GE v R

Before: Ward P at [1]
Adamson JA at [2]
Weinstein J at [62]

Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW — appeal against sentence — sexual offences against child — whether sentencing judge failed to take into account limited criminal history as mitigating factor — whether sentencing judge failed to properly consider prospects of rehabilitation — whether aggregate sentence manifestly excessive — approach to weighing prior good character and limited record — relevance of Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 — assessment of rehabilitation where offender maintains denial — value of comparisons with other sentences — Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Legislation Cited: Crimes Act 1900 (NSW), ss 66A, 66C, 66DB, 66DC, 66DE, 66EB, 91G
Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 21A, 33
Criminal Appeal Act 1912 (NSW), s 5

Cases Cited: Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; (2023) 307 A Crim R 149
Director of Public Prosecutions (Vic) v Dalgleish (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41
Nataucu v R [2025] NSWCCA 94
R v Baker [2000] NSWCCA 85
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Warton v R [2025] NSWCCA 5

Category: Principal judgment

Parties: GE (Applicant)
Rex (Respondent)

Representation: Counsel:
S Kluss (Applicant)
E Curran (Respondent)
Solicitors:
Ross Hill and Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/315809

Publication restriction: Publication or broadcast of names and any information or material that may lead to the identification of the applicant or the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, GE, pleaded guilty in the Local Court to a total of 19 sexual offences committed against his biological daughter, who was aged between 9 and 11 years at the time of the offending. Three further offences contained on three Form 1 were taken into account.

On 1 May 2025, Huggett CJDC (the sentencing judge) sentenced the applicant to an aggregate term of 24 years imprisonment, commencing on 22 October 2022 and expiring on 21 October 2046, with a non-parole period of 18 years. The applicant will be eligible for parole on 21 October 2040.

The applicant sought leave to appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The grounds advanced were that: (1) the sentencing judge failed to take into account the applicant’s limited criminal history as a mitigating factor; (2) the sentencing judge failed to properly consider the applicant’s prospects of rehabilitation; and (3) the aggregate sentence was manifestly excessive.

The Court held (Adamson JA, Ward P and Weinstein J agreeing) dismissing the appeal:

Alleged failure to take into account the applicant’s limited criminal history

(1) It was common ground between the Crown and the applicant’s counsel at the sentence hearing that, although the applicant’s limited criminal history was relevant, the weight to be given to it was a matter for the sentencing judge and would be influenced by the number and duration of offences: [42].

(2) The sentencing judge’s reasons demonstrate that her Honour applied the proper approach sanctioned in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21. Her Honour found that the applicant was otherwise of good character but did not consider that it entitled him to “any particular leniency”, having regard to the extent and period of the offending conduct: [44].

(3) Ground 1 has not been made out: [46].

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21; Warton v R [2025] NSWCCA 5; R v Baker [2000] NSWCCA 85, considered.

Alleged failure to properly consider the applicant’s prospects of rehabilitation

(4) Each of the matters raised by the applicant was considered and addressed by the sentencing judge, either expressly or by necessary implication. Her Honour did not find that the applicant had no prospects of rehabilitation; rather, she characterised them as “guarded”. The sentencing judge observed that the pro-social factors relied upon to support rehabilitation, including the applicant’s work record, limited criminal history, and absence of substance abuse, were present at the time of the offending: [48].

(5) No error is demonstrated in the sentencing judge’s assessment of the applicant’s prospects of rehabilitation: [49].

Alleged manifest excess

(6) The applicant did not contend that any indicative sentence was outside the available range for the individual offences or challenge the assessment of their objective seriousness, but submitted that the aggregate sentence was manifestly excessive: [51].

(7) The submission relied on comparisons with other cases distinguished by the number of victims, the location of offending, and the degree of violence. That approach was inconsistent with authority and principle; sentencing is not a process of data assimilation but one of instinctive synthesis of all relevant factors: [52]-[53].

(8) In the present case, the offending conduct was very serious. The applicant’s moral culpability was high, and mitigating factors were limited in the context of his egregious and prolonged sexual abuse of his own biological daughter over a two-year period when she was aged between 9 and 11. Two counts carried a maximum penalty of life imprisonment: [1] (Ward P), [57] (Adamson JA).

(9) Ground 3 has been not made out: [59].

Nataucu v R [2025] NSWCCA 94; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39; Director of Public Prosecutions (Vic) v Dalgleish (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41; The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48, considered.

JUDGMENT

1. WARD P: I agree with Adamson JA. Neither Ground 1 nor Ground 2 has been made out. Huggett CJDC took into account that the applicant had a limited criminal history and was otherwise of prior good character. The weight attributed to that was a matter for her Honour to assess. Her Honour also properly took into account the applicant’s prospects of rehabilitation. The finding that the prospects were guarded was well in accordance with the report of Dr Seidler. As to Ground 3, which counsel for the applicant accepted was the central issue in the applicant’s conviction appeal, the applicant has failed to establish that the aggregate sentence was manifestly excessive. These offences were very serious. They involved an egregious breach of trust by a father in relation to his young daughter over a two year period, ceasing only when complaint was made. The subsequent voluntary disclosure of other offences was recognised in the additional discount applied in relation to those. Community expectations, contrary to the submission of the applicant’s counsel, required an appropriately lengthy aggregate sentence. The orders proposed by Adamson JA should be made.

2. ADAMSON JA: On 1 May 2025, Huggett CJDC (the sentencing judge) sentenced GE (the applicant) by imposing an aggregate sentence of 24 years imprisonment commencing on 22 October 2022 and expiring on 21 October 2046 with a non-parole period of 18 years. The earliest date on which the applicant will be eligible for parole is 21 October 2040.

The grounds of appeal

3. The applicant seeks leave to appeal against the sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the following grounds:

4. alleged failure to take into account the limited criminal history of the applicant as a mitigating factor on sentence;

5. alleged failure to properly consider the applicant’s prospects of rehabilitation; and

6. alleged manifest excess.

The offences and the indicated sentences

4. The victim of each of the offences for which the applicant was sentenced was the applicant’s biological daughter, who was aged between 9 and 11 years at the time of the offending.

5. A summary of the offences (by reference to the section of the Crimes Act 1900 (NSW)), their dates (or period during which the offence was committed), the maximum penalties, the standard non-parole periods (SNPP), if applicable, and the indicative sentences (in years (y) and months (m)) and non-parole periods (NPP), after application of a discount are set out in the table below. Each of the three charges which appears on a Form 1 (pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act)) is in italics below the offence in respect of which it has been taken into account on sentence and the count to which it corresponded before being included on the Form 1.

| Sequ-ence | Date (age of victim) | Offence (section of Crimes Act) | Max penalty/ SNPP | Indicative sentence/ discount | | 1 | 23 Dec ‘20 (9 y) | Sexual intercourse (fellatio) with child under 10 years (s 66A) | Life SNPP:15 y | 8 y 4 m NPP 6 y 3 m 40% | | 2 | Sexual intercourse (penetration with a dildo) with child under 10 years (s 66A) | 9 y NPP 6 y 9 m 40% | | 3 | Sexual intercourse (penile/anal intercourse) with child under 10 years (s 66A) | 9 y 7 m NPP 7 y 2 m 40% | | 4 | Intentional carry out a sexual act with child under 10 years (ejaculation into the victim’s mouth) (s 66DC(a)) | 7 y | 2 y 4 m 40% | | 5 | Sexual intercourse (fellatio) with child under 10 years (s 66A) | Life SNPP: 15 y | 8 y 4 m NPP 6 y 3 m 40% | | 7 | 18 Sep ‘21 - 22 Oct ‘22 (10 or 11 y) | Aggravated sexual intercourse (penile/anal intercourse while on her knees) with child aged 10-14 years (s 66C(2)) | 20 y SNPP: 9y | 11 y 3 m NPP 8 y 5 m 25% | | 12 | 11 y 3 m NPP 8 y 5 m 25% | | 13 | 11 y 3 m NPP 8 y 5 m 25% | | 15 | 18 Sep ‘21 - 22 Oct ‘22 (11 y) | Aggravated incite sexual act (forced masturbation) child aged 10-16 years (s 66DE(1)(b)) | 5 y | 2 y 3 m 25% | | 16 | 18 Sep ‘21 - 22 Oct ‘22 (10 or 11 y) | Aggravated sexual intercourse (fellatio) with child aged 10-14 years (s 66C(2)) | 20 y SNPP: 9y | 9 y 9 m NPP 7 y 3 m 25% | | Form 1: 14 | | Intentionally sexually touch (kissing) child aged 10-16 years (s 66DB(a)) | | | | 18 | 18 Sep ‘21 - 22 Oct ‘22 (10 or 11 y) | Aggravated sexual intercourse (penile/anal intercourse) with child aged 10-14 years (s 66C(2)) | 20 y SNPP: 9y | 11 y 3 m NPP 8 y 5 m 25% | | Form 1: 17 | | Intentionally sexually touch (kissing) child aged 10-16 years (s 66DB(a)) | | | | 20 | 1 Jan ‘22 – 22 Oct ‘22 (10 or 11 y) | Aggravated sexual intercourse (fellatio) with child aged 10-14 years (s 66C(2)) | 20 y SNPP: 9y | 9 y 9 m NPP 7 y 3 m 25% | | Form 1: 19 | | Intentionally sexually touch (kissing) child aged 10-16 years (s 66DB(a)) | | | | 21 | 18 Sep ‘21-22 Oct ‘22 (10 or 11 y) | Use child under 14 years to make child abuse material (photograph of genitalia in kneeling position) (s 91G(1)(a)) | 14 y SNPP: 6 y | 1 y 6 m NPP 1 y 1 m 40% | | 22 | | Use child under 14 years to make child abuse material (photograph of breasts and genitalia in a standing position) (s 91G(1)(a)) | | 1 y 6 m NPP 1 y 1 m 40% | | 23 | | Groom child under 14 years for unlawful sexual activity (showed child two pornographic videos) (s 66EB(3)) | 12 y SNPP: 5 y | 2 y 4 m NPP 1 y 9 m 40% | | 24 | 1 Jan ‘22-22 Oct 22 (10 or 11 y) | Aggravated sexual intercourse (cunnilingus) with child aged 10-14 years (s 66C(2)) | 20 y SNPP: 9 y | 7 y 6 m NPP 5 y 7 m 40% | | 25 | | Aggravated sexual intercourse (fellatio) with child aged 10-14 years (s 66C(2)) | | 7 y 9 m NPP 5 y 9 m 40% | | 26 | | Aggravated use of child under 14 years to make child abuse material (filmed sequences 24 and 25 on Go Pro) (s 91G(3)) | 20 y | 2y 4 m NPP 1 y 9 m 40% | | 27 | 1 Oct ‘22-22 Oct ‘22 | Intentionally sexually touch (rubbed outside genitalia) child aged 10-16 years (s 66DB(a)) | 10 y | 3 y 40% |

The facts

6. The facts on the basis of which the applicant was sentenced were agreed and set out in two statements of agreed facts. One statement covered sequences 1-5, which were recorded on a film which the applicant had taken of the offences. The other statement covered the remaining sequences. The sentencing judge’s summary of the agreed facts is further summarised below.

7. The victim has a mild intellectual disability, experiences learning difficulties and has difficulties with speech, reading and writing. On 23 December 2019, the applicant (then aged 40), his wife and the victim (then aged 8) moved to Windale. The applicant would look after the victim after school until her mother returned home from work or study.

8. When the victim was 11, she confided in a friend that her father had been doing “bad things to her which made her feel sad”. As a consequence, on 22 October 2022, the police (to whom a report was made by the victim’s friend’s mother) went to the victim’s home to interview the victim. In the course of the interview, the victim disclosed sequences 7 (penile/anal intercourse while the victim was on her hands and knees in the lounge room); 12 (penile/anal intercourse whilst on her knees leaning over the lounge in the lounge room); 13 (penile/anal intercourse whilst the victim was kneeling on the floor and leaning over the bed in the applicant’s bedroom); 15 (making the victim masturbate the applicant’s penis while he was naked); 16 (inserting his penis into the victim’s mouth when she was still on her knees); 17 (penile/anal intercourse and rubbing of the victim’s breast while in the shower); and 20 (the applicant exposed himself, asked the victim to put his penis back into his pants, kissed her on the lips and tried to put his tongue in her mouth before inserting his penis into the victim’s mouth in the kitchen).

9. After each incident, the applicant told the victim to keep what had happened secret and promised her that it would never happen again. It was a promise (referred to as a “pinky promise”, being a solemn promise) which he did not keep. The victim told police that the abuse made her body feel “upset and sad”.

10. The victim told police that when the penile/anal intercourse would take place, she and the applicant would both be naked. She also told police that there were several (“a fair bit”) occasions when he would come into the lounge room naked. The applicant would either ejaculate in the victim’s anus or masturbate to ejaculation in front of her. He never used a condom.

11. After the victim was interviewed, the applicant was arrested. He admitted that there were times during the commission of the offences when the victim appeared to be physically distressed and told him that she wanted it to stop. Despite the victim’s evident distress and entreaties that he stop, the applicant continued to abuse her sexually. He admitted the conduct which she had related in her interview and accepted that the offending had been happening “for a while”, although he said that he could not remember when or how it had started or how many times and where it had happened.

12. Initially, the applicant denied that he had ever filmed the victim but subsequently, he contacted police through his solicitor and said:

I just want to get it off my chest for what pain I’ve caused my family and my daughter and so that they can get the help they need for what I’ve done ... I want her [the victim] to get the help she needs.

13. The applicant subsequently disclosed the commission of seven further offences (sequences 21-27).

14. On one occasion, the applicant directed the victim to lie on his bed in such a way as to expose her genitalia and bottom and took a photograph of her (sequence 21). On another occasion, the applicant directed the victim to stand naked, front on, in the loungeroom with her hands on her hips and took a photograph of her (sequence 22).

15. On a further occasion, the applicant showed two five-minute pornographic videos to the victim (sequence 23). The first depicted two females engaging in digital vaginal penetration, cunnilingus and the use of sex toys. The second video showed males and females involved in masturbation and fellatio to ejaculation as well as penile/vagina intercourse and penile/anal intercourse.

16. On three occasions, the applicant used a GoPro to film himself sexually abusing the victim by putting his erect penis in her mouth and performing cunnilingus on her (sequences 24, 25 and 26).

17. Sequence 27 involved the applicant rubbing the skin outside the victim’s genitalia while in the car while his wife was in the supermarket.

18. The appellant admitted that he knew that what he was doing was wrong but he did not seek assistance.

19. On 4 August 2023, while the applicant was in custody on remand, his wife located a GoPro which she provided to police. Two recordings, dated 23 December 2020, were found. One video of 11 minutes and 47 seconds duration depicted the victim performing fellatio on the applicant when they were both naked in the applicant’s bedroom (sequence 1).

20. One recording depicted fellatio continuing for a few minutes before the applicant applied lubricant to the victim’s genital area. After several minutes, he removed a dildo from where he was manipulating it inside her (whether in her anus or vagina) (sequence 2). In sequence 3, the applicant is shown inserting his penis into the victim’s anus. The victim told him that it hurt and began to cry. He urged her to continue. The recording of sequences 2 and 3 had a duration of 4 minutes and 53 seconds.

21. A further recording showed the applicant masturbating his penis and demanding that the victim put her head on the edge of the bed. While she was protesting, the applicant ejaculated into her mouth (sequence 4).

22. The final recording showed the victim crying, screaming and physically struggling with the applicant who was pulling her onto the bed. He held her down on the bed and put his penis into her mouth (sequence 5). She appeared to choke.

The sentence proceedings

23. Matters in the sentence proceedings will be referred to only if germane to a ground of appeal.

The applicant’s criminal history and character

24. The Crown tendered the applicant’s criminal history which recorded that on 14 October 1999 the applicant drove in a manner dangerous to the public. He was charged with this offence on 15 October 1999. On 29 June 2000 he was sentenced at Newcastle Local Court and required to enter into a three-year bond, pursuant to s 10 of the Act, with the effect that no conviction was recorded.

25. The Crown submitted to the sentencing judge that although the applicant had no prior criminal history (as he had no convictions), he could not be said to have acted out of character, having regard to the length of the offending conduct. It relied on the following passage from Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; (2023) 307 A Crim R 149 at [26]:

… The fact that the respondent engaged in serious and continual sexual abuse of the victim over many years destroys any suggestion that he is to be treated as a person of good character, and that any of these offences was an isolated incident.

26. The Crown also submitted:

Good character is of some relevance to the sentencing exercise. It should not be put to one side completely. However, it is a question of weight, and the Crown submits in the circumstances of this matter, the weight is low and limited.

27. The applicant’s counsel made the following submissions in writing to the sentencing judge as to the applicant’s record and prior good character:

Record

57. The offender has no prior criminal history of relevance.

58. It is submitted that his limited record does not disentitle him to leniency.

Prior Good Character

59. The offender is of prior good character. His prior good character was not of assistance to the offender in the commission of the offence. His prior good character needs to be viewed through the prism of the offences which occurred over a period of approximately 2 years. It is still a relevant consideration and is a matter of weight.

Prospects of rehabilitation

28. The applicant’s counsel submitted orally that the applicant had “good” prospects of rehabilitation given that he is able and willing to engage in treatment “in a meaningful way”. In writing, the applicant’s counsel submitted that he had “prospects of rehabilitation”, as is evident from the following extract from the submissions:

Rehabilitation

56. It is submitted that the offender has prospects of rehabilitation, noting:

a. Dr Seidler’s opinion that “his risk of sexual abuse is low in general terms however would become more acute under certain circumstances.” (Par 113)

b. Steady employment history and interest in returning to the workforce (Dr Seidler’s report par 24 and 25)

c. He has generally led a pro social life.

d. He has no drug or alcohol issues.

e. Willingness to engage in psychological treatment and targeted sex offending treatment. (Par 81 and 95)

f. His offending is limited to the victim.

g. He has pleaded guilty and volunteered additional offending.

h. His remorse.

The sentencing remarks

29. I do not propose to summarise the sentencing remarks in full but will refer to those aspects which are germane to the grounds of appeal.

Objective seriousness

30. The sentencing judge took into account, in sequences 1-5, that the applicant was the victim’s biological father and under his authority. Her Honour expressly refrained from taking that factor into account for the offences for which that was a matter of aggravation so as not to breach the De Simoni (The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31) principle.

31. Her Honour also took into account the age of the victim at the time of each offence and that, apart from sequence 27, each of the offences was committed in the victim’s home. It is likely that the offences were of relatively short duration (with the exception of sequence 3, which was protracted).

32. As to whether the offending was planned, the sentencing judge said:

The offender knew he was sexually attracted to his daughter before he offended and although he did not plan his offences in the sense that term is used in sentencing law, planning was not necessary. The offender took advantage of his relationship with the victim, her age and innocence and his manipulation of her, for example, that it was secret, pinky promises that he would stop and telling her she was a good girl, coupled with his admission as to manipulating his wife, all of which enabled him to commit offences upon her for his own sexual gratification as and when he wished.

33. Her Honour referred to the victim’s distress and protestations which were evident in some of sequences 1-5 and said that the lack of planning and absence of force or threats of force could not be regarded as mitigating.

The harm to the victim

34. The sentencing judge referred to the harm to the victim, which her Honour took into account pursuant to s 3A(g) of the Act (which provides that one of the purposes of sentencing is “to recognise the harm done to the victim of the crime and the community”) but not s 21A(2)(g) of the Act (which provides that substantial emotional harm, loss or damage caused by the offence is an aggravating factor).

The applicant’s subjective circumstances

35. The sentencing judge said:

I find it very difficult to accept Dr Seidler’s opinion that the offender does not present as having a deviant sexual interest in children. It is true his offending was restricted only to his daughter, but he was sexually attracted to her before she turned ten and he admitted accessing stories online with themes including the sexual abuse of children. The facts establish that the offender sexually assaulted his daughter over a lengthy period of time whilst he was employed, whilst he had social relationships with friends, a marriage that was at the very least a reasonable one and it seems, whilst he had relatively regular access to sex workers.

While I accept the offender experienced inadequate attachment with his father and had immature intimacy skills, the offender was a mature and apparently intelligent man. His offending was deliberate, prolonged and intentional. He knew it was wrong, yet he did not seek help. In so far as he asserts he wanted to approach police about what he was doing but found himself unable to do so, I have no doubt that part of the reason for his prevarication was because of the sexual gratification he derived and because he knew there would be serious consequences, including for himself. The fact is the offending stopped only because his daughter made a complaint.

Moral culpability

36. Her Honour said, of the applicant’s moral culpability:

While I accept that aspects of the offender’s personal circumstances assist to an extent in understanding his offending, they do not materially contribute to his offending, nor do they reduce his moral culpability in any meaningful way. I consider the offender’s moral culpability to be very high.

Limited criminal history and good character

37. The sentencing judge said, of relevance to ground 1:

The offender has a limited criminal history consisting of a minor driving offence for which he received a three-year good behaviour bond. He is otherwise a person of good character. In light of the nature of his offences and the period over which they were committed, I am not of the view this is a consideration that entitles him to any particular degree of leniency.

Remorse and contrition

38. The sentencing judge accepted that the offender has displayed genuine remorse and contrition, including by reason of his further disclosures after he had been arrested and charged.

Prospects of rehabilitation and risk of re-offending

39. The sentencing judge found that the applicant “poses some risk of reoffending” and that his prospects of rehabilitation were “guarded”. As ground 2 alleges that her Honour failed “to properly consider the applicant’s prospects of rehabilitation”, I propose to set out her Honour’s reasons for the finding:

I turn now to consideration of the offender’s risk of re-offending and prospects of rehabilitation, the latter encompassing a reshaping or remodelling of a persons’ behaviour and thinking and encompassing matters broader than merely avoiding re-offending.

Acknowledging the need for caution in assessing risk, on the basis of results obtained using the Static-99R, RSVP-2 and SAPROF-SO risk assessment tools, Dr Seidler concluded that the offender:

“presents with a number of risks associated with future sexual offending behaviour with limited protective factors or influences being evident. Overall, it is my opinion that his risk of sexual abuse is low in general terms however would become more acute under certain conditions. These would include the broader context of significant personal stressors, poor coping, sexualised behaviour and poor sexual boundaries, associated with intimacy difficulties and the presence of a vulnerable female whom he can sexualise and distort the relationship with (sic).”

Dr Seidler’s assessment as to the offender’s risk of sexual reoffending is to be understood in the following context. The majority of the protective factors Dr Seidler identified as being reductive of his risk of reoffending were present at the time of the offences. Self-evidently, they did not serve as protective factors. Furthermore, Dr Seidler is of the opinion the offender did not present with entrenched sexually deviant interests. As I have observed earlier, I find this factor very hard to accept given the offender’s sexual attraction to, and sexual abuse of, his young daughter for a relatively lengthy period of time.

There is of course a degree of artificiality in attempting to make predictions regarding the offender’s risk of reoffending and prospects of rehabilitation in circumstances where he will be incarcerated for a lengthy period of time and where he is yet to undertake any offence focused treatment. Balanced against that is the fact he has made admissions against his interest regarding the extent of his offending. Furthermore, it is reasonable to assume that when he is released his access to children will be more limited. All things considered, doing the best I can now, I find the offender poses some risk of reoffending and his prospects of rehabilitation to be guarded - at least until such time as he participates in offence focused programs.

(Emphasis added.)

Ground 1: alleged failure to take into account the applicant’s limited criminal history

40. Ms Kluss, who appeared on behalf of the applicant in this Court, argued that the sentencing judge had failed to take into account, in the applicant’s favour, his limited criminal history. She submitted that, in circumstances where the Crown had not relied on s 21A(5A) of the Act (where the offender’s good character or lack of previous convictions was of assistance to the offender in the commission of the offence), the sentencing judge was obliged to take it into account as a mitigating circumstance.

41. Ms Kluss accepted that it was open for this Court to read the passage set out in [37] above as indicating that the sentencing judge regarded such leniency as was available to the applicant, on the basis of his limited criminal history, as having been used up on the count which was first in time. However, she submitted that this Court ought read this passage as an indication that the trial judge did not take into account the applicant’s criminal history at all.

42. It was common ground between the Crown and the applicant’s counsel at the sentence hearing that, although the applicant’s limited criminal history was relevant, its weight was a matter for the sentencing judge and would be affected by the number of offences committed over a lengthy period. Her Honour’s reasons reflected this common ground.

43. The proper approach to the relevance of good character to sentencing is set out in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 (Ryan) at [56]. A court must first consider whether the offender is of otherwise good character, disregarding the offences for which the offender is being sentenced. If good character is established (whether negatively (by an absence of criminal convictions) or positively (by evidence of good acts and qualities)): see the discussion in Warton v R [2025] NSWCCA 5 at [66]-[67] (Adamson JA, Ball JA and Fagan J agreeing), the judge must take that fact into account. However, the weight given to it will vary according to the circumstances of the case.

44. The reasons of the sentencing judge demonstrate that her Honour applied the approach sanctioned in Ryan. Her Honour found that the applicant was otherwise of good character (in the negative sense that he had a limited criminal history) but did not consider that it entitled him to “any particular leniency”, having regard to the period of the offending conduct. The extract in [37] above indicates that her Honour did not consider that the applicant was entitled to any particular leniency because of the number of offences and the time over which they were committed. The sentencing judge’s reasons indicated that her Honour did take that factor into account, although her Honour did not consider it to be particularly weighty in favour of the applicant.

45. The question of what weight to give a relevant consideration is pre-eminently one for the sentencing judge in the exercise of her discretion: R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing).

46. Ground 1 has not been made out.

Ground 2: alleged failure to properly consider the applicant’s prospects of rehabilitation

47. Ms Kluss submitted in support of ground 2, as follows:

60. It is accepted that the sentencing Judge was at liberty to reject the conclusions of Dr Seidler as to future risk but having done so absent this opinion a number of features were present absent expert opinion which still boded for a finding of prospects of rehabilitation

61. The applicant had pleaded guilty and at all times admitted the essential features of the allegations against him from the first ERISP interview

62. He had further volunteered his guilt to offending that was outside the knowledge of the police and provided information to assist in the prosecution against himself

63. He had expressed genuine remorse and indicated a willingness and desire to accept interventions to address his aberrant desire with respect to his daughter which had been delayed through his period of remand in custody

64. He was considered a prisoner of good behaviour and compliant with prison discipline

65. There were no adverse issues pertaining to alcohol or drug usage

66. There was a pro-social work record that would also bode for a positive work ethic.

67. The crown did not submit that there were no prospects for rehabilitation against the oral submissions for the applicant POS 12/03/25 p 20.

48. Each of the matters listed by Ms Kluss was considered and addressed by the sentencing judge, either expressly or by necessary implication. Her Honour did not find there to be no prospects of rehabilitation. Rather, her Honour found that the prospects were “guarded”, an adjective which Ms Kluss used in her oral submission to this Court to describe her client’s prospects of rehabilitation. The sentencing judge noted that the so-called “pro-social” factors advanced on behalf of the applicant to advance a submission that he had prospects of rehabilitation were present at the time of the offending (such as his work record, the lack of criminal history and the absence of adverse issues relating to alcohol or drug abuse). These matters were also referred to by Dr Seidler in her report.

49. No error has been demonstrated in the sentencing judge’s assessment of the applicant’s prospects of rehabilitation.

Ground 3: alleged manifest excess

50. I summarised the principles which are relevant to a ground of manifest excess in Nataucu v R [2025] NSWCCA 94 as follows:

32 Sentencing involves the exercise of a broad discretion to determine the appropriate sentence and primary judges are” allowed as much flexibility in sentencing as is consonant with consistency of approach”; there is no “single correct sentence”: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [46]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27]. An appellate court “may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion”: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. What must be established is that the sentence imposed was manifestly unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ) and [59] (Kirby J).

33 Where no patent legal error is established, “it may not appear how the primary judge has reached the result embodied in [their] order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”: House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40.

34 In Dinsdale v The Queen, Gleeson CJ and Hayne J said at [6]:

“Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.”

35 In reaching a conclusion as to whether a sentence is manifestly excessive or inadequate, a consideration of sentencing statistics may be useful but must be undertaken with caution: see, for example*, Wong v* The Queen (2001) 207 CLR 584; [2001] HCA 64 at [59], [66] and [91] and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] and [55].

36 Similar considerations apply to comparisons with specific past sentencing cases. In Hili v The Queen; Jones v The Queen it was said at [54] (with citations omitted):

“In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: ‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.’ But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’ (emphasis added). When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned’.”

51. Ms Kluss accepted that none of the indicative sentences was “outside the range” of available sentences for the particular offence. Nor did she challenge the sentencing judge’s assessment of the objective seriousness of the offences. However, she submitted that the aggregate sentence was, nonetheless, manifestly excessive.

52. In support of this ground, Ms Kluss has assembled several sentences from other cases with a view to identifying particular features of cases where a sentence, including an aggregate sentence, in excess of 15 years imprisonment and 20 years imprisonment respectively has been imposed. She has sought to distinguish other cases from the present by reference to factors such as the number of victims (as she has pointed out, there was “only one” in the present case); predatory conduct (which she submitted was absent in the present case since all but one of the offences was committed at home); and the degree of violence inflicted on each victim (violence being unnecessary in the present case in circumstances where the victim was the applicant’s biological daughter and lived where all but one of the offences were committed).

53. This approach is at odds with authority and principle. The process of sentencing is not a matter of data assimilation and analysis by reference to some algorithm determined by reference to previous sentences imposed. Rather, sentencing is a process of instinctive synthesis of relevant factors, including the maximum penalty and SNPP (if any).

54. This is not to say that sentences imposed in other cases are not relevant, but rather that their relevance ought not be overstated. In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39, French CJ, Keane and Nettle JJ said at [28]:

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

(Footnotes omitted and emphasis added.)

55. In Director of Public Prosecutions (Vic) v Dalgleish (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41, the High Court allowed an appeal on the basis that the intermediate appellate court, which considered the sentence imposed to be manifestly inadequate, had nonetheless dismissed a Crown appeal on the basis that the range established by then current sentencing practices was dispositive. The plurality (Kiefel CJ, Bell and Keane JJ) at [53] emphasised the need to have regard to the maximum penalty for the offence and the moral culpability of the offender (as well as all other relevant objective and subjective factors) in order to determine the appropriate sentence in a given case. The plurality also referred, at [81] to “the error identified in Kilic [The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48] of treating current sentencing practices as fixing quantitative boundaries within which future sentences were required to be passed”.

56. The process of comparison with other sentences becomes even less useful in the context of an aggregate sentence which is imposed for a large range of offences, the indicative sentences for which attract different discounts.

57. In the present case, the offending conduct was very serious. The applicant’s moral culpability was high. The mitigating factors were relatively few in the context of the applicant’s egregious conduct against his own biological daughter which continued over a period of about two years when she was aged between 9 and 11. The maximum penalty for two of the offences for which he was to be sentenced (counts 1 and 5) was life imprisonment. He was entitled to discounts for his plea and for his assistance, which were applied by her Honour. The seriousness with which the legislature regards sexual offences against children is evident from the maximum penalties and SNPPs stipulated in the Crimes Act. The maximum penalty for sexual intercourse with a child under 10 years was amended by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) to life imprisonment to reflect the seriousness with which Parliament viewed that crime: New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 12 May 2015 at 407-408

58. Having considered the evidence before the sentencing judge, I am satisfied that it was open to her Honour to impose the sentence which was imposed.

59. Ground 3 has not been made out.

Leave to appeal

60. In order to bring the matter to finality, I am disposed to grant leave to appeal.

Proposed orders

61. I propose the following orders:

62. Grant leave to appeal.

63. Dismiss the appeal.

64. WEINSTEIN J: I agree with Adamson JA.

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Amendments

23 October 2025

First paragraph corrected - headnote