Franklin v R

Court of Criminal Appeal (NSW)|2016-11-02|Before: Macfarlan JA, Hulme J, Bellew J, Ms J, MacFarlan JA

Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2014/153973 Decision under appeal Court or tribunal: District Court Date of Decision: 18 September 2015 Before: Robison DCJ File Number(s): 2014/153973

Details of the offences and indicative sentences

The applicant was aged from 29 to 35 at the time of the offences. The victim was his niece who was aged from 7 to 13.
From the time the victim was about six months old, she and her elder sister would stay with the applicant and his wife regularly on weekends. According to a statement of facts the applicant took the opportunity of his wife being absent to touch the victim on the vagina or have other sexual contact with her.
In May 2014 the victim disclosed to school friends that the applicant had been sexually assaulting her. She then told a teacher and the matter was ultimately reported to police. She disclosed an escalating pattern of behaviour, from touching and digital penetration to the offender using his penis, and on one occasion a vibrator, to penetrate her. On one occasion he used a nipple vibrator sex toy on her. She recalled that he put his penis inside her vagina "a lot". She said this all started a few months after the applicant and his wife had moved to a particular address in about March 2007. She said the assaults occurred, in one form or another, on every weekend she stayed there and were not limited to the offences for which the applicant was sentenced.
Details of the offences in chronological order and the indicative sentences specified by his Honour are as follows. Each sentence was reduced by 25 per cent on account of the applicant's pleas of guilty. Each of the statutory provisions and maximum penalties ("max") referred to are within the Crimes Act 1900 (NSW). The standard non-parole periods ("SNPP"), where applicable, are prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Count 9 - Indecent assault upon child under 16 years - 29.7.07 to 31.12.07

When the victim was 7 years old there was an occasion when the applicant, his wife and the victim were in the lounge room watching television. The victim sat on the applicant's lap and her hand went onto his crutch, touching his penis over the outside of his clothes. He then touched her vagina on the outside of her clothing. This was said to have occurred two or three times on this occasion. This is a matter that the applicant disclosed to police.
There was discussion at the hearing of the application as to whether the averment of this offence in the indictment alleged an offence against s 61M(1) or s 61M(2). The penalty maxima were 7 years and 10 years respectively. However, a note under this count specifically nominated s 61M(2) and the facts clearly described such an offence. No issue was taken about this in the court below, or raised in any ground of appeal. I am satisfied that the applicant pleaded guilty to an offence against s 61M(2) and the facts supported such an offence.
The Crown Prosecutor in the court below erred in informing the sentencing judge that the standard non-parole period for an offence against s 61M(2) at the relevant time was 5 years. It was later increased to 8 years (with effect from 1 January 2008) by the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) with Pt 17 being inserted in the primary Act which provides that the increased standard non-parole period applies to the determination of a sentence for an offence whenever committed unless that person had been convicted, or the court had accepted a plea of guilty and the plea had not been withdrawn before the commencement of the amendments. This error worked in the applicant's favour. Section 61M(2) - max 10 years - SNPP 8 years (but see above) Indicative sentence 1 year 6 months - NPP 1 year

Count 1 - Sexual intercourse with child under the age of 10 years - 1.3.07 to 31.12.07

The victim had a practice of getting into bed with the applicant and his wife in the mornings because she was scared of the dark. There was an occasion when she did this soon after she had turned 7. The applicant's wife got up and left for work. The applicant touched the victim on her vagina underneath her clothes. He then tickled her on the outside of the vagina. After a couple of minutes he inserted his "pointy and rude" fingers into her vagina and moved them around. Section 66A - max 25 years - SNPP 15 years Indicative sentence 3 years 9 months - NPP 2 years 9 months

Count 2 - Aggravated (under authority) sexual intercourse with child under the age of 10 years - 30.7.09 to 28.7.10

The victim was aged about 9 when the applicant first had penile/vaginal intercourse with her. In the master bedroom of the applicant's home he took her clothes off and began touching her vagina with his fingers. He then took his penis out and began rubbing it against her vagina before penetrating her. The victim recalled that he moved up and down before ejaculating inside her. Section 66A(2) - max life imprisonment - SNPP 15 years Indicative sentence 18 years 9 months - NPP 12 years

Count 12 - Indecent assault upon child under 16 years - 1.8.10 to 10.10.10

On an occasion when the victim was aged 10, she and the applicant were in his bed one morning after his wife had left for work. He allowed her to touch his penis outside his shorts and he then put her hand inside his shorts touching his penis. Section 61M(2) - max 10 years - SNPP 8 years Indicative sentence 5 years 3 months - NPP 2 years 3 months

Count 13 - Indecent assault upon child under 16 years - 1.8.10 to 10.10.10

On another occasion in bed one morning when the victim was aged 10 and after the applicant's wife had gone to work, the applicant touched the victim's vagina and ran his hand between her legs about 10 times. The statement of facts records this offence as having been disclosed by the applicant. Section 61M(2) - max 10 years - SNPP 8 years Indicative sentence 5 years 3 months - NPP 3 years

Count 10 - Indecent assault upon child under 16 years - 29.7.10 to 28.7.11

In the master bedroom the applicant asked the victim if she wanted to suck his penis. He also said that he wanted her to lick his penis. She refused. He told her to kiss it and she said she would do that but nothing else. She kissed the middle of his penis. The applicant was naked at the time. The victim was 10 years old. Section 61M(2) - max 10 years - SNPP 8 years Indicative sentence 5 years 7 months - NPP 3 years 6 months

Count 11 - Indecent assault upon child under 16 years - 29.7.10 to 28.7.11

The applicant's wife had left the home to get dinner when the applicant approached the victim who was sitting on the lounge watching a children's program on television. He put his hands down her pants, touched and rubbed her vagina. He stopped when his wife returned. The victim was 10 years old. Section 61M(2) - max 10 years - SNPP 8 years Indicative sentence 5 years 9 months - NPP 3 years 7 months

Form 1 attaching to Count 11 - 2 offences of Aggravated (person under 16) film person in private act without consent - 1.1.10 - 31.12.12

The applicant recorded six videos of the victim and her sister naked in the shower. The camera focussed on their breasts, vaginas and bottoms. The victim was aged from 9 to 12 and her sister was aged between 10 and 13 in this period. Section 91K(3) - max 5 years

Count 15 - Indecent assault upon child under 16 years - 29.7.10 to 28.7.13

When the victim was sitting on a chair in the lounge room the applicant came over, took his pants off and told her to kiss his penis which she did. She was aged 10 to 12 at the time. Section 61M(2) - max 10 years - SNPP 8 years Indicative sentence 5 years 9 months - NPP 3 years 7 months

Counts 3, 4 and 5 - Aggravated (under authority) sexual intercourse with child above 10 and under 14 years - 29.7.11 to 31.12.11

The applicant took a video recording of him engaging in sexual activity with the victim. He briefly masturbated himself before having penile/vaginal intercourse for about a minute. The victim was facing the bed with her back to him. He withdrew his penis and asked her to roll over onto her back and come closer to the edge of the bed and hold her legs open for him. He then had penile/anal intercourse for about two minutes. He then resumed penile/vaginal intercourse. The applicant told police that he thought he ejaculated on the victim's anus. She was aged 11 at the time. Section 66C(2) - max 20 years Indicative sentences each 10 years

Form 1 matter attaching to Count 3 - Possess child abuse material - 1.1.10 to 20.5.14

Images and videos of children, including some taken by the applicant, were found when police analysed a camera, a computer and a USB stick belonging to him. Of the 506 images located a small proportion was in the worst category of the Child Exploitation Tracking Scheme (CETS) scale. There were 12 videos, half of which were in the lower two categories; three were in the middle category; and three were in the second worst category. Section 91H(2) - max 10 years

Count 6 - Aggravated (under authority) sexual intercourse with child above 10 and under 14 years - 29.7.11 to 31.12.11

The applicant told police that immediately prior to the activity in Counts 3 to 5 the victim was laying on the bed and he licked her vagina for about 15 to 20 seconds, penetrating her labia with his tongue. Section 66C(2) - max 20 years Indicative sentence 7 years 6 months

Count 7 - Aggravated (under authority) sexual intercourse with child 10 and under 14 years - 29.7.11 to 31.12.11

The victim was woken from sleeping in her bedroom when the applicant came and told her to get out of bed. She got out from under the covers and got back on top of them. He removed her pants and underwear, touched and rubbed her vagina with his hands and then digitally penetrating her. She was aged 11 at the time. Section 66C(2) - max 20 years Indicative sentence 8 years 3 months

Count 16 - Indecent assault upon child under 16 years - 29.7.12 to 31.12.13

The victim was lying naked on her back on the applicant's bed. He knelt on the bed and rubbed his penis against her vagina. She was aged 12 or 13. Section 61M(2) - max 10 years - SNPP 8 years Indicative sentence 6 years 9 months - NPP 4 years

Count 17 - Indecent assault upon child under 16 years - 29.7.12 to 31.12.13

On the same occasion as the event in Count 16, the applicant put suction cups from a nipple vibrator sex toy on the victim's breasts and activated the suction cups. She told police that her breasts were being pulled and that it really hurt. Section 61M(2) - max 10 years - SNPP 8 years Indicative sentence 5 years - NPP 3 years

Count 8 - Aggravated (under authority) sexual intercourse with child above 10 and under 14 years - 29.7.12 to 31.12.13

After the event in Count 17 the applicant licked the victim's vagina. Section 66C(2) - max 20 years Indicative sentence 8 years 3 months

Count 14 - Indecent assault upon child under 16 years - 29.7.12 to 31.12.13

On this occasion the applicant told the victim to go into the bedroom and she complied. There he took off her shirt and rubbed his penis on her breasts until he ejaculated. Section 61M(2) - max 10 years - SNPP 8 years Indicative sentence 6 years 9 months - NPP 4 years 3 months

Count 18 - Use child under 14 years for pornographic purposes - 1.1.10 to 31.12.13

In addition to the video recording of the events in Counts 3 to 5, the applicant took a number of photographs of the victim showing her naked and seated with her legs separated and vagina exposed. Her breasts, stomach and face were also depicted. In one photograph she was holding her vagina open with her hands. She was aged between 10 and 13 during this period. Section 91G(1)(a) - max 14 years Indicative sentence 7 years
The victim disclosed this offending to several friends at school on 19 May 2014. She then told her teacher and the matter was reported to police. An apprehended violence order was taken out specifying the victim as the person in need of protection. The applicant was arrested when he presented himself at Ulladulla police station on 21 May 2014. He said he wanted to confess to the assaults listed in the apprehended violence order.
The applicant admitted to police that there had been some sexual contact with the victim but he said he "didn't think" there had been "full" penetration and said that to his knowledge they had never had full intercourse (a claim from which he later resiled). He admitted that he was in a position of authority and trust as the adult in the house at the time the offending was taking place.

The applicant's personal circumstances

The applicant was born in 1978. He had been educated to the School Certificate level and then completed a motor mechanic apprenticeship. He had been employed at the same place for nine years at the time of his arrest.
The applicant was married in 2001 and a son was born in 2011. The marriage appears to have been less than ideal and his wife told the author of a Pre-Sentence Report that it was no longer viable.
He had a criminal history between 1996 and 1999 comprising some relatively minor matters for which he had received fines and a bond.
The Community Corrections Officer wrote in the Pre-Sentence Report that the applicant appeared to minimise his involvement in the offences, stating that he denied physical penetration and claimed the victim had encouraged the contact. He said he received a level of affection from her which he had not experienced before and he had "taken it the wrong way". He claimed she had initiated contact and "always seemed to want it". He did, however, say that he accepted full responsibility for his actions by handing himself into police and by informing his wife of the charges. He told the officer, "I hate myself now".
It was the officer's impression that the applicant had limited insight into his offending; he minimised his responsibility; he expressed little victim empathy; and that whilst it seemed he initially recognised his conduct was wrong, he appeared to do little to avoid it escalating.
A report by Community Corrections psychologists included that an assessment made by a statistical instrument (STATIC-99R) indicated the applicant was in the low-moderate risk range for sexual re-offending but they added that this may be an underestimate as he appeared to have a number of dynamic risk factors.
In a letter addressed to the sentencing judge the applicant wrote that despite what he had initially said he had come to the realisation that the victim was not at all to blame and that it was all his fault. He acknowledged that he initiated the sexual activity, not her. He said that he now appreciated the harm and long term damage he had caused. He was sorry for taking away her childhood. Perhaps for emphasis, he stated these sentiments repeatedly.
A report by Dr Richard Furst, consultant forensic psychiatrist, dated 6 September 2015 was tendered. The applicant provided a history of having been teased and bullied as a teenager and having had few friends. He did not get on very well with his brothers or parents. He had low self-esteem and self-harmed including attempting suicide a number of times in his teens. He said he had been sexually assaulted by an adult when he was aged 13. He had not disclosed this and had not sought or received any treatment. He had a pattern of binge drinking in his teens and 20s but had been drinking much less in the past 5 to 6 years. There was no history of illicit drug use.
During the course of his interview by Dr Furst on 25 August 2015 the applicant said in relation to the victim, "I felt as though she was willing and wanted to do these things. I knew it was wrong." He claimed to have regretted his actions, both at the time and since. He expressed an awareness of the long-term psychological harm his offending would cause the victim.
The applicant claimed that he was sexually attracted to adult females, not to children. He said that he never looked at other children in a sexual way and denied any deviant sexual fantasies involving children. Dr Furst commented: "I found it hard to accept his assertions in this respect". On his review of the statement of agreed facts, Dr Furst said they were "all in keeping with a pattern of deviant sexual arousal in the form of paedophilia, notwithstanding [the applicant's] assertions [to the contrary]".
Dr Furst found that the applicant met the diagnostic criteria for:
Substance use disorder (previous alcohol dependence (binge pattern))
Borderline personality disorder
Paedophilia
Dr Furst was asked to provide an opinion as to what may explain or may have contributed to the offending. His response included mention (without stating anything conclusive) of the possible relevance of the applicant having been sexually assaulted. He also said: "There were a number of dynamic factors that probably contributed to his offending, including intimacy deficits, emotional dysregulation, problems in his marital relationship … He probably also had deviant sexual arousal and fantasies, especially having regard to the age of the victim, the protracted nature of the offences and the production of and possession of child abuse material. There were no indications he was unaware of his actions or their wrongfulness. It would appear that deviant cognitions as a consequence of his paedophilia, access to the victim and his general emotional deficits as a consequence of his borderline personality disorder all contributed to the offending …"
Dr Furst also commented on the applicant still having "deviant cognitions in relation to the victim's role and the offending". He considered the applicant to have minimised his actions and culpability and to have failed to account for the gravity of his offending; his likely sexual attraction to underage/prepubescent children; and the duration, frequency and severity of his offending. These are matters Dr Furst suggested will need to be addressed in any sex offender treatment program the applicant engages in.
In contrast to the assessment of the author of the Pre-Sentence Report, Dr Furst found that upon consideration of the Static-99R instrument and the applicant's dynamic factors, there was a "moderate-high" risk of reoffending, "especially having regard to the likely presence of deviant sexual cognitions involving children (paedophilia) and his apparent personality disorder". On a positive note, he indicated that the applicant had expressed a willingness to engage in therapy programs to address his offending, "meaning he has reasonable prospects of being successfully rehabilitated".
The applicant gave evidence in the sentence proceedings. He agreed that he had previously sought to minimise his involvement in some of the offences, particularly in his police interview. He said that he had thought at the time that the victim had encouraged him to be intimate with him, whether meaning to or not. He said that he had come to the view that he had misinterpreted a child's affection. He had taken advantage of it and agreed with a proposition that this resulted in him "taking further liberties". He accepted that the child had developed a trust in him and that he had taken advantage of it. He now realised it was his fault, not the child's. He hated what he had done and accepted responsibility for it. He said: "I'm sorry for what I done to her, I'm sorry for what I put her through, sorry for ruining her life, for taking her childhood and that none of it was her fault".
The applicant said that he proposed to take advantage of counselling and rehabilitation programs. He was prepared to take anti-libidinal treatment. He wanted to ensure that he did not reoffend.
In cross-examination, the Crown Prosecutor challenged the applicant about what he had told the authors of reports about the role of the victim in the offences. He claimed that he had spoken to them about what he thought at the time of the offences; at the time he spoke with the Community Corrections Officer and Dr Furst he did not maintain such thoughts. He agreed without equivocation that he was sexually attracted to children; that he was a paedophile; that the offences were carried out for his sexual enjoyment; that the child "was going along with it … as if it was normal behaviour" and that he had destroyed a young girl's childhood. He also agreed that he knew at the time that what he was doing was wrong and that he had "grossly breached the trust placed in [him]" by the child and her parents.

Grounds of appeal

The applicant raised the following grounds of appeal: 1 The Sentencing Judge erred in his assessment of objective seriousness. 2 The Sentencing Judge erred in taking abuse of position of authority into account as an aggravating factor in relation to counts 2, 3, 4, 5, 6, 7 and 8. 3 The sentence is otherwise manifestly excessive.

Ground 1 - error in assessment of objective seriousness

During the course of his remarks on sentence the learned judge twice addressed the seriousness of the offences. Immediately after recounting the facts pertaining to the offending he said: "This period of offending spanned a number of years and, frankly, on any fair assessment of all of this, this was deviant and evil conduct and one could fairly say that it is in many respects conduct of the highest order of criminality, with a victim who was subjected to this abuse over a considerable period of time undoubtedly for the gratification of this offender." (Emphasis added)
Later, when referring to written and oral submissions by the parties, he referred to a number of findings relevant to the objective seriousness of the offences (ROS 20-21): "[T]hese were not isolated acts, they were repeated offences and it had a level of escalation in the criminality involved over the period of time." "[T]he offences were generally opportunistic but there must have been a level of planning." His Honour explained that he made this finding on the basis of the applicant having "seized the opportunity to embark on this criminal behaviour" when his wife was absent from the home. "[W]hen it comes to the child abuse material there is … no evidence to suggest that he intended to disseminate that elsewhere." "[T]hese offences were committed in the offender's home and clearly there is a breach of trust in any event and that is self-evident from any fair assessment of these facts." (Emphasis added)
The judge's finding as to objective seriousness was set out in the following: "It is self-evident that these offences are objectively very serious. The nature of the offending has already been detailed by me during the course of these remarks and there is no need to repeat it. The objective gravity of the offending overall is considerable, certainly in the order of something in excess of the mid-range of offending if not beyond that, subject to the nature of the various charges which are before me for consideration in this sentence. This involves an objective analysis of the offending conduct. I would say all of this is at the higher end of the scale, certainly beyond mid-range, although I accept minds may well differ on that." (Emphasis added)
The judge then referred to a submission by the Crown that what was depicted in the video recording made by the applicant of the offences in Counts 3, 4 and 5 indicated that the victim had become "sexualised". He said: "Although I have noted [counsel for the applicant's] submissions to the contrary it would seem to me that when one looks at all of this objectively that the submissions made by the Crown have to have some considerable merit when one considers what actually occurred at that time. In any event either way if I am wrong the objective seriousness of the offending conduct again is self-evident anyway and deserves, in my view, a stern sentence to reflect the objective seriousness of the offences as well as the subjective matters which to some extent serve to indicate some aspects of mitigation when it comes to this particular offender and I have already addressed that." (Emphasis added) (ROS 24)

Submissions

Counsel for the applicant submitted that his Honour had failed to make an assessment of the objective seriousness of the individual offences. If his Honour made the same assessment of "certainly in the order of something in excess of the mid-range of offending if not beyond that" in relation to each of the offences, such a finding was not open in relation to some of them. The offences in Counts 1, 6 and 2 were cited as examples where the objective seriousness was at a lower level. His Honour was in error in making a "blanket finding".
It was submitted that it was an error as well for the judge to have accepted the Crown submission as to "sexualisation" of the victim. It was accepted that the victim's compliance was not a mitigating factor but it was erroneous to take sexualisation into account as an aggravating factor. The victim's compliance was described as a disturbing, but inherent, feature of the course of the applicant's conduct and there was no suggestion of any individual offence being an isolated incident.
The Crown contended that the judge did not simply make a global assessment of the objective seriousness of the offences. Characterisation of the objective seriousness of offences is classically within the role of the sentencing judge and is a determination with which this Court will be slow to intervene. Reference was made in this respect to Mulato v R [2006] NSWCCA 282 at [46] (Simpson J). Counsel for the applicant responded by referring to the next paragraph in the judgment: "[47] One consequence of this (which might aptly be termed a separation of powers) is the need for first instance judges to make clear findings of fact, and clear evaluations of such matters as objective seriousness. Absence of clarity in such findings may result in the need for the appellate court to undertake the task itself."
The Crown submitted that the judge's conclusion that the objective seriousness of each of the offences fell within a similar range did not indicate that he did not assess the criminality of each individual offence. Examination of the indicative sentences excluded the possibility of the judge taking a "blanket approach".
The Crown also pointed to features that were common to each of the offences according to findings made by the sentencing judge: (a) each offence occurred while the victim was being cared for in the applicant's home where she was entitled to feel safe and secure; (b) the offences were part of an escalating pattern of behaviour rather than being isolated incidents; (c) the offences spanned almost half of the victim's young life; (d) there was a level of planning, albeit limited; and (e) the applicant was aware that his conduct was wrong but persisted in the abuse.
The written submissions also addressed in some detail the features of the various offences that were said to support the judge's assessment of their objective seriousness.
It was also submitted that the judge's acceptance of the Crown's submission as to "sexualisation" of the victim was a finding of fact that was open to him. It was not inherent in the course of conduct but was a positive finding that she had become more than merely compliant.

Determination

The asserted error in accepting the Crown's submission about the victim having become sexualised as a consequence of the applicant's offending may be put aside for two reasons. First, the judge had the advantage of having viewed the video recording of the commission of the offences in Counts 3, 4 and 5 so he had the advantage which this Court does not to make such an assessment. Secondly, and more significantly, the judge does not appear to have been influenced by this finding in his assessment of the objective seriousness of the offences. He said, in effect, that the same assessment would be made even if he was wrong about this particular topic.
In relation to the primary point raised under this ground I am satisfied that the judge did speak in terms of an assessment of the seriousness of the offending overall and did not articulate any assessment in relation to the individual offences. That is abundantly clear from the expressions he used: for example, "on any fair assessment of all of this"; "these offences are objectively very serious"; "the objective gravity of the offending overall is considerable"; and "all of this is at the higher end of the scale".
A sign that the judge in fact did not make the same assessment of objective seriousness in relation to each of the offences is that the indicative sentences as a proportion of the maximum penalty vary significantly: for example, the indicative sentence for Count 1 is 3 years 9 months against a maximum penalty of 25 years whereas those for Counts 14 and 15 are 6 years 9 months against a maximum of 10 years.
It was a necessary function of his Honour's sentencing task to make some finding as to the gravity of the individual offences: see, for example, Mulato v R at [47]; JM v R [2014] NSWCCA 297; 246 A Crim R 528 at 39; R v Van Ryn [2016] NSWCCA 1 at [133]-[142]. It may be inferred from the indicative sentences that it is a task with which there must have been some intellectual engagement. The problem is that the judge exposed no reasoning on the subject. Lest it be thought that in a case involving sentencing for a large number of offences that would involve an onerous recitation of lengthy and elaborate reasons, it need not. The indicative sentences suggest that the judge must have found a lot of the offences fell within a broadly similar range with a few outliers. If that was his assessment, it could have been stated fairly succinctly.
This ground must be upheld.

Ground 2 - taking into account a position of authority as an aggravating factor

This ground is based upon the following passage in the judge's sentencing remarks: "I note that certainly when it comes to the aggravating features these offences were committed in the offender's home and clearly there is a breach of trust in any event and that is self-evident from any fair assessment of these facts."
It was an element of each of the offences in Count 2 and Counts 3 to 8 which were contrary to s 66A(2) and 66C(2) respectively that they were committed in circumstances of aggravation, namely that the victim was under the authority of the applicant.
The Crimes (Sentencing Procedure) Act 1999 (NSW) in s 21A(2)(k) provides that it is an aggravating factor if "the offender abused a position of trust or authority in relation to the victim" but at the conclusion of s 21A(2) it is stated: "The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence."
In written submissions in the District Court the Crown referred to s 21A(2)(k) and contended that "the accused was in a position of trust to the complainant and her parents and abused that trust on a regular basis". Counsel then appearing for the applicant submitted that "the only statutory aggravating features are that the offences were committed in the offender's home (s 21A(2)(eb) and that (where not already an element) the offender abused a position of trust or authority (21A(2)(k))". (Emphasis added)
It was held in MRW v R [2011] NSWCCA 260 at [77] (Bathurst CJ, James and Johnson JJ agreeing) that the abuse of "a position of trust or authority" in s 21A(2)(k) is a reference to distinct concepts. It was held to have been open to the sentencing judge in that case to have taken a breach of trust by a father towards his child into account where it was an element of the offence in s 66C(2) that the child was under the father's authority. But Bathurst CJ also counselled: "[78] However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court."
The Crown also referred to JRM v R [2012] NSWCCA 112. Both it, and MRW v R, involved a sentencing judge specifically alluding to the fact that the victim being under the authority of the offender was an element of the offence. Both judges distinguished that fact from the breach of trust between parent and child that they found to be an aggravating feature. Counsel for the applicant identified this aspect as a contrast with the present case where the sentencing judge did not indicate that he was aware of the fine distinction. Moreover, it was submitted that in this case "the fact of the authority and the fact of the breach of trust arose fundamentally from the same relationship and the same core-facts".
The judge's reference to an aggravating feature being that "these offences were committed in the offender's home" was also identified at the hearing by counsel for the applicant as erroneous.
It seems likely the judge was accepting the submission of the Crown which was founded on s 21A(2)(eb), which provides that it is an aggravating factor if "the offence was committed in the home of the victim or any other person". This has long been held to be an aggravating factor that can apply only when a victim is assaulted by an unauthorised intruder to a home: for example, R v Comert [2004] NSWCCA 125; EK v R [2010] NSWCCA 199; 79 NSWLR 740 at [79]; and Ingham v R [2011] NSWCCA 88. This has been questioned, having regard to the unambiguous generality with which the provision in s 21A(2)(eb) is expressed: Melbom v R [2013] NSWCCA 210 at [44] and Montero v R [2013] NSWCCA 214 at [47]. In both of those cases it was found that the primary judge was entitled to have regard to an aggravating factor related to the circumstances in which the offence occurred in a home beyond the bare fact that that is where it occurred. A five-judge bench has recently delivered judgment on the correct construction and application of s 21A(2)(eb): Jonson v R [2016] NSWCCA 286 where in the earlier authorities were not followed.
The problem in the present case is at a more basic level: the sentencing judge stated that there were these two aggravating features but he did not explain why, in the circumstances of the case at hand, they were aggravating. There is also nothing to indicate that the judge saw a distinction between a breach of trust and a breach of a position of authority; if he did, he did not explain what it was.
I would uphold this ground.

Re-sentencing

Error has been established under Grounds 1 and 2. It therefore becomes necessary for there to be a fresh assessment made in order to answer the question posed by s 6(3) of the Criminal Appeal Act 1912 (NSW): whether "some other sentence, whether more or less severe is warranted in law and should have been passed". For that reason there is no utility in dealing with Ground 3.
Counsel for the applicant provided a wealth of material to assist in this task including statistics and a table summarising 76 cases. The reference to other cases was not only to assist with comparison of sentences but also with identifying the range of conduct that may be encountered in relation to the various offences with which this case is concerned. I have reviewed all of this material but, having regard to the volume of it, I do not believe it is appropriate or necessary to refer to its detail.

Objective seriousness of the offences

None of the offences fell near either the top or the bottom of the range of objective seriousness. Most are in the middle of the range but some are above and some below as I am about to identify. The findings I will indicate must be understood in the context of the fact that by virtue of the maximum penalties and standard non-parole periods prescribed by Parliament, all of the offences are serious.
In relation to each of the offences it is appropriate to take into account the general features identified in the Crown's submissions: (see above at [56]). It is also appropriate to take into account the breach of authority and trust, except where it is an element of the offence.
In relation to the s 66A offences (Counts 1 and 2), I have taken into account the age of the complainant relative to the threshold of 10 years inherent in the offence; the nature of the activity; and the fact that the applicant ejaculated inside the victim in relation to Count 2. In my view, the offence in Count 1 is below the mid-range but the offence in Count 2 is at the high end of the mid-range.
As far as the s 66C(2) offences are concerned Counts 3 to 5 are above the mid-range. I accept the Crown's submission that they represented a particularly degrading and exploitative series of penile vaginal and anal penetration with ejaculation whilst the acts were being filmed. The victim was aged 11 with the offence being concerned with victims aged 11 to 13 inclusive. The other s 66C(2) offences involved cunnilingus and digital penetration when the victim was aged 11 (Counts 6 and 7) and 12 or 13 (Count 8). These are each in the mid-range.
In relation to the aggravated indecent assault offences I have taken into account the age of the victim relative to the age threshold for the offence; the age of the applicant; and the nature and duration of the touching including the degree of physical contact.
Each of the aggravated indecent assault offences are in the mid-range except for that in Count 12 (putting her hand inside his shorts to touch his penis), which I would assess as below the mid-range, and Counts 14 (rubbing penis on breasts until ejaculation) and 16 (rubbing penis against vagina), which are significantly above the mid-range.
The offence in Count 18 involving filming and photographing the victim for pornographic purposes is above the mid-range particularly because it included the child being subjected to the anal and vaginal intercourse with which Counts 3 to 5 are concerned. (The overlap of criminality between this offence and those in Counts 3 to 5 will be borne in mind when applying the totality principle in the assessment of an aggregate sentence.)

Subjective matters

I have reviewed the applicant's subjective case earlier (see above at [30]ff).
I accept that the applicant is remorseful. Whilst he might have sought to minimise the extent and gravity of his conduct, including blaming the victim, before the sentence hearing, it is clear that by that time he had come to a full appreciation of what he had done and the harm he had caused and had accepted his responsibility for it.
The applicant's prospects of rehabilitation and not further offending are guarded. Much will depend upon him complying with his stated intentions of undertaking counselling and completing relevant programs prior to his release. Whether he is suitable for anti-libidinal medication and his long term commitment to taking it are matters that remain for the future.
The applicant's pleas of guilty were entered at an early stage and the primary judge's reduction of the indicative sentences by 25 per cent should be maintained.
The applicant should receive credit as well for his disclosure to police of matters not the subject of specific disclosure by the victim. This is something that applies to the offences in Counts 6, 9 and 13. Pursuant to s 23(4) of the Crimes (Sentencing Procedure) Act, the sentences that apply in respect of these offences will be 10 per cent less than they otherwise would have been. (That disclosure of otherwise unknown guilt falls within s 23 was accepted by the High Court in CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 356. See also Panetta v R [2016] NSWCCA 85.)

Other matters relevant to the assessment of sentence

The maximum penalties and standard non-parole periods prescribed for the offences are guideposts that are necessary to take into account in the context of assessing all of the relevant facts and circumstances of the case: Muldrock v The Queen [2011] HCA 39; 244 CLR 120.
There is a need to take into account three offences on the Form 1. It seems to have been the common understanding of the parties that they should be taken into account in the manner in which they were referred to in the statement of facts; that is that the offence of possessing child abuse material should be taken into account in relation to Count 3 and the two offences of filming a person in a private act without consent in circumstances of aggravation should be taken into account in relation to Count 11.
In terms of the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act, general and personal deterrence are important matters. So too is the need to denounce most sternly the applicant's conduct, to make him accountable and to ensure he is adequately punished. Recognition of the harm done to the victim is significant as well but that will be addressed by the assessment of what the applicant accepts must be a lengthy sentence. Promotion of the applicant's rehabilitation is another purpose of punishment but that is a matter that cannot override the significance of the various matters I have just mentioned.
Finally, there is obviously a need to apply the principle of totality in the assessment of sentence. I have mentioned the overlap of criminality between the offences in Counts 3 to 5 and 18. The conduct of Count 6 immediately preceded those offences. There is also the fact that Counts 8, 16 and 17 arose from a single incident. Otherwise the offences represented distinctly separate acts of criminality although, as the fact that they formed part of a long-term course of conduct is to be taken into account, there is scope for a considerable degree of concurrency. Generally on this subject I have taken into account the principles set out in various judgments of this Court, usefully summarised in the joint judgment of Spigelman CJ, Whealy and Howie JJ in R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [15]-[18] and by Hall J in R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52].
The primary judge found special circumstances and reduced the non-parole period to two-thirds of the total term of the sentence. In his view, the special circumstances were that the applicant "has not previously been sentenced to custody, that he will, indeed, be serving a long sentence and certainly he will need long-term rehabilitation and counselling upon his release". I accept that long-term rehabilitation and counselling will be necessary but the term of the sentence I propose will incorporate a sufficiently lengthy parole period for that purpose by application of the usual proportions dictated by s 44(2B) of the Crimes (Sentencing Procedure) Act.

Indicative sentences

I have come to the view that a less severe aggregate sentence is warranted and should have been passed.
In compliance with the requirements of s 44(2C), s 53A(2)(b) and s 54B(4) of the Crimes (Sentencing Procedure) Act, if separate sentences had been imposed they would have been as set out in the following table. For convenience, yet brevity, I have included the offence making provision, the maximum penalty and the standard non-parole period (where applicable). For transparency, I have included the starting point before reduction (with rounding) for the utilitarian value of the pleas of guilty and, in the case of counts 6, 9 and 13, assistance to authorities. For comparison purposes I have also include the indicative sentences assessed by the primary judge. Count Offence Max / SNPP Original New Before discount 1 s 66A 25y / 15y 3y 9m / 2y 9m 4y 6m / 3y 4m 6y 2 s 66A(2) Life / 15y 18y 9m / 12y 13y 6m / 10y 18y 3 + F1 s 66C(2) 20y 10y 6y 9m 9y 4 s 66C(2) 20y 10y 6y 8y 5 s 66C(2) 20y 10y 6y 8y 6 s 66C(2) 20y 7y 6m 4y 6m 7y 7 s 66C(2) 20y 8y 3m 5y 3m 7y 8 s 66C(2) 20y 8y 3m 5y 3m 7y 9 s 61M(2) 10y / 8y 1y 6m / 1y 3y 9m / 2y 10m 6y 10 s 61M(2) 10y / 8y 5y 7m / 3y 6m 4y 6m / 3y 4m 6y 11 + F1 s 61M(2) 10y / 8y 5y 9m / 3y 7m 5y 3m / 4y 7y 12 s 61M(2) 10y / 8y 5y 3m / 2y 3m 2y 3m / 1y 9m 3y 13 s 61M(2) 10y / 8y 5y 3m / 3y 3y 9m / 2y 10m 6y 14 s 61M(2) 10y / 8y 6y 9m / 4y 3m 5y 3m / 4y 7y 15 s 61M(2) 10y / 8y 5y 9m / 3y 7m 4y 6m / 3y 4m 6y 16 s 61M(2) 10y / 8y 6y 9m / 4y 5y 3m / 4y 7y 17 s 61M(2) 10y / 8y 5y / 3y 3y 9m / 2y 10m 5y 18 s 91G(1)(a) 14y 7y 4y 6m 6y

Orders

I propose the following orders: 1 Grant leave to appeal against sentence and allow the appeal. 2 Quash the sentence imposed in the District Court on 18 September 2015. 3 Sentence the applicant to an aggregate term of imprisonment of 24 years with a non-parole period of 18 years. The sentence is to date from 21 May 2014. The non-parole period will expire on 20 May 2032 whereupon the applicant will become eligible for release on parole. The total term will expire on 20 May 2038.
BELLEW J: I agree with R A Hulme J.

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: 23 December 2016

Crimes (Sentencing Procedure) Amendment Act 2007(NSW)

Crimes Act 1900(NSW)ss 61M(2), 66A, 66A(2), 66C(2), 91G(1)

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3A, 21A(2)(k), 21A(2)(eb), 23(4), 44(2B), 44(2C), 53A(2)(b), 54B(4)

At a glance

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Judgment (34 paragraphs)

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