Du Plessis v R

Court of Criminal Appeal (NSW)|2024-07-29|Before: Adams J, Ierace J, Sweeney J

Solicitors: Ross Hill & Associate Solicitors (Applicant) Solicitor for Public Prosecutions NSW (Respondent) File Number(s): 2020/00336569 Decision under appeal Court or tribunal: District Court Date of Decision: 14 April 2023 Before: Huggett DCJ File Number(s): 2020/00336569

JUDGMENT

THE COURT: The applicant seeks leave to appeal the aggregate sentence imposed upon him on 14 April 2023 by Huggett DCJ (as her Honour then was), pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). At trial, the applicant was acquitted of a count of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (count 1), and convicted of two counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act (counts 2 and 3). The circumstance of aggravation in each instance was that the complainant was under the age of 16 years pursuant to s 61J(2)(d) of the Crimes Act. Her age at the time of the offences was 15 years and nine months.
The maximum penalty for an offence contrary to s 61J(1) of the Crimes Act is 20 years imprisonment with a standard non-parole period of 10 years. The applicant received an aggregate term of imprisonment for 11 years 6 months commencing on 8 December 2022, being the date of his convictions and when he first entered custody; and expiring on 7 June 2034. A non-parole period of 8 years was fixed, so that he would be first eligible for parole on 7 December 2030. The indicative sentence for count 2 was 7 years with a non-parole period of 5 years, and for count 3 was 9 years 6 months with a non-parole period of 7 years.
The applicant has two grounds of appeal: "1. Her Honour erred in finding the victim to be vulnerable and the offence to be aggravated by that fact when it was an element of the offences. 2. The Sentence imposed was manifestly excessive."
The application was brought out of time. Accordingly, the applicant also seeks leave to extend the time to appeal. Ground 2 is made out for the reasons expressed below. That being so, we grant leave to file out of time.

Background to the offending

The applicant was aged 47 at the time of the offences. The facts for sentence, as determined by the sentencing judge, closely followed an agreed statement of minimum facts derived from the trial evidence that was tendered by the Crown at the sentencing hearing. Her Honour's finding of facts can be summarised as follows.
At the time of the offences, the complainant was residing with her family in the Northern Rivers area. She arranged to meet a male friend, who will be referred to as "J", at Lennox Head Bowling Club on an evening around 1 January 2018, but informed her mother that she would be spending the night with a female friend. She attended the rendezvous, but J failed to turn up. She repeatedly phoned him using her mobile phone, but there was no answer. Eventually her phone battery expired. She walked to the Lennox Community Centre, where some people allowed her to use their phone, but J still did not answer.
The complainant returned to the bowling club and started to "freak out a little bit", because she did not know what she was going to do. After some time, she was approached by a group of five adults, none of whom she knew, who were walking home from the Lennox Hotel. The group comprised the applicant; Peter Tobin; Stanton Mercer; and Mr Mercer's partner at the time, Alison Scott; and another unidentified woman.
The complainant was crying. The applicant asked her what was wrong. The complainant said she was meant to meet someone, that her phone was dead and that she had no Wi-Fi or data. Either the applicant or Mr Mercer told her she could come with them and charge her phone. She agreed. She and the applicant walked a little ahead of the other four. He asked her what she was doing out so late and she explained. He asked her how old she was, and she told him she was 15.
After five minutes, the group arrived at a house. Mr Mercer resided upstairs and sublet a self-contained unit on the ground level to the applicant, who resided interstate but stayed at the unit when visiting his daughters in Lennox Head, as part of a shared custody arrangement. Mr Tobin did not live there but occasionally stayed overnight.
Upon their arrival, everyone but the applicant and the complainant went upstairs. The applicant retrieved a phone charger from his unit which the complainant plugged into her phone, using a power point on a nearby patio. They sat at a table on the patio. The applicant brought out some alcohol and poured them each a glass. She thought he was intoxicated, because he smelt of alcohol, and was being loud.
After about 15 minutes, the applicant and the complainant went upstairs, where the others were socialising. Music was playing, Christmas lights were on and the adults "were just partying". She would occasionally go downstairs to check her phone as to whether J had tried to contact her.
At one point while upstairs, the complainant was seated on a couch with the applicant, Ms Scott and the unidentified woman. The unidentified woman asked the complainant if her friend had replied and how old she was. The complainant said she was 15. The applicant said to her, "You told me you were 19. I wouldn't have given you the glass of Baileys if you were 15".
At some stage, the complainant received a message from J confirming he was not coming to meet her.
During the evening, the complainant realised that Mr Mercer was the father of a boy who attended her school.
Eventually, the unidentified woman departed, and Mr Mercer and Ms Scott went to bed, followed by Mr Tobin. At some point, Mr Mercer told the complainant she could stay upstairs as long as she liked.
The complainant went to the toilet and when she returned, the applicant had a blanket over his shoulder. He said, "Let's go to the beach". The complainant believed everyone else was asleep. She went downstairs with the applicant and took her phone. He put it back on the table, saying she would not need it.
Sometime prior to dawn, the complainant and the applicant walked to the beach, which was at the end of the street. The applicant laid the blanket on the sand. The complainant sat down with him. He told her to lie down. She did not want to, but he kept asking her, saying it would be okay and not to worry.
After talking for about 20 to 30 minutes, the complainant lay down with the applicant. He tried to kiss her. She said "No". He "shushed" her and kept touching her, "all over [her] body, like on [her] hips, and kept trying to pull [her] closer". She continued to tell him to stop, but he did not.
The applicant then began pulling the complainant's pants down. She tried to pull them up, but the applicant kept pushing her hands away. He then touched her vagina, as she kept telling him to stop and saying "No". She tried to push his hands away and tried to shut her legs. The applicant kept telling her to "shush" saying, "It's okay, don't worry". She began to cry, and the applicant inserted a finger into her vagina, and then a second finger (count 2).
The applicant then rolled the complainant onto her side so that her back was facing him. He grabbed the back of her neck "really hard," and had a "really hard" hold of her hips and put his penis inside her vagina while pushing her up against him (count 3).
The applicant continued to penetrate the complainant's vagina with his penis and when he withdrew it, she felt wetness between her thighs. She pulled up her pants and the applicant did up his pants. The complainant started walking back to the house. The applicant picked up the blanket and walked behind her.
Back at the house, the complainant retrieved her phone and waited outside to see where the applicant was. He entered his unit and she went upstairs. Her bag was in the lounge room. She sat on the couch and cried for around 20 minutes, when Mr Tobin came out and asked her if she was okay. She said she did not want to talk about it. Mr Tobin asked her to come to the room in which he was sleeping to talk about it. She did so, and Mr Tobin then pushed her onto the bed, held her down and sexually assaulted her.
The complainant left the unit - she thought around 6 or 6.30am - and walked towards the bowling club. Eventually she was able to contact a schoolfriend, who picked her up and drove her home.
Initially, the complainant did not disclose the offences to her family or friends. Sometime in 2019, she told a female friend that she had been "sexually assaulted by some guys". Her friend suggested she get help and talk to someone.
In March 2020, while working at a café in Ballina, the complainant saw Mr Tobin walk past, which prompted a panic attack. Over the following months, she disclosed what had occurred to some friends and to her mother. She made a complaint to police in July 2020, when she was aged 18.
During the police investigation, a telephone intercept warrant was obtained for accessing the applicant's mobile phone. It captured calls with Mr Mercer in which he referred to going to the beach with "the girl" and denying any wrongdoing or sexual activity with her. The applicant was arrested on 25 November 2020, and declined to be interviewed.
Mr Tobin was arrested the same day, and passed away ten days later.

The Crown case

The Crown tendered a victim impact statement, in which the complainant outlined the trauma and lasting damage that the offences had occasioned to her, in particular, her mental health.
A criminal history of the applicant disclosed one prior offence, which was the possession of a prohibited drug (1.5g of cocaine), committed in October 2020. The matter was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). Accordingly, he had no prior or subsequent convictions.
A sentencing assessment report, dated 31 March 2023, prepared by a Community Corrections Officer, was tendered. It noted that the applicant was in a stable relationship with his partner of eight years. He and his partner had a business which employed three people. He continued to strongly deny the offences. He was assessed as being at a low risk of reoffending on the Level of Service Inventory, Revised (LSI-R), although that assessment was stated as being "overridden … to medium" due to his risk of sexual reoffending based on the Static 99R assessment tool of static factors. That assessment placed him in the "average" range relative to other male sexual offenders, which according to a tendered case note, made him ineligible for entry into custody-based sex offender programs.

The defence case

The defence tendered a report by Patrick Sheehan, forensic psychologist, dated 1 March 2023. The applicant's background, as it was recorded in the report, was to the following effect.
The applicant was born in South Africa, the youngest of three boys. His parents separated when he was aged 12. He was in the care of his mother and had regular contact with his father. He denied any significant childhood trauma or sexual abuse. He left home when aged 18, to enter mandatory national service.
The applicant's father operated a steel fixing business. In 1994, he was shot and murdered by his business partner, at home in the presence of his fiancée. The defence tendered photocopies of contemporaneous newspaper articles that reported the applicant's father's murder. At that time, the applicant was aged 24. He and one of his brothers took over their father's business.
In 2009, when he was aged 39, the applicant, his then wife and their two children migrated to Australia. The applicant worked for a chemical company for nine years. He and his wife divorced amicably in 2015, and he met his current partner in 2017. At the time of the offences, he was unemployed while organising a new business with his current partner, involving the importing, selling and edging of rugs.
The applicant told Mr Sheehan that on the night of the offences, he consumed "six drinks" which left him moderately affected by alcohol but not intoxicated.
Mr Sheehan noted the applicant's account of experiencing shock and dismay at the jury's verdicts and subsequently being prescribed an antidepressant. He opined that the applicant had emotional reactions which were "proportionate to his circumstances". He did not diagnose any mood or adjustment disorders.
As to future risk, Mr Sheehan placed the applicant in the "average" range on the Static-99R measure. In view of the applicant's denial of the offences, Mr Sheehan did not discuss them with him, and was therefore unable to consider dynamic risk factors. He opined that the only suitable custodial program was the "deniers program", which he described as "an evidence-based treatment program designed to cater for the needs of the significant population of men convicted of sex offences who categorically deny [them]". However, as noted above at [30], the applicant is ineligible for custody-based sex offender programs.

Submissions by the parties on sentence

The Crown submitted that the complainant was vulnerable, as provided by s 21A(2)(l) of the Sentencing Procedure Act: "[The complainant] was in a particularly vulnerable position on the night of the offending. Apart from her slight build and age, [the applicant] came across her in a distressed condition due to her being stranded and unable to get home. Instead of assisting her to get home, for example by calling her a taxi or calling her parents, he preyed upon her vulnerability on the evening: s21A(2)(l)."
The applicant responded that s 21A(2)(l) only applied to certain classes of victims and that the complainant did not come within that ambit. She was not otherwise vulnerable, because "it could not be said that she was stranded and not able to get home".

The remarks on sentence

The sentencing judge found the objective gravity of the offences to be "considerable", due to the complainant's clear communication of her lack of consent and the applicant's awareness of it; and his use of force, noting that although "the physical force he used was not particularly extreme or violent, additional force or violence was not necessary". Her Honour continued: "[The complainant] was vulnerable. [The applicant] came across her when she was distressed. He knew she was coming to his premises to charge her phone and that she was waiting for a friend to reply to her. There was a significant age disparity of some 32 years between them. He offered her a glass of alcohol and when everyone else in the group had retired to bed or left the premises, he suggested they go to the beach. It was dark and [the complainant] was alone with [the applicant]. I accept each offence was of a short duration. I accept that the circumstance of aggravation was itself a less objectively serious instance of that type of aggravation given [the complainant] was approaching 16. Furthermore, under the age of 16 is a less serious circumstance of aggravation than some of the other possible circumstances. What occurred at the beach in the early hours of the day in question was either planned in the sense that [the applicant] obtained a blanket and a condom before he left the premises or the offences were unplanned and no condom was taken or used. Minds might differ as to whether one or other of those circumstances is objectively more serious than the other. In my view, [the applicant] is to be sentenced on the basis that when he left the premises to go to the beach with [the complainant], he did not intend that he would have sexual intercourse with her and that the offences were not planned in the sense that term is used by the courts in sentencing offenders. I find the offences occurred in a context in which [the applicant] took advantage of being alone with [the complainant] and the opportunity that afforded him to have sexual contact with her for his own sexual gratification."
Her Honour found that the sexual intercourse was "without protection, carrying with it the risk of disease and/or pregnancy" and that count 3 was objectively more serious than count 2. Her Honour summarised the victim impact statement and, while she accepted that the offences had caused the complainant considerable harm, it was not possible to conclude that it was "substantial", in view of her having a history of prior sexual assault and the intertwining of the other sexual assault shortly afterwards, by a different perpetrator.
The sentencing judge referred in some detail to the applicant's personal history. Her Honour noted Mr Sheehan's evidence that the applicant did not have any history of abhorrent sexual interest or sexual preoccupation or a substance abuse, personality or other disorder. Her Honour noted that, concomitant with his continuing denial of the offences, he was not remorseful, but that: "Notwithstanding the charge of possession of cocaine, I am satisfied [the applicant] comes before the court as a person of good character and that the offences are out of character and an aberration explained at least in part by intoxication."
The sentencing judge found the applicant's moral culpability to be high.
While general deterrence was "a very important consideration", there was "no particular need for specific deterrence". Her Honour found special circumstances, due to it being the applicant's first time in custody and the continuing restrictions due to the COVID pandemic.

Ground 1: Her Honour erred in finding the victim to be vulnerable and the offence to be aggravated by that fact when it was an element of the offences

The applicant submitted in writing that "[h]er Honour erred in finding the victim to be vulnerable and the offence to be aggravated by that fact when it was an element of the offence". In oral submissions, this was developed as a proposition that the sentencing judge, in the passage quoted at [40] above, was focussed upon the complainant being vulnerable because she was aged under 16, whereas that was an element of the offence. Therefore, the sentencing judge had engaged in "double-counting".
The applicant further submitted that the finding of vulnerability was unavailable because some hours had passed between the complainant's state of distress when the applicant and the others first came upon her and when she decided to accompany him to the beach. By then, she was no longer distressed. There was no evidence that the complainant was intoxicated that evening. While she was in the house she had access to her phone, which was sufficiently charged for her to make further attempts to contact her friend, J. Before Mr Mercer retired for the night, he had told her that she could stay in his house as long as she liked.
Alternatively, if the finding of vulnerability was available, the sentencing judge's finding that there was no planning of the offence was inconsistent with the proposition that the applicant had taken advantage of her vulnerability.
The applicant further submitted that, in any event, the complainant was not vulnerable in a sense that further aggravated the offence, since she did not have a vulnerability that came within the ambit of s 21A(2)(l). That subsection, together with other relevant parts of s 21A of the Sentencing Procedure Act, was as follows. "21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters - (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, … (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim's occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant), … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. …"
The respondent submitted that it could not be assumed that the sentencing judge referred to the complainant's vulnerability as an aggravating factor pursuant to s 21A(2)(l), but rather, as a factor to be taken into account in a more general sense as relevant to the objective seriousness of the offences. Alternatively, if the sentencing judge's finding was made in the context of s 21A(2)(l), that sub-section was not confined to "classes" of victims, but rather, to a victim's vulnerability in a more general sense, so that the finding of the complainant's vulnerability came within its terms.

Consideration

The issues for consideration in relation to ground 1 may be framed as follows. Was it open on the facts for the sentencing judge to find that the complainant was vulnerable, and that the offender exploited her vulnerability? If so, was it open to her Honour to treat vulnerability as an aggravating factor on sentence, in view of the terms of s 21A(2)(l)?

The sentencing judge's finding of vulnerability

In our view, the applicant has not demonstrated that the sentencing judge's finding of fact as to the victim's vulnerability was not open on the agreed evidence. Accepting that at the time the complainant went to the beach she was aware she could stay in the house as long as she liked; that she was not intoxicated; and, that some hours had passed since she was distressed, it was nevertheless open to her Honour to find that the complainant was vulnerable, and that the applicant exploited her vulnerability in committing the offences. At the time of the offending, the complainant was isolated with the applicant on the beach, in the darkness of early morning. She was 15 and he was 47. Over the course of the evening before, his actions towards her bespoke an intention to help her. He had provided her with a phone charger and refreshments (albeit alcohol, knowing she was underage). He was part of the adult group that had offered her company and shelter. When he decided at the beach to sexually assault her, he drew on that portrayal by telling her "It's okay, don't worry", while at the same time using force to sexually assault her against her expressed wishes.

Section 21A of the Sentencing Procedure Act

Section 21A(2)(l), when read in the context of sub-ss (1), (4) and (5), provides that if a victim is determined by the sentencing court to have been "vulnerable" at the time of the offence in the relevant statutory sense, it must be taken into account as an aggravating factor in determining the appropriate sentence. That is so, unless vulnerability is an element of the offence. Moreover, although the court must have regard to the victim's vulnerability, it is not obliged to increase the sentence by reason of that finding.
The balance of the subsection is comprised of five "examples" of vulnerability: extreme youth or age, disability, geographical isolation and certain occupations. The fifth example is itself the subject of further examples, introduced by the words "such as", which are occupations that by their nature are often the subject of criminal offending involving personal violence. The exclusion of health workers in that sub-section is explicable by the inclusion of "health worker" elsewhere, that is in s 21A(2)(a), which is described as a category of victims who exercise public or community functions.
Section 21A was introduced into the Sentencing Procedure Act by amending legislation [1] that commenced on 15 April 2002, following a private members bill. At that time, it was, relevantly, as follows. "21A General sentencing principles (1) In determining the sentence to be imposed on an applicant, a court must impose a sentence of a severity that is appropriate in all the circumstances of the case. (2) For that purpose, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the case, … (c) the personal circumstances of any victim of the offence, including: (i) the age of the victim (particularly if the victim is very old or very young), and (ii) any physical or mental disability of the victim, and (iii) any vulnerability of the victim arising because of the nature of the victim's occupation, … (4) The matters to be taken into account by a court under this section are in addition to any other matters that are required or permitted to be taken into account by the court under this Act or any other law. …"
We note that the term "vulnerability" in s 21A(2)(c)(iii) was exclusively confined to the victim's occupation, although the relevance of the other personal circumstances of the victim specified in ss 21A(2)(c)(i) and (ii) was also their vulnerability to criminal offending. This interpretation accords with the second reading speech of the bill: [2] "Originally this bill proposed a graduated series of penalties rising by a fixed percentage in line with the age of the victim. But in negotiations with the Government it became apparent that it would be possible to apply the bill to crime not just against the elderly but also against the very young, children and babies, those with disabilities and others who are vulnerable to attack and more defenceless against it. By adopting the principles of the Commonwealth sentencing guidelines in an amendment to the bill in the other place, the bill has made exactly that provision. Schedule 1 of the proposed section 21A provides that the severity of the sentence imposed by the court takes into account factors that, amongst other things, include the personal circumstances of the victim, the age of the victim, particularly if very old or very young; any physical or mental disability of the victim; and any vulnerability of the victim arising from the nature of the victim's occupation." (emphasis added)
An amendment to s 21A that commenced on 1 February 2003 [3] (the 2003 amendments) reshaped it into its current essential form, with the amplified version of vulnerability: "21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation, … (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant), … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors … (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence."
The relevant provisions of s 21A(2) were next amended in 2006, [4] by replacing the words "victim's occupation" at the end of s 21A(2)(a) with the words "the victim's occupation or voluntary work", and by adding the words "bus driver or other public transport worker" after "taxi driver" in s 21A(2)(l). By the most recent amendment, in 2017, [5] (the 2017 amendments) another category was added to s 21A(2)(l), namely, "because of the geographical isolation of the victim".
A review of judgments by this Court concerning the construction of s 21A(2)(l) discloses that it has consistently found that the subsection applies to classes of victims and not to a vulnerability that arises only from the circumstances of the offence. The first consideration by this Court, which was of the version in the 2003 amendments, was in R v Williams [2005] NSWCCA 99, in which Buddin J (Tobias JA and Grove J agreeing) said: "[40] … The sentencing judge concluded that the deceased was vulnerable, as I understand his Honour's reasons, upon the basis that the applicant was a powerful man who had violent tendencies, whereas the deceased did not have those characteristics. That was clearly a matter that was relevant to an assessment of the objective gravity of the offence. It should not however have been treated as a factor which further aggravated the offence. [41] In any event all victims of a homicide can be said to be vulnerable. In my view, s 21A(2)(l) is not directed to vulnerability in that generalized sense. Indeed, the examples set out in the subparagraph suggest that it is vulnerability of a particular kind that attracts its operation."
In Drew v The Queen (2016) 264 A Crim R 1; [2016] NSWCCA 310, N Adams J reviewed the relevant authorities as to the issue of which classes of victims had been found to fall within the ambit of s 21A(2)(l): "[76] Section 21A(2)(l) is concerned with particular classes of victims who require protection because members of that class are vulnerable to criminal offences. It is not concerned with the vulnerability of individual victims. [77] There was no dispute at the hearing of the appeal that the categories of vulnerable victims listed in s 21A(2)(l) are not exhaustive: Perrin v R [2006] NSWCCA 64 at [35]; Ollis v R [2011] NSWCCA 155 at [96]. It has been recognised that a victim may be 'vulnerable' for the purposes of 21A(2)(l) in a variety of circumstances, including the following: (1) where the victim was a Japanese adolescent travelling alone on public transport: Ollis v R at [97]; (2) where the victim was a passenger in a taxi who was heavily intoxicated: R v Ali [2010] NSWCCA 35 at [39]; (3) where the victim lived in a rural and isolated location: Stevens v R [2007] NSWCCA 152 at [33]; (4) where the victim was a person travelling on a train who was to some degree isolated from other people on the train: R v Dyer [2006] NSWCCA 274 at [27] and R v Ibrahami [2005] NSWCCA 153 at [24]; (5) where the victim was 'unwell and dry retching', so that he was less able to respond to an attack that he otherwise would have otherwise been: R v Morris [2007] NSWCCA 127 at [16]; and (6) where the victim was a prisoner confined in a cell after lockdown: R v Daley [2010] NSWCCA 223 at [39]."
One could add to that list two subsequent judgments. In Katsis v R [2018] NSWCCA 9, Hoeben CJ at CL (Schmidt and Campbell JJ agreeing) found, at [62], that a class of victim for the purposes of s 21A(2)(l) included the following: "Regrettably, in our urban society there is a class of persons into which category the deceased came. That class of person has the following characteristics - she is elderly, lives alone, does not associate with other persons, has no community support and does not look after herself. Because of that social isolation, such persons are often frail and undernourished and can properly be regarded as members of a class who are vulnerable."
In Longworth v The Queen (2017) 266 A Crim R 551; [2017] NSWCCA 119 at [18], this Court affirmed a finding by the sentencing judge that a security guard who monitored entry to licensed premises was a class of victim who came within s 21A(2)(l).
Clearly then, her vulnerability, as determined by the sentencing judge, was not of a type that came within s 21A(2)(l); rather, it was vulnerability that arose from the peculiar circumstances of the offences. In any event, the sentencing judge did not purport to find the complainant vulnerable in terms of s 21A(2)(l).
One then turns to consider the applicant's submission that a finding of vulnerability could only aggravate the sentence if it did come within the sub-section.
As noted, it is apparent from s 21A(1)(c) that the aggravating and mitigating factors identified in ss 21A(2) and (3) are not exclusionary. Accordingly, s 21A(2)(l) does not, in terms, exclude vulnerability that arises from other circumstances, including the circumstances of the offence. Indeed, this Court has repeatedly held that a sentencing judge does not fall into error by finding that a victim's vulnerability that arises from the circumstances of the offence is relevant to the determination of objective seriousness of that offence, even though that finding is not made pursuant to s 21A(2)(l).
In Ali v R [2010] NSWCCA 35, this Court did not interfere with a finding by the sentencing judge, in the context of determining objective seriousness, that the victim, a taxi passenger who was sexually assaulted by the driver, was "extremely vulnerable" due to her being intoxicated and physically ill. Although the sentencing judge had not referred to s 21A(2)(l), it was relied upon in the ground of appeal, as summarised at [28]: "The Applicant submitted that the mere fact that the victim was a passenger in the Applicant's taxi did not qualify her as a member of any relevant class of vulnerable victim (s.21A(2)(l) [of the Sentencing Procedure Act]). It was submitted that the extent of the victim's vulnerability (due to intoxication), and the advantage taken of it by the Applicant, was not so serious as to warrant it being regarded as a factor which aggravated the offence."
Johnson J (McClellan CJ at CL and RS Hulme J agreeing) found no error in the sentencing judge's finding of objective seriousness at [35]: "I am not persuaded that any error has been demonstrated on the part of the sentencing Judge in the assessment of the objective seriousness of the s.61I offence in this case. It was open to his Honour to characterise the offence as he did. In reaching this conclusion, his Honour referred to the fact that penile/vaginal intercourse was involved, ejaculation occurred inside the victim, no condom was used, the offence was premeditated, the victim was extremely vulnerable (due to intoxication and physical illness) and there was relatively minor non-sexual violence."
In Martin v R [2016] NSWCCA 273, the sentencing judge found the victim of a serious physical assault (armed robbery with wounding) in his home to be vulnerable. Although the sentencing judge did not make the finding in the context of s 21A(2)(l), a ground of appeal was that the sentencing judge found the victim to be vulnerable pursuant to that subsection. R A Hulme J (Hoeben CJ at CL and N Adams J agreeing) rejected that proposition at [37]: "The problem in relation to this ground is that the judge made no reference to s 21A(2)(l); he was speaking about the circumstances of the victim himself. It was open to the judge to take into account that the victim was vulnerable pursuant to s 21A(1)(c), which provides that in determining the appropriate sentence for an offence the court is to take into account … 'any other objective or subjective factor that affects the relative seriousness of the offence'."
In Archer v R [2017] NSWCCA 151, the sentencing judge made a finding, cited at [52], that the victim of a murder, who was stabbed to death by her former partner, was "particularly vulnerable": "[The deceased's] level of intoxication, which the offender must have been aware of, would have compromised her ability to effectively respond to the attack upon her. She was seated in a chair at a lower level than that of the offender when he attacked, and was trapped by him in the chair without means of retreat. She was physically of lesser strength and stature than the offender, who was a large and physically fit man. Although not relevant in the context of a feature of aggravation as provided by the [Sentencing Procedure Act], these are factual matters which heighten the gravity of the offence."
Hoeben CJ at CL (Price and Fullerton JJ agreeing), said at [99]: "Her Honour made it clear that she was not referring to the deceased as vulnerable by reference to s 21A(2)(l) of the Sentencing Act. It was, however, open to her Honour to find that the deceased was vulnerable in a general sense at the time of the attack. The applicant had been with her for the whole of the day and would have been well aware that she was intoxicated. Moreover, she was seated in a large chair while he was standing. Finally, he was a fit male of substantially larger physique. These were all particular features of this offence and were not matters inherent in the offence of murder. When taken together with the violence of the attack, it was well open to her Honour to make the finding which she did."
The sentencing judge's findings that the complainant was vulnerable and that it was exploited by the applicant were made under the mantle of the objective seriousness of the offences, without any reference to or invocation of s 21A(2)(l). In light of prior cases of this Court concerning vulnerability and the application of s 21A(2)(l), it is apparent that those findings were made in an orthodox exercise of sentencing discretion that did not conflict with the limits of the statutory power under s 21A(2)(l).
Accordingly, with respect to ground 1, we grant leave to the applicant to appeal, but dismiss the appeal.

Ground 2: The sentence imposed was manifestly excessive

In support of this ground, the applicant relied upon a summary of thirteen comparative sentences that were advanced at the sentence hearing in the applicant's counsel's written submissions, and a further case concerning a sentence imposed by this Court following a successful appeal against severity, that was said to involve not dissimilar circumstances: Morrison v R [2022] NSWCCA 158.
The respondent submitted that the sentence was not manifestly excessive, having regard to the factors highlighted by the sentencing judge in the assessment of the objective seriousness of the offences, and the need for general deterrence.

Consideration

As noted, the aggregate sentence imposed on the applicant was imprisonment for 11 years 6 months with a non-parole period of 8 years, which is a ratio of about 69 per cent. The indicative sentences were 7 years with a non-parole period of 5 years for count 2 (digital penetration), and 9 years 6 months with a non-parole period of 7 years for count 3 (penile/vaginal intercourse).
The aggregate sentence is to be assessed as to whether it reflects the totality of the criminality involved: JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]. There is, however, utility in considering indicative sentences in a notional sense of concurrence and accumulation for the purpose of determining whether the aggregate sentence is excessive: Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] and R v Brown [2012] NSWCCA 199 at [35].
The principles that apply to a determination of whether a sentence is manifestly excessive are uncontroversial. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J succinctly stated those principles, at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
In DL v R [2020] NSWCCA 164, Hoeben CJ at CL said, at [107]: "To succeed in making out this ground, the applicant must establish that the aggregate sentence was 'unreasonable' or 'plainly unjust': Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]. Consideration of whether a sentence was unreasonable or plainly unjust is undertaken in a context where there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to formulate a sentence for each offence by balancing many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]."
Other than the matter raised in ground 1, no complaint is made as to the sentencing judge's findings of fact or assessments. It is simply submitted that the sentence was manifestly excessive, having regard to the comparative sentences that were summarised in the applicant's written submissions in the sentence hearing below, to which is added Morrison.
This Court and the Court of Appeal have approached with caution the use of comparative cases to demonstrate manifest excess. In He v Sun [2021] NSWCA 95, Bell P (as his Honour then was), Gleeson JA agreeing, said: "[51] In any event, whilst reference to comparable cases in sentencing may be of some assistance (see Moodie v R [2020] NSWCCA 160 at [83]), it is important to bear in mind the observations by Hoeben CJ at CL (with whom Johnson and Lonergan JJ agreed) in Wilson v R (Cth) [2020] NSWCCA 211 at [77] (Wilson), that there are 'limitations on the use that can be made of so called comparable cases'. As his Honour outlined, what is to be sought is consistency in legal principle by the treatment of like cases alike and different cases differently, and that the 'choice or four or five cases which are said to be comparable' does not generally assist an applicant: at [77]-[78]. In Vandeventer v R [2013] NSWCCA 33 at [45], Adamson J observed that: 'One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.' [52] As Hoeben CJ at CL observed in Wilson at [79]: 'The difficulty with the comparison of cases by the applicant is that manifest excess is not established simply by a comparison of sentences imposed in other cases which are often markedly different. To warrant intervention, misapplication of principle must be established (Ngati v R [2018] NSWCCA 32 at [34]). As was set out in Vandeventer v R above, there will always be cases where other offenders appear to have been dealt with more leniently. What must be achieved is consistency and application of relevant principle, not numerical or mathematical equivalence.'"
Clearly, the offences committed by the applicant warranted a significant sentence of imprisonment. The applicant was 32 years older than the complainant and he exploited her vulnerability using a degree of force, persisting in the face of her obvious distress and non-consent. He took no measures to protect her against disease or pregnancy, and, concomitantly with his denial of the offences, was unremorseful. As her Honour found, the objective seriousness of the offences was "considerable", and the applicant's moral culpability was "high". General deterrence plays a key role in the sentencing exercise for offences of this kind.
Against those considerations, however, her Honour identified countervailing factors. As to the objective seriousness of the offences, they were unplanned. The complainant was aged 15 and nine months (being three days off 10 months). Consequently, the statutory circumstance of aggravation "was itself a less objectively serious instance of that type of aggravation given [the complainant] was approaching 16". The applicant had a strong subjective case. As noted, he was "a person of good character … the offences [were] out of character and an aberration explained at least in part by intoxication". The applicant's "risk of re-offending [was assessed as] low and his prospects of rehabilitation reasonable" and there was "no particular need for specific deterrence".
In our view, the sentence imposed was, with respect, unreasonable in view of those sentencing considerations. A review of the 13 comparative cases that were summarised at first instance and some additional cases, including Morrison, is consistent with this conclusion. We refer to two cases that involve resentences by this Court of a similar length for s 61J(1) offences that involve convictions at trial, younger complainants and significant age differences between the complainant and applicant, and weaker subjective cases.
In Morrison, the applicant was convicted at trial of two counts of aggravated sexual assault contrary to s 61J(1). One involved penile-vaginal intercourse (count 6), and the other cunnilingus (count 4), with the same complainant, who was aged around 13 years and 3 months. He was also convicted of three counts of sexual touching of a child over 10 years and under 16 years contrary to s 66DB(a) of the Crimes Act, involving the same complainant, which had a maximum penalty of 10 years and no standard non-parole period. The applicant was aged 52 at the time, being 38 years older than the complainant.
The circumstances of the offences, briefly stated, were that the complainant had an altercation with her mother that prompted her to plan to spend the evening at the house of a friend, who she would meet after school at Manly Wharf. The friend did not arrive. While waiting, she met the applicant and accepted his offer to take her back to his home at Mascot. They stopped at a pub at Circular Quay on the way. The offences occurred at the applicant's home in the early hours of the following morning. The applicant admitted the acts, maintaining that he believed that the complainant was aged at least 16.
On resentence, the Court adopted the sentencing judge's findings: "[76] We have read the entirety of the material tendered on sentence, and see no reason to depart from her Honour's findings, which may be summarised as follows. (1) The applicant's behaviour was opportunistic, and involved exploitation of the circumstances he encountered, namely, a 13 year old girl by herself at night on Manly Wharf; (2) There was no predatory behaviour, or planning that amounted to aggravation. Conversely, the applicant's sexual interest in the complainant was not spontaneous, but developed as the pair travelled to his home. (3) There was no detention or physical forcing of the complainant to accompany the applicant. She was free to leave him at the hotel at Circular Quay, or when he left his room to shower after kissing her. Of course, she was vulnerable, not merely because of her age (which is an element of the offence) but also because she was alone at a ferry terminal and it was after midnight by the time she was left alone in his accommodation in Mascot. (4) The Crown did not contend that the complainant was intoxicated. (5) It was agreed that sentence should be imposed on the basis that the applicant was reckless as to whether the complainant had consented. (This favourable finding reflected the Crown's insistence on recklessness being left to the jury, contrary to the applicant's submission.) (6) The harm suffered by the complainant, although profound and continuing, fell short of amounting to aggravating circumstances, given the nature of the offending. [77] In assessing the objective gravity of the offending, the primary judge had regard to the age disparity, the absence of any detention, the fact that the offences were part of a course of conduct over an evening and morning, the absence of planning but likewise an absence of spontaneity, the vulnerability of the complainant, the absence of force, coercion or threats, and the unsophisticated nature of the offending, involving no concealing of the applicant's identity or address. Her Honour concluded that the objective gravity of counts 1 and 2 was between the low and mid ranges, for count 3 just under mid range, for count 4 at the mid range and for count 6 at the upper end of mid-range."
As to the subjective factors, the applicant had a deprived and disadvantaged upbringing which engaged Bugmy considerations and led to some mitigation of moral culpability and a reduced emphasis on general deterrence. He had health issues, an extensive criminal history which included multiple sentences of imprisonment, although no prior convictions of sexual assault. He received a 25 per cent discount for count 4, because it only came to light as a result of an admission by him. He also received the benefit of a finding that he confined the issues in dispute at trial, and that he had expressed some remorse. The sentencing judge's assessment of the applicant's prospects of rehabilitation and risk of recidivism were guarded. The applicant's sense of isolation, arising from his experience of protective custody, media exposure of the offending and COVID-19 restrictions were also taken into account.
On resentence, he received an aggregate sentence of 10 years 6 months with a non-parole period of 7 years. The indicative sentence for count 6 was 9 years with a non-parole period of 6 years, and for count 4 was 6 years with a non-parole period of 4 years. The indicative sentences for counts 1 and 2 (kissing and a hickey on the complainant's neck) were 18 months' imprisonment, and for count 3 (a hickey on her chest) was 2 years' imprisonment.
There are similarities between Morrison and the case at hand, but there are some striking dissimilarities, as well. Both applicants were strangers who had initially provided refuge and assistance to the respective complainants, who were minors, and then sexually assaulted them. The dissimilarities include the much younger age of the complainant, the poorer subjective case for that applicant resulting in less favourable findings of rehabilitation and recidivism and the inclusion in the aggregate sentence of punishment for the other three charges. Dissimilarities that mark this applicant's offending as more serious include his use of a degree of force, his complete absence of remorse, the 25 per cent discount on the sentence of one the s 61J offences and the mitigation for moral culpability due to Bugmy considerations for the applicant in Morrison.
On balance, it is apparent that this applicant received a significantly higher sentence than the applicant in Morrison for the s 61J(1) offences, when those differences are taken into account.
One of the 13 cases relied upon by the applicant at first instance was Christie v R [2012] NSWCCA 228, in which the applicant was convicted at trial of a count contrary to s 38 of the Crimes Act (count 1) of administering an intoxicating substance (Alprazolam) to the complainant with the intention of enabling him to commit an indictable offence, namely sexual assault, and two counts of aggravated sexual assault contrary to s 61(J)(1) (counts 2 and 4), the circumstance of aggravation being that the complainant was under the age of 16 years.
The complainant was aged 14 at the time of the three offences, which were all committed in the same incident. The applicant was aged 34, their age difference being 20 years. They met when the applicant came to her aid in a public place following an assault by a stranger. They began to talk and drank wine together. He gave her a Xanax tablet (Aprazolam) which she swallowed (count 1). She started to feel dizzy. Later that night, he took her back to his residence, where she passed out on a lounge chair. She woke up in his bed, naked, with the applicant, and went back to sleep. She awoke again to find the applicant performing cunnilingus upon her (count 2). Later, she awoke to find him having penile/vaginal intercourse with her (count 4). She also recalled waking up when the offender was licking one of her breasts, and another time when he was kissing her on the mouth. She described these episodes "as waking up and then falling back to sleep again, as if she was passing out": at [19]. The sentencing judge found that she "felt that she was unable to move or speak" and noted that she had stated in her interview by police that "I was too out of it, and I couldn't really say, like, anything": at [19].
The sentences imposed at first instance were infected with invalidating error. On resentence, this Court noted that "[t]he applicant's antecedents do not include any sexual offences but they are otherwise of not much assistance to him": at [52]. The material at first instance disclosed that he had multiple prior sentences of imprisonment for offences less serious than the instant ones: at [30]. His upbringing was "severely disrupted in his early teen years when his mother, who had the care of him, developed paranoid schizophrenia, as did his older brother shortly afterwards": at [27]. He had a history of drug abuse since at least his late teens: at [28].
The revised overall sentence was 11 years imprisonment with a non-parole period of 8 years. The individual sentences were, for count 1, a fixed term of 5 years imprisonment; for count 4, 8 years imprisonment with a non-parole period of 6 years, commencing 2 years after the commencement of the sentence for count 1, and for count 2, 8 years imprisonment with a non-parole period of 5 years, commencing 12 months after the commencement date of the sentence for count 4.
Although the overall sentence for the three offences was slightly less than that imposed against this applicant, and the overall sentence imposed for the two s 61J(1) offences was significantly less, absent considerations of totality (9 years imprisonment with a non-parole period of 6 years), the objective seriousness was far worse, in view of the complainant's age, and the pre-planning that was implicit in giving her the Xanax earlier in the evening for the purpose of committing the offences. The applicant's subjective case was also worse than that of this applicant.
In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Gleeson CJ and Hayne J described a finding of manifest excess (at [6]) as a "conclusion". As Payne JA and Button J (Schmidt J in dissent) observed in Conte v R [2018] NSWCCA 209 at [9] in the context of considering a ground contending manifest excess: "…[J]ust as sentencing at first instance is ultimately an exercise in instinctive synthesis, so also does the determination by an intermediate appellate court that a sentence previously imposed is manifestly excessive or manifestly inadequate involve a degree of intuition and evaluative judgment that is not readily amenable to logical steps in an irresistible process of reasoning, or determinative lists of countervailing factors."
We have had regard to the principles governing a ground of manifest excess including the fact that there is no "correct" sentence and that a ground of manifest excess will not be upheld simply because members of this court may have taken a more lenient or harsh view of the matter than the sentencing judge. We have reached the conclusion that the aggregate sentence imposed was manifestly excessive after a careful consideration of the objective and subjective factors in this case. Although that conclusion did not rely solely on the "comparative" cases relied upon by the applicant, the principles derived from those decisions have confirmed and demonstrated that conclusion.
We do not have regard to these and other "comparative" cases as a basis for concluding that the sentence imposed is unreasonable, but rather by way of consultation, confirmation and demonstration that this is so.
Ground 2 is made out and, accordingly, we grant leave to appeal out of time and uphold the appeal.

Resentence

The applicant has not tendered any fresh material to be considered in the event that he is to be resentenced.
We adopt the findings made by the sentencing judge at first instance, including her Honour's finding of special circumstances. Apart from ground 1, which we have dismissed, no complaint was made about any of the findings made by the sentencing judge.
In re-sentencing the applicant, we have identified and considered all factors relevant to the sentence and made a value judgment as to what is the appropriate sentence given all the factors in the case. The aggregate sentence we would arrive at is 18 months lower than that imposed at first instance. We consider that this sentence reflects the purposes of sentencing in this matter including the purposes of punishment, denunciation and general deterrence.
We impose an aggregate sentence of imprisonment for a period of 10 years, with a non-parole period of 7 years, which is a ratio of 70 per cent.
The indicative sentences are, for count 2, 6 years imprisonment with a non-parole period of 4 years 3 months; and for count 3, 8 years imprisonment with a non-parole period of 6 years.

Orders

The Court makes the following orders: (1) Grant leave to file notice of appeal out of time; (2) Grant leave to appeal; (3) Appeal allowed; (4) Quash the sentence imposed in the District Court on 14 April 2023; (5) In lieu thereof sentence the applicant to an aggregate term of imprisonment of 10 years to commence on 8 December 2022 and to expire on 7 December 2032, with a non-parole period of 7 years, expiring on 7 December 2029.

Endnotes

Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 (NSW).
Interpretation Act 1987 (NSW), s 34(1)(a).
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW).
Crimes (Sentencing Procedure) Amendment Act 2006 (NSW).
Rural Crime Legislation Amendment Act 2017 (NSW). 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: 06 September 2024

Crimes (Sentencing Procedure) Amendment Act 2006(NSW)

Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002(NSW)

Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002(NSW)

Rural Crime Legislation Amendment Act 2017(NSW)

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