GG v R

Court of Criminal Appeal (NSW)|2018-11-07|Before: Payne JA, Schmidt J, Fagan J

Ground 7 - error conceded

GG was granted leave to add ground 7 at the hearing of the appeal, the Crown having raised in its written submissions that on sentence the parties had wrongly informed Traill DCJ that no standard non-parole period applied to his two s 66C(4) offences.
The result was that her Honour was led into error, the applicable 5 year standard non-parole periods not being taken into account in arriving either at the indicative sentences for those offences, or in the aggregate sentence imposed, as they had to be as part of her Honour's instinctive synthesis of all of the factors relevant on sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51].
The Crown also accepted that her Honour had failed to include non-parole periods in the indicative sentences which she gave, as s 54B(4) of the Crimes (Sentencing Procedure) Act required. But under s 54B(7), that error did invalidate the sentence.
It was thus common ground that leave to appeal had to be granted and GG resentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
Nevertheless, the Crown contended that the conceded errors had favoured GG and that the Court, exercising the sentencing discretion afresh on the evidence led on sentence, would thus conclude that no lesser sentence was warranted in law and would, accordingly, dismiss the appeal: s 6(3) Criminal Appeal Act 1912.
This was in issue, as was the question of whether her Honour had fallen into the other errors for which GG contended.

Ground 3 - the way in which the Form 1 offence was taken into account

It is convenient to deal with these grounds together.
Her Honour concluded that the evidence established that: 1. count 1 was objectively serious, falling just below the mid-range of seriousness of such offending; 2. the s 66EB(3) Form 1 offence, which had to be taken into account on count 1, was a serious example of such offending, falling in the mid-range; 3. count 2 fell above the mid-range; 4. count 3 fell into the mid-range; 5. count 4 fell below the mid-range, towards the lower end of seriousness.
GG complained that in coming to those conclusions Traill DCJ had wrongly taken into account, on some counts, her view that the evidence established that he was a sexual predator who had groomed the victim; had purchased sex toys for her; filmed her; and used her as an object of his desire, while she was at all times under his authority, having known her for some 10 years, at the time of his offences.
The essence of GG's case, as explained in oral submissions, was that the sentence was attended by error, because "there appears to have been a double or multiple counting of context and surrounding circumstances being taken into account on each one of the offences in order to consider objective seriousness".
Further her Honour had taken into account the grooming, which was the subject of the Form 1 offence, as background to each of the other offences, thereby aggravating or exacerbating those offences, when it should only have been taken into account in arriving at the sentence imposed for count 1 in the way required by Attorney General's Application Under s 37 Of The Crimes (Sentencing Procedure) Act 1999 No 1 Of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [39]. Contrary to her Honour's approach, that also required no analysis of the Form 1 offence: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413.
The result of her Honour's approach had thus been that he had been punished twice for the conduct which comprised the Form 1 offence.
GG also contended that the evidence established that count 1 had been less serious than Traill DCJ had found, involving as it had a single, specific act of sexual intercourse which, contrary to the conclusion her Honour had reached, had not involved conduct which had occurred over a lengthy period of time, during which he had groomed and manipulated the victim and bought her sex toys.
As to count 2, GG argued that proper account had not been taken of the fact that the evidence did not establish that the sexual intercourse involved in this offence was anything other than consensual; that at that time the victim was almost of the age of consent; that she was sexually active with persons other than GG; that there was no evidence that she had suffered physical injury, only pain; and that the only circumstances of aggravation was the position of authority which he had over the victim.
As to counts 3 and 4, which concerned the same child abuse material, GG's case was that they should both have been assessed as falling at the lower end of objective seriousness and should thus have resulted in wholly concurrent sentences being imposed upon him for all that offending.

The sentencing judgement

In her sentencing judgment Traill DCJ outlined the agreed facts which included, in short, that GG was the victim's stepfather, having married her mother in September 2015. He had installed CCTV cameras in various places in the home which they shared, including under a TV in the victim's bedroom. The victim was aware of that camera and was able to obscure it, if she chose.
GG told the victim that he had placed the camera there to keep her safe, because she was self-harming and cutting herself. He also told her that the footage would disappear from his laptop after a week, but he in fact saved many hours of footage taken between August 2015 and March 2016. It had no sound.
In September 2015 the victim asked for this camera to be removed, but unbeknownst to the victim, GG then installed another camera in a different position, facing her bed. He then continued to record her there.
In September 2015, GG showed the victim footage of her cutting herself, while he and her mother were away on their honeymoon. She then noticed that the camera angle was different and that he had other footage, which he showed her, of her having sex with a boy. She asked him to delete it.
On a number of occasions in 2015 GG took the victim to a sex shop where he bought her adult sex and fetish toys including a "butt plug", bondage equipment and clothing, which she kept.
In September 2015, GG saved the CCTV footage which recorded his activities in the victim's bedroom on the hard drive of his computer. On 7 September at 12.42 am he and the victim played with sex toys on her bed, before the victim lubricated her anus and placed a sex toy into her anus, while GG took a photo. This became the subject of the Form 1 offence.
At 1.27 am that day GG again placed a sex toy into the victim's anus and took other photos of her, before removing it. This sexual intercourse was the subject of the first s 66C(4) count.
In November 2015, while the victim's mother was interstate, GG complained to the victim of being sex deprived and told her that he was "punishing her for running around naked and basically torturing him". They went to his bedroom, where he told her to lie on the bed. He then blindfolded her, rubbed lubricant on her vagina, lubricated a small sex toy and pushed it into her vagina, before using a larger sex toy, which caused the victim pain. GG then inserted another sex toy into her anus, while she lifted her buttocks up from the bed, before having penile/vaginal intercourse with her while that sex toy was still inserted, causing her further pain. This sexual intercourse was the subject of the second s 66C(4) count.
This was not the first occasion on which GG had engaged in penile/vaginal intercourse with the victim.
In March 2016 the victim complained to a youth worker. This resulted in a recorded interview with the victim at Chatswood police station. During GG's later recorded police interview he denied having sexually assaulted the victim, but acknowledged that he had bought her sex toys; discussed sex with her; and had installed CCTV in her bedroom, he said for her safety and of which she was aware.
The hard drives of GG's computer and mobile phone were then seized. The phone contained two photos of the victim in a sexual pose, taken in her bedroom on 7 September 2015.
The computer contained the child abuse material filmed between 3 August 2015 and 14 March 2016, which became the subject of the s 91H(2) charge. The material included the victim masturbating; having sex with boys and other men; and the events of 7 September with GG. A schedule describing that material, including some 249 video files which contained pornographic videos of the victim was in evidence, together with a statement of the police officer who produced that schedule.
Her Honour concluded that count 1 was objectively serious, falling just below the mid-range of seriousness of such offending, because GG had placed the butt plug into the victim's anus and photographed her in circumstances which had not taken place in a vacuum, but after he had groomed her for a long time, during which he had purchased sex toys for her, including this butt plug, which was the subject of the Form 1 offence.
Her Honour considered that the Form 1 offence was a serious example of such offending, falling in the mid-range of seriousness, because GG had used his position of power as a stepfather; having known the victim since she was aged approximately 4 years. He had since then been in her life as the result of his relationship with her mother and had not only purchased sex toys for her, but had assisted her in using them.
Her Honour concluded that count 2 involved a violent sexual assault which caused pain, committed while the victim's mother was away. GG then had no regard to the victim and used her for his own sexual gratification, the objective seriousness of this offence falling above the mid-range.
As to count 3, her Honour concluded that it fell in the mid-range of seriousness of such offending, given the evidence as to the graphic detail of the child abuse material found on GG's computer. There were 1,579 video files, 249 of the victim, depicting her in private sexual acts, which included her having sexual intercourse with other partners and masturbating on Skype.
Her Honour found that this offence had involved extensive planning, including the placement of camera in the victim's bedroom, she knowing of the first, but not the second camera. GG had engaged in a course of repeated voyeuristic acts in relation to the victim, taking advantage of her vulnerability, at a time when she was aged only 15, using her for his own sexual gratification, and disregarding the serious impact of his conduct upon her.
Count 4 related to GG's possession of the same large volume of child abuse material, which her Honour found he had in his possession for his own sexual gratification, but that he had not disseminated it. She took into account the factors discussed in R v Porte [2015] NSWCCA 174 at [63], namely: "(1) Whether actual children were used in the creation of the material. (2) The nature and content of the material, including the age of the children and the gravity of the sexual activities portrayed. (3) The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. (4) The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted. (5) In the case of possession, the offender's purpose, whether for his own use or sale, or dissemination. In this regard, care is needed to avoid any infringement of the principal in R v De Simoni (1981) 147 CLR 383. (6) In the case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. (7) Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided, or received for the acquisition or dissemination/transmission. (8) The proximity of the offender's activities to those responsible for bringing the material into existence. (9) The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. (10) Whether the offender acted alone or in a collaborative network of like minded persons. (11) Any risk of the material being seen or acquired by vulnerable persons, particularly children. (12) Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. (13) Any other material in sections 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for State offences) or section 16A of the Crimes Act 1914 (for the Commonwealth offences) bearing upon the objective seriousness of the offence."
Her Honour found that while the victim was aged 15 and the number of images were large, there was no discernible cruelty involved. There was also no evidence of any intention to disseminate or transmit the material for payment. There had been planning involved, but GG had acted alone and there was no risk that the material could have been seen by other children, although he did show some of the videos to the victim.
Her Honour observed that possession of child pornography is not a victimless crime and in this case, the victim was aware of the material. Further, that the physical and psychological harm done by the abuse itself may result in knowledge that the material may have been in circulation, although there had in fact been no dissemination and it had only been seen by GG and police.
Her Honour accepted the defence case that this was not typical child abuse material, but also accepted the submission that GG had no intention of deleting the material and that it only came to light because of the victim's complaint. She concluded that count 4 fell below the mid-range.

The objective seriousness of Count 1

The assessment of the gravity of particular offending involves a discretionary process, which requires application of specific principles to facts established by the evidence, having regard to the issues lying between the parties which arise to be resolved.
On an appeal such as this, even where new evidence is received, "the interests of justice will generally not be served by permitting either party to make a new or different case on the hearing of the appeal": DL v The Queen [2018] HCA 32; (2018) 92 ALJR 764 at [38]. Attention must thus be paid not only to the error into which the parties led the sentencing judge in relation to the applicable standard non-parole period in the case of two of the counts, but also to the cases which they each advanced on sentence.
Then the objective seriousness of the offences was largely in issue.
GG's case on sentence was that count 1 fell towards the lower end of the scale and the Crown's case that fell at the mid-range. Traill DCJ concluded that it fell just below the mid-range, which on this appeal GG contends involved error.
On my assessment of the evidence, I agree with the conclusion which Traill DCJ reached, being satisfied that the evidence well established that objectively, count 1 was more serious than GG contended.
As discussed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27], the objective seriousness of an offence has to be assessed without reference to matters personal to the offender or a particular class of offenders and "wholly by reference to the nature of the offending". Objective seriousness must also be determined "without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case": at [31].
Objective seriousness is not, however, revealed only by the specific acts which constitute the offence. It is also necessary to take into account the circumstances in which the particular acts which comprise the offence were committed, as discussed in R v Wilkinson (No 5) [2009] NSWSC 432 at [61]: "Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime….".
Further, as discussed in Tepania v R [2018] NSWCCA 247 at [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
But there is no definitively correct answer to the outcome of the process by which the objective seriousness of an offence is determined, that involving as it does, finding facts and drawing inferences from them: Ali v R [2010] NSWCCA 35 at [33].
In assessing the seriousness of count 1 it is thus relevant to take into account, as Traill DCJ did, that the evidence established that the acts which constituted this offence were not committed in isolation, but as a part of the criminal course of conduct which GG pursued against the victim, over whom he had authority as her stepfather.
It is also relevant to take into account that the particular acts which comprised this offence were agreed to include that GG had actually purchased the sex toy he used to commit this offence and that he had also photographed the victim, in the demeaning position into which he had placed her.
Her Honour thus correctly took the view that the agreed facts established that GG was a sexual predator, who was motivated to take advantage of what he knew about the obvious vulnerability of his stepchild to commit his offences, including count 1, for his own sexual gratification.
These surrounding circumstances undoubtedly made count 1 objectively more serious than it otherwise would have been, had it been an isolated offence. Taking them into account is not to double count for acts which comprise the other charges, including the grooming offence which was the subject of the Form 1, as was contended for GG. It is rather to adhere to assessment of the objective seriousness of this offence in the way discussed in Wilkinson (No 5) and Tepania, by taking into account how GG put himself into the position where he was able to commit this offence, in the way he did.
In the result I am also satisfied that this offence fell just below the mid-range.

The objective seriousness of count 2

The agreed facts establish, as GG conceded on sentence, that this was a considerably more serious aggravated sexual intercourse with a child aged between 14 and 16 under authority offence than count 1, involving as it did painful penile/vaginal intercourse.
The Crown contended that it was an extremely serious offence of that kind, falling well above the mid-range, as Traill DCJ found. I have come to a similar conclusion.
Willing participation, notwithstanding the victim's age, is relevant to the assessment of the objective seriousness of this offending, as the Crown accepted on sentence: Wakeling v R [2016] NSWCCA 33 at [47]. Account must also be taken, however, of what was agreed about the pitiful circumstances in which GG was able to prey upon his victim as he did, while continuing to abuse the authority he had over her as her stepfather, in order to commit this offence as he did, while her mother was away from home.
While this offence could undoubtedly have involved more violence than it did, account must also be taken of the agreed facts which establish that it did involve the infliction of physical pain, even though no lasting physical injury resulted. That the offence could have been even more serious, does not impact the seriousness of the offence, given what GG in fact did and the consequences which resulted for the victim.
Without objection the victim described in her victim impact statement the psychological suffering which GG had also caused her. That, too, must also be taken into account.
That description was consistent with what was agreed about this offence having been committed at a time when GG had decided to "discipline" the victim, taking advantage of her mother's absence. He not only then told her that he did not "care if she was in the mood', but that what he was doing was to be a punishment, before deliberately committing the specific humiliating acts which constituted this offence in such a way that, unsurprisingly, she was caused pain and real psychological suffering.
I am well satisfied that this evidence establishes that count 2 fell above the mid-range of such offences.

The seriousness of Counts 3 and 4

On sentence the Crown accepted that an aggregate sentence would be imposed for counts 3 and 4 and that in the circumstances, the sentences could be made wholly concurrent.
It was then contended for GG that but for counts 1 and 2, a non-custodial sentence might have been imposed for counts 3 and 4. Accordingly, the sentences for counts 3 and 4 should be made entirely concurrent with the sentences imposed for the other offences.
On appeal, GG's case was that both counts 3 and 4 should have been assessed as falling towards the lower end of objective seriousness. The Crown contended that her Honour's conclusions as to the objective seriousness of those offences were correct and that GG could not point to any failure of proper application of principle, to the assessment of the seriousness of these offences.
Traill DCJ concluded that while count 4, the possession offence, fell at the low end of such offending, applying the factors discussed in Porte, the production offence, count 3, fell into the mid-range. I agree. There was no error in those conclusions.
While the material the subject of the possession offence was also the subject of the production offence, the agreed facts well established that the production offence was the more serious offence.
It was agreed that GG had not disseminated the child abuse material the subject of these counts and that he had kept it for his own use. The absence of an intention to sell those videos did not, however, mitigate the seriousness of the production offence: Porte at [66].
The evidence established that much of the material GG kept was graphic, on the evidence categorised as falling into CETS categories 1, 2 and 4. The statement of the police officer who had undertaken the categorisation analysis, provided a clear description of what was contained in the material, the activities there depicted and who was involved, as well as the clarity and length of the videos. Some of them were as long as 40 minutes duration. One was 80 minutes.
Sexual activities of various kinds between the victim, other men and boys and GG were there recorded. GG had produced some of the videos after the victim told him that she did not wish any longer to be filmed.
On appeal, reliance was placed on R v Hutchinson [2018] NSWCCA 152, decided after her Honour sentenced GG, where the factors discussed in Porte were considered. That was a case involving transmission offences in relation to naked images of another person, who the victim understood was the offender and believed to be an 18 year old girl. This had resulted in the 15 year old male victim sending images of himself to the offender.
No error was there found in the sentencing judge's conclusion that the possession and transmission offences fell in the low range of objective seriousness: at [62]. The specific matters identified as having been taken into account on the possession offence were identified at [52] to be: "● Actual children were involved in the creation of the material the subject of the possession offence. ● The material included children involved in sexual acts with other children and adults. ● There was no indication of any physical harm being caused to the children. ● The bulk of the material in the possession offence was in CETS 1 but that was not necessarily mitigating. ● The number of images in the possession offence was relatively small; 509 images."
At [53] the matters noted in the transmission offence were identified to have been: "● They involved the respondent causing the pornographic material to come into existence. ● There was considerable planning to deceive the victims to provide images of themselves. ● The offences occurred over a period of a few days to a few months. ● The offences represented a series of criminal acts of similar nature which was an aggravating factor. ● The transmission offences resulted in the creation of a small number of images that were in the lower CETS categories."
The agreed facts in GG's case were quite different to those which arose for consideration in Hutchinson. They established that GG's production offence was considerably more serious than he contended, involving as the material did his 15 year old stepdaughter, who had not only long been known to him, but with whom he lived when he exploited her by recording the child abuse videos, even after she asked him to desist. Further, not only did some of them involve him, but some depicted other adult men offending against the victim. GG both produced and kept these videos to use for his own sexual gratification.
That well explains why it must be concluded that while the possession offence falls at the lower end of the range of seriousness of such offending, given the number of videos, what is contained in them and the circumstances in which they came to be produced, even though it was not intended to disseminate them, the production offence is considerably more serious, falling into the mid-range.

Ground 2 - prior good character and lack of record - s 21A(3)(e) and (f) Crimes (Sentencing Procedure) Act

On sentence the case advanced for GG was that it was accepted that his offences having been committed at the victim's home was an aggravating matter. Relevant mitigating matters were submitted to be that he had no prior record (s 21A(3)(e)); psychological testing had established that he had good prospects of rehabilitation (s 21A(3)(h)) and was unlikely to re-offend (s 21A(3)(g)); that prior to his offences he had led "pretty much a blameless existence" as a contributing member of the community, being aged 45 years (s 21A(3)(f)); and that he had the continuing support of his family, albeit the state of his marriage was uncertain.
The Crown accepted that GG was of prior good character and had good prospects of rehabilitation and not offending further.
Her Honour, however, placed little weight upon the references in evidence which described GG as "an honest, hardworking individual", given how he had exploited his position of trust and authority over his victim. She also took a guarded view of his prospects of rehabilitation, despite his pleas, given the strength of the Crown case and what was recorded on the CCTV footage and what GG had told the psychologist, which had sought to minimise his role in his offending.
Her Honour later said, however, that she took into account the mitigating factors under s 21A(3), thereby seemingly accepting the psychologist's assessment as to GG's likelihood of re-offending under s 21A(3)(g) and his absence of prior record, s 21A(3)(e), even though she made no specific reference to either matter, in her judgment.
Her Honour's approach does not appear to have accorded entirely with s 21A(5A) which applied to GG's sentence, but to which the parties also failed to draw her attention. But it was not in issue on appeal that its requirements cannot be overlooked when GG is now sentenced afresh. While written submissions in reply were filed for GG, no issue was taken either there or in oral submissions, with what the Crown submitted in its written submissions in relation to the application of s 21A(5A). It provides: "(5A) Special rules for child sexual offences In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence."
"Child sexual offence" is defined in s 21A(6) to include offences under ss 66C, 66EB and 91H.
Even before the enactment of these provisions, prior good character in cases of a course of repeated sexual offending against children was not considered to entitle an offender to the leniency that might otherwise be available and that such a course established that the offending had not been opportunistic, but pursued in contrast to outward public appearance: see for example R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152 at [43] - [44].
It was also recognised that child pornography offences committed in secret by persons otherwise of good character, even where unlike GG, they had no direct involvement in the abuse of trust involved in filming the acts depicted, or participating in them, qualified evidence of prior good character: R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29.
The agreed facts establish not only that GG pursued a course of offending involving grooming and recording the victim, but he recorded the victim having unlawful sexual intercourse with others, as well as with himself. He did not draw this other offending to authorities, as he ought to have done as her stepfather, but instead kept the videos he produced, for his own sexual purposes.
In the result on this resentence, in accordance with s 21A(5A), GG's prior good character and lack of previous convictions cannot to be taken into account as a mitigating factor.
That is because the agreed facts well establish that GG's good character and lack of previous conviction were of real assistance to him in the commission of his offences, helping him to pursue the terrible breach of trust involved in him as the victim's stepfather, repeatedly videoing her as he did, then using those videos for his own sexual purposes and also taking advantage of her mother's absence, to commit the other serious offences to which he entered his pleas.

Ground 4 - the victim impact statement and circumstances for which GG was not responsible

This ground was advanced on the basis of Traill DCJ's alleged error in not acknowledging that GG had filmed the victim engaging in sexual activity with multiple partners, the detail of which was described in the written submissions, some of which had predated his sexual activity with her. On those agreed facts it was submitted that: "At T13 ROS her Honour refers to the now well understood deleterious effect of child sexual abuse. It is not acknowledged, however, that the complainant was engaging in sexual activity with multiple partners, some of which pre-dated the sexual activity with the applicant. It is a reasonable inference that the complainant was a troubled young woman, who engaged in self harming, before the offences committed by the applicant occurred. It also seems that her relationship with her mother was problematic."
This submission must be utterly rejected.
That the victim was troubled and engaging in self-harm as well as in sexual activity with others, before GG pursued such activity with her, was well known to GG and yet still he offended against her as he did, instead of helping her as he ought to have, given that he was her stepfather.
That some of what GG recorded involved the victim engaging in sexual activities with others, simply cannot assist GG in the way urged on appeal. She was unquestionably vulnerable to his offending. He was well aware of her problems, including her obvious mental health problems and yet instead of helping her, he pursued his despicable course of offending against her.
The victim impact statement which described the consequences of that conduct was received without objection, shedding considerable light as it did on the circumstances in which GG committed his offences and the psychological harm which resulted. It well supported what the agreed facts established about the victim's vulnerability to GG's offending.
It is long settled that a sentencing judge is entitled to have regard, as her Honour did, to the harm done to the victim as a consequence of the commission of the crime: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [29]. It is the consequences of an offence that were intended or could reasonably have been foreseen which should be taken into account: Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183 at [3]-[4], [38]-[39]. This is now expressly recognised in the purposes of sentencing specified in s 3A(g) of the Crimes (Sentencing Procedure) Act.
On this resentence the harm which GG did to his victim must thus also be taken into account. In the circumstances I have discussed, that the harm done to the victim was not only significant, but also reasonably foreseeable by anyone in GG's position, is not open to question.

Ground 5 - special circumstances

Her Honour observed that GG's case on sentence was that here should be a finding of special circumstances, because he would have to spend his time in custody in protection. Her Honour declined to find special circumstances on that basis, so as to reduce GG's non-parole period.
On appeal it was argued that the submissions advanced for GG on sentence had also relied on his good prospects of rehabilitation and that he was unlikely to re-offend. What was actually submitted on sentence was: "I haven't made any submission about special circumstances and variation. He doesn't have a drug problem. His prospects, I submit, of rehabilitation and that he is unlikely to reoffend, those things are good, are positive. It is certainly his first sentence of imprisonment and he's been in custody for one year and five months unclassified. Because of the nature of the matter we're supposed to have some evidence but the Court can recognise that -- HER HONOUR: He'll serve it in protection. MARR: And, you see, your Honour, he can't have any papers - he's always looking over his shoulder. He can't have papers saying that he's been charged with these matters and the other prisoners are always wanting to know what you're in for and what papers have you got and he's got to deflect - HER HONOUR: That's because he was waiting to get sentenced and once he's sentenced he'll get reclassified and then he'll be placed in a part of a prison with like offenders - MARR: But, your Honour - HER HONOUR: -- which I understand is more onerous than the general population. MARR: If it's accepted that he does some more time, I submit that your Honour would be within range if he had a non-parole period of around two and a half, three years, your Honour, in all the circumstances. The maximum penalty being 12 years for a first offender, people after trial for sexual intercourse without consent are receiving non-parole periods of three years in my experience so that's a submission that I make. … HER HONOUR: Mr Lungo, do you want to say anything or we'll just set a date? LUNGO: I don't know if my friend made a submission about special circumstances but my submission would be, just because it's his first time in custody - HER HONOUR: He'd be entitled to - LUNGO: -just because of that he not be entitled - HER HONOUR: Not be entitled? LUNGO: Not be entitled to special circumstances. As my friend said, he doesn't have a drug problem. He wouldn't need extra time under supervision. My friend mentioned two and a half to three years. My submission would be that, if he received a sentence in that regard, your Honour would be falling into appealable error. That's all I can say in relation to that. HER HONOUR: Thank you. …"
GG did not give evidence on sentence, but relied on the forensic psychologist's report, which disclosed that while he admitted his offending; said that the agreed facts were a relatively accurate summary; and that he knew that his victim had been a troubled child and adolescent, who had engaged in self-harming behaviours; he also said that he had not intended to record the victim having sexual activity with men and boys. Rather, he intended to report those activities to police.
That was quite inconsistent with the agreed facts and the entry of his pleas to both the production and possession offences.
GG also told the psychologist that he had bought the victim sexual toys in order to stop her engaging in sexual activities and in order to implement "an alternative behaviour paradigm". He also claimed that it was the victim who had asked him to take photos of her for her online friends and that he had done so after initially refusing, because she had threatened to expose his own sexual toys to his wife and that he had felt pressured and manipulated to engage in the activity with her. He also said that he had stopped when he thought he had gone too far and said "that's it I won't help her with her sexual experimentation".
The entry of his pleas is also inconsistent with this account, but still the psychologist took the view, unchallenged by the Crown, that GG posed a low risk of committing future sexual offences and had good prospects of rehabilitation.
Traill DCJ observed: "He admits having limited sexual experience. The psychologist's report states: "GG views his life as an individual who attempts to assist others at detriment to himself. He views his life as something similar to a Pink Panther movie, where he, as the inspector, is blamed for events. He believes he endeavours to assist others and to protect others against possible threat or negative outcome but that regardless of his efforts, negative events continue to occur." This is highly disturbing and demonstrates the offender has little insight into his offending."
Despite the cases advanced for GG and the Crown, her Honour considered that there was a basis for concern as to GG's prospects of rehabilitation. I agree. She also did not consider that there should be a finding of special circumstances. Nor do I.
That this is GG's first time in custody, of itself does not constitute special circumstances: R v Kaliti [2001] NSWCCA 268 at [12]. Nor does the fact that he is serving that sentence in protective custody, there being no evidence that his conditions of incarceration will be more onerous than usual, as a result: RWB v R [2010] NSWCCA 147; (2010) 202 A Crim R 209 at [192]-[195].
Further, it must also not be overlooked that the aggregate sentence imposed on GG provides for a non-parole period of 5 years, 9 months and 23 days, after which he will be eligible for parole, his sentence then potentially providing for a period of almost 2 years of supervision on parole.
As I will explain, there is no just basis on which an even shorter non-parole period could be imposed on GG, as the result of a finding of special circumstances, as GG pressed on this appeal. That is because the non-parole period imposed on an offender is the minimum period of actual incarceration that he or she must spend in full-time custody, having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crimes for which sentence is being imposed and the offender's subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 628-629; [1974] HCA 26.
Any further reduction in the non-parole period imposed on GG would not satisfy these requirements, given the serious offending for which GG was sentenced.

Ground 6 - manifest excess

The penalties which applied to GG's offences were: 1. Section 66C(4) of the Crimes Act - a maximum penalty of 12 years and a standard non-parole period of 5 years; 2. Section 91H(2) of the Crimes Act - a maximum penalty of 10 years; 3. The s 66EB(3) Form 1 offence - a maximum penalty of 10 years
The standard non-parole periods applying to counts 1 and 2 represent the non-parole period for an such an offence falling in the middle of the range of seriousness, "taking into account only the objective factors affecting the relative seriousness of that offence": s 54A(2) Crimes (Sentencing Procedure) Act. They must be taken into account on resentence, as I earlier explained.
A standard non-parole period must not, however, be given "primary, let alone determinative, significance": Muldrock at [26]. It is rather one of the applicable statutory guideposts, together with the applicable maximum penalty, which must be taken into account together with all other relevant matters, when the instinctive synthesis is undertaken on sentencing, in the way discussed in Muldrock at [27] and as is now provided in s 54B of the Crimes (Sentencing Procedure) Act.

The parties' cases

On sentence it was common ground that count 2 was the most serious of GG's offences, GG contending that the range for an offence of that kind, attracting a maximum penalty of 12 years, was two and a half to three years non-parole, such offences after trial attracting non-parole periods of three years. It was contended for the Crown that a sentence of such a length would involve appellable error.
The Crown also accepted that the sentences imposed for counts 3 and 4 should be made wholly concurrent.
Taking the Form 1 offence into account on count 1 had to result in an increase in the sentence imposed for that offence, by giving greater weight to the need for personal deterrence and the community's entitlement to extract retribution for serious offences: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]. Further, as discussed in Abbas, Bodiotis, Taleb and Amoun at [15]-[106]: "105 What the guideline judgment makes clear is that no analysis of each offence on the Form 1 is to be carried out for the purpose of sentencing for that offence as one would if the offence was included on the indictment. That is what would occur on the "top-down" approach, which was expressly rejected. As the guideline judgment made clear, however, regard can be had in a general way to factors associated with the Form 1 offences, including their criminality when sentencing for the primary offence. 106 As the statute and the guideline judgment make clear, the point of the Form 1 process is to increase the sentence for the primary offence by taking into account the offences on the Form 1. The advantage for the State is that offences are finalised, but the fact that their commission has been admitted by the offender is taken account of when he or she is sentenced for the principal offence. The advantage for the offender is that he or she is not sentenced for the Form 1 offences, nor "punished" for them, even though they are "taken into account" in relation to the primary offence for which he or she is sentenced. The end result for the offender is a sentence which is less than if he or she were sentenced for all of the offences and the offender emerges from the process with a "clean slate". The guideline judgment provided direction for how that process was to be implemented."

The sentence imposed

Having concluded that both general and specific deterrence had to feature in GG's sentence, Traill DCJ also observed that the time he was sentenced to spend in custody had to reflect all of the relevant circumstances, including the objective seriousness of his offending, the need for general deterrence and to meet the fundamental purpose of sentencing. The indicative sentences given were: 1. Count 1, taking into the Form 1 offence and the 25% discount, a sentence of 4 years and 6 months, from a starting sentence of 6 years. This would have resulted in a non-parole period of 3 years and 4 months, her Honour having refused to find special circumstances which would have warranted a departure from the statutory ratio provided by s 44 of the Crimes (Sentencing) Procedure Act. 2. Count 2, a sentence of 6 years, 3 months after the 10% discount from the starting sentence of 7 years. This would have resulted in a non-parole period of 4 years, 8 months. 3. Count 3, a sentence of 2 years, 3 months after the 25% discount from the starting sentence of 3 years. This would have resulted in a non-parole period of 1 year, 8 months. 4. Count 4, a sentence of 1 year, 6 months after the 25% discount from the starting sentence of 2 years. This would have resulted in a non-parole period of 1 year, 1 month.
The aggregate sentence imposed was 7 years, 9 months, with a non-parole period of 5 years, 9 months and 23 days.

No lesser sentence is warranted

I am satisfied that no lesser sentence than the aggregate sentence imposed on GG was warranted on the evidence I have discussed and the cases which the parties advanced, despite the error into which her Honour was led in relation to the standard non-parole periods which applied to counts 1 and 2.
As I have explained, there was no error in Traill DCJ's conclusions about the objective seriousness of GG's offences. Nor were the other errors into which GG complained her Honour fell established.
The reasons for the conclusion that on resentencing no lesser sentence can now be imposed on GG, include the indicative sentences given for counts 1 and 2. I am not satisfied that taking the standard non-parole period into account, can lead either to a lower indicative sentence for those counts, or to a lower aggregate sentence.
The effect of the introduction of standard non-parole periods was generally expected to be an upward movement in the length of sentences for offences to which they apply: Muldrock at [31].
In GG's case the maximum penalty for both counts 1 and 2 was 12 years and the standard non-parole period was 5 years for a mid-range offence.
The indicative sentence Traill DCJ gave for count 1, an offence which fell just below the mid-range was 6 years before discount. There having been no finding of special circumstances, application of the statutory formula would have resulted in a non-parole period before discount, of 4 years, 6 months: s 44 Crimes (Sentencing Procedure) Act, below the 5 year standard non-parole period.
The indicative sentence Traill DCJ gave for count 2, an offence which fell above the mid-range, was 7 years before discount. Application of the statutory formula would thus have resulted in a non-parole period before discount, of 5 years, 3 months, just above the applicable standard non-parole period.
In the result it is not apparent that Traill DCJ not having taken the 5 year standard non-parole period into account on counts 1 and 2 had any adverse impact for GG, given the conclusions which her Honour actually reached as to the appropriate non-parole period.
It is also relevant that in arriving at the indicative sentence for count 2, it was relevant to take into account that it was agreed that this was not the first time that GG had engaged in penile-vaginal intercourse with the victim. As discussed in R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 at [68], this admission provided a basis for rejecting any claim for mitigation or reduction of an otherwise appropriate sentence for this offence.
I would thus not give lower indicative sentences than those given by Traill DCJ for any of the counts, nor a lower aggregate sentence.
That is because it is apparent that in arriving at the aggregate sentence, her Honour's application of the principle of totality was already very favourable to GG, with the result that the aggregate sentence involved considerable leniency. This can also be simply illustrated.
The total of the non-parole periods which flowed from application of the statutory formula to the indicative sentences given for all four offences, after discount, was 10 years, 9 months. The total indicative non-parole periods for counts 1 and 2 alone, was 8 years. The aggregate non-parole period imposed, however, was considerably less, namely, 5 years, 9 months and 23 days.
This outcome reflects first, that there was limited accumulation of the indicative sentence given for count 1 on that given for count 2, they being the offences which both attracted the 5 year standard non-parole period and the 12 year maximum penalty. It also reflects that the sentences indicated for both counts 3 and 4 were not only made wholly concurrent with each other, as the parties had agreed on sentence, but also with those indicated for the other two offences.
In all of the circumstances I have discussed, that was a very favourable outcome for GG.
Given what all that the evidence revealed about the nature of GG's offending, in my view it is simply not open to conclude that the aggregate sentence imposed upon him was manifestly excessive, or as finally arises for determination on this appeal, that some lesser sentence is warranted on resentence.
In my view to impose any lesser sentence on GG would thus simply not accord with necessary account being taken of the purposes of sentencing which are specified in s 3A of the Crimes (Sentencing) Procedure Act to be: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."

Orders

For all of these reasons, I would order: 1. Leave to appeal is granted. 2. Appeal dismissed.
FAGAN J: I agree with Payne JA and Schmidt J. I find particularly artificial the applicant's argument on grounds 1 and 3 that the learned sentencing judge "double counted" his conduct of encouraging the complainant to take part in sexual activity. The applicant knew the complainant was a troubled and vulnerable teenager, that she was self-harming and that she engaged in risky and potentially damaging sexual activity with multiple partners other than the applicant. The applicant had been her de facto parent for 10 years. He was in a position to provide moral and psychological guidance and he was under a very clear moral obligation to try to do so. Instead the applicant exploited his relationship with the complainant, used his authority over her and took advantage of her vulnerability, to encourage her sexually and to gratify himself.
It was not "double counting" to recognise that this was the context of the aggravated sexual intercourse offences and the production of child abuse material. As her Honour said, "the offending did not occur in a vacuum". Materially to the gravity of the offences, they were not spontaneous. They did not arise from sudden attraction or loss of control. They were planned and prepared for, including by the applicant encouraging the complainant, over time, towards sexual preoccupation. The fact that such encouragement constituted an offence in itself, taken into account on the Form 1, did not mean that her Honour was required to divorce it from her consideration of the objective seriousness of the other counts. The sexual encouragement was part of the setting of exploitation and corruption of a parental relationship in which the principal offences were committed.

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(Criminal Appeal Act 1912(NSW)

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