Dorsett v R

Court of Criminal Appeal (NSW)|2024-08-21|Before: Harrison CJ, Adams J, Dhanji J

The applicant's case

A significant amount of material pertaining to the applicant's mild intellectual disability and NDIS package was tendered on behalf of the applicant, comprising the following: 1. The report of Dr Sally McSwiggan, dated 30 May 2023. She is a neuropsychologist who was asked to provide expert evidence as to, inter alia, whether the applicant had any psychological and/or mental health condition which contributed to the offending; 2. The report of Dr Jim Kerr, paediatrician, dated 13 May 2014. He examined the applicant at age 16. The main concern at that consultation was the applicant's obesity (127.9kg and increasing). But the report noted that in addition to his obesity, the applicant had been diagnosed at that time with a mild intellectual disability, an (improving) conduct disorder and ADHD; 3. The report of Karen Stevens from "Freedom of Speech", dated 23 October 2014. She is a speech pathologist who saw the applicant in 2014 about his "moderate - severe delay in receptive and expressive language". It was noted that the applicant would require additional assistance in writing, reading comprehension and any high-level language tasks in novel social situations; 4. The reports of Dr Brian Parsonage dated 11 and 22 July 2019 and 3 March 2021. He is a medico-legal expert who prepared these reports for civil proceedings in relation to a motor vehicle accident that the applicant had in 2017. He noted the applicant's borderline intellectual impairment, and that the applicant did not have the capacity to understand the nature of the litigation; 5. The applicant's NDIS plans for 2021 and 2022; 6. The report of Christina Watts from the "Hastings Mobile Rehab" dated 3 August 2021. She is an occupational therapist who described the assistance the applicant requires with daily living. She noted that the applicant has an unidentified intellectual disability, ADHD, a conduct disorder, and has struggled to set boundaries in his friendships/relationships. She also noted that he had lost over 60kg; 7. The report of Dr Eric Carrasco dated 7 January 2022. He is a psychologist to whom the applicant was referred as part of his NDIS package. Although he opined that the applicant's current intellectual assessment did not support an intellectual disability, he noted that the applicant has significant weaknesses in language, problem solving and short-term working memory; 8. The affidavit of the applicant's mother, dated 31 May 2023; and 9. A report from the NDIS coordinator, Angie Dellow, of Hummingbird Services dated 29 May 2023.

Remarks on sentence

The applicant was sentenced on the facts I have already extracted. His Honour went on (at [10]) to observe that the applicant was always aware of the age of the victims and that it was an offence for him to have sexual intercourse with them or sexually touch them. His Honour then said this at [11]: "It is of serious concern that after 1 April 2020, he continued to commit offences, at least in respect of CC and DD, and that he had moved into premises with AA in early May 2020 after being spoken to by the police, and the facts disclose that during the period from early May 2020 until AA turned 16 years of age on 20 August 2020, there was, 'regular sexual intercourse'."
And further (at [13]): "It causes serious concern that the applicant, knowing that he was committing offences, having been informed clearly of the seriousness of such offending - that despite all of those things being known to him, he continued to commit criminal offences of a like nature, moving on to younger victims. That is particularly relevant for the prospects of reoffending and rehabilitation, which I will deal with later."
After expressing his concerns regarding the ongoing nature of the offending, his Honour made the following finding of objective seriousness at [14]: "In the circumstances, as outlined in the facts, I regard all the offences as being of a serious nature, with of course the sexual touching being the least serious of all of the offences, particularly in the circumstances where he desisted when told to. The offending ranged between fellatio with AA and otherwise penile-vaginal intercourse, on some occasions in the absence, as indicated in the facts, of a condom, such as [charge 2] in relation to AA and [charge 6] in relation to DD and [charge 8] in relation to DD. Some of the other individual offences do not specify whether a condom was in use or not." (Emphasis added.)
I pause to note that this is the only finding of objective seriousness made by his Honour in relation to the eight offences.
His Honour then referred to the Victim Impact Statements provided by DD and CC. His Honour observed (at [15]) that in each case it was what might be expected. His Honour went on to observe that except for the sexual touching offence, all the other offences were "not opposed" by the victims. His Honour then quoted from R v Nelson [2016] NSWCCA 130 at [23] as follows: "The Courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour."

The applicant's subjective case

His Honour then dealt with the applicant's subjective case. He noted that the applicant did not give evidence and that untested out of court statements made to third parties should be treated with caution. His Honour derived the applicant's subjective case from the documents tendered on his behalf.
His Honour noted that the applicant effectively had no criminal history in that he had received a Conditional Release Order of 12 months without a conviction for driving unlicensed and whilst suspended. He had not offended whilst in custody.
As for his conduct in custody, his Honour noted that the applicant first worked as a sweeper before moving to laundry and then to grounds maintenance. His work while in custody has been his first experience of employment, and it has inspired him to want to continue to be employed when released. He has also commenced some study in custody. He is on protection which is difficult at times. He has also commenced individualised psychology sessions and has a positive therapeutic relationship with his psychologist. He had lost weight and was proud of that fact.
His Honour then noted the applicant's case as follows. The applicant is a 25-year-old Indigenous person who has the support of his mother and grandmother. He is the second youngest of four siblings with two brothers and a sister. He lived with his father from ten years of age to 18 years of age. His father was physically and sexually abusive towards his mother and siblings, and he was the subject of physical, sexual, and emotional abuse while he lived with his father. His father's partner's older boys engaged him in sexual activity from the age of ten years. He ceased contact with his father some four years ago.
The applicant was placed in the learning support unit at the Port Macquarie Primary School. He transitioned to high school and completed his HSC on a modified program.
After leaving his father's residence, he has had various places of accommodation, but his relationships and personal and support services have broken down and he eventually returned to live at his grandmother's house. He is not married and has no dependants.
He has no history of psychiatric hospitalisation or psychiatric medication. He has indulged in some social use of cannabis and alcohol, but he has no significant history of abuse of substances.
His Honour then went on to consider the medical evidence concerning the applicant. His Honour first noted the diagnosis of Dr Kerr when the applicant was 16 years of age, and subsequently the diagnosis of Ms Stevens, who found that the applicant met the criteria for moderate to severe expressive and receptive language disorder.
His Honour then noted Dr Parsonage's opinion that the applicant was incapable of fully understanding the complexity of his civil case and would be unable to manage any funds he was awarded as a result of the proceedings. His Honour noted that the applicant had been granted a NDIS package to assist with his level of adaptive functioning.
The assessment of Ms Watts was then noted. She assessed the applicant as being below most of his peers in practical use of academics (6%), practical skills for life (4%) and social skills (12%). He was at the time then receiving 20 hours of formal support a week, although his apartment was reported to be in squalor.
His Honour then noted that Dr Carrasco diagnosed the applicant as having a childhood onset complex trauma of neglect and abuse, and moderate to severe levels of anxiety and depression with a history of self-harm and suicidality without plan or intent. The applicant presented with significant delays in social and interpersonal skills and did not maintain age-appropriate friendships. Dr Carrasco did not consider that the applicant had an intellectual disability although he did consider him to be in the low average general intelligence range with high average visual perceptual problem-solving skills. He described the applicant as having significant weaknesses in language and short-term working memory that contributed to learning delays, and noted that his language and working memory skills were in the borderline disability range.
Dr Carasco assessed the applicant as having very low life skills with below average social adaption. He considered that he had a specific learning disorder. His NDIS package was two hours of support for five days a week for daily lifestyle needs, work/educational opportunities, social health and financial support and allied health supports. He did not consider the applicant to be globally intellectually impaired; rather his language had failed to develop at the same rate as his cognitive skills, impacting on his academic achievement and rates of life skill maturation. He had below age-appropriate levels of adaptive functioning and met the criteria for Mild Intellectual Disability.
His Honour then considered the evidence of Dr McSwiggan and noted that she had opined the following: "Mr Dorsett fulfils criteria for a paraphilic disorder, namely Paedophilic Disorder non-exclusive type (meaning not only attracted to children 13 years and under) and sexually attracted to females based on sexual activity with a prepubescent female (13 years and under) and the range of age difference (>five years)."
Dr McSwiggan also opined that the applicant was aware of the age of consent and that he was committing criminal offences at the material times. During her interview with him, he expressed concern for the complainants' psychological wellbeing. She noted that his conditions are developmental and not able to be treated, although he could possibly improve on his adaptive functioning skills with education and training. She opined that his mild intellectual disability reduced the likelihood of his acceptance by same age peers, given their intellectual superiority, and that this made him vulnerable to engaging socially with younger persons and accordingly, vulnerable to engaging with those young people when seeking a sexual relationship. Dr McSwiggan observed: "Mr Dorsett reported he identifies as 'pan-sexual' which he describes as being sexually attracted to a 'personality' rather than a particular gender. This would mean he has sexual interests in males and females, increasing his cohort of victims…Mr Dorsett's mild intellectual disability means he will struggle to make friendships in protection. I note, however, that many applicants have low intellectual abilities. He appears to have no issue with following custodial rules and has not had any personal issues or clashes with the other inmates that he reported. He has decided to isolate himself by choice to focus on his self‑improvement goals."
His Honour noted that his initial suspicion that the applicant would not do well in custody was entirely incorrect. Being in custody appears to have provided him with a stable and known environment where he can function without having to be concerned with the daily life stressors of work and finding funding to support himself.
As for his prospects of rehabilitation his Honour observed: "The extent to which he can achieve improvement is of course unknown at present, but he will of course always remain with a mild intellectual disability. In my view, considering those circumstances, although this is the applicant's first time in custody, there is a risk that he will become institutionalised to some extent because his time in custody will by comparison with his life when not in custody, appear beneficial to him."
His Honour then noted that Dr McSwiggan indicated that the applicant had expressed his regret and remorse around his offending. She did not, however, indicate exactly how that regret and remorse was expressed. She went on to say: "His capacity to identify with his victims and the impact of his offending was still developing, likely due in large degree by his developmentally delayed maturation, despite his awareness of his unlawful actions. He has limited self-awareness of his poor choice of younger peers to fulfil his social and sexual needs, secondary to the difficulties he has with intimate and non-intimate relations with same age peers."
His Honour noted his mother's affidavit in which she observed: "I was aware that Ben was starting to socialise with younger people, and I spoke to him about that on a number of occasions at that time and in particular stressing that it wasn't appropriate, but I seemed to be unable to get through to him the appropriateness of that conduct."
Further to the evidence of the applicant's NDIS package, Angie Dellow of Hummingbird Services described his current NDIS package as including support for a speech therapist and psychologist who engage with him by way of audio-visual link to the Clarence Correctional Centre. He apparently has a disability support worker who has regular contact with him via video and face to face. She stated that when he is released from the correctional centre, she will continue to liaise with the NDIS and ensure that a plan is obtained that is relative to and reflective of his support needs. She stated: "Since being incarcerated, I have observed Benjamin taking ownership of his well-being and positively embracing routines."
His Honour noted that in the SAR under "Attitude" it was recorded that: "Mr Dorsett claimed attitudes of remorse, however, mixed this with self‑concern, rationalisation and normalisation of his actions, disclosing being, 'sexually attracted' to younger people…he demonstrated a rejection of societal values and moral standards through his statement that he was aware of the ages of the victims. Furthermore, he said he was exceptionally hurt over one of the victims coming forward, as they had an agreement to, 'never tell anyone.'"
The applicant told Ms Jeffries (the SAR author) that at the time of his offending, his primary social interactions were with children aged 12 to 16 years of age. He had befriended a cohort of vulnerable young people who were marginalised through dysregulated home lives or struggling with sexual identity. Ms Jeffery opined that: "[t]here appear to be elements of both opportunistic abuse and planned grooming."
Ms Jeffery opined that the applicant now understood the legal implications of his actions, but stated: "Despite being given multiple opportunities throughout assessment, Mr Dorsett displayed minimal insight into his offending. He expressed remorse at any emotional hurt he may have hurt caused his victims, however failed to identify the implications of his actions."
His Honour said this about the "grooming" at [45]: "That is particularly relevant in relation to the latter two victims where he was collecting them from school, it would appear, during the time that they were supposed to be attending at school, to drive them around and supply them with cigarettes and/or alcohol. He had a similar relationship with both AA and BB. I accept that there is an element of planned grooming, but the individual offences were, when committed, relatively opportunistic. The applicant appears to have endeavoured to create close relationships with particular young females, and I accept that this was in circumstances where he would have had difficulty in forming close relationships with individuals of his own age bracket. He was assessed as being at an average risk of sexual reoffending."
His Honour noted that Community Corrections assessed the applicant's risk of re-offending as falling in the average risk range. The applicant's score on Static-99R deemed him ineligible for custody-based programs. He is not likely to receive any significant assistance in that regard while in custody. It is more probable that he can receive such assistance while on parole.
His Honour accepted that the applicant had a difficult childhood and that his intellectual limitations have created ongoing problems for him. The applicant is likely to always require support from NDIS or charitable organisations concerned with supplying assistance to persons like him. His Honour observed (at [49]-[50]): "I accept that he is at average risk of reoffending, particularly in the circumstances as previously outlined, as to his always being aware that he was committing offences and continuing to commit offences even when spoken to directly by police to ensure that he was aware of the possible consequences. Even when he was finally arrested, it appears that he failed to really appreciate what he was doing, even though all of those matters I have referred to had occurred. He disclosed to the mother of DD that he was in fact in a sexual relationship with her daughter, and it was when she reported the matter to the police that they were finally able to act when they obtained information from DD and CC, and of course that caused them to go back to AA and BB."
His Honour observed that the applicant's prospect of rehabilitation is affected by his Paedophilic Disorder which is "extremely difficult to treat", which meant that specific deterrence was particularly important. "I accept that his past history, as previously outlined, allows for some reduction in penalty on the basis of a lower moral culpability than might be the case otherwise, even though he always knew that he was committing offences. In my view, he was particularly vulnerable where it was relatively inevitable that he would associate with underage juveniles, considering his limitations."
His Honour noted that the applicant was a person of good character before the first offences but not thereafter, and then observed at [52]: "There is at least some indication of remorse, but the applicant elected not to give evidence on sentence and so the only information in relation to remorse is from second hand statements. I will accept that there is some evidence of remorse, although I indicate that I do not find it is particularly strong in the light of the ongoing offending of a repeated nature."
His Honour ameliorated the sentence due to the pandemic conditions in custody. His Honour then observed, inter alia, the relevance of the objective seriousness at [58]: "Any sentence imposed must reflect the objective seriousness of the individual offence, and I must fix a sentence which will ensure that the time the applicant must spend in custody reflects all the circumstances of the offences, including their objective seriousness as well as the need for general deterrence and specific deterrence. In this matter, specific deterrence is a significant factor to take into account, as I have already referred to."
His Honour did not consider the applicant to be a good vehicle for the expression of general deterrence, considering his personal limitations. However, a substantial sentence must be imposed, considering the period of time over which the offending occurred and the circumstances in which it occurred, and that it was in relation to four separate victims who were all children.
After noting the indicative sentences his Honour observed: "The aggregate sentence, having found special circumstances warranted, in my view, to ensure that the offender has a significant period on parole to assist him as much as possible in relation to sexual offending and returning to a law-abiding life in the community, the non-parole period will be a period of five years and the total term of the sentence is ten years. The sentence will date from 4 November 2021 when he first went into custody in relation to these matters, and the non-parole period will expire on 3 November 2026. The total term of ten years will expire on 3 November 2031. In my view, a very lengthy period on parole is necessary, considering the offender's limitations, and my view that there will be a significant need for ongoing assistance, particularly in relation to providing assistance in respect of sexual offending once released, considering the expectation that he will not receive much assistance while in custody in that respect, as referred to in the reports, and in addition, of course, this is the offender's first time in custody, and I have also taken into account that that may assist in avoiding any risk of institutionalisation, although I do regard that as a real risk in his circumstances, even though it is the first time in custody."

Grounds 1A and 1B: latent error in indicative sentences/ inadequate reasons in arriving at indicative sentences

The applicant's submissions

It should be observed at the outset that the applicant's submissions were very detailed. I have endeavoured to summarise them, but note that even the summary below is somewhat lengthy.
By way of overview, the applicant contended that the indicative sentences demonstrate error on one or more of three possible bases: either through an insufficient assessment of objective seriousness or undue weight being placed on the maximum penalty or an over emphasis on the Form 1 offending in relation to charge 7 (sexual assault with the 13-year-old). Reliance was placed, in particular, on the disparity in the indicative sentence for the s 66C(1) offence (6 years) when contrasted with similar offending under s 66C(3) (2 years, 6 months). It was submitted that, at the very least, the remarks on sentence do not adequately expose the reasoning in assessing the different indicative sentences.
It was further submitted that the error in the assessment of the offending against s 66C(1) may have also contributed to a sentence that is manifestly excessive. In any event, Ground 2 contends that the sentence is manifestly excessive.
It is submitted that his Honour's remarks on sentence do not adhere to the principles regarding the need to assess objective seriousness. Although his Honour asserted that each offence had been individually considered, it was submitted that, taking charge 7 as an example, it is only specifically referred to at three points in the reasons: in the recitation of the facts, when his Honour observed that a condom was not used and when his Honour imposed the sentence.
It was submitted that in the absence of an individualised reference to the objective seriousness, the relevant inquiry is whether the reasons allow an implicit inference that objective seriousness was appropriately and individually assessed. It was acknowledged that within the remarks about the offending globally there is a mix of highly generalised references to "seriousness" and some more specific considerations that could apply to several of the charges.
The applicant submitted that a further complicating feature was that charge 7 had a unique maximum penalty and an offence on a Form 1 and that an analysis of those features by reference to the final indicative terms shows that the discretion miscarried.
It was submitted that the finding that "in the circumstances, as outlined in the facts, I regard all the offences of being of a serious nature ..." provided no insight on objective seriousness as it was "unimaginable" that a sexual offence against a child could be regarded as anything but serious.
Reliance was placed on the fact that his Honour touched upon factual circumstances that may be regarded as contributing to an evaluation of objective seriousness of all offending (and, therefore, charge 7) without relating the factors to a finding in relation to any specific charge. Those factors include: the sexual act (such as fellatio vs. penile-vaginal intercourse); the absence of protection; that some acts occurred following warnings being given to the applicant; that the contact was not opposed; that the offending was opportunistic even though there were elements of grooming; and the age of the victim. These features were typically, although not universally, shared between the offending and it was submitted that it is not clear how his Honour actually regarded them within the individual offences.
By way of further submission as to the differences between the charges, although charge 7 was committed without a condom, so too were offences 2 and 8. Nor was there any marked differences between the sentence for 2 and 8, compared to similar offending where it was not specified whether a condom was used - namely offences 3, 4 and 5. It was submitted that although the objective seriousness of charge 7 may be higher because it was committed following the applicant being warned, the same could essentially be said for all the offending following charge 1.
It was further submitted that a factor common to all offences was that they were opportunistic and "not opposed" (save the sexual touching charge). Although his Honour specifically reflected on the grooming element involving CC and DD in purchasing cigarettes and alcohol, he also noted that such behaviour was consistent with the applicant's intellectual functioning that predisposed him to generally associating with younger peers. It was submitted that the term indicated for charge 8 (2 years and 6 months) when contrasted with those involving AA and BB (all 2 years and 6 months save one) suggested that his Honour did not see such behaviour as significantly bearing on objective seriousness.
Reliance was placed on the fact that the circumstances capable of bearing on an assessment of objective seriousness were common to all charges such that those circumstances cannot explain the significantly different indicative term imposed for charge 7. It was submitted that the reasons simply do not reveal the basis on which his Honour may have perceived such circumstances being relevant for charge 7 such as to warrant a finding of objective seriousness that supported the final indicative sentence. In this respect, reliance was placed on the decision in Franklin v R [2016] NSWCCA 319.
It was conceded that one factual feature that warranted disparity in approach for charge 7 was that the victim, DD, was the youngest of all the s 66 Crimes Act offending. But, it was submitted, to reason that this was the primary factor that led to his Honour viewing the offence as objectively more serious to warrant a term of 6 years, is "comprehensively undermined" by the observation that his Honour indicated a term of 2 years and 6 months for a near identical offence that occurred when DD was less than two months older (charge 8) but still the youngest within s 66C(3) of the Crimes Act. It was submitted that it was untenable to suggest that the lapse of less than two months would materially change the maturity and vulnerability of DD to justify the quantum of the disparity associated with the indicative term for charge 7.
It was submitted that there were two potential complications associated with charge 7. The first is that DD's age meant that the offending attracted a higher maximum penalty and SNPP. The second is that it also had an offence on a Form 1. The applicant observed that these circumstances are independent of objective seriousness, and both had the capacity to result in a higher indicative term. However, it is submitted that neither individually nor in combination can these factors explain the disparate indicative term finally indicated.
As for the fact that there was a higher maximum penalty for charge 7, it was noted that this does not automatically necessitate a higher indicative term: Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31 [27] and [32]. Rather, the outcome turns on a clear assessment of the objective seriousness. The maximum sentence (and any associated SNPP) provides guidance as to the seriousness of that category of offending but in order to apply that guidance, the individual circumstances and seriousness of the offending needs to be placed within the relevant category.
It was submitted that the sexual acts for charges 7 and 8 are "essentially indistinguishable": being non-coerced, penile-vaginal intercourse without a condom for an unknown duration. The age of the victim for charge 7 was at the very upper end of the cut off for offences under s 66C(1) of the Crimes Act, being a circumstance that reduces its seriousness as an example of that category of offending. The age of the victim for charge 8 was at the very lower end of the cut off for offending under s 66C(3) of the Crimes Act, being a circumstance that elevates its seriousness as an example within that category of offending. Additionally, the fact it is a repetition of the offending might also be relevant in regarding it as more serious.
Thus, it was submitted that even factoring in the statutory guideposts it would be reasonable to expect the respective sentences for charges 7 and 8 to be approaching each other.
As for the Form 1 matter it was noted that the relevant policy purpose is to encourage admissions of guilt where it may be appropriate that a particular offence has lower salience in the sentencing process: 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 [66]. But that process does not mandate a higher sentence and so, in some cases, no increase may be contemplated: Mueller v R [2015] NSWCCA 292 at [26].
Thus, although the different maximum penalty and Form 1 might explain why the indicative term for charge 7 would be the highest, it does not "persuasively explain" the disparate sentence between that indication when considered against the other indicative terms. Nor do his Honour's reasons state what the grounds were for the difference in the indications.
The applicant's written submissions acknowledged that the analysis relied upon in support of this ground is "open to a criticism of being discursive", but that was said to be a consequence of the failure of "base level clarity" in the findings of objective seriousness. This, it was submitted, leaves the applicant to speculate as to why charge 7 attracted such a markedly different term of imprisonment which means that various alternative explanations need to be considered. Further, in this case, that speculative exercise gives rise to an inference that there has been potentially incomplete or misplaced engagement in three areas: objective seriousness, approach to maximum penalty and/or the role of the Form 1.
The applicant submitted that he was not contending for an unrealistic "counsel of perfection" but that this was not a case which presented significant challenges in achieving clarity on objective seriousness. His Honour noted that charge 6 was less serious, and it would have been open to him to have undertaken a similar exercise to articulate the objective seriousness of charge 7. Given that there were only eight offences (and one Form 1 matter), even a brief reference to each offence would have been entirely practical in this case.
It was submitted that a sentencing court is obliged to give reasons that identify the matters that have been taken into account in arriving at the final sentence: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [43]. Such reasons are critical in promoting transparency in the sentence process and allowing for appellate review: see Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291 at [39], Kennedy v R [2008] NSWCCA 21; (2008) 181 A Crim R 185 at [25]-[26] and Connell v R [2020] NSWCCA 352 at [41]- [43]. Where the remarks on sentence are opaque, the issue is whether they give rise to a "real possibility" that an applicable sentencing principle has not been properly applied: see Lee v R [2016] NSWCCA 146 at [26]: "The reasons must be adequate to demonstrate the absence of a real possibility that the judge failed to apply correct legal principle."
Overall, it was contended that the reasons do not meet that threshold and there is, at least, a real possibility of a failure in applying correct legal principle.
At the hearing of this appeal, the applicant emphasised five submissions.
First, it was contended that the court would reject the Crown's submission that the fact that this ground relies on three possible errors highlights the fact that there is no readily identifiable error. In support of that submission reliance was placed on the decisions in AJ v R [2023] NSWCCA 158 and KS v R [2024] NSWCCA 147.
Secondly, it was contended that the court would reject the Crown's submission that it is unsurprising that a court would impose the same indicative sentence for the s 61C(3) offences that involved penile-vaginal intercourse, given the points of distinction between those offences which were said to indicate that a proper analysis of objective seriousness had not occurred.
Thirdly, it was contended that the court would reject the Crown's submission that the different indicative sentence for charge 7 was explicable for the reasons advanced by the Crown.
Fourthly, reliance was placed on KS v R and what was said to be the evolving consideration by this Court of indicative terms. It was submitted that, contrary to the Crown submission, there does not need to be a demonstrated effect on the aggregate term.
Finally, it was emphasised that even if none of the arguments under Ground 1A were accepted, there was a strong case that the reasons on objective seriousness were inadequate.

The Crown submissions

It was submitted on behalf of the Crown that there is nothing to suggest that the indicative terms are anything other than entirely appropriate in all of the circumstances, or that they in any way contributed to a manifestly excessive aggregate sentence.
Furthermore, the fact that the applicant himself alludes to several potential errors that may have been made and has pleaded the first Ground (1A) of the appeal to this Court on three alternate bases, only serves to underline that there is no readily identifiable error present in the sentence at first instance.
It was noted that the maximum penalty for the s 66C(1) offence is significantly higher than that for the other s 66C(3) offences and that a SNPP of 7 years applies. It was also the only offence that had a Form 1 offence of equivalent seriousness attached to it. Correctly employing these legislative factors, as a guideline or touchstone for determining the appropriate sentence to be passed, it was submitted that it could not be said that the indicative sentence (of 6 years with a non-parole period of 3 years) showed any "marked difference" to the indicative sentences for the s 66C(3) offences of 2 years (for the first in time act of fellatio offence) and 2 years 6 months (for the remainder of the s 66C(3) offences). The 2 years and 6 months indicative sentences for the remainder of the s 66C(3) offences all involved penile-vaginal intercourse of a largely similar nature, none of which was accompanied by violence, threats, cruelty or physical coercion. The fact that the sentencing judge did not differentiate between them in terms of the appropriate indicative sentence could not be said to be surprising.
It was submitted that the sentencing judge was not required to go beyond the assessment of objective seriousness provided. It was submitted that there was nothing to suggest that the sentencing judge failed to apply correct legal principles in coming to the imposition of the wholly appropriate aggregate sentence. Further, even in the event that this Court found, contrary to these submissions, that there had been an error in assessment, the indicative sentences could not be said to have in turn given rise to any error in the aggregate sentence that was ultimately imposed.
It was submitted that the assessment of objective seriousness is quintessentially a matter for the sentencing judge. Where that assessment has been made of offences that are (in respect of the s 66C(3) offences) very similar in nature, it would necessarily lead to sentences that are of the same or very similar length. As the sentencing judge found in his reasons, all of the offences were objectively serious in nature (except for the intentionally touch child offence which he specifically distinguished), based on the circumstances of each that he had already clearly outlined in the facts earlier in the reasons.
As for the inadequacy of reasons complaint, it was submitted that a careful consideration was given by the sentencing judge to the applicant's subjective case and favourable findings were made in respect of many factors relevant to mitigation, such as a finding of lower moral culpability, the presence of remorse, that the applicant was not a good vehicle for general deterrence, and evidence of rehabilitation whilst in custody. As the sentencing judge appreciated, those matters had to be balanced against the objective seriousness of the series of offences committed by the applicant.

Consideration: Grounds 1A and 1B

The applicant relied on alternate arguments under Grounds 1A and 1B. Both grounds concern the relevant principles concerning the imposition of aggregate sentences under s 53A of the Sentencing Act. Although a number of arguments were relied upon under Ground 1A, it seems to me that they can be distilled into the contention that there is error in the "substructure upon which the aggregate sentence is based": AJ v R at [37]. Part of the argument under both Grounds 1A and 1B was that the sentencing judge failed to properly assess and make findings about the objective seriousness of each of the eight offences contrary to established principles regarding the imposition of aggregate sentences. Given that the applicant will succeed if either of these alternate grounds is established, I propose to consider this argument first.

Separate consideration of each offence

Since its enactment on 14 March 2011, s 53A of the Sentencing Act has been judicially considered on numerous occasions. Justice R A Hulme (with whom Hoeben CJ at CL and Adamson J (as her Honour then was) agreed) collected the decisions of this Court up until that time which had dealt with appeals from aggregate sentences in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39]. That decision remains the leading authority in this Court both as to the relevant principles when imposing an aggregate sentence and the relevant principles when considering an appeal from an aggregate sentence.
As R A Hulme J observed in JM v R at 39, s 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 in sentencing for multiple offences. The provision obviates the need to engage in the "laborious and sometimes complicated task of creating a "cascading or 'stairway' sentencing structure" when the principle of totality requires some accumulation of sentences". His Honour went on to state, relevantly, the following at [39] (4)-(6) (citations removed): "(1) It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a 'blanket assessment' by simply indicating the same sentence for a number of offences is erroneous. (2) The imposition of an aggregate sentence is not to be used to minimise the offending conduct, or obscure or obliterate the range of offending conduct or its totality. (3) One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence." (Emphasis added.)
His Honour went on to observe the following, inter alia, at [40] (citations omitted) regarding the relevant principles when seeking leave to appeal against an aggregate sentence: "(1) The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. (2) Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive. (3) A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved." (Emphasis added.)
It is well established that when imposing an aggregate sentence, the criminality involved in each offence needs to be assessed individually and that to adopt an approach of making a "blanket assessment" by simply indicating the same sentence for a number of offences is erroneous. An example of the failure to do so can be found in Franklin v R [2016] NSWCCA 319 at [62]-[65] where, although the sentencing judge assessed the seriousness of offending "overall", there was a failure to sufficiently address the individual offending. R A Hulme J (with whom Macfarlan JA and Bellew J agreed) observed the following at [65]: "It was a necessary function of his Honour's sentencing task to make some finding as to the gravity of the individual offences: see, for example, Mulato v R at [47]; JM v R [2014] NSWCCA 297; 246 A Crim R 528 at 391(4); R v Van Ryn [2016] NSWCCA 1 at [133]-[142]. It may be inferred from the indicative sentences that it is a task with which there must have been some intellectual engagement. The problem is that the judge exposed no reasoning on the subject. Lest it be thought that in a case involving sentencing for a large number of offences that would involve an onerous recitation of lengthy and elaborate reasons, it need not. The indicative sentences suggest that the judge must have found a lot of the offences fell within a broadly similar range with a few outliers. If that was his assessment, it could have been stated fairly succinctly."
Although it is necessary to consider the criminality involved in each offence separately, error will not be established simply because the same indicative sentence is fixed for each offence. In Turner v R [2021] NSWCCA 5, one of the grounds of appeal contended that the sentencing judge had failed to comply with the provisions of s 53A(2) of the Sentencing Act by not assessing individually the criminality involved in the offences. Reliance was placed on the fact that offences contrary to a particular provision all had the same indicative sentence fixed. In dismissing that ground, Garling J (with whom Payne JA and Davies J agreed) observed at [59] that the mere fact that the same indicative sentence is fixed for multiple offences does not of itself and without more indicate an impermissible approach to determining the objective seriousness of the offence and that "[t]his is particularly so in circumstances where…each of the offences were contrary to the same section of the Crimes Act and each was committed during a single sustained course of offending over a lengthy period of time".
In the present case, the sentencing judge provided detailed remarks on sentence. It was necessary for him to consider and synthesise a significant amount of subjective material. His Honour did so and made a number of positive findings in the applicant's favour including that the applicant's moral culpability was reduced due to his difficult childhood and mild intellectual disability. His Honour found special circumstances and significantly departed from the statutory ratio (75%) in s 44(2A) of the Sentencing Act such that the non-parole period comprised only 50% of the head sentence. No criticism is made of any of his Honour's findings in relation to the applicant's subjective case.
After noting his Honour's (justified) concern that in each instance the applicant knew that what he was doing was an offence and kept doing it, his Honour assessed the objective seriousness of the eight offences as follows at [14]: "In the circumstances, as outlined in the facts, I regard all the offences as being of a serious nature, with of course the sexual touching being the least serious of all of the offences, particularly in the circumstances where he desisted when told to. The offending ranged between fellatio with AA and otherwise penile-vaginal intercourse, on some occasions in the absence, as indicated in the facts, of a condom, such as [charge 2] in relation to AA and [charge 6] in relation to DD and [charge 8] in relation to DD. Some of the other individual offences do not specify whether a condom was in use or not."
Despite the care with which his Honour considered the complexities of the applicant's subjective case, the fact remains that the applicant was to be sentenced for eight offences in relation to four children ranging in age from 12 to nearly 16. Clearly, the circumstances of the individual offences were not the same. Despite this, his Honour made no separate findings in relation to the differences between the offences nor did he provide any reasons for fixing identical indicative sentences for most of the s 66(3) offences despite their obvious differences.
Although it could not be said that his Honour made no finding as to objective seriousness (in that he described them all as "serious" and referred to some relevant factors), the difficulty is that it is not apparent that his Honour assessed the criminality of each of the offences individually, contrary to the principles in relation to aggregate sentencing as stated in JM v R.
A possible explanation for the approach taken by his Honour is apparent in the transcript of the proceedings on sentence. The solicitor appearing for the Crown provided written submissions addressing the objective seriousness of each of the separate offences. She submitted that the offences in relation to AA and BB were "under the mid-range of objective seriousness but not at the low end", that the offence in relation to CC fell "towards the lower end of objective seriousness but not at the low end" and that the offences in relation to DD sat "at the mid-range of objective seriousness".
During oral submissions on 6 June 2023, the following exchange took place concerning the Crown submissions: "HIS HONOUR: Could I say that before you start, Crown, that there is only one charge in all these charges that has a standard non-parole period? It has become common, since the introduction of standard non-parole periods, for everyone in all matters, whether there's a standard non-parole or not, to assess matters against a mid-range of seriousness. The Court of Criminal Appeal has said on many occasions that that is inappropriate in respect of offences that do not have a standard non-parole period, and in recent times, they have gone so far as to say it's not even necessary in respect of those that do have standard non-parole periods. MIFSUD: Yes, I completely accept that, your Honour. I don't think her Honour Judge Latham will mind me naming her, but the other day, when I didn't do it, I was in trouble. Judge Walsh said it is helpful sometimes to know where it sits, although she's not bound by it. Your other members of the bench sometimes appreciate it, but I certainly don't hold your Honour at ransom to anything that I've written by way of objective seriousness. I accept your Honour's remarks about the Court of Criminal Appeal." (Emphasis added.)
Although it is to be accepted that this Court has observed that it is unnecessary and, in some cases, unhelpful to assess the objective seriousness of an offence by reference to a notional range, I consider it necessary to clarify the question of whether it is "inappropriate" to assess the objective seriousness of an offence by reference to a notional range and "not even necessary" to do so for a SNPP offence when sentencing for multiple offences brought under the same offence provision in relation to multiple victims.
It is well established that it is an important part of the sentencing exercise to assess the objective seriousness of an offence. It is necessary both to ensure that an adequate sentence is imposed and also to ensure that the sentence is proportionate to the gravity of the crime: Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 at 486 per Wilson J; R v Van Ryn [2016] NSWCCA 1 at [134]-[135] (per R A Hulme J, Leeming JA and Johnson J agreeing).
The practice of assessing the objective seriousness of an offence by reference to a notional range commenced after the enactment of SNPPs in Pt 4 Div 1A of the Sentencing Act in 2003. It was considered that such an approach was required for SNPP offences and a general practice emerged of adopting such an approach for all offences.
Following the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the Sentencing Act was amended to clarify how the SNPP provisions were to be considered and applied in sentencing. Section 54B(6) of the Sentencing Act, effective from 29 October 2013, provides that: 54B Consideration of standard non-parole period in sentencing (6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable.
Thus, it is no longer a requirement to assess the objective seriousness of a SNPP offence by reference to a notional range. Despite this, it remains important to make the necessary assessment. In FL v R [2020] NSWCCA 114, Wilson J said this on this issue at [58]-[60]: "There is no question that a sentencing court is obliged to make an assessment of the objective gravity of each offence for which an offender is to be sentenced. That process is a central part of the sentencing exercise, necessary to ensure that an adequate sentence is imposed upon an offender in compliance with s 3A(a) of the Crimes Sentencing Procedure Act 1999(NSW); and to observe the principle of proportionality, stated in R v Dodd (1991) 57 A Crim R 349 at 354 in this way: '… there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity …'. What is not required is for the sentencing court to express that assessment by reference to a formula, or a percentage, or by classifying the objective seriousness of an offence. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 the High Court observed at [29] that: 'A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to 'mak[ing] a record of its reasons for increasing or reducing the standard nonparole period' is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed.' What is important is to fully identify the 'facts, matters and circumstances' which bear on the assessment of the gravity of the crimes. It is not necessary to express the conclusion reached by reference to a position within a range, or by resorting to mathematical terminology: PK v R [2012] NSWCCA 263 at [24]-[27]; RC v R; R v RC [2020] NSWCCA 76 at [243]-[244]."
Although it is not mandatory to assess the objective seriousness of a SNPP offence by reference to a notional range, that does not mean that it is not helpful to do so. In R v Eaton [2023] NSWCCA 125, Hamill J cited the above passages from the decisions of Wilson J in FL v R and observed the following at [57]: "While it has become increasingly common for judges to do so, exposing the reasons for the ultimate sentencing outcome does not generally require a sentencing judge to place the objective seriousness of the offence on some putative scale from 'low range', through 'mid-range', to 'high range'. In cases involving a standard non-parole period, it will usually be desirable to do because it is only if the case falls in (or above) the so called 'middle range of objective seriousness' that the standard non-parole period applies." (Emphasis added.)
As for non-SNPP offences, it is now well established that it is not an error to decline to assess objective seriousness by reference to a notional range. In DH v R [2022] NSWCCA 200, Harrison J (as his Honour then was) (Fagan and Yehia JJ agreeing) considered a ground of appeal in which although the applicant conceded that the sentencing judge had made findings relevant to objective seriousness, he complained that her Honour did not indicate where on the scale of seriousness each of the offences fell. In that context, his Honour confirmed yet again at [33] that a sentencing judge is not required to: "… recite some mantra invoking comparisons about where the sentence being considered falls on some hypothetical arithmetical or geometrical continuum of seriousness. Whereas it would not be an error for a judge to adopt such an approach, a failure to do so does not indicate error." (Emphasis added.)
Yehia J agreed with Harrison J and went on to observe the following at [60]: "A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as 'low end of the middle of the range', 'upper end of the middle of the range' or, 'just below or above the midpoint' add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence."
Although there have been observations in decisions of this Court to the effect that placing the objective seriousness on a range may not be helpful, it has also been acknowledged that there will be cases when it will be; for example, in R v Walker [2023] NSWCCA 219, Leeming JA observed that it may sometimes be helpful to define objective seriousness by reference to a range, notwithstanding that the putative scale from "low range" through "mid-range" to "high range" is a vague one: at [2]-[3].
As for any suggestion that it is "inappropriate" to place the objective seriousness on any notional range, the closest statement to that can be found in Paterson v R [2021] NSWCCA 273 in which Beech-Jones CJ at CL (with whom R A Hulme J and I agreed) stated the following specifically referable to the offence of manslaughter at [32]-[33]: "Further, in relation to the assessment of objective gravity of an offence, where a standard non-parole period is prescribed under s 54A of the Sentencing Act, it is common for sentencing judges to locate the objective seriousness of an offence on a hypothetical range of seriousness for such offences. However, that is not obligatory for such offences (s 54B(6); Tepania at [110] per Johnson J) and even more so with offences that do not carry standard non-parole periods. There is no standard non-parole period for manslaughter. Given that, and the much repeated statements that, of all crimes, manslaughter is said to 'thro[w] up the greatest variety of circumstances affecting culpability' (R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep; see also R v Blake Davis [2021] NSWSC 235 at [138] per N Adams J) it follows that an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters or types of manslaughters is not only not obligatory, it is unlikely to be of much utility. For my part I consider that it is an analysis that is best avoided."
Having regard to these principles, it is to be accepted that this Court has stated that it is not an error to fail to assess the objective seriousness of an (non-SNPP) offence by reference to a notional range, and that it can be unhelpful to do so. But there is no principle derived from any of these decisions to suggest that there is no need to make relative findings of objective seriousness when sentencing for multiples offences/victims where the objective seriousness of each offence differs. In such cases it will often be necessary, even in very broad terms, to identify the factors which make some offences more or less serious than others, if that is indeed the case.
Having regard to these principles, I am satisfied that the sentencing judge did not adequately expose his reasoning in arriving at the indicative terms, specifically, by failing to assess the criminality of each of the eight offences individually. This finding arises from arguments made under both Grounds 1A and 1B, namely, that there was a failure to consider the objective seriousness of the individual offences.
In concluding that the sentencing judge did not individually assess the criminality of each of the offences in this matter, I do not intend to suggest that a separate finding needs to be made for every single offence no matter how many offences are before the court, even if there are no differences between them. That there is no need to make a separate assessment of every offence if many of them are similar can be seen from decisions such as Turner v R [see above at [138]). But I accept that on the facts in this case it is not apparent that the sentencing judge assessed the criminality of each of the eight offences separately in circumstances where there were multiple victims and some obvious differences between the offences brought under the same section. I am fortified in this conclusion in that I am satisfied that if he had, his Honour would not have imposed the same indicative sentence for the five offences brought under s 66(3).
Given that I am satisfied that this aspect of the applicant's arguments under Grounds 1A and 1B should be upheld, it is not necessary for me to consider the other arguments advanced. Despite this, I do consider it necessary to address the part of the argument which relied on the decision in AJ v R.

AJ v R

Despite the fact that indicative sentences are not amenable to appeal, applications for leave to appeal against sentence to this Court frequently rely upon complaints concerning the indicative sentences in support of a broader contention that there is error in the imposition of the aggregate sentence. Prior to the decision in AJ v R, it was well established that there are two ways in which such error could be established.
The first way in which error in an indicative sentence may be relevant in an appeal against an aggregate sentence is if it is a guide to whether error is established in relation to the aggregate sentence, as stated in JM v R at [40]. That principle has been applied consistently since that decision. In Stoeski v Regina [2014] NSWCCA 161 at [43], Adamson J (as her Honour then was) observed: "The only purpose in examining the individual indicative sentences for counts 1 and 4 in the present application is that, if one or more of the individual indicative sentences is excessive, it may support the contention that the aggregate sentence was manifestly so. However, it must be borne in mind that the relationship between the indicative sentences for individual counts and the aggregate sentence depends at least as much on the degree of internal accumulation or concurrence implicit within the aggregate sentence as in the individual indicative integers. Furthermore, since manifest excess, like manifest inadequacy, is a conclusion, it is not necessary for the applicant to identify a specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]."
In Kerr v R [2016] NSWCCA 218 at [114], Bathurst CJ held: "As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive."
Similarly in Lee v R [2020] NSWCCA 244 at [32], Beech-Jones J (as his Honour then was) observed: "Further, 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 t CJ and Adamson J agreed)."
The second way in which error in one or more of the indicative sentences could establish error in the aggregate sentence is where patent error (such as stating the wrong maximum penalty or SNPP) in an indicative sentence is established and it has "the capacity to influence the sentence": Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Basten JA); Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [145] (N Adams J, Leeming JA agreeing); Benn v R [2023] NSWCCA 24 (Gleeson JA, N Adams and Ierace JJ agreeing). If an applicant can establish an error which has the capacity to influence the sentence, then this Court is required to intervene and resentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] ("Kentwell error").
Part of the applicant's argument under Ground 1A is that there is a third way in which the indicative sentences can be relied upon to impugn an aggregate sentence which has emerged since the decision in AJ v R.
In AJ v R, Button J (with whom Simpson AJA and Hamill J agreed) considered a ground of appeal contending for error in the indicative sentences. For two of the offences, the sentencing judge had assessed the offending as being in the mid-range of objective seriousness but then fixed starting points for the relevant indicative sentences that were very close to the maximum penalty. In that factual context, Button J observed the following about appeals against aggregate sentences generally at [30]-[33]: "It is trite law that only the aggregate sentence can be impugned directly by an appeal, simply because it is the only sentence actually imposed: see JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]; Kerr v R [2016] NSWCCA 218 at [114]. Having said that, the statutory system of aggregate sentencing was introduced to relieve sentencing judges of legalistic and formalistic requirements with regard to setting cascading or interlocking commencement and expiry dates of sentences: see generally JM v R at [39]; R v Rae [2013] NSWCCA 9 at [43]-[45]; Truong v R [2013] NSWCCA 36 at [231]; and, more recently, Sharma v R [2022] NSWCCA 190 at [4]. It was not intended to change sentencing law substantively, including the availability of different kinds of appeal against sentence: see PG v R [2017] NSWCCA 179 at [90]. It is unsurprising in those circumstances that this Court has shown itself comfortable with grounds that attack aggregate sentences on the basis of the asserted errors in the indicative sentences that underpinned them: for a recent example, see Davidson v R [2022] NSWCCA 153 at [16], [39]-[43]."
His Honour then went on to observe the following in relation to the nature of the error in that case at [37]-[38]: "Contrary to the submission of the Crown, the starting points of two of the indicative sentences upon which the aggregate sentence is based must be erroneous. Whether that is the result of arithmetical error, or inadequate reflection upon the starting point, or over-emphasis on objective features adverse to the applicant and under-emphasis on subjective features favourable to him, is of little moment. I am satisfied that a significant portion of the substructure upon which the aggregate sentence is based is faulty. That means, in my opinion, that this Court should turn to consider resentence. Finally, to be clear, the question of whether the aggregate sentence is manifestly excessive need not be determined. All that the parties said about that topic will be reflected upon by me in the process of considering resentence."
The error in AJ v R was clear: to make a finding of mid-range objective seriousness and then arrive at starting points close to the maximum penalty is patent error. The court could have allowed the appeal by concluding that patent error in the indicative sentences was established: either because the sentencing judge applied the wrong maximum penalty or, as the court in KS v R suggested (discussed further below), by misapplication of the principle that a sentence close to the maximum penalty is reserved for offending in the worst category of offending. Such an error clearly has the capacity to affect the aggregate sentence and thus the court was required to intervene and resentence the offender.
But the error in AJ v R was not described by the court as "patent" error; it was identified as being one of "faulty" "substructure". It seems to me that that description has led to some misunderstanding as to the nature and scope of appeals to this Court from aggregate sentences imposed under s 53A of the Sentencing Act. That misunderstanding is apparent in three recent decisions of this Court.
First, in PN v R [2024] NSWCCA 86 it was contended that, contrary to the longstanding principles I have referred to above, AJ v R is authority for the proposition that a manifestly excessive indicative sentence (latent error) requires this Court to intervene and resentence an offender without the need for any corresponding ground alleging manifest excess in the aggregate sentence. The court (Wilson J, Chen and Huggett JJ agreeing) rejected this ground and in doing so restated the relevant principle. Wilson J observed the following at [48] in relation to the decision in AJ v R: "This Court is empowered to hear appeals against 'a sentence' pursuant to the Criminal Appeal Act. The meaning of the word 'sentence' in the context of appeal proceedings is much broader than the definition provided by the Crimes (Sentencing Procedure) Act. Despite the breadth of the definition given by s 2 of the Criminal Appeal Act however, it does not encompass an indicative sentence. Axiomatically, this Court has no jurisdiction to consider an appeal against an indicative sentence. That is not to say that error in the determination of an indicative sentence is irrelevant to an appeal against an aggregate term of imprisonment, since the former could have a material impact on the latter. That is what I understand Button J to have said in AJ v R, at [33]."
Her Honour went on to refer to the observations of R A Hulme J in JM v R at [40] (extracted above at [136]) and then observed the following at [49]: "On that basis, error in an indicative term does not, without more, give rise to the Court's power to proceed to re-sentence. For that power to be enlivened, a further proposition, that the error in the determination of the indicative term led to error in the aggregate sentence that was imposed, must be established."
In KS v R [2024] NSWCCA 147, the court (Adamson and Stern JJA, Wright J) considered a similar ground of appeal which again relied on AJ v R to contend that latent error in an indicative sentence (that is, a manifestly excessive indicative sentence) can lead to Kentwell error in the absence of a separate ground of appeal alleging manifest excess. Their Honours noted, at [59], that errors in the exercise of the sentencing discretion which may attract appellate intervention are limited to the errors summarised in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] by Gleeson CJ, Gummow, Hayne and Callinan JJ: "Based on that passage as summarised in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [25] by Gleeson CJ, Gummow, Hayne and Callinan JJ, it is evident that the errors in the exercise of the sentencing discretion which may attract appellate intervention are limited to the following: (1) the sentencing judge acted upon a wrong principle; (2) the sentencing judge allowed extraneous or irrelevant matters to guide or affect the outcome; (3) the sentencing judge mistook the facts; (4) the sentencing judge did not take into account some material consideration; and (5) in the absence of patent error (the kind of error in (1)-(4) above), the result is so unreasonable or plainly unjust that error, which 'may not be discoverable', can be inferred."
The court in KS v R noted that the fifth of these errors involves latent error which includes the conclusion that the sentence is "manifestly excessive" or "manifestly inadequate": Markarian at [25]. Their Honours then observed the following in relation to the reasons in AJ v R at [62]-[63]: "In AJ, there was an identifiable (and therefore patent) error which affected the indicative sentences: the sentencing judge had plainly either applied the incorrect maximum penalty for counts 1 and 3 or misapprehended the principle that a penalty close to the maximum is to be reserved for the worst type of case, taking into account the nature of the crime and the circumstances of the criminal (The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18] (Bell, Gageler, Keane, Nettle and Gordon JJ)). Because two of the indicative sentences involved patent error, the resulting aggregate sentence was necessarily erroneous as a matter of process (rather than result). It was apparent that the sentencing judge acted on the wrong principle (category (1) of the Markarian principles) because the indicative sentences were very close to the maximum penalties but the subjective and objective circumstances were not in the worst category and therefore, the length of the indicative sentences was unwarranted. Because the process in AJ was erroneous, it was not necessary to address whether the result, too, was erroneous. The reason for this was that the result (the aggregate sentence) was necessarily affected by the error in the process, irrespective of whether the aggregate sentence, too, was independently erroneous (by being itself manifestly excessive). AJ was simply an example of a case where, patent error having been established, it was not necessary to address whether there was also latent error, the former being sufficient to require the sentence to be set aside and the sentencing discretion to be exercised afresh."
The court observed the following at [72]: "What has been 'lost' where an aggregate sentence is imposed, rather than individual sentences for each offence, is the offender's right to challenge the sentences which have been indicated (the indicative sentences), rather than imposed (being the aggregate sentence or, where individual sentences are imposed, each individual sentence). This can be taken to have been a deliberate consequence of s 53A of the Crimes (Sentencing Procedure) Act, given the legal background against which it was enacted."
The court concluded the following at [74]: "In conclusion, even if an indicative sentence, viewed in isolation, is regarded as excessive this will not, of itself, be sufficient to impugn an aggregate sentence which is not alleged to be manifestly excessive. In the absence of patent error, the applicant can only successfully impugn the aggregate sentence if he demonstrates that the aggregate sentence is manifestly excessive." (emphasis in original)
In RA v R [2024] NSWCCA 149 (which was delivered two days after KS v R), the same argument had been made in reliance upon AJ v R: namely, that identification of a manifestly excessive indicative sentence is an error requiring this Court to intervene and resentence an offender in the absence of a separate ground of appeal alleging manifest excess. Although the court (Adamson JA, Wilson and Dhanji JJ) unanimously dismissed the appeal, Wilson J and Dhanji J reached different conclusions as to whether latent error in an indicative sentence alone can warrant the intervention of an appellate court to resentence an offender (putting to one side any suggestion that the aggregate sentence is manifestly excessive). Although Wilson J arrived at the same conclusion as the court did in KS v R, Dhanji J arrived at a different conclusion. After considering the respective arguments at [124]-[133], his Honour observed the following at [134]: "On a practical level, it would be a strange result if an indicative sentence which was infected by specific error but otherwise within range triggered the power to resentence but a finding that the same indicative sentence was not affected by specific error but was manifestly excessive, did not trigger that power. If anything, it might be thought that a manifestly excessive indicative sentence was more concerning with respect to the process in arriving at the aggregate sentence."
His Honour went on observe the following at [136]: "To be clear, I do not mean to suggest that any finding of manifest excess in an indicative sentence will enliven this Court's power to resentence. To take an obvious example, a short indicative sentence, which the reasons for sentence indicate would, if separately sentenced, have been made to run wholly concurrently with a longer sentence, is unlikely to be found to have had the capacity to have affected the aggregate sentence. I would not, however, contrary to the Crown's submission, distinguish between the approach to be taken to latent and patent errors in an indicative sentence."
It seems to me that, putting to one side the doubts expressed by Dhanji J in RA v R, (and his Honour's earlier comments in Lee v R [2023] NSWCCA 70 at [52]-[55]), it has been the consistent position of this Court since the introduction of aggregate sentencing that an argument that there has been latent error in an aggregate sentence may support a ground of appeal contending that the aggregate sentence is manifestly excessive (or inadequate) but it is not in and of itself error of a type which would require this Court to resentence an offender.
The applicant relied on the decisions in AJ v R and KS v R under this ground of appeal to contend that the substructure of the aggregate sentence was faulty in the sense that the differences between the offending in relation to all of the s 66(3) offences were not reflected in different indicative sentences. Given that I have found error on a separate basis, I do not consider it necessary to address that argument further.
I would uphold Ground 1 (part of Ground 1A and 1B).

Resentence

Given that I am satisfied that error is established, I do not consider it necessary to consider whether the sentence imposed was manifestly excessive. Error having been established in the sentencing process; the court is required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act 1912 (NSW) by an independent exercise of the sentencing discretion: Kentwell v R at [43].
The applicant's solicitor, Tracey Randall, provided an affidavit for the purpose of re-sentencing. Ms Randall noted that the applicant's classification following sentence has been as a C2 minimum security classification inmate, although he has also remained a Special Management Area Placement ("SMAP") because of fears he expressed regarding his safety. The applicant has not committed any offences whilst incarcerated.
Ms Randall deposed that the applicant has been referred to psychology and remains on the wait list. Following his sentence, he has been consistently employed whilst incarcerated except for 20 August 2023 to 28 August 2023 when he was transiting between correctional centres. He worked from 21 June 2022 to 19 August 2022 as a baking general hand, from 28 August 2023 to 5 March 2024 as a food services general hand and from 5 March 2024 to present as a food services leading hand.
The applicant has also engaged in a number of educational activities including a TAFE Warehousing Operations course, the Use Hygienic Food Practices for Food Safety course, CONNECT, Positive Lifestyle program, and Food Safety program. On 5 June 2024, he participated in an education and employment planning review and disclosed his goal of obtaining his forklift licence. He is currently enrolled in a further TAFE course of Supply Chain Operations Certificate III which he estimates he will complete in July 2024, at which point he will obtain a forklift licence.
The applicant's record indicates that he attended an Alcoholics Anonymous and Narcotics Anonymous support group on 16 October 2023, 23 October 2023, 30 October 2023, and 3 November 2023. The applicant instructed his solicitor that he has attended the group on a weekly basis since commencing in October 2023.
The applicant also continues to receive NDIS supports and services whilst in custody. Ms Randall annexed a letter from his NDIS coordinator, Angie Dellow, dated 2 August 2024. Ms Dellow outlined how the applicant is supported in custody by a social worker, support worker, speech therapist and a psychologist. Ms Dellow spoke highly of the applicant's progress whilst in custody and noted that he is starting to understand the consequences of his choices and actions and is working with his speech therapist to understand and gain confidence in "setting boundaries and understanding concepts such as consent (and nuances around friendships)".
Based on this material, I am satisfied that the applicant has taken steps since his incarceration to improve his education, employability and engaged in psychological intervention. He has been able to deploy his NDIS funding to arrange additional services.
I have considered the applicant's subjective case and adopt all of the favourable findings made by the sentencing judge, including as to his reduced moral culpability.
As for his Honour's finding that there was a need for specific deterrence in this matter, I have considered the applicant's submission that his attitude since incarceration serves to substantially moderate the call for specific deterrence. Although it is promising that the applicant would appear to have some more insight into his offending now than at the time that he was sentenced, I am satisfied that specific deterrence remains a relevant factor, although I would moderate the need for it somewhat.
Given my conclusion on Ground 1, it is necessary to make findings as to the objective seriousness of the eight offences. Although there are many features common to all of them, there are many differences as well.
I am satisfied that charge 6 was the least serious. The applicant knew that the victim was only 12 and a half years old. He touched her sexually by rubbing her inner thigh, grabbing her bottom over her clothes and then grabbing her breast with his hand. When he repeated the latter action, the victim told him to stop, and he did. The applicant was 22 years old. Although this is less serious than the other offences, that is because it was the only offence that did not involve sexual intercourse. Despite this, the maximum penalty for this offence was the same as for all of the s 66(3) offences: 10 years imprisonment. The offence was still serious because the applicant knew her age, she was his third victim and he persisted until she told him to stop at which time he did. The offence of intentionally touching a child, contrary to s 66DB(a) of the Crimes Act applies to children from above the age of 10 years to under the age of 16 years which means that CC was towards the lower end of the ages caught by the offence.
I consider the first two charges pertaining to AA to be the next most serious. I consider charge 2 to be more serious than charge 1. The victim was closer in age to 16, being 15 years and seven or eight months and the applicant was aged 21 years and nine or ten months, so their ages were closer to each other as well. The sexual act in charge 1 was fellatio. The applicant was warned to desist as the victim was only 15. Although he briefly did, he then left the party and had penile-vaginal intercourse with AA without a condom for about an hour (charge 2). Although I find these offences to be the least serious of the s 66(3) offences it is troubling that after being told to desist by concerned onlookers the applicant simply left with the victim and had sexual intercourse with him anyway.
As for charge 3, the facts disclose that the child BB was so intoxicated that she had difficulty walking. Whilst the applicant was having penile-vaginal intercourse with her (in a public place) he placed pressure on her neck. There is no mention of whether he wore a condom. BB was aged 15 years and eight or nine months. The applicant was aged 21 years and nine or ten months. I find this offence to be more serious than the first two offences pertaining to AA, including because the victim was highly intoxicated.
As for charges 4 and 5, they pertain to when the applicant alternated between having penile-vaginal intercourse with AA and BB whilst they were both intoxicated. It was not disclosed whether a condom was used. AA was aged 15 years and eight months. BB was aged 15 years and 11 months. The applicant was aged 21 years and ten or 11 months. I assess the seriousness of these offences as being broadly the same as for charge 2.
Finally, I am satisfied that the two offences pertaining to DD were significantly more serious than the others given her age. DD was 13 years and 11 months of age when she met the applicant. She told him her age. He had already been warned many times not to have intercourse with persons under the age of 16 years. His first sexual act was to take her camping and have penile-vaginal intercourse with her when she was still 13. Although that placed her at the upper age range for an offence contrary to s 66(1), the offence was still serious. The sexual intercourse went for some time, and the applicant did not wear a condom. He had penile-vaginal sex with her the following day (Form 1). The applicant was aged 23 years and three months, nearly 10 years older. The maximum penalty is 16 years and the SNPP is 7 years imprisonment
Charge 8 was only a few months after charge 7 by which time the victim was aged 14 years and one month. The applicant had penile-vaginal intercourse with DD and did not wear a condom. This is a much more serious example of s 66(3) than the other five offences in relation to AA and BB given her age.
I have found this to be a difficult sentencing exercise. I accept that the applicant has a relatively strong subjective case, and it was his mild intellectual disability which led him to socialise with younger people. But there were four victims involved and he was repeatedly warned that the conduct was illegal. The Victim Impact Statements of CC and DD reflect the adverse effect on them of the offending behaviour. Although AA and BB did not provide Victim Impact Statements, I adopt the observations of the sentencing judge at [16] concerning those two older victims: "I have no doubt that the offending against them as they mature will have a significant impact of an adverse nature on them. How long that might continue for will depend on what assistance they obtain to deal with it, but it is not unusual in relation to offending of this nature for the effect on the victim to last for years, if not for the remainder of their life, particularly in relation to their ability to relate to other persons and particularly males."
I have applied the 25% discount to the indicative sentences (and in some cases rounded down slightly). They are as follows: Charge 1: 1 year and 6 months imprisonment. Charge 2: 2 years imprisonment. Charge 3: 2 years and 5 months imprisonment. Charge 4: 2 years imprisonment. Charge 5: 2 years imprisonment. Charge 6: 9 months imprisonment. Charge 7: 6 years, non-parole period 4 years imprisonment (including the Form 1 matter). Charge 8 3 years and 1 month imprisonment.
Having applied the totality principle, I have arrived at an aggregate sentence of 8 years imprisonment, which is two years less than that imposed by the sentencing judge. I have had particular regard to the applicant's positive efforts at rehabilitation in custody.
I have adopted the sentencing judge's finding of special circumstances but given the lower head sentence I do not consider that to apply a 50% ratio between the non-parole period and the head sentence would result in a non-parole period which reflects the seriousness of the offending. Instead of applying a ratio of 75% I would reduce that to 60%. With rounding that results in an aggregate sentence of 8 years with a non-parole period of 4 years and 9 months.

Orders

Accordingly, I would propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Judge King SC on 9 June 2023. 4. In lieu thereof, sentence the applicant to an aggregate term of imprisonment of 8 years to commence on 4 November 2021 and expire on 3 November 2029. The non-parole period of 4 years and 9 months will expire on 3 August 2026 and the applicant is eligible for release on parole on that date.
DHANJI J: I agree with the orders proposed by N Adams J and her Honour's reasons for those orders.
I note her Honour's careful review of various decisions of this Court dealing with the issue of whether an indicative sentence affected by latent rather than patent error can sustain an appeal against an aggregate sentence where the aggregate sentence itself is not manifestly unreasonable or unjust. As her Honour states, the issue does not strictly arise in this case. For clarity, however, I will restate my own view. I remain of the opinion I expressed in RA v R [2024] NSWCCA 145 at [120]-[136] (part of which has been reproduced by N Adams J), and in the earlier decision of Lee v R [2023] NSWCCA 70 at [52]-[55], that there is no principled reason to distinguish between cases involving specific error in the determination of an indicative sentence and cases where, while the error cannot be identified, its presence is established by inference. I do not regard what I said in RA v R or Lee v R as inconsistent with what had been said in JM v R [2014] NSWCCA 297, albeit my approach would explicitly extend the availability of an appeal beyond the circumstances specifically identified in that case. I accept, however, that it has become clear that since writing my judgments in RA v R and Lee v R, that mine is not the prevailing view of the Court.

Endnote

In the interests of readability, I have re-numbered the eight charges from 1-8 rather than using the H numbers. 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: 25 October 2024

Crimes Sentencing Procedure Act 1999(NSW)

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2021/00313238; 2021/00313247; 2022/00029377; 2022/00080450 Publication restriction: Nil. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: R v Dorsett [2023] NSWDC 537 Date of Decision: 09 June 2024 Before: King SC DCJ File Number(s): 2021/00313238; 2021/00313247; 2022/00029377; 2022/00080450

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