(2007) 168 A Crim R 41
Dinsdale v The Queen (2000) 202 CLR 321
Jones v The Queen (2010) 242 CLR 520
[2010] HCA 45
JJ v R [2020] NSWCCA 165
Katsis v R [2018] NSWCCA 9
Markarian v The Queen (2005) 228 CLR 357
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Cahyadi v R [2007] NSWCCA 1(2007) 168 A Crim R 41
Dinsdale v The Queen (2000) 202 CLR 321Jones v The Queen (2010) 242 CLR 520[2010] HCA 45
JJ v R [2020] NSWCCA 165
Katsis v R [2018] NSWCCA 9
Markarian v The Queen (2005) 228 CLR 357
Judgment (19 paragraphs)
[1]
THE APPLICANT'S SUBJECTIVE CASE
The applicant did not give evidence before the sentencing judge. Tendered in his case on sentence was a report of Dr Simonelli, Consultant Forensic Psychiatrist, [4] which set out the following background.
The applicant was born on 15 September 1976. At the time of sentence he was 44 years of age. He has a total of 7 children from three previous relationships, ranging in age from 3 years to 24 years.
The applicant grew up in Blayney, NSW. His parents separated when he was about 3 years of age and whilst he initially lived with his mother, he told Dr Simonelli that he was "put up as uncontrollable" at the age of 9 because he was using drugs and truanting from school. He was subsequently placed in the "Minda" boys' home around the age of 10. He told Dr Simonelli he was assaulted at the home, and that this had "made him angry".
Upon leaving the home, the applicant lived with his father and stepmother from the age of 11. In this regard, Dr Simonelli reported: [5]
[The applicant] reported that the time with his father was traumatic and abusive. He reported that his father would assault him regularly and that he was physically assaulted by his father "between 3.00 - 04.00am every weekend". When his father was intoxicated with alcohol. [The applicant] said that when he got to his later teens, he would "bash him back". After this, his father restrained from assaulting him.
From the ages of 13 - 15 years-of-age, [the applicant] reported that his father's "mate sexually assaulted me" until this person moved to Melbourne.
[The applicant] said that his step-mother was the "only one who showed me any care" and has remained in contact with her throughout his life.
He reports that he and his biological mother "do not get along".
His father died around 2013/14 from a heart attack.
The history provided to Dr Simonelli by the applicant also included the following: [6]
[The applicant] reports that he started self-harming by cutting from the ages of 12 - 14 years of age. This coincided with his first experience of childhood sexual abuse. The self-harming behaviours continued on a monthly basis, and the further episodes of sexual assault (he reports of also being raped in jail at the age of 21) will have perpetuated this problematic behaviour. He said that the last time he cut himself was in 2016. [The applicant] said he took an overdose in 2017 in the context of relationship stressors. [The applicant] showed me the scars on his arms and abdomen.
In the terms of the applicant's account of his offending, Dr Simonelli reported as follows: [7]
Regarding his offences, he said he doesn't "understand why I do this shit", "I hate myself", and he ruminates over the harm and effect it has had on the victims. He has pled guilty.
He said at the time on [sic] the offences he was "always on ice" and attributed the offences to being intoxicated and disinhibited from this. [8]
Dr Simonelli diagnosed the applicant as suffering from: [9]
1. Anti-Social personality disorder;
2. Borderline Personality Disorder traits; and
3. Amphetamine use disorder, severe, in early remission.
When asked to express a view as to the effects of these diagnoses on the applicant's personality and behaviour (both socially and criminally) Dr Simonelli said: [10]
The effect of [the applicant's] psychological and drug abuse conditions on his behaviour and personality will be profound. Personality disorder conditions are pervasive and all-encompassing. They reflect underlying psychological conflicts and deficits that may go onto [sic] seriously impact a person's life.
Furthermore, the effect of amphetamine abuse disorder of [the applicant's] severity becomes another dysfunctional factor that will be impactful on [the applicant's] life course.
…
[The applicant] described a clear nexus between his amphetamine abuse and the offending. Amphetamine abuse will have dis-inhibiting effects, increasing the risk for impulsive behaviour, including sexual dis-inhibition. Chronic and severe use, as in the case of [the applicant], may also create cognitive deficits that will impact [the applicant's] ability to appraise a social situation, and correctly interpret social cues, which would then help create empathy with the victim and interrupt deviant behaviour.
Dr Simonelli also said: [11]
[The applicant] presents with a history of developmental trauma which includes recurrent episodes of child sexual abuse. This developed into a pattern of offending characteristic of Conduct Disorder as a juvenile and Anti-social Personality Disorder as an adult. There are also traits of Borderline Personality Disorder. [The applicant's] developmental disruptions and emotional deprivations facilitated the development of chronic drug abuse disorders that have persisted throughout his life and contributed to a life-long cycle of re-offending and incarceration. [The applicant's] drug use has significantly increased his risk of offending and are [sic] tied to the offences in question by creating of [sic] state of this dis-inhibition. [The applicant] has denied the features of an underlying paedophilic disorder.
…
[The applicant] said that he "always" has struggled with depression. He said he has attempted suicide on multiple occasions. Periods of particular crisis were following the removal of his children from his care. He said that he has trialled the anti-depressant Sertraline, however, "it just made me sick", and discontinued its use. [The applicant] said that it was too difficult to engage in consistent mental health care because of the chaotic environment around him characterised by drug abuse. In fact, [the applicant] recalled that his mood and physical health was only better whilst he was incarcerated because he was drug-free and away from a chaotic home environment and relationships.
[The applicant] said that he has tried killing himself "numerous times". In 2015, when his children were taken away from him by the DOCS, he tried killing himself three times. He was "tearful" and had a depressive episode. He took an overdose in 2016. He denied any immediate self-harm or suicide risk or risk of harm to others. He appears to have come to terms with his separation from his children and is wanting to work within the existing limitations.
[The applicant] reported he has completed multiple courses over the past 10 years at the Holy Family Church, Mount Druitt. He said he self-initiated these courses himself and attended a "Men's Shed" which was providing a refuge from criminality.
In terms of the applicant's prognosis, Dr Simonelli said: [12]
The general prognosis for [the applicant] is fair. This is contingent on him engaging meaningfully in drug and alcohol services, remaining abstinent from drug and alcohol abuse and meaningfully engaging in sex offending counselling.
Borderline personality disorder is known to diminish naturally over a person's lifetime, with many individuals no longer meeting criteria in middle age. This is consistent with [the applicant's] cessation of self-harming behaviours in the past few years.
[2]
Ground 1 - The sentencing judge erred by failing to find the applicant's moral culpability was reduced by reason of his deprived upbringing and social circumstances
[3]
The sentence proceedings
In written submissions provided to the sentencing judge, counsel for the applicant (who was not counsel for the applicant before this Court) put (inter alia) the following: [13]
22. He was diagnosed as having an anti-social personality disorder and amphetamine use disorder (severe, in remission), as well as displaying several traits of Borderline Personality Disorder.
23. There would appear to be a connection between his background, drug use, mental health issues, impulsive behaviour, and the offending conduct.
24. He was considered to be a risk of re-offending and would require treatments with which he needs to meaningfully engage in relation to alcohol, drugs, and sex (including the Sexual Offenders Program).
25. He would benefit from psychological counselling.
26. His background is one of significant disadvantage and dysfunction such that it serves to reduce his moral culpability.
In the course of oral submissions, the following exchange took place between counsel and the sentencing judge: [14]
COUNSEL: I would submit that his moral culpability is reduced for the reasons that I've outlined in the written submissions and there is definite, I would say, disadvantage and dysfunction there, and I just wish to make clear that it's not a causal connection, in particular, in relation to drug use. In my submission, it's perhaps a little more nuanced than that, which is that it's all in the background and it affects his decision-making. The decision-making was his own, for which he is responsible, but the decision-making is not of the same type as if it were me, for example, who had all the advantages of stable upbringing, education and, indeed, strong societal assistance.
HIS HONOUR: There's a degree of commonality, isn't there, between many of such cases? I understand deliberate use of the word "nuanced" in relation to the submission and that, of course, almost arises because it is perhaps the exception rather than the rule to find somebody that doesn't have varying degrees of either sexual abuse in their own background and disadvantage in educational, cultural, social opportunities and upbringing. That's not to say that such offending doesn't occur in the hallowed portals where such appropriate societally-accepted upbringings do occur but that's the exception rather than the rule, I would have thought. It's a long way short of Bugmy considerations, for example, it seems to me, but perhaps the same category.
COUNSEL: How your Honour has phrased it is perhaps a far more articulate way of how I would ultimately phrase it. It's not classic Bugmy but it's certainly Bugmy-esque.
HIS HONOUR: I understand.
[4]
The reasons of the sentencing judge
In addressing the applicant's subjective case, the sentencing judge made lengthy references to the report of Dr Simonelli. [15] He also addressed, in considerable detail, the applicant's criminal history [16] and he comprehensively summarised the submissions of the parties. [17] Having addressed the objective seriousness of the offending and the applicable aggravating factors, [18] his Honour said the following: [19]
[149] It is appropriate to recognise the appalling personal background of the offender. In the absence of any evidence regarding the circumstances of his upbringing with his mother following the separation of his parents, it is difficult to imagine how a nine-year-old boy in regional New South Wales came to commence the abuse of illegal drugs at such an age. His interactions with authority ultimately descended to his incarceration for a substantial majority of his adult life for his repeated infractions of the criminal law.
[150] His claimed abuse at the hand of his father's friend, and the likely assaults in the Boys Home, provide a fertile ground for psychological analysis regarding the motivation for a subsequent abuser of children. The law in this State, and indeed around the world, operates for the protection of young children, whatever the motivation and background of the perpetrators of sexual abuse upon them may be. I am, however, conscious of the fact that the circumstances of his own upbringing may well provide some level, however limited, of understanding of the offender's commission of repeated criminal conduct throughout his adult life. I do not suggest, and it has not been submitted, that Bugmy and Fernando principles have any relevant application.
[5]
Submissions of the applicant
Counsel submitted that the evidence of Dr Simonelli established that the applicant had been the subject of sustained abuse and disadvantage over a lengthy period of time, and that his upbringing had lacked stability and had been characterised by physical violence, sexual abuse and substance abuse. Counsel submitted that all of these matters had impacted adversely on the applicant's decision-making capacity, and served to reduce his moral culpability for the offending, relative to others who had not been subject to such disadvantage. Counsel submitted that in these circumstances, the sentencing judge had erred by failing to properly consider the applicant's background of significant disadvantage and dysfunction, and by failing to conclude that such background reduced the applicant's moral culpability for the offending.
Counsel further submitted that the sentencing judge's observation [20] that it had "not been submitted that Bugmy and Fernando principles have any relevant application" was an additional discrete error. As to the exchange which took place between counsel and the sentencing judge in the course of oral submissions, it was submitted that it was not clear what had been meant by the use of the terms "classic Bugmy" and "Bugmy-esque".
It was submitted that it was evident from the written submissions provided to the sentencing judge that the application of such principles had been squarely raised in support of a conclusion that the applicant's moral culpability was reduced.
Questions of reduced moral culpability aside, counsel further submitted that profound deprivation of the kind suffered by the applicant in his childhood was a material consideration which was to be given full weight in the sentencing process, irrespective of whether there was any nexus between that deprivation and the offending. It was submitted that it was evident from his Honour's reasons that he had erred in failing to give full weight to this factor when considering the applicant's subjective case.
In advancing these submissions, counsel acknowledged that the sentencing judge made references to the evidence of the applicant's upbringing. However, it was submitted that notwithstanding such references, the sentencing judge had given no proper consideration to the impact of that upbringing on the determination of an appropriate sentence. This, it was submitted, was indicated by the fact that despite the evidence of Dr Simonelli, the sentencing judge had not specifically found that the applicant's upbringing was, in fact, a significantly disadvantaged one.
[6]
Submissions of the Crown
The Crown submitted that the sentencing judge had addressed the applicant's background in considerable detail, in the course of which he had taken into account the opinions of Dr Simonelli, to the point where he had described that background as "appalling".
The Crown submitted that it had been open to the sentencing judge to decline to find any causal link between the applicant's disadvantaged background and his offending which operated to reduce his moral culpability. However, the Crown submitted that it was clear that his Honour had not ignored the applicant's background, and had given it full weight as a mitigating factor.
The Crown further submitted that the finding of the sentencing judge that Bugmy principles had no relevant application was to be construed having regard to the exchange which had taken place with counsel in oral submissions. The Crown submitted that it was clear that in the course of that exchange, counsel had qualified the submission that he had previously made in writing and that, properly understood, the sentencing judge's finding amounted to no more than a finding that the evidence did not support a conclusion that the applicant's moral culpability should be reduced in light of his disadvantaged background. In this regard the Crown emphasised that having reached that conclusion, his Honour had not found that the applicant's background was irrelevant, but had gone on to give it full weight in his assessment of the applicant's subjective case. It was also submitted that the exchange between his Honour and counsel made it clear that the sentencing judge had specifically engaged with the issue of the applicant's disadvantaged upbringing, and its generally mitigatory effect.
[7]
CONSIDERATION
In Bugmy v The Queen the plurality said the following: [21]
[43] …. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of reoffending.
[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender (my emphasis).
The italicised portion of this part of the Court's judgment supports the proposition that in order to find that an offender's disadvantaged upbringing operates to reduce his or her moral culpability, there must be some established nexus between that upbringing and the relevant offending. That approach has been adopted on numerous occasions by this Court. [22]
That is not to say, however, that the absence of such a nexus renders an offender's disadvantaged upbringing irrelevant in determining an appropriate sentence. On the contrary, it remains a relevant consideration which is to be given full weight in the sentencing process in the manner explained by N Adams J in Dungay v R [23] :
[153] Having regard to these principles, it seems to me that although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis. Although a causal link may not be required, it also seems to be that if such a link exists then inevitably there will be a reduction in an offender's moral culpability: Kliendienst v R [2020] NSWCCA 98. On the other hand, the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence.
There are two particular principles which emerge from these authorities. The first, is that the existence of a causal link between an offender's disadvantaged background and the offending will inevitably support a finding that such offender's moral culpability is reduced. The second, is that even where there is no such causal link, and thus no reduction in moral culpability, an offender's disadvantaged background remains a factor which must be given full weight in the process of instinctive synthesis which is applied in determining an appropriate sentence. It is by reference to these principles that the present ground of appeal must be considered and determined.
It is evident from the structure of his report [24] that Dr Simonelli was not asked to, and thus did not, express any opinion as to the existence of a causal nexus between the applicant's deprived upbringing and his offending. Consistent with that position, counsel for the applicant, in oral submissions made to the sentencing judge, qualified the submission he had made in writing that the applicant's moral culpability was reduced on account of his disadvantaged upbringing. His revised position was expressed in terms that the applicant's case was "not classic Bugmy" but "certainly Bugmy-esque". Whilst those terms were somewhat infelicitous, it is apparent that counsel was submitting to the sentencing judge that whilst the applicant's disadvantaged upbringing was not a factor which reduced his moral culpability, it remained a relevant matter to be taken into account as part of his subjective case. Given the absence of evidence establishing a causal nexus between the applicant's upbringing and the offending, that was a completely understandable position for counsel to have ultimately taken.
When his Honour's conclusion that Bugmy principles had no relevant application is viewed in this light, it does not, in my view, bespeak error. Given the evidence, and the manner in which the sentence proceedings had been conducted, it is apparent that his Honour's conclusion was that in the absence of evidence of the necessary nexus between the applicant's upbringing and the offending, there was no basis for a finding that his moral culpability was reduced. That conclusion was certainly open, and was consistent with the authorities to which I have referred above.
Importantly however, having reached that conclusion, his Honour did not treat the applicant's disadvantaged upbringing as irrelevant. On the contrary, he made express reference to the necessity to recognise it. [25] Given the detail in which his Honour had summarised the evidence in the earlier passages of his reasons, the only available conclusion is that, in accordance with the authorities to which I have referred, I am satisfied that his Honour gave the evidence of the applicant's upbringing full weight in the process of instinctive synthesis which he applied in determining an appropriate sentence.
For all of these reasons, this ground is not made out.
[8]
GROUND 2 - The sentence imposed offends the totality principle and is so heavy as to be "crushing".
[9]
The reasons of the sentencing judge
In the course of his reasons, the sentencing judge made numerous references to the necessity to apply principles of totality, and the need to avoid the imposition of a sentence which might be regarded as crushing.
To begin with, in addressing the submissions of counsel for the applicant, his Honour said: [26]
[126] The defence submissions acknowledged that prospects of rehabilitation, particularly noting the concerns expressed by the defence forensic psychiatrist about the risk the offender posed to the community, would be guarded. The ultimate submission was that there should be a significant amount of concurrency taking into account the principle of totality and that an appropriate sentence should not be one that was "crushing". The defence also submitted that the court should make a finding of special circumstances.
His Honour then turned to the submissions of the Crown: [27]
[136] After reminding the court of the appropriate application of principle with respect to questions of accumulation, concurrence and totality the Crown submitted that there was no alternative to the imposition of full-time imprisonment. The Crown submitted further that there were no overriding factors that would cause the court to make a finding of special circumstances.
His Honour then said: [28]
[139] It is important to bear in mind in describing in such a summary fashion the overall criminal conduct of the offender, that in order to properly undertake the process of instinctive synthesis for the purpose of passing sentence one must not be distracted simply by an overall consideration of the conduct. It is necessary and required that the Court determine an appropriate sentence for each of the offences. The Court must then consider issues of accumulation, concurrency and totality with respect to the overall criminality. I must keep in mind the statutory guide-posts - namely, the maximum penalty applicable to each offence and the standard non-parole period which has been imposed by Parliament and where applicable.
When imposing sentence, his Honour said: [29]
[152] I propose to proceed, pursuant to the provisions of section 53A of the Crimes (Sentencing Procedure) Act 1999, by imposing an aggregate sentence. The circumstance of there being two separate victims with discrete episodes of sexual abuse against each of the victims necessitates a level of accumulation in the appropriate sentences. There is, of course, a necessary consideration of the principle of totality, and some degree of concurrence, particularly in circumstances where various acts of the sexual offending occurred during the same incident.
…
…
[155] I take into account the need for some level of accumulation given the separate and repeated incidents and the fact that there are two victims and the offending occurred some years apart. The principles of totality require a level of concurrence in order to arrive at a proportionate outcome. I note the remarks of Street CJ in R v Holder (1983) 3 NSWLR 245.
…
[157] You are sentenced to an aggregate term, taking into account a 5% discount, of 20 years and 10 months. I decline to find special circumstances. There will be a non-parole period of 15 years and 6 months.
[158] That sentence and non-parole period will be backdated to commence from 15 March 2019. That is the date on which you would have been eligible for parole with respect to the assault and intentional choking offences for which you are sentenced at Mount Druitt Local Court on 18 January 2019.
[10]
Submissions of the applicant
Counsel for the applicant acknowledged that questions of concurrency and accumulation are matters which are determined by a sentencing judge in the exercise of a broad discretion. However, it was submitted that a paramount consideration in the exercise of that discretion is the necessity to ensure that it is exercised in a way which does not result in the imposition of a sentence which is so heavy as to be crushing. Bearing these matters in mind, counsel submitted that the sentence imposed exceeded that which was necessary to reflect the total criminality involved, and was thus crushing. A number of individual propositions were advanced in support of that submission.
First, it was submitted that there was nothing in the transcript of the sentence proceedings, or in the reasons of the sentencing judge, which indicated that when considering questions of totality and the commencement date of the sentence, his Honour had taken into account the fact that the applicant had been serving a sentence for other unrelated matters.
Secondly, it was submitted that the overlapping criminality in the applicant's offending called for a greater degree of concurrency. It was pointed out, in particular, that:
1. the offences all occurred over a period of approximately 10 years;
2. counts 4 to 6 had arisen from the same course of conduct against the one victim; and
3. the head sentence of 20 years and 10 months was slightly less than twice the indicative sentences for each of the most serious offences of which the applicant had been convicted.
It was submitted that, taking these factors into account, the adverse effect of an insufficient degree of concurrency had been compounded by the application of a higher degree of aggregation than was appropriate. It was submitted that the end result was the imposition of a sentence which, in light of the views of Dr Simonelli, ran the risk of thwarting any prospects the applicant might otherwise have had of engaging in meaningful reintegration into society when eventually released.
Finally, whilst acknowledging that the offending was serious, counsel submitted that it did not reach a level of culpability that justified the sentence which was imposed, bearing in mind that the severity of a sentence compounds over time.
[11]
Submissions of the Crown
The Crown emphasised that the commencement date of a sentence, along with issues of concurrency and accumulation, were all matters for the discretion of the sentencing judge, such that it was incumbent upon the applicant to demonstrate that it had not been open to his Honour to exercise the discretion in the manner in which he did.
The Crown submitted that it was evident from the reasons of the sentencing judge that his Honour had given close consideration to principles of totality, and to the submissions which had been made on the applicant's behalf. It was submitted that there had been no error in the application of those principles, particularly having regard to:
1. the individually serious conduct which was involved in each of the offences against victim 1 and victim 2;
2. the passage of time which elapsed between the incidents involving victim 1, and then the further passage of time between those incidents and the sequence of offending relating to victim 2; and
3. the very limited degree to which the indicative sentence for each of the offences could comprehend and reflect the other offences, particularly in respect of entirely separate incidents of conduct.
The Crown submitted that the sentencing judge was obviously conscious of the fact that the applicant had been serving an existing sentence of imprisonment. However, it was submitted that the sentencing judge had not been obliged to allow any period of concurrency between that sentence and the sentence that he was required to impose. The Crown further submitted that any assessment of whether the sentence was properly regarded as "crushing" necessarily had to have regard to a number of factors, including:
1. the multiplicity of offences;
2. the Form 1 offences;
3. the fact that the offending involved two separate victims;
4. the maximum penalties and applicable standard non-parole period(s);
5. the applicant's subjective case; and
6. principles of accumulation, concurrency and totality.
It was submitted that in all of these circumstances, the reasons of the sentencing judge, and the sentence he imposed, reflected a conclusion that principles of totality had been properly applied.
[12]
CONSIDERATION
Issues of concurrency and accumulation are, as counsel for the applicant expressly acknowledged, matters for the exercise of discretion by a sentencing judge. Such issues are to be determined, and the discretion exercised, by reference to principles of totality, and by a consideration of whether a sentence for one offence can comprehend and reflect the criminality of the other. [30]
I am unable to accept the submission that there is nothing to suggest that the sentencing judge took the previous sentences into account when considering questions of totality, and when determining the commencement date of the sentence which he imposed for this offending. His Honour specifically referred to those considerations. [31] Given that the matters for which the applicant had been serving another sentence were entirely unrelated to the present offending, it was open to his Honour to commence the present sentence at the expiration of the non-parole period which had been imposed. There is nothing to suggest that his Honour's discretion miscarried in that regard.
Further, the attempted correlation between the sentence his Honour imposed, and the indicative sentences for the most serious offences of which the applicant was convicted, has the clear tendency to reduce the process of sentencing to a mathematical exercise. Such an approach is contrary to principle. [32]
Finally, whilst the applicant's subjective case was obviously important, it received full and proper consideration from the sentencing judge. The emphasis which was placed upon that subjective case by counsel for the applicant in this Court overlooked the necessity for there to be reasonable proportionality between a sentence imposed and the gravity of the offending. An offender's subjective case, however powerful, cannot be permitted to result in the imposition of a sentence which fails to reflect that gravity, [33] which in this case was self-evident.
For all of these reasons, this ground is not made out.
[13]
GROUND 3 - The sentence imposed is manifestly excessive
[14]
Submissions of the applicant
Counsel for the applicant submitted that the manifest excess of the sentence was evident in light of the fact that the sentencing judge had:
1. applied a 5% discount to reflect the utilitarian value of the applicant's pleas of guilty;
2. found that the offending fell broadly speaking, in the mid-range of objective seriousness;
3. found that there was a need for "a degree" of accumulation; and
4. found that there was a need to consider totality and some degree of concurrence.
In advancing those submissions, counsel made reference to sentences imposed in other cases of sexual offending, the circumstances of which were said to be comparable and relied upon those sentences in support of the complaint of manifest excess. Counsel also relied on the indicative sentences given by the sentencing judge, acknowledging that such sentences were not themselves amenable to appeal.
[15]
Submissions of the Crown
The Crown emphasised that in order to succeed on this ground, it was incumbent upon the applicant to establish that the sentence was so far outside the range available to the sentencing judge in the proper exercise of his discretion as to be clearly wrong. The Crown also emphasised the limitations placed on the use of so-called "comparable" cases, and submitted that those relied upon by the applicant were of limited assistance. It was submitted that in determining whether the sentence imposed on the applicant was manifestly excessive, little was to be gained by comparing that sentence to those imposed in a small number of other cases which were said to bear some objective or subjective similarities.
The Crown submitted that the sentence imposed was neither unreasonable nor plainly unjust having regard to the fact that:
1. the applicant was sentenced in respect of seven serious sexual offences against children, two of which had Form 1 matters attached;
2. counts 8, 9 and 11 each carried a maximum penalty of life imprisonment, and a standard non-parole period of 15 years imprisonment;
3. count 1 carried a maximum penalty of 20 years imprisonment;
4. the remaining offences carried maximum penalties ranging from 10 years imprisonment to 16 years imprisonment;
5. each offence was a serious examples of its kind;
6. the offending against victim 1 was accompanied by violence and threats;
7. the offending against victim 2 was offending against the applicant's biological daughter such that the breach of trust involved in the offending against her was even more significant; and
8. the offending occurred over a period of approximately 10 years.
The Crown submitted that it was necessary, in particular, that any sentence reflect the need for general deterrence, and pointed out that although pleas of guilty were eventually entered by the applicant, this had occurred after victim 1 had commenced giving evidence, such that the applicant's entitlement to any utilitarian discount was minimal.
[16]
CONSIDERATION
There is obviously some overlap between the issues raised in this ground, and those raised in ground 2. My reasons for concluding that ground 2 is not made out should be read in conjunction with those that follow.
The principles which govern a ground of appeal asserting that a sentence is manifestly excessive may be summarised as follows:
1. appellate intervention is not justified simply because the result arrived at in the Court below is markedly different from sentences imposed in other cases;
2. intervention is only warranted where the sentence imposed is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that the only available conclusion is that there must have been error;
3. it is not to the point that this Court might have exercised the sentencing discretion differently;
4. there is no single correct sentence, and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach, and application of principle; and
5. it is for the applicant to establish that the sentence is manifestly excessive, in the sense of being unreasonable or plainly unjust. [34]
In circumstances where the applicant relied, at least in part, upon sentences imposed in other cases to make out the complaint of manifest excess, it is important to again emphasise that consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. There will always be cases where other offenders appear to have been dealt with more leniently or more severely. What must be achieved is consistency in application of relevant principle. [35] For these reasons, the Court must adopt a careful approach when asked to compare a sentence imposed in one case with the sentence imposed in another. [36] The necessity for that careful approach arises, at least in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of the offending, and the subjective circumstances of the offender, between one case and another. [37] As Fullerton J said in GW v R: [38]
[41] To the extent that it bears repetition, consistency in sentencing calls for consistency of the application of sentencing principle, not of numerical equivalence. Prior sentencing decisions may establish a range of sentences imposed for particular offending, without establishing that the range is correct, or the upper or lower limits of sentences that might be imposed within that notional range.
I have made a point of setting out these principles at length, for the simple reason that this case serves as a good example of the limitations placed upon the comparative exercise that the Court was asked to undertake, and which was underpinned by a submission put by counsel for the applicant in the following terms: [39]
In each of these cases, the offenders were sentenced to considerably shorter terms of imprisonment, despite the offending being marked by additional factors that do not arise in the present case, such as grooming the child; filming the abuse; forcing the child to watch pornography; penile-anal penetration; and forced fellatio. They suggest the sentence in the present case was so far out of range is to indicate error.
For the reasons that follow, that submission fails to have regard to a series of other distinguishing factors.
The first case relied upon by counsel for the applicant was R v Gavel [40] in which the offending involved:
1. 1 count of aggravated indecent assault of a child under the age of 16;
2. 3 counts of aggravated sexual intercourse of a child under the age of 10; and
3. 1 count of possessing child abuse material.
Much of the offending in (i) and (ii) above incorporated the display of pornographic material by the offender to his victims. The offender had asked the sentencing judge, in respect of one of the counts in (ii) to take into account three additional offences of aggravated indecent assault on a child under the age of 16 years, and one offence of inciting a child under the age of 10 years to commit an act of indecency. In relation to the count in (iii) the offender had asked the sentencing judge to take into account two further offences of possessing child abuse material.
The sentencing judge had sentenced the offender to an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years and 4 months. Following a successful Crown appeal, this Court imposed an aggregate term of 14 years imprisonment with a non-parole period of 9 years and 6 months.
There are a number of factors which differentiate the circumstances in Gavel from those in the present case.
To begin with, the period of offending in Gavel was approximately 4 months, as opposed to 10 years in the case of the applicant. Unlike the present case, the offending in Gavel did not involve any threats of violence or reprisals by the offender towards his victim. There was also no direct familial relationship between the offender and the victim in Gavel (the stepmother of the victim being the offender's wife). In terms of subjective considerations, the offender in Gavel was entitled to a discount of 25% to reflect the utilitarian value of his pleas of guilty. The applicant was given the benefit of a 5% discount, about which no complaint is made. The offender in Gavel, unlike the applicant, had no record of prior convictions. Finally, in resentencing the offender in Gavel this Court made a finding of special circumstances. The sentencing judge declined to make such a finding in the applicant's case, about which no complaint is made.
The second case upon which the applicant relied was R v Scavera, [41] in which the offending involved:
1. 1 count of possessing child abuse material;
2. 1 count of aggravated indecent assault on a child under the age of 16;
3. 2 counts of aggravated sexual intercourse with a child under the age of 10.
The offending in (ii) and (iii) occurred within in a timeframe of between 30 minutes and 1 hour when the offender was babysitting the victim, a 6 year old boy who had been diagnosed with autism spectrum disorder and who had poor communication skills and a diminished ability to express emotion. Before the sentencing judge, the offender was sentenced to a total effective term of imprisonment of 6 years and 6 months. Following a successful Crown appeal, that sentence was increased by this Court to one of 10 years imprisonment.
Some of the differences between the objective circumstances of the offending in Scavera and those of the present case will be evident from that short summary. They include the fact that the offending in the present case involved a substantially greater number of offences committed over a period of 10 years as opposed to an isolated period between of 30 minutes and 1 hour. Unlike the applicant's case, the Court was not asked in Scavera to take into account any additional Form 1 offences. Subjectively, the offender in Scavera was entitled to a discount of 25% to reflect the utilitarian value of his pleas of guilty. He was also the beneficiary of a finding of special circumstances.
The third case to which the Court was referred was ZA v R. [42] In that case the offender had pleaded guilty to:
1. 7 counts of having sexual intercourse with a person under the age of 10 years who was under the offender's authority;
2. 2 counts of using a child under the age of 14 years to make child abuse material; and
3. 1 count of possessing child abuse material.
The offender was sentenced to an aggregate term of 26 years imprisonment with a non-parole period of 18 years. This Court dismissed an appeal on (inter alia) the ground that the sentence imposed was manifestly excessive.
The victim of the offending was the offender's biological daughter who was between 8 and 9 years at the time. There was evidence of significant grooming and the sexual assaults included penile-anal intercourse and forced fellatio. A number of the assaults were filmed. Objectively, the offending in ZA took place over a period of 18 months (as opposed to 10 years in the present case) and involved only 1 victim (as opposed to 2). Once again, the offender in ZA received the benefit of a discount of 25% to reflect the utilitarian value of his pleas of guilty.
The above analysis demonstrates that none of the cases relied upon by the applicant support the submission that the sentence imposed was "so far out of range is to indicate error". The cases do little more than highlight the obvious, namely that there will inevitably be similarities and differences between one case and another, which will, more often than not, render comparative exercises such as this of limited utility.
I have already set out the objective circumstances of the applicant's offending when addressing ground 2. Both general and personal deterrence were important factors in the sentencing process. Full weight must obviously be given to the applicant's subjective case, particularly as to his deprived background. For the reasons previously stated, I am satisfied that the sentencing judge did so. Moreover, as I have emphasised, an offender's subjective case must not be allowed to result in a sentence which fails to reflect the gravity of the offending.
For all of these reasons I am not persuaded that the sentence in manifestly excessive, in the sense of being unreasonable or plainly unjust. It follows that this ground is not made out.
[17]
ORDERS
I propose the following orders:
1. Leave to appeal against sentence is granted.
2. The appeal is dismissed.
[18]
Endnotes
Originally count 2 on the indictment.
Originally count 5 on the indictment.
R v DR [2021] NSWDC 118 at [9] - [38].
AB 107 and following.
AB 110.
AB 109.
AB 112.
AB 112.
AB 112 - 113.
AB 113
AB 108.
AB 114.
AB 123.
AB 159 - AB 160.
At [51] - [56]; [110] - [116].
At [57] - [106].
At [117] - [136].
At [137] - [148].
At [149] - [150].
At [150].
(2013) 249 CLR 571; [2013] HCA 37 at [43] - [44] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
See for example Katsis v R [2018] NSWCCA 9 at [108] per Hoeben CJ at CL (Campbell and Schmidt JJ agreeing); Perkins v R [2018] NSWCCA 62 at [82] - [83] per White JA; R v Irwin [2019] NSWCCA 133 at [116] per Walton J (Simpson J (as her Honour then was) and Adamson J agreeing).
[2020] NSWCCA 209 at [153].
AB 112 - 114.
At [149].
At [126].
At [136].
At [139].
At [152]; [155]; [157] - [158].
See Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]; Tuivaga v R [2015] NSWCCA 145 at [32].
Particularly at [158].
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] - [49] (Hili).
Edwards v R [2021] NSWCCA 57 at [65].
JJ v R [2020] NSWCCA 165 at [14] citing Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 371; [25]; Hili at [48] - [49]; MLP v R [2014] NSWCCA 183 at [41].
Hili at [48] - [49]; MLP v R [2014] NSWCCA 183 at [41].
RLS v R [2012] NSWCCA 236 at [132].
MLP at [44].
[2018] NSWCCA 79 at [41].
Written submissions at [104].
[2014] NSWCCA 56.
[2016] NSWCCA 145.
[2017] NSWCCA 132.
[19]
Amendments
13 July 2022 - Representation added to coversheet
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: 13 July 2022
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant pleaded guilty to numerous counts of sexual offending and was sentenced to 20 years and 10 months imprisonment with a non-parole period of 15 years and 6 months imprisonment. Expert evidence tendered before the sentencing judge made extensive reference to the applicant's deprived upbringing, but there was no evidence that such upbringing was causally related to the offending, giving rise to an issue as to how the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 should be applied. Having originally submitted in writing that the evidence established that the applicant's moral culpability for the offending was reduced on account of his upbringing, counsel who appeared for the applicant on sentence then revised that position, submitting that the circumstances of the case were not "classic Bugmy" but were "Bugmy-esque". The sentencing judge concluded that it had not been submitted that "Bugmy and Fernando principles have any relevant application". The applicant sought leave to appeal on the grounds that:
1. the sentencing judge had erred by failing to find that the applicant's moral culpability was reduced by reason of his deprived upbringing and social circumstances;
2. the sentence imposed offended the totality principle and was so heavy as to be "crushing"
3. the sentence imposed was manifestly excessive.
Held per Bellew J (Ward P and R A Hulme J agreeing) granting leave to appeal and dismissing the appeal:
1. The two particular relevant principles which emerged from the authorities were that:
1. the existence of a causal link between an offender's disadvantaged background and the offending will inevitably support a finding that such offender's moral culpability is reduced; and
2. even where there is no such causal link, an offender's disadvantaged background remains a factor which must be given full weight in the determination of an appropriate sentence: at [37].
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Dungay v R [2020] NSWCCA 209 referred to.
1. There was no evidence in the present case of a causal link between the applicant's disadvantaged upbringing and the offending. The absence of such evidence explained counsel's qualification of his original submission that the applicant's moral culpability was reduced: at [39].
2. The conclusion of the sentencing judge was that in the absence of evidence establishing such a causal link, there was no basis for a finding that the applicant's moral culpability was reduced. That conclusion did not reflect error. It was one which was clearly open, and was consistent with authority: at [39].
3. Having reached that conclusion, the sentencing judge made express reference to the necessity to recognise the applicant's disadvantaged upbringing and gave it full weight in the determination of an appropriate sentence: at [40].
4. Issues of concurrency and accumulation are matters for the exercise of discretion by a sentencing judge: at [56].
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41; Tuivaga v R [2015] NSWCCA 145 referred to.
1. The sentence was not crushing. The sentencing judge had specifically referred to all relevant considerations and there was nothing to suggest that his discretion had miscarried: at [57].
2. Whilst the applicant's subjective case was important, it remains the case that there must be reasonable proportionality between a sentence imposed and the gravity of the offending. An offender's subjective case, however powerful, cannot be permitted to result in the imposition of a sentence which fails to reflect that gravity: at [59].
Edwards v R [2021] NSWCCA 57 referred to.
1. The sentence was not manifestly excessive and the applicant's reliance on sentences imposed in other cases simply highlighted the obvious, namely that the facts and circumstances of cases will necessarily differ, both objectively and subjectively. Such differences will, more often than not, render comparative exercises of limited utility: at [82].
Per R A Hulme J:
1. Whether profound childhood deprivation is taken into account by way of a reduction in moral culpability, or more broadly as part of an offender's subjective case, is largely a matter for the evaluative assessment of the sentencing judge. A ground of appeal asserting a failure to find reduced moral culpability risks being nothing more than a contention about whether the sentencing judge ticked the correct box, when it is apparent that the offender's profound childhood deprivation was taken into account in any event: at [4]-[5].
THE FACTS OF THE OFFENDING
The sentencing judge found the facts of the offending to be as follows: [3]
9. In early 2005 the offender commenced a relationship with a woman who was the older sister of Victim 1. Victim 1 was about 11 years of age at the time. The first offence charged occurred some months after the relationship between the offender and the older sister had commenced. The older sister was pregnant to the offender at the time. On an occasion when his partner was in the shower, the offender went into the bedroom of her younger sister, Victim 1, and got onto her bed. He took hold of her shorts and pulled them down before pulling down her underwear. He touched her on the outside of her vagina before pushing his fingers inside her vagina. She described him touching her in this fashion for about two minutes. The offender hastily left the room when they heard the shower turn off. The offender told the 11-year-old victim not to tell anyone otherwise "he would not let her go near the baby". At that time his partner was still pregnant. The baby, a girl, was born in the following January (1996). As will become clear, in due course that girl became Victim 2 some years later. Following this incident Victim 1 stopped staying at the home of her older sister and the offender.
10. This offending has been charged as aggravated sexual intercourse with a person between the ages of 10 and 14 years. The circumstance of aggravation was that the child, at the time of the offence, was under the authority of the offender. It was Count 1 in the indictment to which the offender pleaded guilty and constitutes an offence against section 66C(2) of the Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment. It does not carry an applicable standard non-parole period as the offending occurred prior to 29 June 2015. The relevant provisions of the Crimes Legislation Amendment (Child Sex Offences) Act 2015 which introduced a statutory non-parole period from that date only applied prospectively.
11. Some weeks after this incident the offender and his partner, the older sister, moved from the unit that they had been renting. They ultimately moved in with the rest of the older sister's extended family which included her younger sister, Victim 1, as well as two other young children.
12. Some time after moving into the family home, the offender went into the bedroom where Victim 1 slept. The two other young children were asleep in the same bedroom. The offender pulled down the victim's pants and underwear and licked her vagina with his tongue. She described being able to feel his tongue inside her vagina for a couple of minutes. Victim 1 was 11 or 12 years of age at this time.
13. This incident was charged as sexual intercourse with a person between the ages of 10 and 14 years and constituted a contravention of section 66C(1) of the Crimes Act 1900. It was the second count in the indictment which was presented at trial. The circumstance of aggravation charged with respect to Count 1, namely the child being under the authority of the offender at the time, was not pleaded in this count. Accordingly the maximum penalty is 16 years imprisonment. There is no standard non-parole period which was applicable at the time of the offending.
14. Following his admission of guilt with respect to this count it has been placed on a Form 1 document. I am asked to take it into account in determining an appropriate sentence with respect to Count 3 in the indictment.
15. After he had licked her vagina, the victim tried to shove the offender away. She twisted to one side and lay on her side facing the wall. She pulled her legs up. The offender then moved on top of her and put his penis inside her vagina. This act of penile-vaginal intercourse continued until a few minutes later a noise was heard in the hallway of the house. The offender then hurriedly left the bedroom. This was the first time that the accused had penile-vaginal intercourse with the child victim. This act was similarly charged as an act of intercourse in contravention of section 66C(1) of the Crimes Act 1900 carrying a maximum penalty of 16 years imprisonment. It constituted Count 3 in the indictment to which the offender pleaded guilty.
16. The offender subsequently had penile-vaginal intercourse with the first victim on a number of occasions as well as committing other acts of sexual misconduct. These have not been separately charged. Care must be taken not to increase an appropriate sentence because of uncharged further offences. However, they permit of a finding that the offending conduct was not an isolated incident.
17. During 2006 the first victim disclosed some of the offending to various members of her family, including her mother. She also told a friend and her friend's mother. The friend's mother took her to the Department of Community Services (ie DOCS) and she was subsequently interviewed by police. For whatever reason, the police investigation was not continued.
18. Over the following years each of the younger children in the extended family home were removed by the authorities, including Victim 1. The older sister and her partner, the offender, eventually moved into a house near Campbelltown. The younger sister, Victim 1, had been living in a refuge for a period of time after being taken out of the family home. After she moved out of the refuge she occasionally again stayed with her older sister and the offender.
19. In February 2009 the offender's partner went out for the evening leaving the offender and her younger sister, Victim 1, at home together. Victim 1 was by now 15 years of age. The child of the relationship between the offender and the older sister was by that time 3 years of age and she was also at home in the house. After watching television during the evening Victim 1 went into her bedroom and lay down on the bed. The offender came in and proceeded to touch her all over her body. He rubbed her breasts with one of his hands on the outside of her clothing. This act has been charged as an aggravated indecent assault contrary to section 61M(2) of the Crimes Act 1900. As such it carries a maximum penalty of 10 years imprisonment. A standard non-parole period is specified of 8 years. I respectfully adopt the observations of RS Hulme J in BT v R [2010] NSWCCA 267 at [41] with regard to this specified ratio. This offending was count 4 in the indictment to which the offender entered a plea of guilty.
20. Following the indecent assault the offender put his hands inside the victim's shorts under her clothing and rubbed her vagina. He pushed his fingers inside her vagina and told her he was just mucking around. She began to cry. This act of digital penetration has been charged as aggravated sexual intercourse with a person between the ages of 14 and 16 years. It constitutes an offence contrary to section 66C(4) of the Crimes Act 1900. It was Count 5 on the indictment. The offender has admitted this offence and it has been placed on a Form 1 to be taken into account in determining an appropriate sentence with respect to Count 6.
21. After the digital intercourse, the offender told Victim 1 to bend over. He told her that if she did not bend over he would hurt her and her family. He also told her that no one would believe her if she said anything. She did as she was told because she was scared. After she bent over the offender pushed his penis into her vagina. This act of penile-vaginal intercourse was charged as Count 6. It was an offence of aggravated sexual intercourse with a person between the ages of 14 and 16 years. The aggravated circumstance charged was being under the authority of the offender at the time of the incident. This was, similarly to Count 5 in the indictment, an offence contrary to section 66C(4) of the Crimes Act 1900 carrying a maximum penalty of 12 years imprisonment. There was no applicable standard non-parole period at the time of the offending. The offender also pleaded guilty to this charge.
22. After he had finished having sexual intercourse with his partner's younger sister, the offender put his hands around her neck and squeezed her throat so that she could not breathe. Whilst he squeezed her throat he said to her "this isn't a game, no one will believe you." This act of violent aggression is not separately charged in the Counts for sentence, but has been included in the Agreed Facts as forming a relevant part of the surrounding circumstances of the sexual offences which have been charged. Shortly after, the offender's partner arrived back home and he left the bedroom. The victim moved out of the house in the days that followed.
23. An additional charge of a physical assault was originally included as Count 7 in the indictment at trial. Following the entering of the pleas of guilty to the identified counts in the indictment that separate charge was withdrawn.
24. Whilst the detail of the complaint is not revealed in the Agreed Facts the victim, after these events in 2009, again made complaint to her own mother. As I have indicated earlier, the victim had previously disclosed some aspects of the sexual offending against her in 2006. On this occasion, in 2009, her mother called 000 and the child was again interviewed by police. Again, for reasons which are not revealed before me, the police investigation was not pursued.
25. Whilst no other specific occurrences are the subject of charge, the last time that the offender had sexual intercourse with the first victim was in 2012.
26. The second group of offences involved the repeated sexual abuse by the offender of his natural daughter who had been born to his partner in 2006. His partner had been pregnant with this child at the time of the commission of the first offences with her younger sister, Victim 1. Between January 2014 and November 2015 when Victim 2 was 8 and then 9 years of age, the offender digitally penetrated the child's vagina regularly. The repeated sexual abuse ended when Victim 2 and her other siblings were removed from both of their parent's custody by Family and Community Services in November 2015.
27. The first specific incident charged occurred during this identified period. Victim 2 was having a shower when the offender came into the bathroom and took off all of his clothes except for his underwear. He then got into the shower and inserted his finger into the vagina of his naked 8 or 9-year-old daughter. The assault lasted for a short period of time before the offender got out of the shower and left the bathroom.
28. This act of digital penetration was charged as an act of aggravated sexual intercourse with a person under 10 years of age. The circumstance of aggravation is that he was a person in authority. This offence was Count 8 in the indictment presented at trial to which the offender has pleaded guilty. It constitutes an offence contrary to section 66A(2) of the Crimes Act 1900 and carries a maximum penalty of life imprisonment. A standard non-parole period of 15 years is prescribed.
29. The second specific incident charged with respect to the sexual abuse between the offender and his natural daughter occurred when the offender and his daughter were sitting on the lounge watching television whilst the rest of the family were asleep. The offender put his hand into his daughter's pants and underwear. After touching the outside of her vagina he pushed his fingers into her vagina. Victim 2 said that she felt scared. The offender asked her if she knew what he was doing and she said "No". The offender told her that this was what "sex" was. He told his daughter that they would "finish" later.
30. This second act of aggravated sexual intercourse with a person under 10 years was similarly charged pursuant to section 66A(2) of the Crimes Act 1900 and was Count 9 in the indictment at trial. It similarly carries a maximum penalty of life imprisonment. A plea of guilty was also entered to this count.
31. Count 10 in the indictment at trial was withdrawn following the entering of pleas of guilty to the identified counts in the indictment.
32. The third charged incident with Victim 2 occurred on an evening when the victim was watching television with her mother and siblings. The offender took her to his bedroom stating that she was tired and that she needed to go to sleep. They both lay down on the offender's bed. The offender began kissing his daughter on her neck and on her mouth. On this occasion he again put his hand underneath the child's clothing and inserted his fingers into her vagina. The digital intercourse continued for a few minutes before Victim 2 made an excuse that she needed to go to the toilet.
33. This episode was similarly charged as aggravated sexual intercourse with a person under 10 years of age pursuant to section 66A(2) of the Crimes Act 1900. It was Count 11 in the indictment at trial to which a plea of guilty was entered. As indicated earlier it carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
34. In August 2018, Victim 2 disclosed the sexual abuse at the hands of her father to another relative. She was then aged 12. Police were contacted and on 30 August 2018 Victim 2 provided a detailed statement to police. In October 2018 the offender was arrested. He declined the offer of an interview with police. He was already in custody, bail refused, on different charges to which I will refer in detail later in these Remarks.
35. In November 2019 police re-interviewed Victim 1 who had previously provided statements in 2006 and 2009. In 2019 the offender was formally arrested with respect to the offending which was alleged against Victim 1. As I have indicated he was already in custody. On this occasion he accepted the opportunity to be interviewed. In a recorded interview he denied the allegations made by Victim 1.
36. The proceedings with regard to the separate complainants initially proceeded independently. In March 2009 the offender was committed for trial with respect to a number of charges relating to Victim 2, his natural daughter. That trial was originally listed for hearing on 3 February 2020.
37. The charges with respect to Victim 2 were still in the Local Court by February 2020. The Crown indicated an intention to include ex officio counts in the indictment with regard to Victim 1 and to proceed to trial with charges relating to both victims and relying upon tendency and cross-admissibility regarding the separate victims.
38. The trial in February 2020 was vacated and in due course the trial came on before me and a jury in November 2020 as I have detailed earlier.