in TO was 9 years old and the daughter of the offender's former partner. The three offences were committed on the same day and involved the anal penetration of the victim by the offender's penis, an attempt by the offender to put his penis into the victim's mouth and an attempt to have vaginal intercourse with the victim. The offender was 33 years old at the time of the offending (at [248]). The offences had no "relevant precursor" (at [253]). The offender had a relatively minor criminal record and "guarded" prospects of rehabilitation (ibid).
At first instance the offender received an aggregate sentence of 16 years imprisonment with a non-parole period of 12 years. On appeal, he received three individual sentences with the sentences for the s 66B offences under s 66B made concurrent with the sentence for the offence under s 66A(2), being 12 years imprisonment with a non-parole period of 9 years.
In RH v R [2019] NSWCCA 64 ('RH") the offender was convicted after a trial of two counts of aggravated sexual assault of a person under the age of 16 contrary to s 61J(1) of the Crimes Act, two counts under s 66C(2) of the Crimes Act and one count of procuring a child under the age of 14 for unlawful sexual activity contrary to 66EB(2) of the Crimes Act. The maximum penalty and standard non-parole period for an offence under s 61J(1) was 20 years and 10 years respectively. The maximum penalty for an offence under s 66EB(2) is 15 years' imprisonment. The offences were committed over a two-year period. Count 1 involved the offender forcing her daughter to have penile-vaginal sex with her partner despite her daughter's protests and physical resistance. Count 4 was similar but involved fellatio. Both counts 2 and 3 involved the offender forcing her daughter to perform fellatio. Counts 2 and 3 were assessed as being below or slightly below the mid-range (at [9]). Count 5 involved the offender putting significant pressure on the victim to submit to the offender's partner.
The offender in RH was in her early 30s when the offences were committed, had a history of being abused by male partners (at [14]), mental health problems (at [17]) and "poor" prospects of rehabilitation (at [22]).
At first instance, the offender received an aggregate sentence of 16 years imprisonment with a non-parole period of 11 years. A complaint of manifest excess was rejected. For present purposes, it should be noted that the indicative sentences for the two counts under s 66C(2) were 9 years with a non-parole period of 6 years (count 3) and 12 years with a non-parole period of 8 years (count 4). There is no suggestion in this Court's judgment that those indicative sentences were inappropriate. They stand in strong contrast to the undiscounted indicative sentences in this case for counts 2 (5 years and 4 months with a non-parole period of 3 years and 3 months) and 3 (8 years with a non-parole period of 4 years and 9 months), each of which were accompanied by very serious Form 1 offences.
In Facer (a pseudonym) v The Queen (2019) 279 A Crim R 156; [2019] NSWCCA 180 ("Facer"), the offender pleaded guilty to six sexual offences committed against his granddaughter over a five‑year period from when she was aged between 9 and 14. There were three counts of aggravated sexual intercourse involving digital penetration contrary to s 66A(2) of the Crimes Act, one count of attempted sexual intercourse contrary to s 66B of the Crimes Act and two counts of aggravated sexual intercourse contrary to s 66C(2). At the time of the offending, neither s 66B nor s 66C had a standard non-parole period. One of the offences under s 66C(2) involved the offender rubbing his penis against, and then inserting the head of his penis into, the victim's vagina (at [31]). The other involved the offender having anal intercourse with the victim and ejaculating inside her (at [35]). There were five Form 1 offences attached to one of the offences under s 66A(2).
The offender in Facer was in his 50s when the offences were committed, had been sexually abused as a child and was found to have "some prospects" of rehabilitation (at [49]). At first instance, he received an aggregate sentence of 21 years with a non-parole period of 15 years and 9 months. This Court upheld a contention that the sentence was manifestly excessive and imposed an aggregate sentence of 16 and a half years with a non-parole period of 12 years and 4 months. Of present relevance is that, prior to any allowance for the offender's plea of guilty, the indicative sentences for the offences under s 66C(2) were 12 years and 16 years respectively. The indicative sentences for the offences under s 66A ranged between 8 and 16 years.
In Merkel v R [2019] NSWCCA 212 ("Merkel"), this Court dismissed an appeal against the offender's aggregate sentence of 15 years imprisonment with a non-parole period of 11 years and 3 months. The offender was convicted after a trial of one count under each of ss 66A, 66B and 61M(2) (indecent assault on a person under the age of 10 years) of the Crimes Act. The indicative sentences were 14 years, 10 years and 4 years imprisonment respectively. At the time of the offending the victim was six years old. The offender was in his early 20s and in a relationship with the victim's mother (at [10]). The offender was at the victim's home, held a pillow over her mouth, digitally penetrated her (s 66A), attempted to place his penis inside her vagina (s 66B) and, when he was unable, masturbated next to her (s 61M(2)) (at [10]). The offender had a troubled upbringing, mild intellectual disability, rare cancer, significant criminal history, high risk of offending and displayed no remorse (at [85]).
Most recently, in R v DN [2023] NSWCCA 39 ("DN"), this Court upheld a Crown appeal contending that an aggregate sentence of 7 years and 6 months with a non-parole period of 5 years for two counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act was manifestly inadequate. Included on a Form 1 was another offence under s 61J(1) and an offence of intentionally sexually touching a child between the age of 10 and 16 years contrary to s 66DB(a) of the Crimes Act. The maximum penalty and standard non-parole period for an offence under s 61J(1) are noted above (at [40]). The maximum penalty for an offence under s 66DB(a) is 10 years imprisonment.
The offender in DN was aged 39 at the time of offending and the victim was aged 14. The victim and her mother lived with the offender. With one of the offences under s 61J(1), the offender went into the victim's bedroom while she was half asleep, removed her underpants and inserted his finger into her vagina (being the Form 1 offence under s 61J(1)), held his hand over the victim's mouth and threatened her before inserting his penis into her vagina. At some stage the offender kissed the victim's neck (being the Form 1 offence under s 66DB(a)) (at [9]). With the other offence under s 61J(1), some weeks or months later, the offender again went into the victim's bedroom at night and aggressively raped her while also threatening her. The offences were found not to have occurred in isolation but were "a culmination of sexualised behaviour towards the victim" (at [24]). Both offences were found to be "in the mid-range" (at [25]). The offender had a limited criminal history (at [19]) and had been previously diagnosed with post-traumatic stress disorder (at [17]) and substance use disorder (at [22]).
This Court resentenced the offender to an aggregate term of 12 years imprisonment with a non-parole period of 8 years. Prior to the discount for the offender's (late) plea of guilty, the indicative sentence for one of the offences under s 61J(1) (taking into account the Form 1 offence) was 10 years and 6 months imprisonment and 11 years imprisonment for the other (at [66]). These indicative sentences are of some assistance in considering the indicative sentences for the respondent's offences under s 66C(2) in this case. However, allowance must be made for the slightly higher standard non-parole period for an offence under s 61J(1) and the fact that the offending in DN involved physical aggression and threats towards the victim, though they did not have any Form 1 offences attached.
At the risk of stating the obvious, the utility of considering these cases is not to contrast and compare the aggregate sentences imposed with the aggregate sentence imposed on the respondent in this case. Given that each aggregate sentence relates to range of different offences, such a comparison has little or no utility other than revealing the application of the totality principle in different cases (Sharma v R [2022] NSWCCA 190 at [4]−[6] and [8]). Instead, the relevant comparators are the indicative, or individual, sentences for particular offences. In this respect, these cases speak in unison about the very significant custodial sentences that are imposed or indicated for offences under ss 66A and 66C(2) (or s 61J(1)), especially those that involve penile penetration.

[10]

Manifest Inadequacy

As noted, the sole ground of appeal is that the sentence is manifestly inadequate.
A contention that a sentence is manifestly inadequate is in effect a complaint that the sentence is "unreasonable or plainly unjust" within the meaning of the so-called fifth limb of the statement in House at 505. A finding to that effect is a "conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate" (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]). The degree or extent of the elaboration "that is appropriate or possible will vary from case to case" (ibid).
As noted, this is an appeal from an aggregate sentence. In Lee v R [2020] NSWCCA 244 at [32], I (with Payne JA and Fagan J agreeing) stated the following in relation to appellate review of an aggregate sentence on the ground of manifest excess: "… with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; 'JM'). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; 'Beale'). The 'potentials for accumulation' of the various notional sentences can be examined to determine whether the 'aggregate sentence represents a sound exercise of sentencing discretion' (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The 'principle', or even ultimate, 'focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved' (JM at [40])."
With appropriate modification, these principles are equally applicable to a complaint of manifest inadequacy. These principles allow scope for argument that manifest excess or manifest inadequacy in relation to an aggregate sentence can be addressed by considering the individual indicative sentences (within the context of considering whether overall the aggregate sentence is manifestly inadequate). It follows from the above discussions that comparisons with other cases have utility in this respect. Nevertheless, the ultimate inquiry is the necessity to consider "whether the aggregate sentencing reflects the total criminality involved" (see Aryal v R [2021] NSWCCA 2 at [50], quoting JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]; "JM").
The Crown's submissions in support of the contention of manifest inadequacy were consistent with the above principles. The Crown made five related contentions. First, the Crown contended that the indicative sentences did not reflect the objective seriousness of the offences. Second, it was submitted that the aggregate sentence involved an excessive degree of concurrency. Third, it was submitted that the Form 1 offences should have had a greater impact on the aggregate sentence. Fourth, it was submitted that the aggregate sentence failed to adequately reflect the impact and trauma of the victim. Fifth, it was submitted that the aggregate non-parole period of 4 years and 6 months did not "appropriately reflect the criminality involved" in the offending (citing R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [63] per Spigelman CJ). The respondent's submissions emphasised that the sentencing judge addressed all the relevant criteria with care, including the objective seriousness of the offending, trauma of the victim and "guideline judgment" concerning the Form 1 offences.
As noted, a complaint about the manifest inadequacy of an aggregate sentence can commence with a consideration of the indicative sentences. I regard it as clear beyond argument that the indicative sentences for each of counts 1−3 were far below any conception of the proper range of sentences for such offending. This conclusion is only reinforced by considering the individual or indicative sentences enunciated by this Court in the cases noted above (at [37]−[48]). Thus, in this case the undiscounted indicative sentence for the s 66A offence was 6 years, which can be compared to the undiscounted sentences of 12 years in TO, between 8 and 16 years in Facer and 14 years in Merkel. In this case, the undiscounted sentence for the two s 66C(2) offences were 5 years and 4 months (count 2) and 8 years (count 3), which can be compared to the undiscounted sentences of 9 years and 12 years in RH and 12 years and 16 years in Facer.
Even allowing for the differences noted above at [49], the inadequacy of the indicative sentences for the s 66C(2) offences in this case is reinforced by a comparison with the undiscounted sentences for the s 61J(1) offences imposed or indicated in RH and DN, being 15 years and 9 years in RH and 11 years and 10 years and 6 months in DN. The respondent's subjective case had some strength, especially having regard to the sentencing judge's finding about the effect of trauma (noted above at [32]). However, any residual doubt about the manifest inadequacy of the indicative sentences in that regard is removed by the fact that associated with counts 1−3 was a very serious Form 1 offence. It is difficult to see how, if at all, those offences are in any way reflected in the indicative sentences for those counts.
As stated, the ultimate issue is whether the aggregate sentence is manifestly inadequate. That said, in this case, it almost inevitably follows from the manifestly inadequate nature of the indicative sentences on counts 1−3 that the aggregate sentence is also manifestly inadequate. However, even if it was concluded that the indicative sentences were not manifestly inadequate, then the aggregate sentence still did not "reflect… the total criminality involved" (JM at [40]). Although commencement and end dates for indicative sentences are not specified, the "potentials for accumulation" can still be examined (R v Brown [2012] NSWCCA 199 at [35]). In this case, the indicative non-parole period for count 3 was only 11 months less than the total non-parole period. This is so even though a sentence for count 3 alone could never fully embrace the total criminality of the sexual assault committed in November 2019 and where any sentence for the offence under s 66A(2) committed three years earlier would inevitably be cumulated, to at least a material extent, upon any portion of the sentences that reflect the respondent's culpability for counts 2 and 3.
In broad terms, I accept the first three points made by the DPP noted in [55], save that it is not necessary to determine the adequacy of the indicative sentence for count 4 to conclude that the sentence is manifestly inadequate.
The DPP's fourth point was expanded upon in written submissions as a contention that the sentence did not properly reflect s 25AA(3) of the Sentencing Act, which provides: "When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts)."
It is neither necessary nor appropriate to undertake an exegesis of this provision to resolve the appeal. It suffices to state that in a case where the form of trauma may not be self-evident from the facts of the offending or material referable to the specific case, it will be incumbent on the Crown to identify the trauma the sentencing judge is asked to consider and, if relied on, the "recent psychological research" or "common experience of the courts" sought to be invoked. One example of the latter is the observation of Spigelman CJ in DBW v R [2007] NSWCCA 236 at [40] to the effect that, where there is no positive evidence that a young victim of a sexual offence has suffered psychological harm by the time of sentencing, the Court can, and perhaps should, proceed on the basis that there is nevertheless a "substantial risk of emotional harm" arising in the future (see also Grange v R [2023] NSWCCA 6 at [11]).
In this case, in accepting that the aggregate sentence is manifestly inadequate it necessarily follows that the sentence does not properly reflect the various sentencing factors identified in s 3A of the Sentencing Act which include "recognis[ing] the harm done to the victim of the crime and the community" (s 3A(g)). However, beyond that, there is no basis for concluding the sentencing judge was not cognisant of the harm done to the victim by the offending.
The fifth point made by the Crown concerned the inadequacy of the aggregate non-parole period. It suffices to state that it was not erroneous per se for her Honour to find special circumstances and to structure the sentence in the way it was. The manifest inadequacy of the aggregate non-parole period follows from the manifest inadequacy of the overall sentence.
I would uphold the complaint of manifest inadequacy.

[11]

Residual Discretion

The respondent was sentenced on 14 October 2022. He was notified of the DPP's intention to appeal six days later. The appeal was filed on 11 November 2022. The DPP has not delayed in pursuing the appeal. The DPP did not contribute to the sentencing judge's error.
At the hearing of the appeal, an affidavit from the respondent sworn on 3 March 2023 was read in relation to the exercise of residual discretion and resentencing. The respondent stated that, immediately after being sentenced, he was placed in maximum security and moved to Cessnock Correctional Centre after requesting to be moved to be near his mother who has cancer. He stated that he has been working in the kitchen (and has had other jobs) but has not had the opportunity to participate in educational programs or any programs that address his offending. He stated he has not been in trouble while incarcerated and that he is worried about his parents' health. He states that he is anxious about the appeal, especially the possibility that an increase in his sentence may cause him to lose his "C2" classification.
After the hearing the respondent sought to rely on an affidavit sworn by his solicitor on 14 March 2023 annexing a letter from his mother's doctor. The doctor's letter confirms that the respondent's mother's cancer is advanced and that her life expectancy is limited. The doctor states that her ability to care for herself is deteriorating, she is in distress about not seeing the respondent and there is a possibility she will not survive to see her son released from gaol. The doctor requests that the respondent be allowed to be released on his current release date to allow him to care for his mother as her health deteriorates.
Surprisingly the DPP objected to the tender of the letter. The DPP's submissions referred to three opinions expressed by the doctor in the letter, namely that: (i) "[a]s a result of the progress of her cancer, [the respondent's mother's] life expectancy is limited"; (ii) "[n]ot having regular contact with [the respondent] has been a source of great distress"; and (iii) there is a "real possibility that [the respondent's mother] will not survive to see her son". The DPP submitted that these statements were inadmissible as the letter does not identify the facts upon which the opinions are based or expose the reasoning used to arrive at the conclusions and otherwise do not appear to be "wholly or substantially based" on specialised knowledge as required by s 79 of the Evidence Act 1995 (NSW).
Three matters should be noted about that contention. First, the first and third opinions cited by the DPP involving a treating doctor expressing an opinion about the prognosis of their patient. It is an example of the type of opinion in respect of which, given the Doctor's qualifications and the subject matter, "little explicit articulation or amplification" is required (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37]). Second, the second opinion is to the effect that a gravely ill mother is distressed at not seeing her incarcerated son. It is difficult to accept that proposition is seriously in dispute. Third, in any event, this material is tendered in relation to, inter alia, resentencing and, unless a direction is given under s 4(2) of the Evidence Act, the provisions of that Act are not applicable. No such direction has been given. To the extent necessary I would admit the letter and the affidavit accompanying it. The balance of the DPP's submissions concerned the relevance of the Doctor's letter and the weight to be attached to it.
I do not accept that any concern about the respondent's prospects of rehabilitation materially affects the exercise of the residual discretion. The respondent's sentence was backdated to commence on 14 May 2020, being the date when he was arrested and refused bail. The combination of that circumstance and the relatively short period of his non-parole period means that most of his current non-parole period was spent on remand, limiting his access to rehabilitation programs. An extension of his time in custody is likely to provide him with a greater likelihood of accessing those programs. It is not clear how an extension of his sentence will affect his classification. Even accepting that the affect will be adverse, the severity of his offending, the undue leniency of his sentence and necessity to provide guidance to lower courts when dealing with such offences overwhelmingly point to the necessity to resentence the respondent.
In an appropriate case it may be that the deteriorating health, shortened life expectancy and compelling need of a close relative may be a decisive factor for the Court determining not to resentence an offender. However, in this case the evidence does not demonstrate that the respondent's mother does not have other support available to her. In any event, given that, the aggregate sentence imposed is inadequate by many years, the offending is very serious and, as difficult as it is, the health of the respondent's mother may be such that a release of the respondent on the expiry of his existing non-parole period may not be of any help to her, then this Court must intervene. This is a case where the inadequacy of the sentence appealed from is so marked that it amounts to "an affront to the administration of justice" and "risks undermining public confidence in the criminal justice system" (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [42]).

[12]

Resentence

The DPP did not challenge the findings of the sentencing judge described above (at [30]−[36]). Even though this Court is not bound to adopt the sentencing judge's findings of the objective seriousness of the offending, I will adopt them. While the sentencing judge's findings mean that the respondent's moral culpability is reduced, I do not accept that the extent of that reduction is particularly significant nor do I accept that he is much of a less appropriate vehicle for general deterrence.
The material read on resentence is such that account should be taken of the respondent's work record in custody and the hardship and anguish occasioned to the respondent in custody from being absent from his mother as her health continues to deteriorate. For the same reasons as the sentencing judge, I would make a finding of special circumstances, although this Court is not obliged to impose a sentence in which the non-parole period bears the same proportion to the balance of the term.
In relation to count 1, I propose an indicative term, prior to any discount for the plea of guilty and allowing for the Form 1 offence, of 9 years and 3 months imprisonment. After discount, the indicative sentence is 6 years and 11 months. For counts 2 and 3, prior to the discount for the plea of guilty and allowing for the particularly serious Form 1 offences, I propose indicative sentences of 8 years and 6 months and 10 years and 6 months respectively. After allowance for the respondent's plea of guilty, the indicative sentences become 6 years and 4 months and 7 years and 10 months respectively. For count 4, I propose an undiscounted sentence of 2 years which, after allowance for the respondent's plea of guilty, becomes 18 months. In terms of totality, a substantial but not complete degree of notional concurrency is warranted on counts 2 and 3. The position is less so with counts 1 and 4. I propose an overall aggregate sentence of 12 years imprisonment with an aggregate non-parole period of 8 years.

[13]

Proposed Orders

I propose the following orders: (1) Appeal allowed; (2) Set aside the sentence imposed on the respondent on 14 October 2022; (3) In lieu thereof: (a) Sentence the respondent to an aggregate term of imprisonment of 12 years commencing on 14 May 2020 and expiring on 13 May 2032; (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 8 years expiring on 13 May 2028; (c) Specify that the earliest date the respondent will be eligible to be released on parole is 14 May 2028; (d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are: (i) 6 years and 11 months imprisonment with a non-parole period of 4 years and 7 months for the offence of sexual intercourse with a child under the age of 10, being count 1 on the indictment and which is accompanied by an offence on a Form 1; (ii) 6 years and 4 months imprisonment with a non-parole period of 4 years and 3 months for the offence of aggravated sexual intercourse with a child above the age of 10 years and under the age of 14 years, being count 2 on the indictment and which is accompanied by an offence on a Form 1; (iii) 7 years and 10 months imprisonment with a non-parole period of 5 years and 2 months for the offence of aggravated sexual intercourse with a child above the age of 10 years and under the age of 14 years, being count 3 on the indictment and which is accompanied by an offence on a Form 1; (iv) 18 months imprisonment for the offence of aggravated intentionally carry out a sexual act with a child above the age of 10 years and under the age of 16 years in circumstances of aggravation, being count 4 on the indictment.
GARLING J: I agree with the orders proposed by the Chief Judge, and with his reasons.
YEHIA J: I agree with the orders proposed of Beech-Jones CJ at CL and with his Honour's reasons.

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