ET v R

Court of Criminal Appeal (NSW)|2024-07-08|Before: Mitchelmore JA, Kirk JA, Davies J

S Kluss (Applicant) V Garrity (Respondent)

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to four counts of assaulting a female and committing an act of indecency on a person under the age of 16 years contrary to s 76 of the Crimes Act 1900 (NSW) as that section was between 1956 and 1981. The applicant was sentenced to an aggregate sentence of imprisonment for 4 years 6 months with a non-parole period of 2 years 3 months. The offending took place over several years and involved two separate complainants. The first complainant was the applicant's half-sister RS. The second complainant was the applicant's niece SM. The offences were constituted by the applicant digitally penetrating the two complainants. There were a number of other offences contrary to s 76 placed on three Form 1 documents. Those offences including fondling of the complainants' breasts, forced masturbation and forced fellatio. RS was aged 6 and 8 respectively at the time of the offending against her. SM was aged 8 and 13-14 respectively at the time of the offending against her. The applicant was aged between 16 and 19 at the time of the offending against RS and aged 32 and 37 at the time of offending against SM. The applicant did not give evidence at the sentence proceedings. He relied primarily on a report from a psychologist that disclosed the applicant's youth in child services and service in the Vietnam War. The applicant was shot during his time in Vietnam and was subsequently diagnosed with PTSD. Her Honour held that the act of digital penetration was an act of serious significance and that the applicant had abused a position of trust that he held towards both complainants. Her Honour noted that the age of the complainants, the offending occurring in their homes, and the threats of repercussion should they complain, all increased the seriousness of the offences. The applicant sought leave to appeal against his sentence on four grounds: 1. that the sentencing judge failed properly to assess the moral culpability of the applicant in relation to the first 2 counts and in that way the indicative sentences were manifestly excessive which informed error in the aggregate sentence; 2. that the sentencing judge failed to find remorse; 3. that the sentence was manifestly excessive; and 4. that a miscarriage of justice resulted from the absence in the sentencing proceedings of "new" evidence relating to the offender. The Court (per Davies J, Mitchelmore and Kirk JJA agreeing) held, dismissing the appeal: As to Ground 1: (1) Where no submission was made to the sentencing judge that the applicant's youth at the time of the offending for these counts reduced his moral culpability, it was not open to the applicant to raise this point on appeal. In any event, the sentencing judge provided for a reduction in the applicant's moral culpability for that reason: [1] (Mitchelmore JA); [2] (Kirk JA); [59]-[60] (Davies J). Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460, cited. As to Ground 2: (1) Given that sentencing proceedings are adversarial proceeding, where no submission is made on a topic or no issue joined, the sentencing judge would not ordinarily be expected to make a finding on that topic: [1] (Mitchelmore JA); [2] (Kirk JA); [70] (Davies J). Edmonds v R [2022] NSWCCA 103; Richards v R [2023] NSWCCA 264, cited. (2) In order to find remorse, the applicant must establish, on the balance of probabilities, that he accepts responsibility for his criminal conduct. Where the applicant's apology fails to meet the definition of remorse in s 21A(3)(i) and the applicant also submits that he could not remember the offending, the sentencing judge did not err in finding no remorse: [1] (Mitchelmore JA); [2] (Kirk JA); [71]-[75] (Davies J). Brzozowski v R [2023] NSWCCA 129, cited. As to Ground 3: (1) The sentencing judge was not obliged to refer specifically to identified statutory provisions where she referred to the mitigating factors referred to in those provisions: [1] (Mitchelmore JA); [2] (Kirk JA); [83] (Davies J). Ghamraoui v R [2009] NSWCCA 111; Vassiliou v R [2022] NSWCCA 91; Whipp v R [2024] NSWCCA 79, cited. (2) It is well established that a party is ordinarily bound by the conduct of their counsel. The sentencing judge's remarks on sentence were both comprehensive and thorough, and her Honour dealt with all of the issues canvassed by the parties. Furthermore, the offending was against two victims who were young and defenceless. Hence, both the indicative sentences and the aggregate sentence were entirely open to her Honour: [1] (Mitchelmore JA); [2] (Kirk JA); [84]-[88] (Davies J). R v Birks (1990) 19 NSWLR 677, cited. As to Ground 4: (1) Where new evidence concerning the applicant's mental health did not add anything of substance to existing evidence, make any link or material contribution to the offending, and the sentencing judge had already reduced the applicant's moral capability on account of his mental health, no miscarriage of justice resulted from the absence of the new evidence: [1] (Mitchelmore JA); [2] (Kirk JA); [101]-[109] (Davies J). Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483; Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, cited.

JUDGMENT

MITCHELMORE JA: I agree with Davies J.
KIRK JA: I agree with Davies J.
DAVIES J: The applicant pleaded guilty to four counts of assaulting a female and committing an act of indecency on a person under the age of 16 years contrary to s 76 of the Crimes Act 1900 (NSW) as that section was between 1958 and 1981. The maximum penalty in respect of counts 1 and 2 was imprisonment for 5 years and there was no standard non-parole period. The maximum penalty for counts 9 and 11 was imprisonment for 6 years and there was no standard non-parole period. The penalty for the offence was increased between 1961, when count 2 occurred, and 1975, when count 9 occurred.
There was a Form 1 attached to each of counts 2 and 9 of another offence contrary to s 76, and there was a Form 1 of two further offences contrary to s 76 attached to count 11. On 10 November 2023 the applicant was sentenced by Judge Robinson in the District Court to an aggregate sentence of imprisonment for 4 years 6 months commencing 10 November 2023 and expiring 9 May 2028 with a non-parole period of 2 years 3 months expiring 9 February 2026.
I will specify the indicative sentences when detailing the facts of the offending.
The applicant now seeks leave to appeal against the sentence imposed on the following grounds: 1. Her Honour failed to properly assess the moral culpability of the applicant in relation to the first 2 counts and assessed indicative sentences that were manifestly excessive and that informed error in the aggregate sentence. 2. Her Honour failed to properly find remorse. 3. The sentence imposed was manifestly excessive and a different sentence is warranted at law. 4. A miscarriage of justice resulted from the absence in the sentencing proceedings of "new" evidence relating to the offender.
For the reasons which follow, none of the grounds is made out and the appeal must be dismissed.

Offences against RS

The sentencing judge sentenced the applicant on the basis of a Statement of Agreed Facts. The following is a summary of those facts.
The applicant was born in June 1942. The complainant in relation to counts 1 and 2, as well as in the offence on the Form 1 attached to count 2, was the applicant's half sister, RS, who was born in June 1951. Count 1 occurred between 21 June 1958 and 20 June 1959 when the complainant was aged six years and when the applicant was aged 16 years.
The offending took place at a house in Doonside where RS lived with her maternal aunt whom RS thought of as her mother. The applicant used to visit the house regularly.
On the occasion of the first offence, RS was asleep in her room at the house. She awoke to a feeling of pain and something between her legs. She saw the applicant sitting next to her on the bed. He had one of his fingers inside her vagina. He told her to keep quiet and said something like, "This is what brothers do when they love their sisters". He told her that if she were to tell anyone that no one would believe her, and that there would be consequences.
The indicative sentence for count 1 was imprisonment for 1 year 10 months.
What the applicant did to RS continued on many more occasions at Doonside until the complainant was aged about 10 years. The offending occurred mainly at night and became progressively longer over time. Threats were made to her if she told anyone. On occasions the applicant would masturbate himself while digitally penetrating RS. These were all uncharged acts.
The offences charged as count 2 and count 3 (count 3 being on the Form 1) took place between 21 June 1960 and 20 June 1961 when RS was aged about 8. She would sometime visit her parents who were living at that time at Mount Victoria in the Blue Mountains. The first night of her stay during school holidays, the applicant was also visiting. That night he penetrated RS's vagina with his fingers (count 2) and touched her breast area. He also took his penis out of his pants and made RS masturbate him until he ejaculated (count 3).
The indicative sentence for count 2, taking into account count 3, was imprisonment for 2 years 4 months.
That type of offending continued throughout RS's stay at Mount Victoria, mostly at night but sometimes during the day when the applicant was alone with her. The difference between those incidents and the incidents at Doonside was that the applicant would make her do things to him including masturbating him as well as making her engage in oral sex upon him.
Further offending occurred on her third visit to Mount Victoria. These were further uncharged acts.
Their mother died in about January 2005 and RS saw the applicant at the funeral. She said to him, "Mum's dead now. I don't have to pretend anymore. I want nothing more to do with you". The applicant replied, "What did I do?". RS said, "You know exactly what you did". The applicant said he was sorry.

Offences against SM

SM was born in December 1966 to the sister of the applicant. She was brought up by her grandparents who were the mother of the applicant and her then husband, A, the father and mother of RS. On 1 September 1975, the applicant came to visit his mother at Forbes for her birthday. This was the first time SM had met the applicant. She was eight years old.
On the last day of the applicant's visit he, SM and the applicant's parents went on a day trip. It was a very hot day and after a while SM felt unwell. She returned to the car and lay down on the back seat with her head closest to the passenger side. She fell asleep. She woke some time later to the sound of one of the car doors opening. She turned her head to see the applicant getting into the backseat from the passenger side. He lifted SM's head so he could sit down and put her head on his lap.
After a short time he started rubbing her forehead with one of his hands. Then he started squeezing and pulling at her breasts (count 7 on the Form 1). She became scared and frightened and said, "Don't, it hurts". The applicant laughed mockingly, and SM cried. He then started kissing her on the forehead. He grabbed her right arm tightly and used his other hand to reach down across her body towards her groin and put his hand inside one of the legs of her shorts. He then pushed his finger into her vagina causing her terrible pain. She screamed, "Nan, Pop" as loud as she could and tried to get away from him. He had pinned her under his body weight and kept pushing his finger inside her vagina (count 9). After a while he stopped, he called her a "sooky girl" and pushed her off the seat onto the floor, and got out of the car.
When they arrived home, SM had a bath. She was sitting in the bath crying. Her vagina was red and stinging. Her grandmother came in and asked her what was wrong and she said, "Uncle [ET] did things in the car". Her grandmother then slapped her across the face knocking her back against the bathtub.
The indicative sentence for count 9, taking into account the matter on the Form 1, was imprisonment for 2 years 6 months.
When SM was aged about 13 or 14 sometime between December 1979 and November 1981, her mother took the family to stay with the applicant at his home at Sans Souci. They lived there for at least six months, possibly longer.
Whilst living there, SM went to a school dance at the school she was attending. The applicant collected her in his vehicle when the dance was over. He asked her on the way home whether she had kissed any boys and wanted to know what things she had done with them. This caused her to become upset.
She went to bed upset and later awoke to the sensation of the blanket being pulled down. She saw the applicant standing next to the bed pulling on the blanket. He tightly covered her mouth with one of his hands. He pulled down her pyjamas and underpants. He put his fingers into her vagina which immediately hurt (count 11). She tried to scream but could not.
There were two separate incidents on the Form 1 attached to count 11. Count 10 occurred about a week prior to Christmas in 1978 when the applicant came to visit SM and her family in Narromine. SM shared a bedroom with her half sister K, and the applicant's youngest daughter also slept on a roll-out mattress in that room.
One night SM woke to the sound of the bedroom door opening. She saw the applicant standing in the doorway. He pulled a sheet up over his daughter and SM pretended to be asleep. The applicant came over and rubbed SM's breasts. SM's sister began to cry and the applicant ran from the room. That constituted count 10 on the Form 1.
After the family returned to Narromine from living at Sans Souci, the applicant and his family moved to a farm somewhere near Dubbo or Parkes. On one occasion SM went with her family to visit the applicant at his farm. She was aged around 13 or 14 years.
SM woke one night to the sound of floorboards creaking. She saw the applicant in her room. He reached under the blanket and fondled her breasts which hurt. (count 12). She started to cry. The applicant called her a "sooky girl". SM saw her mother at the door and the applicant casually walked out of the room.
SM and her family left the farm abruptly after SM's mother and the applicant's wife had an argument. That was the last time SM saw the applicant when she was a child. The indicative sentence for count 11 taking into account counts 10 and 12 was imprisonment for 2 years 6 months.
SM made a statement to the police in October 2018. RS made statements to the police on 30 April 2019 and 1 October 2020. The applicant was arrested on 3 March 2020. He was taken to Dubbo police station where he participated in an ERISP.
In the ERISP he said that he had a problem with his memory. He said that when he was in the army he was hit on the head with a grenade launcher, and he was shot in the stomach. He did not agree that he digitally penetrated RS at Doonside, nor could he remember digitally penetrating her at Mt Victoria, although he agreed that he visited her and her family at Mt Victoria. He denied ever assaulting SM.

Subjective matters

The applicant did not give evidence at the sentence proceedings. He relied principally on a report from the psychologist, Jason Borkowski, and from an affidavit of his son who provided details of his mother's health care needs which he said were being provided by the applicant. The applicant's personal history is set out in Mr Borkowski's report of which the following is a summary.
The applicant was born in Parkes, the fourth of eight children of his parents' union. He was raised by his mother until he was aged eight. His father was a "drover" and was absent from the home for lengthy periods. The applicant only got to know his father when the applicant was in his late adolescence. When he was aged eight, his mother developed an illness and as a result the children were removed to child services. He had minimal contact with his mother after that time, although he occasionally spent time with his mother in his mid to late adolescence. He appears to have lived in group homes until he was 15 when he ceased being cared for by child services. He denied any abuse or mistreatment within those settings. He thereafter lived in boarding house accommodation until he joined the army at the age of 18.
Most of his early schooling was done in foster homes or group homes. He went to Castle Hill High School where he considered himself academically well adjusted and performed within the average range. There were no behavioural issues at school and he said he was involved with stable social groups.
He left school after his second year of high school and obtained work in retail shops. He joined the Citizens Military Forces until he was able to join the army at age 18. He remained in the army for nine years and had two deployments to Vietnam. Whilst in Vietnam he was shot in the stomach. He fell backwards and hit the back of his head on a grenade launcher. Mr Borkowski noted that medical records provided no indication of neurological damage, but the applicant said that he had experienced long-term headaches.
The applicant told Mr Borkowski that he was diagnosed with Post Traumatic Stress Disorder in his mid to late twenties. He believed that he started receiving pharmacotherapy for this condition when he was aged approximately 50. At the time he saw Mr Borkowski he was taking Endep and Prozac, both anti-depressants.
The applicant met his wife when he was aged 21. They have remained together since that time. He spoke positively of the relationship and denied any notable discord, violence or abuse, and said that they had always had a stable and caring union. Other documents, discussed later, cast doubt on that. His wife is currently terminally ill with cancer. He and his wife have four children, and two others who were stillborn. The applicant remains in contact with their children and they have a number of grandchildren and great grandchildren.
The applicant said that he had never used drugs. He reported patterns of occasional binge alcohol consumption in his early adulthood, but he said that stopped after he married, and he had rarely been intoxicated since that time. Again, other documents cast doubt on that. He denied any history of problematic gambling.
The applicant has criminal convictions dating back to 1959 when he was aged about 16. He was convicted of two counts of Assault Female for which he was given a suspended 12 month sentence at an institution. He told Mr Borkowski in regard to "that offence", he was swimming underwater at a pool with his eyes closed, and he swam into the legs of a female.
His other convictions are for Assault in 1970, Malicious Injury in 1972 and Assault Female in 1975. For the two assaults he was put on a recognisance, and for the malicious injury he was fined and ordered to pay compensation. He told Mr Borkowski that he could not remember any details of those offences. The applicant sought to tender "new" evidence in support of ground 4. That will be dealt with later, but it is significant to note from that evidence that the offences of Assault and Assault Female involved the applicant's wife as the victim. On the second occasion, the applicant admitted to hitting his wife twice, that he had "a couple of drinks", there was a suggestion that she had broken ribs, and the parties separated, with the wife telling the Magistrate that "there is no chance of reconciliation".
I mention this evidence at this point because its variance with what the applicant told Mr Borkowski suggests that the secondhand evidence of the applicant cannot be accepted at face value. Even given the applicant's claimed memory problems, it is difficult to accept that he would not have remembered twice being convicted and placed on a bond for assaulting his wife.
Mr Borkowski assessed the applicant on the Static-99R protocol for sexual reoffending. His score of -1 meant that his risk of reoffence is "Below Average Risk". Mr Borkowski also assessed dynamic risk factors using the Sexual Violence Risk-20 instrument. He has a large number of protective factors with only three risk factors, being his PTSD, his prior violence convictions and his disorganised and peripatetic childhood.
Mr Borkowski's conclusions were these: On the other hand however, when considering [the applicant's] criminal record, there are indications he exhibited periods of emotional and behavioural dysregulation in his mid-late adolescence as well as in his early to mid-adulthood following his discharge from the army. From a psychological perspective, this could be contributed to [sic] several factors. That being the disruption to his care arrangements in his later childhood and adolescence, and what appears to have been an absence of consistent parental guidance or support and possible dearth of appropriate role modelling in his later formative years. In addition, in his early adult life, whilst serving in the army, [the applicant] was faced with traumatic experiences of armed combat during deployments to Vietnam, which included an occasion of being shot in the stomach in his mid twenties. [The applicant's] inability to cope with the trauma he was faced with meant he was discharged from the army in his late twenties. Those experiences, appear to have had a longer-term psychological impact on [the applicant], and he reported ongoing mental health symptoms that are consistent with the presence of Post Traumatic Stress Disorder and/or a Major Depressive Disorder. From a functional perspective, these conditions can manifest in emotional and behavioural dysregulation, and could reasonably be hypothesized to have been a contributing factor in [the applicant's] behavioural dysfunction and additional criminal offences in his late twenties and early thirties. In regard to the matters currently before the court, [the applicant] was unable to recall any details, of the offences at the time of the assessment, or provide any insights as to the possible cause or contributing factors for his behaviour. However, it is not unreasonable to consider the current offences occurred as a result of the aforementioned emotional and behavioural dysregulation that [the applicant] appeared to have exhibited in his later teenage years and early to mid-adult life, that is a function of the disruption to his care he was exposed to in his adolescence, and the later confronting and traumatic experiences he was faced with whilst on deployment in Vietnam in his twenties. In a structured risk assessment of sexual offending, [the applicant] is rated as 'Very Low Risk' of sexual re-offending. When considering the dynamic risk factors that are commonly related to sexual offending, [the applicant] presents with a range of protective factors which lend to positive rehabilitation prospects, as outlined in the Dynamic Risk Factors section above. Although, as outlined in the Risk Assessment section of this report, there are several factors that warrant clinical attention through a course of psychological treatment, to ensure [the applicant's] risk of reoffending remains low.

Remarks on sentence

Having set out a summary of what occurred in relation to each of the offences, the sentencing judge went on to assess the objective seriousness of each of the offences. Her Honour noted that offences of the type charged encompassed a broad range of activity including acts which would now be considered to be sexual intercourse and be represented by more serious charges. Her Honour said that relevant matters included the age of the victims, the disparity in age between the applicant and the victims, the duration of the offending, any use of coercion, threats or pressure, and whether the applicant was in a position of trust.
The sentencing judge said that the act of digital penetration was an act of significant seriousness. Her Honour said that the applicant abused a position of trust he held towards both victims, and that the applicant acknowledged that to be a factor of some significance in determining objective seriousness.
In relation to count 1, her Honour noted that the victim was only six years old, with the applicant being aged 15 or 16. The victim was vulnerable and defenceless, the offence occurred in her home, the conduct caused pain and was accompanied by threats of repercussion should she complain.
In relation to count 2, the digital penetration was accompanied by the applicant touching the victim's breast area. The victim was aged eight and the applicant was aged 17 or 18. It occurred at her parents' house and was accompanied by threats of repercussions if she complained. The accompanying offence on the Form 1 of having the victim masturbate him to ejaculation was a reasonably serious example of offending conduct and would have an impact on the penalty to be imposed for the principal offence.
The sentencing judge noted that the offending against this victim was not isolated to the counts charged, but they occurred in the context of ongoing, regulated, repeated, similar offending.
In relation to count 9, the digital penetration caused the second victim considerable pain. She was eight years old and the applicant was aged 32. The victim was isolated, vulnerable and defenceless, and was unwell. The applicant took advantage of those matters. During the conduct she was pinned down under the applicant. The offending continued despite her yelling for help. After the offending, the applicant treated her with disregard by pushing her onto the floor. The associated offence on the Form 1 involved the applicant grabbing her breasts firmly which caused her pain. The sentencing judge held that as it occurred in the context of more serious offending, it would not have significant impact on the penalty imposed for the principal offence.
In relation to count 11, the victim was aged 13 or 14 and the applicant was aged 37. It occurred in the applicant's home where the victim was living. The victim was vulnerable and defenceless, the offending was accompanied by some force, and it caused her pain.
Count 10 (on the Form 1) occurred when the victim was aged 12. The applicant was 36. It involved the applicant rubbing the victim's breasts. The victim was defenceless and in a vulnerable position. Count 12 (on the Form 1) occurred when the victim was 13 or 14 and the applicant was aged 37. The offence involved the applicant fondling and pinching the victim's breasts which caused her pain and made her cry. Her Honour held that those Form 1 offences would have some impact on the sentence for the principal offence.
The sentencing judge then considered the Victim Impact Statements and the subjective material form Mr Borkowski's report in some detail. Her Honour considered the applicant's criminal history and his pleas of guilty which were made on the second day of what would have been the trial, had it started. That entitled him to a discount of 5%. Her Honour considered his prospects of rehabilitation and likelihood of reoffending, his youth at the time of the offending against RS, his present advanced age and the needs of his wife. Other findings will be dealt with in relation to the specific grounds of appeal.

Her Honour failed to properly assess the moral culpability of the applicant in relation to the first 2 counts and assessed indicative sentences that were manifestly excessive and that informed error in the aggregate sentence.

Remarks on sentence

When dealing with the applicant's youth at the time of the offending, the sentencing judge first set out the principles identified by Hodgson JA in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4]-[6]. Her Honour then said: Those principles are acknowledged and will be taken into account in considering the offending in Counts 1, 2 and 3. However, the increased importance of rehabilitation has less practical relevance given the passage of time. No specific submission is made on the offender's behalf about the relevance of the offender's age at the time of the offending. The Crown accepts that the age of the offender for those counts reduces his culpability for them, and is representative of a level of immaturity. I accept that to be an appropriate concession and to accord with my own assessment. Consequently, general deterrence and denunciation will have less significance in the sentence for those counts.

Submissions

The applicant submitted that, although the sentencing judge took into account his age at the time of the offending, her Honour gave little, if any, consideration to how his youth reduced his moral culpability for the offence. The applicant submitted that the sentencing judge "did not properly consider how she applied those principles to the offending" except for saying that "forward considerations of rehabilitation" had different significance than would have applied had the sentence occurred at the time of the offending.
The applicant submitted that the sentencing judge seemingly did not consider that the applicant had lived in boarding houses without a caring and engaged parental figure during his development. The applicant submitted that there was uncontested material upon which there was an unchallenged application of principles from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
The applicant submitted that when proper account is taken of his age at the time of the commission of counts 1 and 2, the undiscounted sentences of 2 years and 2 years 6 months respectively were not reasonably open to the sentencing judge.

Consideration

The sentencing judge correctly observed that no submission was made on the applicant's behalf by reason of his age and immaturity at the time of the offending for these counts. To the extent that the ground of appeal relies on that factor, the principles in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 suggest that it is not open to the applicant to raise this point on appeal.
However, the Crown drew the matter to the sentencing judge's attention, and her Honour dealt with the matter (at [55] above) including by saying that his age at the time reduced his culpability, and that general deterrence and denunciation would have less significance.
The applicant's written submissions to the sentencing judge noted his separation from his parents and "exposure to significant trauma in early adulthood", and submitted that his background reduced his moral culpability, relying on Bugmy.
The sentencing judge summarised in detail what was contained in Mr Borkowski's report about the applicant's childhood and adolescence. Mr Borkowski does not record any trauma until he was shot in Vietnam. The applicant denied any abuse or mistreatment within the care settings including the boarding house where he grew up for a period of his childhood and early adolescence. No family discord, violence, sexual abuse, or drug use was in evidence. He reported no behavioural or other difficulties at school.
Nevertheless, the sentencing judge said this: On the offender's behalf, it is submitted that the factors identified by Mr Borkowski as arising from his background, together with his subsequent traumatic experiences, evidences disadvantage triggering Bugmy considerations resulting in a consequent reduction and [scil. in] his moral culpability for his offending (see Bugmy v The Queen [2013] HCA 37; 249 CLR 571). The Crown does not challenge the offender's background however submits that given Mr Borkowski's opinion asserts the possibility of these aspects being relevant to his subsequent offending conduct, that no relevant link has been demonstrated and such a finding should not be made. I accept the offender's submission in this instance. It is not necessary for a link to be established. Aspects of his background as identified represent some disadvantage to the offender which mitigated the sentence because his moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in the same way… .That finding reduces the relevance of deterrence and denunciation in this instance, however not to any significant extent.
The ground as framed appears to be a complaint about the extent of the reduction for moral culpability, which is a complaint about weight. That is a matter within the role of the sentencing judge as this Court has repeatedly pointed out. What is clear, however, is that on the two matters about which complaint is made in this ground of appeal, the sentencing judge reduced the applicant's moral culpability, even in relation to the applicant's youth where he had not sought it.
Of the types of offending covered by the offence charged, digital penetration along with fellatio and cunnilingus would have to be amongst the most grave examples of the offence, and the more so when the victim was aged 6 and 8 and there were other aggravating factors. Those acts now all constitute sexual intercourse but did not do so at the time of the offending. Further, the sentencing judge was obliged to sentence in accordance with current sentencing practices which might have suggested, notwithstanding the two matters that reduced his moral culpability and his subjective case, that higher indicative sentences were called for. It cannot be concluded, however, that undiscounted indicative sentences of 2 years and 2 years 6 months respectively were not open to the sentencing judge.
I would reject this ground.

Ground 2. Her Honour failed to properly find remorse.

Remarks on sentence

Her Honour said this under the heading "Remorse": As mentioned, the offender reported that he had difficulty remembering details of any of the incidents for which he has been charged and could not provide any insight into the factors that contributed to the offending. It is submitted on his behalf that this ought be considered in the context of his advanced age, as opposed to any attempt to minimise his criminal conduct. Mr Borkowski's observations as earlier referenced do support that submission. More relevantly however, and consistent with the Crown submission, the offender has not expressed any remorse or contrition for his offending. No submission is made on the offender's behalf that remorse has been demonstrated in this instance. Accordingly, I accept that no mitigation has been established.

Submissions

The applicant submitted that it was difficult to see how he could at the time of sentence express remorse when he could not remember the offending. He drew attention to his "earlier apology" at his mother's funeral. The applicant submitted that, despite that apology, her Honour found no remorse.
The applicant submitted that the plea of guilty had saved the complainants the stress and trauma of a trial and he was entitled to some consideration in that regard. Attention was drawn to what was said in Cameron v R (2002) 209 CLR 339; [2002] HCA 6 at [11], that a plea is usually evidence of some remorse. The applicant submitted that her Honour failed to consider the plea as a willingness to facilitate the course of justice.

Consideration

As with the submission concerning ground 1 that the applicant's age should have been taken into account for counts 1 and 2, the present ground is put forward for the first time on appeal contrary to what was said in Zreika. No submission was made to the sentencing judge about remorse or that the applicant's plea had facilitated the course of justice. This Court has said on a number of occasions that sentencing proceedings are adversarial proceedings: Edmonds v R [2022] NSWCCA 103 at [26]; Richards v R [2023] NSWCCA 264 at [58]. Where no submission is made on a topic or no issue joined, the sentencing judge would not ordinarily be expected to make a finding on that topic.
Notwithstanding the absence of any such submissions, the sentencing judge examined the evidence to consider the issue of remorse, but concluded, not surprisingly, that no remorse had been established.
Since the applicant pleaded guilty to the offending and signed the Agreed Facts, it may be concluded that he accepts that he committed the offences as outlined in those Facts. There is no statement by him to the Court or even to the psychologist acknowledging the offending, let alone any indication of regret or remorse for what he did to the victims.
Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Act") deals with remorse as a mitigating factor which the Court is to take into account. It provides: (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
In Brzozowski v R [2023] NSWCCA 129, Simpson AJA said at [6]: Remorse is not established unless there is evidence that the offender accepts responsibility for his or her criminal conduct. Acceptance of responsibility must entail something more than a plea of guilty: Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 at [34]-[35] (Maxwell P, Harper JA and T Forrest AJA). If that were not so, every offender who pleads guilty would be entitled, not only to the reduction in sentence provided by Pt 3, Div 1A of the Sentencing Procedure Act, but also to extra consideration under s 21A(3)(i). As Brereton JA observed in Patel v R [2022] NSWCCA 93 at [41]; 366 FLR 314 (N Adams and Lonergan JJ agreeing): "Contrition - or remorse - is concerned with the attitude of an offender after the event to his or her offending. It involves genuine regret. It was explained by the Victorian Court of Appeal in Barbaro v The Queen, in the following terms: '[36] A distinction must be drawn between the anguish of being caught and punished, on the one hand, and - on the other - the determination to change one's behaviour and, to the extent possible, make amends. The first is not remorse at all. The second is. … [38] It follows, in our view, that a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone. In many instances, the most compelling evidence of this will come from testimony by the offender. A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table.'"
Two things may be observed about what was described as an apology that the applicant made to RS at their mother's funeral. First, it entirely fails to amount to remorse within s 21A(3)(i) and the way that provision has been interpreted. It needs also to be borne in mind in that regard that mitigating factors need to be established by an offender on the balance of probabilities. Secondly, although the applicant submitted that he could not be expected to apologise for something he could not remember, that submission does not take account of his plea, his agreement with the Agreed Facts, and his saying sorry to RS (but not SM) at his mother's funeral when he claimed not to know what he had done to her.
I would reject this ground.

Ground 3. The sentence imposed was manifestly excessive and a different sentence is warranted at law.

Submissions

The applicant submitted that the sentencing judge did not acknowledge in the sentencing statistics put forward by the Crown that more than a third of offenders did not receive a custodial sentence. The applicant submitted that in the context of his strong subjective case, the historical perspective and the significant findings as to rehabilitation and low risk of offending, he was a real candidate for a non-custodial sentence.
The applicant, whilst accepting that the sentencing judge had regard to issues of rehabilitation, reoffending, his criminal record, remorse, his youth at the time of committing the offences in counts 1 to 3, and his present advanced age, was critical of the sentencing judge for not referring to the specific provisions of s 21A(3), and for not giving discrete consideration to a non-custodial sentence having regard to "the additional features of the matter". The particular additional features were not identified.
The applicant submitted that although her Honour took into account the matter of the delay in bringing the charges, her Honour "did not give traction" to particular passages in R v Obbens [2022] NSWCCA 109 concerning delay, and which resulted in that case in a community correction order.
The applicant submitted that the "highly unusual combination of factors" in the matter were not properly considered by her Honour.

Consideration

The principles relevant to a consideration of whether a sentence is manifestly excessive were set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. They are well-known and do not need to be reproduced here.
The sentencing judge's remarks on sentence were both comprehensive and thorough. Her Honour dealt with all of the issues that had been canvassed by the parties. In suggesting that the sentencing judge ought to have considered a non-custodial sentence, the applicant placed considerable emphasis on his upbringing, his youth at the time of the offending in relation to counts 1, 2 and 3, and the length of time that had passed since any of the offending. All of those matters were discussed and taken into account by the sentencing judge. In relation to delay, her Honour did not "give traction" to the passages in R v Obbens because her Honour was not asked to do so. Nevertheless, her Honour correctly applied well-known principles concerning delay.
The criticism that the sentencing judge did not refer to the specific provisions of s 21A is captious, especially when the applicant acknowledges that her Honour referred to the mitigating factors referred to in the identified provisions, being pars (e), (g), (h), (j) and (k) of subs (3). To suggest some shortcoming in the judgment because particular statutory provisions were not mentioned by paragraph number is to exalt form over substance. It also runs counter to what this Court has said on a number of occasions about not approaching sentencing from the perspective of working through a checklist: Ghamraoui v R [2009] NSWCCA 111 at [23]; Vassiliou v R [2022] NSWCCA 91 at [49]; Whipp v R [2024] NSWCCA 79 at [61].
As noted in relation to ground 1, her Honour reduced the applicant's moral culpability by reason of his background, and separately for his age in respect of counts 1, 2 and 3. The applicant's counsel expressly withdrew a submission that the applicant's PTSD contributed to the later offending.
In relation to whether or not a custodial sentence should be imposed, her Honour said: Mr Valentin submits that although the offending is serious, the subjective case of the offender, particularly his age, exceptional hardship to his family or third parties, gap in offending and low risk of reoffending, would allow the Court to find that a sentence other than fulltime custody was available in this instance. Specifically, the offender submits that each of the offences could be dealt with by way of the imposition of a Community Correction Order for the maximum period of three years with appropriate conditions attached. However, in oral submissions, it was accepted by the offender's counsel that should the Court find the hardship not to be exceptional, a community based sentenced [sic] would not be appropriate…. Taking all relevant factors into account, I am firmly of the view that each offence crosses the s 5 threshold and nothing other than a sentence of imprisonment is appropriate.
Her Honour had earlier held that the hardship to the applicant's family was not exceptional. In the light of the concession made concerning a custodial sentence, the present submission that a non-custodial sentence ought to have been contemplated, is a further instance of a different case being run in this Court from what was put to the sentencing judge, contrary to Zreika. There is no ground asserting incompetence of counsel. It is well-established that a party is ordinarily bound by the conduct of their counsel: R v Birks (1990) 19 NSWLR 677 at 683 and 685.
The offences constituted serious offending against two victims who were young and defenceless, and where a breach of trust was involved. As noted in relation to ground 1, the nature of the sexual act of digital penetration should be regarded as a serious instance of the offence charged in each case. In the case of RS, they were not isolated acts. In both cases, force, pain and threats were involved. In the case of SM, the applicant was aged in his 30s and for both counts involving SM he was almost 25 years older than her.
Taking into account the requirement in s 21B of the Sentencing Act, both the indicative sentences and the aggregate sentence were entirely open to her Honour. The applicant also received the benefit of a very generous reduction of the non-parole period by the finding of special circumstances.
I would reject this ground.

Ground 4: A miscarriage of justice resulted from the absence in the sentencing proceedings of "new" evidence relating to the offender.

The applicant sought leave to read two affidavits containing evidence not put before the sentencing judge. The applicant acknowledged that the evidence was "new" evidence and not "fresh" evidence, and that in the circumstances it was necessary for the admission of this evidence that the applicant demonstrate a miscarriage of justice occurred by the evidence not being before the sentencing judge.
The first affidavit was that of the applicant's solicitor, Ross Hill, who annexed to his affidavit copies of court papers for a conviction recorded against the applicant in 1975. As noted earlier, the applicant was convicted of the offence of assaulting a female on the 17 January 1975.
The court documents disclose that the complainant was the applicant's wife. The documents contain a transcript of what occurred. The applicant appeared for himself. The prosecutor informed the court that the applicant's wife had been sent for x-rays because her doctor thought she may have broken ribs from the assault. The applicant told the court that he only struck his wife twice although the charge sheet said three or four times. He said he was under treatment for nervous anxiety, and had been on and off tablets. He said that he thought that was what caused him to hit his wife. The matter was adjourned for a few days to see the outcome of the x-rays. The prosecutor noted that the applicant was on a bond from 1970 for assaulting his wife.
When the matter returned to Court some four days later, the applicant's wife was present. She informed the Court that the applicant had moved out of the family home. She said she had seen Welfare and they were going to help her. She said there was no chance of reconciliation.
The defendant said that he was sorry for what he had done. He said he had had a couple of drinks, they "had a go at each other", and he ended up hitting his wife.
The Magistrate placed him on recognisance self in the sum of $100 to be of good behaviour for two years.
The other affidavit was from the applicant's wife. In the affidavit she referred to the fact the applicant had been to Vietnam twice and was very affected by it. She said he had a breakdown and was suffering from PTSD. He had seen psychiatrists and had been on medication.
She said things were occasionally difficult within the marriage, and she reported the assault on 13 January 1975. She said at the time the applicant was not taking his medication, and he was drinking. She said that the applicant moved out of the home for a month, that he saw a psychiatrist and a doctor, and she gave him an ultimatum to take his medication and give up drinking or he would lose his family. She said they reconciled, they moved to the country and their fourth child was born in 1978.
She also said that since the applicant had gone to prison she was living alone. She had a carer that came to help her from Monday to Friday, but she struggled with doing daily activities, and she was on 24-hour oxygen.
These two affidavits were admitted provisionally with a decision on their admissibility to be given in this judgment.

Submissions

The applicant submitted that the evidence demonstrated that he had told the magistrate at Waverley Court that he had anxiety and a nervous condition in 1975, although he accepted that he did not put it down to his war service. He submitted that the evidence from his wife shows that he had a breakdown when he returned from his second deployment to Vietnam. The applicant submitted that these mental health issues were relevant to the offending against SM. He submitted that the sentencing judge did not apply considerations from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 because there was a lack of evidence. The absence of this new evidence was said to constitute a miscarriage of justice.

Consideration

In Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483, Hamill J (Gleeson JA and Ierace J agreeing) summarised the principles relating to the admission of new evidence or fresh evidence on appeal as follows: [26] The power to receive the material is a discretionary one and the general rule against admissibility should not be exercised so rigidly as itself to "be the cause of injustice". It has been held that a degree of flexibility is preferrable where the statute is silent and the Court's jurisdiction is concerned with the prevention of a miscarriage of justice. [27] While the authorities throw up many cases where evidence has been admitted on appeal, the general rule prevails in most cases. Additional evidence is only received where proper grounds have been established. The Court has been "at pains" for decades to ensure that the rule against admission of this evidence will only yield in "rare and exceptional cases" or, put another way, for "substantial reasons [where there is] a grave risk of injustice." [28] The case law draws a distinction between "fresh" and "new" evidence. Evidence will constitute "fresh evidence" if it was not available to a party, "could not have been discovered with the exercise of reasonable diligence" at the time of sentence, and its admission will depend on whether it had the "capacity to affect the outcome of proceedings at first instance." "New" evidence is material that was available but not used, or was discoverable with reasonable diligence at the time of sentence. Fresh evidence is received more readily than new evidence. (citations omitted)
In Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Simpson J (Davies J and Grove AJ agreeing) said at [121]: … The judgment remains a discretionary one. It is proper for the Court examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation.
There was no evidence explaining why the evidence now sought to be relied upon was not put before the sentencing judge. Mr Hill does not say in his affidavit when he asked for the material from Waverley Court. Nor is there any explanation why the evidence contained in the affidavit of the applicant's wife was not placed before the judge, particularly when Mr Borkowski's report made clear the limitations of the applicant's memory for certain matters. Plainly, all of this evidence was available to be placed before the sentencing judge. These matters go the issue of discretion, but ultimately it must be determined if the absence of this material has occasioned a miscarriage of justice.
In my opinion, the applicant does not demonstrate a miscarriage of justice by reason of this evidence not being before the sentencing judge for a number of reasons. First, there was evidence in Mr Borkowski's report, referred to at some length by the sentencing judge, about the applicant's time in Vietnam, the injury he suffered, his PTSD, his feelings at the time of anxiety, anger, irritability and being uptight. The new evidence does not add anything of substance to what is in Mr Borkowski's report.
Secondly, although the evidence tends to provide a reason for the applicant to have been violent towards his wife (his anxiety, being off his tablets, his alcohol consumption, all of which might have their origins in his PTSD), there is nothing to make any link or material contribution to his sexual offending. That is the more significant when he started offending sexually, and did so repeatedly, years before he went to Vietnam and developed his mental conditions.
Thirdly, the principles for sentencing relating to offenders suffering from mental illness were said in De La Rosa to be these, at [177]: • Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999]NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]). • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50-51; R v Israil (at[22]); R v Pearson (at [42]); R v Henry (2007) (at [28]). • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: R v Tsiarias (at 400); R v Jiminez (at [25]); R v Israil (at [26]); R v Henry (2007) (at [28]). • It may reduce or eliminate the significance of specific deterrence: Courtney (at [14]); R v Tsiarias (at 400); R v Israil (at [25]); R v JW (at [192]). • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: R v Israil (at [24]); R v Henry (2007) (at [28]).
Mr Borkowski's conclusion was this, following his likely diagnosis of PTSD and Major Depressive Disorder: From a functional perspective, these conditions can manifest in emotional and behavioural dysregulation, and could reasonably be hypothesised to have been a contributing factor in Mr Townsend's behavioural dysfunction and additional criminal offences in his late twenties and early thirties.
That conclusion seems to be something less than a contribution in a material way, a conclusion seemingly reached by the applicant's counsel at the sentence hearing. The following exchange occurred relating to the applicant's mental health: VALENTIN: … [W]e're only asserting the presence of a mental health condition for the later offending arising by virtue of his wartime service, and it's only for those matters that we would submit that there is a mental condition, namely PTSD, plainly there is no De La Rosa link that's being advanced here. HER HONOUR: So you're not - you asked me to take into account the PTSD is relevant in his subjective mix. VALENTIN: Yes, again, and-- HER HONOUR: However, you're not submitting that it materially contributed to the offending? VALENTIN: No, your Honour. HER HONOUR: Okay, I had misunderstood. And I think the Crown might have misunderstood that as well, hence the supplementary submissions. VALENTIN: I apologise, it's probably poor drafting on my part, which I'm sometimes famous for, but there is no De La Rosa link here, rather that there is a mental condition and that is in the subjective mix.
Fourthly, in any event, the sentencing judge considered the applicant had reduced moral culpability, with corresponding reduced significance of deterrence and denunciation by reason of his background. Further, the sentencing judge took his mental health into account as part of his subjective case as counsel had submitted and, in doing so, her Honour provided a generous reduction in the statutory ratio.
I would reject the tender of the two affidavits and reject the ground of appeal.

Conclusion

I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.

Amendments 09 September 2024 - Paragraph [45] anonymised 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: 09 September 2024

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