GG v R

Court of Criminal Appeal (NSW)|2023-03-03|Before: Bell CJ, Davies J, Adams J

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to eight counts of child sexual assault and related child abuse offences involving three separate victims over an 11 year period. One of the counts involved the possession of approximately 50,000 child abuse images and 200 child abuse material files. Five further counts were placed on "Form 1s" pursuant to s 33(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant was sentenced to an aggregate head sentence of 23 years imprisonment with a non parole period of 15 years and 4 months imprisonment. The applicant sought an extension of time to bring an appeal and leave to appeal against his sentence on the ground that the sentence imposed was manifestly excessive. The sole complaint was that the sentencing judge had misapplied the totality principle. The court held, granting leave to appeal and dismissing the appeal (per N Adams J, Bell CJ and Davies J agreeing): 1. Consistent with well-established principles, the applicant was required to establish that the sentence imposed is manifestly excessive in the sense that it is unreasonable or plainly unjust. Something more must be shown than that the appellate court might have exercised its discretion differently: [76]. Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], applied. 1. The totality principle requires a court sentencing someone for a number of offences to look at the totality of the criminal behaviour and ask itself what the appropriate sentence for all of the offences is: [77]-[79]. Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63, applied; R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260, applied; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45], applied. 1. The question for an appellate court in considering whether an aggregate sentence is manifestly excessive based on a misapplication of the totality principle is whether the aggregate sentence reflects the totality of the criminality involved: [84]. JM v R (2014) 245 A Crim R 528; [2014] NSWCCA 297 at , applied; Aryal v R [2021] NSWCCA 2 at [50], applied. 1. When the applicant alleges a failure to apply the totality principle, the applicant may seek to deploy a comparison between the indicative sentences and the total aggregate sentence. This could establish a House v The King (1936) 55 CLR 499; [1936] HCA 40 error even if the aggregate sentence is not manifestly excessive: [85]. Noonan v R [2021] NSWCCA 35 at [33], applied. 1. The degree of notional accumulation in the applicant's aggregate sentence is appropriate and reflects a proper application of the totality principle: [89]. 2. The sentence imposed on the applicant was stern but not manifestly excessive in the sense of being unreasonable and plainly unjust: [96].

JUDGMENT

BELL CJ: I agree with N Adams J.
DAVIES J: I agree with N Adams J.
N ADAMS J: The applicant, "GG", seeks leave to appeal against the aggregate sentence imposed on him by Bright DCJ at the Gosford District Court on 21 February 2019. He did not file a Notice of Intention to Appeal (NIA) until 30 July 2021 and thus also requires an extension of time to bring his appeal.
The applicant initially pleaded not guilty to numerous child sexual assault and related child abuse offences involving three male victims. The offences were committed over an 11 year period from 1 January 2004 until 20 July 2015. The applicant was arraigned on 18 counts and the matter was listed for trial.
The applicant eventually pleaded guilty in the District Court on the first day of his trial after charge negotiations which saw five of the 18 counts placed on two "Form 1s" pursuant to s 33(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"). No further proceedings were directed in relation to a further five counts and the applicant pleaded guilty to the remaining eight counts as follows:

Victim AA Count 1: Aggravated sexual intercourse with a child above 14 years under the age of 16 years under authority, contrary to s 66C(4) of the Crimes Act 1900 (NSW): maximum penalty 16 years imprisonment. Form 1 to count 1: (1) Act of indecency contrary to s 61O(1) of the Crimes Act: maximum penalty 5 years imprisonment; (2) Common assault contrary to s 61 of the Crimes Act: maximum penalty 2 years imprisonment.

Victim BB Count 4: Sexual intercourse with a person above the age of 10 years and under the age of 14 years in circumstances of aggravation, contrary to s 66C(1) of the Crimes Act: maximum penalty 16 years imprisonment. Count 7: Aggravated indecent assault (child under the age of 16 years), contrary to s 61M(2) of the Crimes Act: maximum penalty 10 years imprisonment; standard non parole period ("SNPP") 8 years imprisonment. Form 1 to count 7: (1) Aggravated indecent assault (child under the age of 16 years), contrary to s 61M(2) of the Crimes Act: maximum penalty 10 years imprisonment; SNPP 8 years imprisonment; (2) Procure child under the age of 16 years for unlawful sexual activity contrary to s 66EB(2) of the Crimes Act: maximum penalty 12 years imprisonment; (3) Produce child pornography contrary to s 91G(2)(a) of the Crimes Act: maximum penalty 12 years imprisonment.

Victim CC Count 13: Aggravated indecent assault (child under the age of 16 years), contrary to s 61M(2) of the Crimes Act: maximum penalty 10 years imprisonment; SNPP 8 years imprisonment. Count 14: Sexual intercourse with a person of or above 14 years of age and under 16 years of age, contrary to s 66C(3) of the Crimes Act: maximum penalty 10 years imprisonment. Count 17: Procure child under 16 years of age for unlawful sexual activity, contrary to s 66EB(2) of the Crimes Act: maximum penalty 12 years imprisonment. Count 18: Use a child above 14 years of age and under 16 years of age for the production of child pornography, contrary to s 91G(2)(a) of the Crimes Act: maximum penalty 10 years imprisonment.

Child abuse material Count 15: Possess child abuse material, contrary to s 91H(2) of the Crimes Act: maximum penalty 10 years imprisonment.

The matter was initially listed for sentence before Judge Bright on 24 May 2018 but on defence application that date was adjourned so that a potential diagnosis of autism spectrum disorder could be explored. The proceedings on sentence were heard on 15 February 2019 and the applicant was ultimately sentenced by Judge Bright on 21 February 2019 at which time he was sentenced to an aggregate head sentence of 23 years imprisonment with a non parole period of 15 years and 4 months imprisonment, commencing on 13 August 2015. The indicative sentences were as follows: Count 1: 4 years and 8 months, taking into account two matters on a Form 1; Count 4: 5 years and 1 month; Count 7: 3 years and 9 months with a non parole period of 2 years and 7 months, taking into account three matters on a Form 1; Count 13: 3 years with a non parole period of 2 years; Count 14: 4 years and 3 months; Count 15: 3 years and 10 months; Count 17: 2 years and 1 month; Count 18: 1 year and 8 months.
The applicant now seeks leave to appeal against his aggregate sentence on the sole ground of appeal that it is manifestly excessive. The scope of the complaint was a narrow one: the applicant did not take issue with the sentencing judge's findings regarding the objective seriousness of the offences, the applicant's subjective case or the indicative sentences. The sole complaint was that her Honour had misapplied the totality principle.
As for the applicant's explanation as to why this application is brought out of time, it would appear to be a matter of oversight. The applicant maintains that he instructed the solicitor who appeared for him at his proceedings on sentence to file an NIA immediately following the sentence being imposed. He made a second request about three weeks later. He did not follow this up further as he understood that it had been filed. It was not until a conference with his caseworker in June 2021 that it was confirmed that no NIA had ever been filed.
The Prisoner's Legal Service emailed the applicant's Legal Aid application on 19 August 2021 to the Indictable Appeals unit at Legal Aid NSW. It was initially allocated to one solicitor who requested the relevant transcripts and exhibits. They were received on 10 March 2022. It was then reallocated to another solicitor who subsequently had to take unexpected leave for health reasons and ultimately resigned. The matter was then reallocated to the initial solicitor. The matter was briefed to counsel on 23 August 2022 and submissions were provided on 10 October 2022.
The Crown's position was that it did not oppose leave to extend time in the event that the court is of the view that there are substantial points that need to be considered.

Factual background

The agreed facts are set out in the sentencing judge's reasons. As stated above, the offending took place over a period of approximately 11 years and involved three male victims.

Victim "AA"

The first victim, AA, was born in 1998. He met the applicant when he was 13 years old. In early 2003, when he was 14 years old, he moved in with the applicant. He described himself as being depressed and suicidal at the time. The applicant received a Centrelink parenting payment to care for AA from June 2003 until July 2004.
AA could not remember the first time that "something happened" with the applicant as things happened so frequently that he "lost count". The applicant frequently told AA that he loved him and that "if he doesn't get [AA] he is going to commit suicide". AA recalled that the applicant touched him inappropriately on the bottom or penis on numerous occasions.
AA recalled a specific incident when he had been in the shower by himself and the applicant walked into the shower and asked AA whether he could "suck him off". The applicant persisted with his request asking him between 25 and 30 times and AA eventually relented. The applicant knelt down in front of AA inside the shower with his clothes off and sucked AA's penis for about five minutes (count 1). He eventually stopped when AA told the applicant to "fuck off". AA stated that during this act he did not get an erection or ejaculate.
AA described how the applicant would touch him inappropriately. He would just "walk up and just either slap my arse or grab my arse or something like that or grab the other side (his penis) and I would just turn around to him and raise my fist as if I am going to hit him and then sort of bring control back in and walk away". This occurred numerous times over the year and a half that AA lived with the applicant.
On another occasion the applicant had driven AA to Raymond Terrace and dropped him off at FF's house (AA's boyfriend). AA stayed there during the day and returned to a hotel where he was staying with the applicant that night. The applicant became jealous of FF and there was a verbal argument between the applicant and AA. The applicant persistently asked AA to have a shower with him until he gave in (Form 1 to count 1).
AA purchased a motor vehicle, but it was registered in the applicant's name due to his age. It was arranged that when AA was old enough the vehicle would then be registered in his name. It was purchased so that AA could practise driving it to get his learner's licence.
On one occasion, the applicant used the vehicle as leverage. He took AA's car and telephoned him one night to say, "[h]ow do you like having no car?" He then kept prodding AA with questions like, "[a]re you going to be in a relationship with me? Are you going to start to treat me right? Are you going to have sex with me every night?" AA agreed with these propositions in order to get his car back. When the applicant returned the car to AA, AA got inside the car and a verbal argument commenced between the two of them. The argument became physical and the applicant choked AA, placed him in a headlock and slammed him into the car window (Form 1 to count 1). AA telephoned police about this incident.
AA participated in a Joint Investigation Response Team recorded interview on 29 July 2004 when he was 15 years old, but no charges were laid at that time.
Nine years after AA's interview, the applicant contacted AA by Facebook and requested naked pictures of himself and his partner via Facebook messenger. He messaged, "[s]o do you enjoy being fucked up the arse now?". The messages demonstrated a continued sexual interest in AA by the applicant even after all those years.

Victim "BB"

The second victim, BB, was born in 1996. When he was eight years old, he moved to an area where the applicant resided. When he was 10 years old, he walked by the applicant's house with his brother CC, who was four years younger than him, and noticed that his front lawn needed mowing. The applicant said he would pay BB if he mowed his lawn for him and BB accepted the offer. The applicant told BB that he would need to meet his mother first and let her know what was happening. He then walked BB and CC to their house. Their mother was at that time in a relationship with a man. Within a couple of months, she had broken up with her partner and commenced a relationship with the applicant.
The applicant became "like a father figure" to both BB and his younger brother CC. He would pay him $20 every time he mowed the lawn and he would give BB and CC lollies and take them places such as go-karting.
BB described how at some point things started to change between himself and the applicant and when he was about 13 years old the applicant "started going weird".
When BB was 12 or 13 years old, the applicant covered BB's head with a dark cloth, told him to open his mouth and put his penis in BB's mouth, telling him to "suck it" (count 4). This lasted for about 30 minutes. The applicant told BB to continue to suck his penis and then told him to "start wanking" himself and he did so. This lasted about 30 minutes. The applicant walked off and came back with a pornographic movie. That incident was captured in the video files located on the applicant's devices by police.
Two days after BB's fourteenth birthday, he went to the applicant's house to play with his train set. The applicant lived alone. BB and the applicant played with the train set all day. During this time, the applicant grabbed BB's bottom but BB moved away (Form 1 to count 7).
When they had finished playing with the trains, the applicant started running a bath. BB assumed the applicant was going to have a bath, so he got ready to leave. The applicant came out of the bathroom only wearing his underwear and told BB to get into the bath. BB refused. The applicant proceeded to grab BB by the shirt and throw him into the bath. He said to him, "[g]et undressed now or I will hit you". BB was scared of the applicant who was physically bigger than himself. He thought that he would carry through with the threat. He refused to undress himself, so the applicant did this for him (count 7). Once he was naked, the applicant pushed him into the bath. The applicant videotaped BB as he stood in the bathroom and threatened to hit him if he told anyone (Form 1 to count 7). He told BB to wash himself which BB did. BB kept telling the applicant to stop videoing him and tried to get out of the bath but the applicant kept on pushing him back in. BB finally gave up and did what the applicant instructed him to do.
The applicant continued videoing BB as he got out of the bath and got dressed. As he left to go home, the applicant said to him "[d]on't tell anyone or I will hit you."
BB said that the applicant had videoed and photographed him in sexual activity over three years.
Shortly after his fourteenth birthday BB went to live with his father in Queensland for over a year. He was 15 years old when he returned to live with his mother. He went to stay at a friend's house and that friend's mother started asking about the applicant because of something that had happened between the applicant and her son. BB went on to work for the applicant for two days delivering certain items to hotels. On the second day, he saw that the applicant had left his mobile telephone on the seat of the truck. He picked it up and saw naked photos of his brother CC on it.
During his interview, BB was shown a number of images that had been retrieved from the applicant's phone taken by the applicant of BB and CC. They ranged from when BB was 12 to 16 years old.
BB told police that he felt scared, ashamed and embarrassed when he saw the footage. He told them that he was very young at the time and did not know what he was doing was wrong. He was frightened of the applicant. He felt that it was normal at the time but in fact the applicant had been grooming him and controlling him for many years.

Victim "CC"

The third victim, CC, was BB's younger brother born in 2000. He was interviewed by police on 20 July 2015 when he was 15 years old.
CC also saw the applicant as a father figure. He recalled the applicant taking photographs of CC's penis when he was 12 or 13 years old. That incident was captured in the image located on the applicant's devices. In those images, the applicant's hand is touching CC's penis. Some photographs appear to be measuring his penis (count 13).
On CC's fourteenth birthday he visited the applicant who bought him a "wet and wild" pass and a remote-control car. On that occasion, the applicant had anal intercourse with him (count 14) and photographed it. That incident was found in images located on the applicant's devices.
During his interview with police, CC disclosed that on two or possibly three occasions he took photographs of his own penis at the applicant's request and sent them to him by way of his mobile telephone for money. Those messages were sent to "Mr Wrong" which was the applicant's alias.

The arrest of the applicant

The applicant was arrested on 13 August 2015. A number of child abuse images of these victims were located on his mobile telephone. He participated in an ERISP in which he admitted to giving CC money in exchange for the images (count 18) but made no other admissions.
A search warrant was executed at the applicant's premises and approximately 50,000 child abuse images and 200 child abuse material files were located.
The majority of the material had been downloaded from the internet, but there were a number of images of BB and CC (count 15)
A subsequent examination of the material showed that approximately 45% of the material examined was category one with the remaining 55% being category two on the Interpol baseline classification system. Some of the material was categorised into directories with the initials of the complainants, size of their penis, whether the penis was erect or flaccid and the body shape of the child.

Proceedings on sentence

The applicant was 53 years old at the time of sentence on 21 February 2019.
The proceedings on sentence were conducted on 15 February 2019. The Crown tendered the Crown sentence summary and a selection of images relating to count 15 (possess child abuse material) in a sealed envelope. In addition, the Crown tendered BB's victim impact statement, the statement of Detective Sergeant Robert Potts of 24 October 2018, and written submissions.
Counsel for the applicant tendered a report of Dr Peter Ashkar dated 21 January 2019 and Dr Rebecca Smith dated 4 May 2018.
The focus of the submissions on sentence was on whether the applicant had an autism spectrum disorder and, if so, how that was relevant to the sentence to be imposed. The Crown accepted the applicant's characterisations with respect to these matters. Both counsel accepted that there was no evidence that the applicant's experience in custody was more severe because of his mental health.
During the applicant's submissions, her Honour noted the following: "I propose to deal with it as an aggregate sentence… But having said that, had I dealt with them separately, there would have been accumulation, at least partial accumulation, there is [sic] three separate victims and very separate and distinct conduct." (Emphasis added.)

Remarks on sentence

After recounting the relevant agreed facts, her Honour observed the following: "Those agreed facts clearly disclose very serious objective criminality. The conduct relates to three victims and occured between 2004 and 2015. Each of the victims was betrayed by a person with whom they had a close relationship and someone they should have been able to trust. The facts in my view demonstrate a reprehensible and grave breach of trust that will, no doubt, have long-standing consequences for each of the victims."
Her Honour went on immediately to add the following: "In relation to sentencing for sexual offences against children, the Court notes remarks of his Honour Justice Lee in R v Dent unreported NSWCCA 14 March 1991: 'One begins with the proposition that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature. Little children are entitled to grow up free from defilement by sexual predators and free from the risk of psychological upset, confusion and difficulties later in life caused by such conduct.'"
Her Honour then went on to make an assessment of the objective seriousness of each of the offences by identifying the factors relevant to such an assessment. She assessed the objective seriousness of counts 1, 4, 7 and 13 to be in the middle of the range. She assessed count 14 to be slightly above mid-range, count 15 to be above the middle of the range, and counts 17 and 18 to be below the middle of the range.
Her Honour then turned to consider the aggravating features of the applicant's conduct. She noted that he was in a position of trust in relation to all three complainants but that for count one that aggravating feature was already an element of the offence, so she did not propose to aggravate that offence. She then turned to consider the victim impact statement of BB and observed the following: "BB prepared a victim impact statement. He described that his life 'spiralled out of control' after meeting the offender. He stated 'I was ashamed and lost'. His emotional turmoil was compounded because his mother did not believe him and continued to allow the offender to visit. He stated as follows: 'I have mental scars that will never leave me now. I have post-traumatic depression and stress disorder with borderline personality disorder. This abuse changed everything for me. I turned these scars and physical scars because of what you did to me. I have slices on my wrists from cutting myself to ease the pain, they are now constant reminder of what happened to me and what I went through and losing my childhood. They don't make me stronger, they make me weak, a visual reminder of you.' BB described attempting to commit suicide 'about 20 times' and being in and out of mental health institutions. He further described turning to alcohol and drugs to 'escape'. He also detailed the impact upon his personal relationships and employment aspirations. He concluded as follows 'I changed forever after what you did to me and I will never be able to forget how it has changed my life forever for the worst.' Courts now well understand the significant effects upon victims of sexual offending. In R v Nelson [2016] NSWCCA 130 his Honour Basten J (sic) stated as follows: 'Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim which may have lifelong consequences including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.' It is clear that this is precisely the situation in which BB has found himself. The Court is hopeful that with love and professional support the victims can look forward to a much more positive future. One of the purposes of sentencing is to recognise the harm done to each of the victims (see s 3A(g) of the Crimes (Sentencing Procedure) Act 1999)."
Her Honour then went on to address the applicant's subjective circumstances. She noted that he was 53 years old at the time of sentencing with a criminal history which commenced in 2004 when he was dealt with for possessing unregistered firearms, not keeping a firearm safely, and possessing an unauthorised firearm.
Significantly, in 2011 he was dealt with for an offence of inciting a person under the age of 16 years to commit an act of indecency. He was sentenced to 4 months imprisonment for that offence, which related to a 13 year old boy who lived 50 metres from his home.
Her Honour was satisfied that the applicant was disentitled to any leniency having regard to his criminal history and that specific deterrence was an important consideration on sentence.
The applicant grew up in regional New South Wales and relocated to Sydney when he was a teenager in order to receive support for his twin brother who had significant physical and intellectual disabilities. That brother subsequently died at the age of 26 years. The applicant suffers from epilepsy and struggled with complicated management of that during his schooling years. He suffered a number of head injuries and trauma as a result of his seizures.
The applicant did not report any history of physical or sexual abuse, neglect or other difficulties during his childhood. He was a below average student and an extreme loner. He left school in year 10. Although he had difficulty maintaining stable and consistent employment, he did work in a number of positions. At other times he was in receipt of Centrelink benefits. He was working as a truck driver at the time of his arrest.
The applicant reported that he did not develop any interest in sex until his mid-30s, at which time "he thought he might be gay". He denied ever having a relationship with a male or a female. He reported to Dr Ashkar that he was not sexually attracted to boys under the age of 16 years. Her Honour was satisfied that this denial was inconsistent with the offending behaviour. The applicant also told Dr Ashkar that he has never had a sexual interest in children which, again, her Honour was satisfied was inconsistent with the offending. The applicant also told Dr Ashkar that he had never sought out "child porn", although he agreed he had received illegal images in the past. Her Honour extracted the following portion from Dr Ashkar's report: "It is unclear if he has reasonable understanding of consent and sexual boundaries and although he was able to state that he knew 'sexual abuse was wrong' he does appear to endorse some attitudes consistent with sexual abuse."
Her Honour then turned to consider the evidence as to the applicant's mental health history. The applicant had reported a history of depression and required inpatient admission in 2004 and 2005. He used antidepressants for some time but then discontinued using them. Her Honour noted that the psychologist, Dr Smith, was of the opinion that the applicant was "insightless" regarding the grooming behaviour. The applicant regarded his interactions with the victims as being kind, generous and "taking care" of them. Her Honour noted that the applicant had read an apology to the psychologist in relation to which the psychologist noted the following: "It is unclear if GG has genuinely made progress in terms of his understanding of the harm he has caused and it is likely that he remains somewhat limited in his true knowledge of the victim and community harm which is likely hampered by his poor perspective taking abilities. Indeed some of his responses pertaining to responsibility appear to have been made without true emotional engagement. However, this may be especially difficult for GG if he has an underlying condition."
Her Honour noted Dr Smith's suggestion that GG would benefit from specialised psychological support aimed at assisting him to develop an understanding of the factors involved in his offending behaviour. It was noted that the applicant has not yet participated in any intervention aimed at treating and minimising his offending behaviour.
Dr Smith noted that the applicant should be considered for assessment for autism spectrum disorder after seeing him for two hours on 3 May 2018. As a result of that, a cognitive assessment was undertaken by Dr Ashkar at Parklea Correctional Centre for approximately five hours on 6 December 2018. After that neuropsychological assessment, Dr Ashkar noted that the applicant performed well and within normal limits in most areas; although there was some deficiency in his processing speed which could be due to the effects of his anticonvulsant medication.
Dr Ashkar stated that the applicant has difficulties in areas of social awareness, social cognition, social communication and social motivation, accompanied by restricted interest and repetitive behaviours. He opined that his profile was "typical for individuals with autism spectrum disorder of moderate severity". Her Honour went on to extract the following portions from Dr Ashkar's report: "'GG's profile suggested disturbances to personality (i.e. stable and enduring features of his behaviour that are largely independent of situation and context) marked by introversion, low positive emotionality (i.e. lack of positive emotional experience and hedonia [scil. anhedonia], lack of interest, pessimism and social introversion), negative emotionality, neuroticism (i.e. anxiety, insecurity, worry) and psychoticism (i.e. unusual thought processes and perceptual phenomena, alienation from others, unrealistic thinking and impaired reality testing) there was no evidence of antisocial personality characteristics.' Dr Ashkar concluded as follows: 'The findings from this assessment (based on interview with GG and objective psychometric testing) support the diagnosis of an autism spectrum disorder of moderate severity and this helps explain his offending behaviour. GG has a difficulty across a range of social behaviours including social awareness, social cognition, social communication and social motivation, as well as restricted interests and repetitive behaviours which significantly interfere with his everyday social interactions. His theory of mind is limited (i.e. his understanding of other people's feelings, emotions, and intentions is not as sophisticated as that of other adults) and he has difficulty understanding the emotional and psychological harm he has caused his victims because of his autism spectrum disorder. His autism spectrum disorder also helps explain the disturbances in his personality revealed in his assessment.'"
Her Honour went on to note that Dr Ashkar had assessed the applicant's risk of sexual recidivism as average and recommended a sex offender treatment program of moderate intensity and community treatment as a condition of his parole.
Her Honour was satisfied that the applicant suffered from an autism spectrum disorder of moderate severity and extracted the relevant principles from DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. She noted it was not the submission of the applicant's counsel that he was an inappropriate vehicle for general deterrence on the basis that the mental illness contributed to the commission of the offending. Rather, it was suggested that moderation of the weight be given to specific deterrence on the basis that the applicant does not fully appreciate the seriousness of his conduct. Her Honour concluded as follows on this issue: "Having regard to the offender's mental health issues, I am satisfied that a moderation of the otherwise appropriate sentence is appropriate in circumstances where I propose to give less weight to specific deterrence and also to take into account that serving a custodial sentence will be more onerous for this offender."
Relevantly for the ground of appeal, her Honour then stated the following under a heading "Totality": "I propose to impose an aggregate sentence pursuant to 53A(1) of the Crimes (Sentencing Procedure) Act 1999. Had I imposed separate sentences I am satisfied that some significant accumulation would have been required having regard to the different victims and separate episodes of very serious criminality." (Emphasis added.)
Her Honour went on to note that she had taken the Form 1 matters into account in accordance with the principles enunciated in Attorney General's Application under 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 46; [2002] NSWCCA 518. When considering the question of remorse, her Honour accepted, in the context of the applicant's having an autism spectrum disorder, that he had no insight into the consequences of his offending.
Her Honour found that the applicant's prospects of rehabilitation must necessarily be guarded given the diagnosis and consequential lack of ability to appreciate his wrongdoing. She was not able to find that he had good prospects of rehabilitation or that he was unlikely to reoffend.
Her Honour made a finding of special circumstances on the basis of the applicant's diagnosis of autism spectrum disorder and accordingly varied the statutory ratio between the non parole period and the parole period pursuant to s 44(2B) of the Sentencing Act.

Applicant's submissions

The applicant submitted that the aggregate sentence involved an erroneously high degree of notional accumulation between the indicative sentences so as to constitute a manifestly excessive aggregate sentence. The applicant accepted that there had to be some degree of "notional" accumulation given the involvement of different complainants and different offending over a period of time but contended that it was excessive in the present case.
The applicant relied on the decisions in Lee v R [2020] NSWCCA 244 and Noonan v R [2021] NSWCCA 35 as authority for the proposition that a breach of "notional accumulation" can be raised as a challenge to an aggregate sentence on the ground that it is manifestly excessive. I have considered those cases below.
Reliance was placed on the fact that during the proceedings on sentence, the sentencing judge had noted that she would have imposed "some significant accumulation" had individual sentences been imposed (rather than an aggregate sentence). It was submitted that the degree of notional accumulation "that must have been imposed by her Honour, as reflected in her Honour's statement regarding the hypothetical situation, was erroneously high". This was said to be against a background in which the Crown contended that "some accumulation" might be necessary in cases involving multiple serious offences.
The applicant submitted that the total of the eight indicative sentences added together represents a period of 28 years and 4 months imprisonment. Given the aggregate head sentence is 23 years, this represents more than 81% of the total indicative sentences. The applicant contended that the "closeness" of those figures means that notional concurrency between the indicative sentences is "barely present".
During the hearing of the appeal, the applicant put this argument in a slightly different way: it was submitted that the counts could be broken down into four subsets: count 1, relating to AA; count 15, relating to BB and CC; counts 4 and 7, relating to BB; and counts 13, 14, 17 and 18, relating to CC. Using the indicative sentences, the applicant identified potential sentences, post plea, that might be imposed for each of the four subsets had he been sentenced solely for those offences. These were: 4 years and 8 months for count 1; 3 years and 10 months for count 2; 6 to 7 years for counts 4 and 7; and 6 to 7 years for counts 13, 14, 17 and 18. It was submitted that allowing for internal accumulation and adding these sentences together does not reach 23 years. On this analysis, the applicant contended that it is unclear how the sentencing judge arrived at 23 years and that it is "completely and utterly outside the range".

Crown submissions

The Crown's primary submission was that the aggregate sentence was not manifestly excessive. It was further submitted that the applicant's mathematical approach was erroneous in the circumstances of the present case.
The Crown contended that even assuming that an approach focusing on "notional accumulation" rather than totality is correct, questions of degree or weight are largely a matter for the sentencing judge. The Crown contended that the totality of the offending was so significant and so entrenched that the issue of protection of the community, particularly the protection of children from sexual abuse, looms large. The Crown noted that the offending occurred over a decade, involved a breach of trust and exploitation of each child and that the possession of child abuse material was "particularly disturbing".
The Crown accepted that it was permissible to have regard to "notional accumulation" when contending that an aggregate sentence is manifestly excessive but noted the qualification of such an approach as can be found in Noonan v R at [33] (extracted in my consideration below).
It was further submitted that count 15 elevates the objective seriousness of the offending as it makes it clear that the offending occurred in the context of a clear and ongoing sexual attraction to young children. When considering the totality principle, the Crown submitted that the grave and entrenched nature of the offending, the fact that it was spread over a long period of time, and the fact that it involved multiple victims means that individualising and adding the offences without engaging in qualitative analysis is a mistake. It was submitted that the mathematical approach to accumulation advanced by the applicant was not the court's function when applying the totality principle.
The Crown also submitted that the sentencing judge did not err in finding that the sentence ought to be significantly accumulated and that her Honour gave effect to that finding. It was submitted during the hearing of this appeal that the judge clearly stated that she was going to significantly accumulate the sentence and that is what she did. It was submitted that there was a good reason why it was accumulated the way it was. The court is required to look at the total criminality involved but also factors such as questions of remorse and the risk of reoffending.
While the Crown did not contend that the indicative sentences were manifestly inadequate, it was noted that the finding that count 15 was at the mid-range of objective seriousness means that the indicative sentence imposed for that offence may have been "too low".

Consideration

Although the applicant's submissions focussed solely on the application of the totality principle, that argument was made in support of the more fundamental complaint that the aggregate sentence imposed is manifestly excessive. The relevant principles to be applied when considering such a ground are well known and have been frequently re-stated by this court. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and I agreed) provided the following summary of the relevant principles to apply when considering such a ground at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
In seeking to establish that the aggregate sentence was unreasonable and plainly unjust, the applicant does not identify any patent error in the reasons of the sentencing judge. Rather, he contends that a possible explanation for what is said to be a manifestly excessive aggregate sentence is a misapplication of the totality principle by the sentencing judge. That principle was described by Street CJ in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260, as follows: "The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
The totality principle was subsequently expressed in this way by the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63: "'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong('); 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'." (Emphasis added.)
Ten years later, in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, the same principle was expressed in this way by McHugh, Hayne and Callinan JJ at [45]: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
The decisions in Mill v The Queen, Pearce v The Queen and R v Holder; R v Johnston were all decided before the enactment of s 53A of the Sentencing Act. In fact, as R A Hulme J observed in JM v R (2014) 245 A Crim R 528; [2014] NSWCCA 297 at 39, the aggregate sentencing regime in s 53A of the Sentencing Act was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen when sentencing for multiple offences. As R A Hulme J went on to observe in JM v R at 39, the benefit of imposing an aggregate sentence when sentencing for multiple offences is that it obviates the need to engage in the "laborious and sometimes complicated task of creating a 'cascading' or 'stairway' sentencing structure" when the principle of totality requires some accumulation of sentences. Despite this, his Honour went on (at 39 and (6)), to make clear that the totality principle is still applicable when imposing an aggregate sentence: "39 It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen [1998] HCA 57; 194 CLR 610. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a 'blanket assessment' by simply indicating the same sentence for a number of offences is erroneous: R v Brown [2012] NSWCCA 199 at [17], [26]; Nykolyn v R, supra, at [32]; [56]-[57]; Subramaniam v R [2013] NSWCCA 159 at [27]-[29]; SHR v R, supra, at [40]; R v Lolesio [2014] NSWCCA 219 at [88]-[89]. It has been said that s 53A(2) is 'clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges': Khawaja v R, supra, at [18]. … 39 One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence: Nykolyn v R, supra, at [58]; Subramaniam v R, supra, at [28]. A further advantage is that it assists when questions of parity of sentencing as between co-offenders arise: R v Clarke, supra, at [68], [75]."
In the recent decision of Benn v R [2023] NSWCCA 24, Gleeson JA (with whom Ierace J and I agreed) extracted 39 of JM v R at [114] and then observed the following at [115]: "The transparency referred to in JM v R is directed to three matters: (a) the criminality involved in each offence is to be assessed individually in the indicative sentences recorded in accordance with s 53A(2), consistently with the requirement in Pearce, (b) the requirement to specify indicative sentences assists in the application of the totality principle, which still applies to aggregate sentencing, and (c) the indicative sentences also serve to provide victims of crime and the public with an understanding of the level of seriousness with which a court has regarded an individual offence."
The applicant's appeal is against his aggregate sentence; his indicative sentences are not amenable to appeal. But if error is found in the fixing of an indicative sentence it may be such as to warrant intervention by this court. The question is whether the error had the capacity to influence the aggregate sentence": Newman (a pseudonym) v R [2019] NSWCCA 157 at [11]; Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [145]. Examples of cases where this has occurred are provided in Benn v R at [84] and include a mistake on the part of the sentencing judge as to the relevant maximum penalty or SNPP for one or more of the offences.
It was not suggested by the applicant that there was any patent error in any of the indicative sentences fixed by the sentencing judge. Nor did the applicant contend that the indicative sentences were excessive. Although the length of the indicative sentences may be a guide to whether the aggregate sentence is manifestly excessive or inadequate (JM v R at 40), as Beech-Jones CJ at CL, with whom Payne JA and Fagan J agreed, observed in Lee v R [2020] NSWCCA 244 at [32], it is not determinative: "… [W]ith an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; 'JM'). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive."
When an applicant contends that an aggregate sentence is manifestly excessive based on a misapplication of the totality principle, this court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: JM v R at 40. Although it is still possible to ascertain the question of notional accumulation and concurrence to a limited extent when comparing the indicative sentences with the aggregate sentence imposed, such an inquiry is directed at the principal question as to whether the aggregate sentence reflects the totality of the criminality involved: JM v R at 40.
As for the applicable principles when error is alleged in the application of the totality principle in aggregate sentencing, in Noonan v R [2021] NSWCCA 35 Beech-Jones J (as his Honour then was), with whom Bathurst CJ and Wilson J agreed, stated the following at [33] in that regard: "… The starting point is that the subject matter of an application for leave to appeal against an aggregate sentence is the aggregate sentence itself, not any indicative sentence. Next, it is necessary to identify the error complained of in the fixing of the aggregate sentence. If the complaint is an error such as a failure to apply the totality principle then an appellant may seek to deploy a comparison between the indicative sentences and the total aggregate sentence to argue that the principle was misunderstood or misapplied such that an error has been demonstrated. For example, if there were three related offences with the indicative sentence for each being 2 years imprisonment and the total aggregate sentence was 6 years imprisonment then it might be inferred that the sentencing judge failed to apply the totality principle. In that case, one of the forms of error discussed in House v R (1936) 55 CLR 499; [1936] HCA 40 would be established even though the aggregate sentence was not itself manifestly excessive (namely a failure to take 'into account some material consideration': House v R at 505). However, any analysis that seeks to reconstruct some precise starting and end point for the indicative sentences in order to show error in the fixing of the aggregate sentence is misconceived as aggregate sentences were intended to avoid sentencing judges undertaking that very process. … I note that in imposing an aggregate sentence in R v Stoupe [2015] NSWCCA 175 ('Stoupe'), Johnson J considered 'notional issues of accumulation, concurrency and totality for the purpose of reaching the aggregate sentence to be imposed' (at [128])."
In Aryal v R [2021] NSWCCA 2, a purported misapplication of the totality principle in arriving at the aggregate sentence was relied upon as a stand-alone ground of appeal. R A Hulme J (with whom Johnson and Wilson JJ agreed) identified a number of difficulties in establishing a breach of the totality principle in an aggregate sentence. In dismissing that ground of appeal, his Honour observed the following at [49]-[50]: "The second difficulty is that the applicant's submissions assume the correctness of the individual sentences assessed and indicated for each offence. As noted above, one of the propositions relating to appellate review of an aggregate sentence listed in JM v R was that 'even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive ('). This was affirmed recently by Beech-Jones J in Lee v R [2020] NSWCCA 244 at [32]. Generally speaking, the same must apply if the indicative sentences are inadequate, at least where their sum equals or exceeds the aggregate. Rather than making an assumption that the indicative sentences are correct, and then endeavouring to assess the extent by which there has been some notional accumulation, the critical question is another of the principles noted in JM v R, 'whether the aggregate sentence reflects the totality of criminality involved'. That raises for determination under Ground 2 of the proposed appeal."
Another basis for dismissing the ground alleging misapplication of the totality principle in Aryal v R concerned the applicant's reliance on the remarks of the sentencing judge that there should be a "substantial degree of concurrency with a limited degree of accumulation". As R A Hulme J observed in Aryal v R at [51]: "The terms 'substantial' and 'limited' are relative and not amenable to precise quantification. The one thing that is clear is that at the time he uttered those words he must have known the aggregate sentence that he was just about to announce as well as the individual indicative sentences. The sentencing remarks were not delivered ex tempore; the judge had reserved for two months. It is inconceivable that his sentencing remarks delivered on the adjourned date were a series of unscripted thoughts that were uttered simultaneously as they occurred to him and then immediately forgotten before uttering the next."
These comments are equally applicable in the present case.
Having regard to her Honour's reasons as a whole, I am satisfied that the degree of notional accumulation in the applicant's aggregate sentence reflects her Honour's intention regarding the proper application of the totality principle. Her Honour described the facts as disclosing "very serious objective criminality". After noting the number of victims and the period of time over which the offences were committed, her Honour went to observe that each of the victims was "betrayed by a person with whom they had a close relationship and someone they should have been able to trust". Her Honour also noted that the facts demonstrated "a reprehensible and grave breach of trust that will, no doubt, have long-standing consequences for each of the victims". In that context, and in the context of all of the other findings made by her Honour, I am satisfied that it was her Honour's express intention that there be some significant (notional) accumulation given the different victims and separate episodes of "very serious criminality".
It is to be accepted, as a matter of simple arithmetic, that when all of the indicative sentences are added together, they total 28 years and 4 months as compared with the aggregate sentence of 23 years. Even having regard to the limitations in considering questions of accumulation and concurrence in an aggregate sentence, it would appear that only 5 years and 4 months of the indicative sentences are notionally concurrent. But I do not accept the applicant's contention that this "necessarily involved an erroneously high degree of notional accumulation as between the indicative sentences so as to constitute a manifestly excessive aggregate sentence". Not only am I satisfied that the extent of the notional accumulation reflected her Honour's intention, the degree of accumulation alone cannot establish that an aggregate sentence is manifestly excessive in any event.
Had her Honour not allowed for any concurrence at all then that may have been suggestive of error on the basis that the totality principle had been overlooked completely, as Beech-Jones J observed in Noonan v R at [33] extracted above. But that was not the case. Her Honour expressly allowed for a significant degree of notional accumulation; the complaint is that she allowed for too much.
As was observed in Mill v The Queen, after fixing the individual (indicative) sentences and then imposing the total (aggregate) sentence, it is necessary for a sentencing judge to "take one last look" just to see whether it "looks wrong". Had the indicative sentences been much higher than they were, then the significant degree of notional accumulation in this case may have been suggestive of error in the aggregate sentence, but that is not this case.
Given that I am not satisfied of any misapplication of the totality principle, the question for determination under this ground is whether the aggregate sentence is manifestly excessive.
In the present matter, the question of manifest excess falls for consideration in the context that the aggregate sentence imposed upon the applicant was in relation to eight separate child sexual assault offences against three different victims. Two of the counts had matters attached on Forms 1, which comprised five additional offences in total. The offending took place over a period of 11 years and extended to possession of significant child abuse material. In relation to the first and second victims, the offences also included an element of violence or force. There was also clear grooming behaviour on the part of the applicant.
As for the applicant's subjective case, very few findings were made in his favour. He had a previous similar conviction which meant that he could not rely on leniency in that regard. The pleas of guilty were late and her Honour was unable to make positive findings in relation to remorse, rehabilitation, or the risk of reoffending. Besides the plea of guilty, the only other mitigating factor was the applicant's recent diagnosis of autism spectrum disorder, which, as his counsel accepted, was not causative of the offending, although it explained his lack of insight and remorse and his increased risk of reoffending.
There can be no doubt that the sentence imposed on the applicant is a stern one. But it is well established that a sentence (aggregate or otherwise) cannot be disturbed on the basis that it is manifestly excessive simply because members of the intermediate appellate court may have taken a more lenient view of the matter: the question is whether the aggregate sentence imposed is unreasonable and plainly unjust. I am not satisfied that it is.
I would dismiss this ground.
Although I would dismiss the appeal, the sentence imposed was a lengthy one and, in the circumstances, I would grant the extension to bring this application.
Accordingly, the orders I would propose are: 1. An extension of time to bring this appeal is granted. 2. Leave to appeal is granted. 3. The appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (35)

Cited By (4)