Gibbons (a pseudonym) v R - [2019] NSWCCA 150 - NSWCCA 2019 case summary — Zoe

NSWNSWCCA

Gibbons (a pseudonym) v R

[2019] NSWCCA 150

Court of Criminal Appeal (NSW)|2019-02-04|Before: Button J, Lonergan J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2019-02-04

Before

Button J, Lonergan J

Catchwords

R v MSK [2006] MSWCCA381
(2006) 167 A Crim R 159 R v Scavera [2016] NSWCCA 145 Saddler v R [2009] NSWCCA 83
(2009) 194 A Crim R 452 The Queen v Kilic (2016) 259 CLR 256
[2016] HCA 48 Veen v The Queen [No 2] (1988) 164 CLR 465

Source

Original judgment source is linked above.

Catchwords

R v MSK [2006] MSWCCA381(2006) 167 A Crim R 159 R v Scavera [2016] NSWCCA 145 Saddler v R [2009] NSWCCA 83(2009) 194 A Crim R 452 The Queen v Kilic (2016) 259 CLR 256[2016] HCA 48 Veen v The Queen [No 2] (1988) 164 CLR 465

Judgment (31 paragraphs)

[1]

Judgment

SIMPSON AJA: I have had the opportunity of reading in draft the judgment of Button J. I take a different approach to this difficult sentencing exercise. It is necessary to re-state, as concisely as possible, the basic relevant facts.
At the time of the applicant's offending, s 66A of the Crimes Act 1900 (NSW) relevantly provided: "66A Sexual intercourse - child under 10 (1) Child under 10 Any person who has sexual intercourse with another person who is under the age of 10 years is guilty of an offence. Maximum penalty: imprisonment for 25 years. (2) Child under 10 - aggravated offence Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence. Maximum penalty: imprisonment for life. (3) In this section, circumstances of aggravation means circumstances in which: … (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or …"
The history of s 66A is of some significance. A provision creating an offence of sexual intercourse with another person who is under the age of 10 years was introduced into the Crimes Act in 1985: Crimes (Child Assault) Amendment Act 1985 (NSW). The maximum penalty then prescribed was penal servitude for 20 years. There was no precise equivalent of s 66A(2).

[2]

Background

The applicant is the biological father of RS who was born in October 2007. JJ is RS's biological mother. At the time of the offences RS was four years of age. The applicant and JJ are also the biological parents of AS.
In 2010 the family lived in South Australia. In 1996, in South Australia, the applicant was convicted of five counts of indecent assault committed against three of his nieces, aged (at the time of the offences) respectively, 4 to 11 years, 11 years and 8 years. As a consequence, the applicant's name was placed on a Child Protection Register. The precise legal consequences of that placement were not spelled out in the sentencing proceedings.
The family came under the notice of the South Australian child protection authority. The applicant was notified that, because his name was on the Child Protection Register, he was not permitted to live in the same household as his children.
In a manner that is not explained by the evidence, the applicant and JJ, with the children, left South Australia and lived, initially for a time, in Queensland, and then in NSW where they took up residence in a tent in the Blue Mountains. The applicant did not disclose his location to police or family protection authorities. It was while the family was living in the tent in the Blue Mountains that the present offences were committed. Later, the family came under notice of NSW family protection authorities. The children were removed and placed in a succession of foster homes. While in the last of these, their carers observed signs of sexualised behaviour, sufficient to cause them to alert authorities, as a result of which an investigation was undertaken. In August 2013 both children took part in interviews which were electronically recorded and which constituted the evidence given in the trial. It is from these recorded interviews that such details of the offences as are known emerged.
In 2013 the applicant pleaded guilty in NSW to five counts of aggravated indecent assault against a child under the age of 16. On his sentence, two further offences were taken into account pursuant to Pt 3 Div 3 of the Sentencing Procedure Act. Those offences were committed in 2012. (That is, subsequent to the offences against RS.) The victim was BB, the sister of JJ. BB suffered from a disability. On 16 October 2014 the applicant was sentenced, in respect of those offences, to a total term of imprisonment of 2 years and 9 months with a non-parole period that expired on 1 July 2015. Since that sentence commenced on 2 October 2013, it may be inferred that that was the date on which he was arrested.

[5]

The remarks on sentence

The sentencing judge devoted a good deal of her comprehensive remarks on sentence to a consideration of the objective seriousness of the offences. It is worth setting out substantial portions of her Honour's observations. She said: "(at p 8) Generally the maximum penalty the legislature has set for aggravated child sexual assault reflects community abhorrence of and concern about adult sexual abuse of children. The Court has a significant function in the protection of young children from predatory sexual assault. Children are entitled to grow up free from such conduct and protected from the significant harm that inevitably must follow. General deterrence is of great importance and should be manifest in sentencing such offenders, particularly when the offender is in a position of trust and authority in relation to the victim. The age of a victim of sexual assault is relevant in the assessment of objective seriousness, even when age is an element of the offence. Generally, the younger the victim, the more serious the offence might be, as the younger the child, the more defenceless and vulnerable. … (at p 9) Generally when sentencing an offender for a sexual offence the determination of where an offence lies on the scale of objective seriousness is an essential part of sentencing. The offending for which I must sentence the offender occurred against one complainant and includes both oral intercourse and anal intercourse on a four year old child, the son of the offender. … The complainant was aged four at the time [of the offending]. At the time of the offences the complainant was under his authority which is an element of the offence. The offender was in a position of trust and authority being the parent of the complainant. In my view the offender is a sexual predator and a paedophile who preyed on his own child who was extremely vulnerable and young. The offender had unfettered access to the complainant. The offending against the complainant is objectively very serious. It is the nature of the sexual acts, the circumstances where the acts occurred, including the gross breach of trust which placed the offending against RS objectively within the most serious category of offending against children, near the very top of the range. (at p 10) The offender had sexual intercourse with a very small child, causing physical pain, particularly in relation to Count 2. It is the nature of the sexual acts and the circumstances in which the acts occurred, and his position as a father, which makes it of the most serious nature … The offender took advantage of the extreme vulnerability of his own child. It was a significant and gross breach of trust … In my view the objective seriousness of Count 1 is well above the mid-range of objective seriousness. Count 2, being the anal penetration of the complainant, is a crime of substantial gravity and falls at the upper range of objective seriousness, near the top of the range. These are extremely serious offences; the age of the complainant, the breach of trust and the pain caused to the complainant adds to the seriousness of the offence." (italics added)
Her Honour went on, in a summary of factors relevant to the objective seriousness of the offending, to say: "The offender sexually assaulted the complainant in a remote location. The offender was aware that he was taking advantage of the age and the vulnerability of the complainant because of his position as his father. The individual acts committed by the offender were of extreme gravity. The offender abused the complainant for his own sexual gratification. In doing so the offender disregarded the serious impact of his conduct upon his own young child."
Her Honour then noted the circumstances of the earlier offending (against the applicant's nieces) and of the later offending against BB, before moving to consideration of the applicant's personal circumstances. In this respect she had the benefit of a report by a psychologist which, however, she found to be "vague and unimpressive" in relation to any psychiatric history. She placed little weight on the psychologist's report. She recounted the history set out above.
She found that the applicant had shown no remorse and that his prospects of rehabilitation were "poor and guarded in the extreme". She expressly had regard to both specific and general deterrence. She said: "Here the offences occurred on two separate occasions. Therefore, the overall sentence must comprehend the total criminality of the offending. Where discrete criminal act[s] are committed there should be at least partial accumulation."
In referring to submissions made by the parties, the sentencing judge said: "Whilst the Crown did not submit that the offences committed against the complainant were in [the] worst category, the Crown submitted that Count 1 was above mid-range of objective seriousness for offences of this type and Count 2 was well above the mid-range of objective seriousness. I accept those submissions, however, I found that the offences are towards the upper end and almost within the worst category." (italics added) She accepted a submission made on behalf of the Crown that the fact that the applicant was on the Child Protection Register was "equivalent to being on conditional liberty". She said: "In my view, the psychological injury caused to the complainant has already been demonstrated through the sexualised behaviour and the observations of the [foster carers] who had him in their care. I have no doubt that the complainant will have severe psychological issues throughout his life."

[7]

Ground 1: objective seriousness

On behalf of the applicant two asserted errors in the assessment of objective seriousness were propounded. The first concerned the sentencing judge's characterisation of both offences as "objectively within the most serious category of offending". The second was the finding that the objective seriousness was "near the top of the range", or, in respect of Count 1 "well above the mid-range", and in respect of Count 2, "at the upper range … near the top of the range".
In support of the latter asserted error, counsel pointed to the absence of commonly found aggravating factors, for example, the use of threats or additional force, or persistence over protest or resistance on the part of the complainant. Two answers may be made to this proposition. The first is the obvious one: it could hardly be expected that threats or additional force would be necessary to secure the compliance of a four year old child (particularly in the context of a parent child relationship), and protest or resistance by a child of that age is unlikely. The absence of these aggravating factors is entirely irrelevant.
More generally, however, submissions of this kind have repeatedly been rejected by this Court. It was, perhaps, most pithily expressed by Grove J in Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452, in the following way: "3 It is a well established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse."
The same concepts were expressed by R A Hulme J in Bravo v R [2015] NSWCCA 302 and Mills v R [2017] NSWCCA 87, by Hoeben CJ at CL in R v CTG [2017] NSWCCA 163 and Wilson J in Faehringer v R [2017] NSWCCA 248. In Mills, R A Hulme J said: "57 … The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]."
No error in this respect has been established.
It was also submitted that undue weight was given to the concept of "abuse of trust", given that it was an element of the aggravated offence (of which the applicant was convicted) that RS was, both generally and at the time of the commission of the offence, under the authority of the applicant. Reliance was placed upon findings of Bathurst CJ (with whom James and Johnson JJ agreed) in MRW v R [2011] NSWCCA 260. The Chief Justice said: "77 There can be little doubt, in my opinion, that the matters referred to in s 21A(2)(k) [of the Sentencing Procedure Act], namely abuse of trust and abuse of authority, are distinct concepts although commonly arising out of the same facts … 78 However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court …"
I do not think that the sentencing judge transgressed in the way envisaged by the Chief Justice. In my opinion, she used the terms "abuse of trust" and "abuse of authority" and related terms interchangeably. Given that it was the authority of the applicant as parent of RS that constituted the "trust" to which her Honour referred. There was no error in her so doing.
It is true that abuse of authority is an element of the offence of which the applicant was to be sentenced. But not all abuse of authority (or trust) are of equal consequence, and it was entirely appropriate that her Honour evaluate the magnitude of the abuse of authority in the particular circumstances of the offences with which she was dealing.
I would not find error in this aspect of her Honour's treatment of the objective seriousness of the offence.
It is, however, necessary to give more detailed consideration to the first asserted error, reliance upon categorisation of either or both of the offences as "in the worst category".
The passages of the remarks on sentence upon which reliance was placed have been italicised in the extracts from the Remarks on Sentence set out above. In The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48, the High Court (Bell, Gageler, Keane, Nettle and Gordon JJ in a joint judgment) said: "'Worst category' of this offence 17 As was earlier observed, in the course of considering the '[c]ircumstances of offending' the Court of Appeal described the principal offence as being within 'the worst category' of the offence of intentionally causing serious injury. Later in their reasons, they added that, in assessing whether the sentence imposed was manifestly excessive, it was important to recognise the limitations on the use that may be made of the 'worst category offending authorities'. 18 What is meant by an offence falling within the 'worst category' of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the 'worst category', it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence. 19 Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty - as the offending was agreed to be here - a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being 'within the worst category'. It is a practice which should be avoided. 20 There is also another reason to avoid use of the expression 'the worst category' of an offence. Not infrequently where an offence does not warrant the maximum prescribed penalty, a sentencing judge may observe in the course of his or her sentencing remarks that, although the offence is a serious, or perhaps particularly serious, instance of the offence, it is not within the 'worst category'. To do so is not inaccurate and it may be thought a convenient form of legal shorthand. But lay persons are unlikely to be familiar with the legal signification of the expression and, as a result, might wrongly take it to mean that the judge has underestimated the seriousness or effects of the offence. In order to avoid difficulties of that kind, sentencing judges should avoid using the expression 'worst category' and instead, in those cases where it is relevant to do so, state in full whether the offence is or is not so grave as to warrant the maximum prescribed penalty." (internal citations omitted)
The very fact that, notwithstanding the strong views she expressed concerning objective gravity, the sentencing judge did not impose maximum sentence of life imprisonment at least impliedly contradicts any proposition that she found the offences (or either of them) to be in the "worst category". The sentencing judge did not use the language of "worst case". It was submitted that the references to: "objectively within the most serious category of offending against children, near the very top of the range." and similar observations were "akin" to a finding that the offences fell into "the worst category" of case.
I do not agree. The sentencing judge was obliged to place the offences on a scale of objective gravity. That is what she was doing in those passages.
Further, even if the remarks could be construed as a "worst case" finding, that does not conclude this proposed ground of appeal. The question is whether the finding did in fact "lead to error". In the penultimate sentence of [19] of Kilic, the High Court stated the task of the sentencing judge where an offence is assessed to be "not so grave as to warrant the imposition of the maximum prescribed penalty" as: "… to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instance of the offence to the worst category, properly so called."
This the sentencing judge did. She said: "In my view the objective seriousness of Count 1 is well above the mid-range of objective seriousness. Count 2, being the anal penetration of the complainant, is a crime of substantial gravity and falls at the upper range of objective seriousness, near the top of the range."
The assessment of objective seriousness lies squarely within the role of a sentencing judge, to be disturbed only in the circumstances described by Spigelman CJ in Mulato v R [2006] NSWCCA 282. His Honour said: "37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour …"
The ultimate findings made by the sentencing judge were well within the boundaries available to her. Indeed, it is difficult to question those assessments, bearing in mind the parental relationship, the age of the complainant, and that the offences were committed in circumstances in which the applicant had been directed, by reason of his prior offending, not to live in the same household as the complainant, as well as the particular circumstances of the offending.
There was no error of the kind asserted. For these reasons I would reject ground 1 of the proposed appeal.

[8]

Ground 2: totality

The issue of totality arises in the context of the applicant's pleas of guilty to the charges of the offence against BB. He was arrested and charged in relation to the present offences on 4 September 2013. He was refused bail and has remained in custody since. As noted above, on 2 October 2013 he was charged in relation to the offences against BB to which he pleaded guilty. On 16 October 2014 he was sentenced, in relation to those offences, to imprisonment for 2 years and 9 months (commencing on 2 October 2013) with a non-parole period of 1 year and 9 months (expiring on 1 July 2015).
In sentencing the applicant, the sentencing judge calculated (erroneously, but the error being in his favour) that the applicant had been held in custody exclusively on these matters for 652 days. (The correct number was 625.) She accordingly selected the commencement date of the sentence to accord with the notional expiration of the sentence in relation to the offences against BB.
The applicant now complains that the sentencing judge failed to give adequate consideration to the issue of totality.
The sentencing judge did make express reference to questions of accumulation and totality, but this was in relation to the two offences in respect of which she was to sentence the applicant. The applicant's complaint is that she failed to take into account questions of totality in relation to the previously imposed sentence.
The Crown acknowledges that no express reference was made to the totality principle. However, the Crown argued, it was apparent, by reference to the commencement date of the sentence, that her Honour was well aware of the previous sentence.
This Court considered the proper application of the totality principle (in the context of a Crown appeal) in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [99]ff. The Court said: "99 It should be made clear that, where a judge is sentencing for offences in a situation where another judge has already sentenced the offender for other offences, the second judge must regard the first sentence as an appropriate exercise of the first judge's discretion and not seek to reduce or increase it by the sentences the second judge imposes … But we note the difficulty that confronts the second judge in trying to determine what the overall sentence would have been had a single judge been sentencing the offender for all offences for which he is, and has been, punished. That is in effect part of what an application of the principle of totality requires."
Analysis of the sentences, in combination, persuades me that, notwithstanding the manner in which the sentencing judge dealt with the issue of totality, the result was fair. The sentence commenced on 7 May 2015, two months before the expiration of the non-parole period on the previous sentence, meaning that the time actually served in relation to the earlier (BB) offence is 1 year and 6 months. It would be wrong for the current sentence to subsume, or almost subsume, the sentence imposed in relation to the earlier offence.
Although her Honour did not expressly advert to the totality principle, there is no error in the result in this respect.

[9]

Ground 3: manifest excess

The applicant's argument on this ground depended significantly, if not entirely, on comparison with other cases. Button J has made extensive reference to these cases and I do not propose to repeat what his Honour has said. In order to succeed on this ground, it is necessary that the applicant establish the sentence is "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
As indicated at the outset of these reasons, the sentencing exercise was a particularly difficult one, principally by reason of the seriousness of the offences, and that sentencing is to be measured against the maximum penalty of life imprisonment. The starting point in the assessment is the two statutory guideposts: with respect to each offence, the maximum penalty of imprisonment for life, and a standard non-parole period of 15 years. These "guideposts" comprehend the relationship of the applicant to the complainant and the nature of the offending. The very young age of the complainant was a relevant factor, given that the section applies to children under the age of 10.
The sentencing judge's assessment of objective gravity of each offence, which I have held to be open, was that each offence was well above the mid-range of objective gravity to which the standard non-parole period is directed, and, in the case of the second offence "at the upper range of objective seriousness". There were other important considerations. The applicant had a history of sexual offending against children; he was well aware that his name was on the Child Protection Register, and that he was not permitted to live with children, including RS. He left South Australia, where the family was under some form of supervision or notice by relevant authorities and travelled interstate, taking his family with him, in circumstances that made continued supervision and oversight fairly impossible.
It is true that the applicant's personal history shows some level of dysfunction but there is nothing that remotely explains, let alone mitigates, the nature of the present offending.
An important sentencing consideration is the legislative history of s 66A(2), set out above. That history not only reflects the serious view the legislature takes of sexual offending against children; the progressive amendments to the categorisation of such offending, and the increases in the maximum penalties prescribed must be reflected in the penalties imposed. A full measure of respect must be paid to the intention of the legislature.
The sentence of 30 years is undoubtedly a heavy sentence. It cannot, however, be seen in isolation from the stated intention of the legislature that offences against s 66A(2) must be met with penalties that are commensurate to the offending and the revulsion the community feels for offences of that nature.
Not without hesitation, I have concluded that the sentence was one that was within the bounds available to the sentencing judge.
Accordingly, although I would grant leave to appeal, I would dismiss the appeal.
Before concluding, I should express my disagreement with that part of the judgment of Button J that appears under the heading "Coherence in Sentencing". In my opinion the reasoning is at odds with the decision of the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 and the more recent decision in Kilic, of which the relevant parts have already been extracted.
In my opinion it is wrong in principle to determine the sentence appropriate in any particular case by hypothesising that a worse case might emerge, warranting a greater sentence, and that, therefore, the sentence imposed should be reduced or modified in order to accommodate some hypothetical worse case warranting a more severe penalty.
The orders I propose are: 1. Leave to appeal against sentence granted; 2. Appeal dismissed.
BUTTON J:

[10]

Introduction

This application for leave to appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) relates to an aggregate sentence imposed upon Lee Gibbons (a pseudonym for the applicant, adopted to protect the privacy of a victim of child sexual assault) by Traill DCJ in the District Court at Sydney on 17 February 2017.
The applicant was convicted after a trial by jury of two counts of aggravated sexual intercourse with a child under the age of 10 years. The first count was constituted by penetration of the mouth of the victim with the penis of the applicant. The second count was constituted by penetration of the anus of the victim with the penis of the applicant, with the result that that part of the body of the victim was sufficiently damaged for there to be bleeding.
The maximum penalty for an offence contrary to s 66A(2) of the Crimes Act 1900 (NSW) (which was in existence at the time of the offences) is imprisonment for life. There is also a standard non-parole period of 15 years imprisonment.
Judge Traill imposed an aggregate head sentence of imprisonment for 30 years upon the applicant. The aggregate non-parole period was 22 years 6 months.
The aggregate sentence commenced on 7 May 2015, that being when a separate total non-parole period to which the applicant was subject expired (in fact, there was a very minor degree of partial concurrence of less than two months between the two sentence structures, to reflect time in custody solely referrable to these offences).
The indicative sentences provided by her Honour were as follows: Count 1 (penile/oral intercourse): Head Sentence: 22 years imprisonment Non-parole period: 16 years 6 months imprisonment Count 2: (penile/anal intercourse) Head Sentence: 26 years imprisonment Non-parole period: 19 years 6 months imprisonment
Three grounds of appeal were notified and pressed, but in my respectful opinion only one of them requires deep consideration: the proposition that the aggregate sentence was, in all the circumstances, manifestly excessive.

[12]

Objective features of the offending

I now turn to recount the objective features of the offending. They are derived from the remarks on sentence.
In 2010, the applicant, his partner and their two children (one of whom, as I have said, was the complainant) lived in South Australia. After the conditions in which the children were living came to the attention of social services in that State, the applicant and his family moved to Queensland and resided in a caravan park.
Between early December 2011 and approximately 17 January 2012, the applicant and his family moved to New South Wales. They lived in a tent in the Megalong Valley in the Blue Mountains. The applicant committed the two offences during this time. The dates between which the two counts were averred to have been committed were identical: 1 November 2011 and 19 January 2012. The learned sentencing judge recounted without demurrer that the complainant had given evidence that they occurred on two separate occasions, more likely (in the opinion of her Honour) within a period of two weeks.
In relation to count 1, the applicant put his penis in the mouth of the complainant whilst they were alone in the tent together.
In relation to count 2, on a separate occasion the applicant used his penis to penetrate the anus of the complainant, causing it to bleed.
As I have said, at the time of the offending, the complainant was approximately four years old.
In January 2012, social services of this State became involved with the family, and removed the children from the applicant and his partner.
In February 2013, the carers of the children observed sexualised behaviour on the part of the complainant. The complainant asserted that the applicant and his partner used to put carrots in the children's anuses (I interpolate at this stage that it was made clear before us that the two offences of which the applicant was convicted were not said at first instance to have been "representative counts" in any sense). The carers reported the matter to the police. During a subsequent interview, the complainant gave a graphic and disturbing account of both offences.

[14]

Subjective features of the applicant

The following subjective features are derived from the remarks on sentence, as well as the agreed facts that were tendered at first instance. The latter document related to previous convictions of the applicant for child sex offences in South Australia that he had committed against three of his nieces.
As at the time of sentencing, the applicant was 41 years of age. His father was an alcoholic and died of cancer in 2012. The applicant's mother was 71 years of age and suffers from dementia. His parents divorced when the applicant was a child. He has five sisters. The applicant had been estranged from his whole family for some time.
The applicant has three children, one of whom resided with the child's mother in Perth, and the other two of whom were the complainants in the trial.
As mentioned above, at the time of the offending, the applicant had a de facto partner who was the mother of the complainants. The applicant met her in 2003 when she was 15 or 16 years of age, and the applicant commenced residing with her in that same year (at the time, he must have been in his early thirties). The complainants were born a few years later.
As for the education of the applicant, he left school at the age of 15. He reported to a psychologist whose report was tendered on sentence that he was bullied, had learning difficulties, and was illiterate as at the date of sentence.
The applicant also told the psychologist that he had been sexually assaulted by a woman in her late teens when he was five years old. He also reported that a man in his twenties sexually assaulted the applicant when he was 10 years old.
The applicant had not been employed since 2006, and was in receipt of Centrelink payments at the time of the offences. Prior to that he was employed on a very casual basis in a tannery and piggery, and he has also helped his mother on her farm.
The criminal history of the applicant played an important part in the determination of her Honour. In 1996, he was convicted of five counts of indecent assault against three of his young nieces. With regard to one of the nieces, the applicant indecently assaulted her on numerous occasions when she was aged between four and 11 years. He was placed on what is known in South Australia as a two-year "suspended sentence bond".
As a result of the convictions in 1996, the applicant was placed on a Child Protection Register in South Australia. At the time of the offending in this application, the applicant was still on that on Register. Before the family moved to Queensland, social services in South Australia had instructed the applicant to leave the house in which his children were residing, due to his status on the Register. After moving to the Megalong Valley, the applicant did not notify New South Wales police of his relocation, nor of the fact that he was residing with his children. Her Honour recounted in the remarks on sentence that, in a subsequent interview with police, the applicant had acknowledged that he fully appreciated that his entry on the Register meant that he should not have been residing with his children.
It was during the time when he was living in the Blue Mountains region that he had committed other offences (separate to the current matter), of which he was convicted in 2013. The applicant pleaded guilty to five counts of aggravated indecent assault of a child under 16 years; two counts of committing acts of indecency with a child under 16 years were placed on a Form 1. For those offences, in the District Court at Penrith on 16 October 2014, the applicant had been sentenced to a total head sentence of 2 years 9 months, to commence on 2 October 2013 and expire on 1 July 2016, with a total non-parole period of 1 year 9 months, to commence on 2 October 2013 and to expire on 1 July 2015.
The short facts surrounding these convictions are as follows: when the family was staying in the tent in the Megalong Valley, there was a chance meeting with the parents of the partner. The parents invited the applicant and his family to stay in their house in Katoomba.
In early January 2012, the applicant and his family moved into the garage of that home. The sister of the partner, whom I shall call Sharon, also lived at the home with her parents. Sharon was aged 15 years at the time, and had a visual impairment that was partial but certainly significant.
On several occasions whilst the family was living in the garage, the applicant indecently assaulted Sharon. For example, the applicant would grab or touch Sharon's breasts and genitalia. The applicant would repeat this nearly every night. On one occasion, he took Sharon's hand and placed it on his penis, and said to her, "I want to make love to you". On numerous separate occasions, he digitally penetrated her vagina several nights in a row (this assertion appeared in the agreed facts and remarks on sentence, but due to the non-penetrative nature of these offences of which the applicant was convicted, I shall approach the touching as having been just short of penetration).
Turning now to the psychological and mental health of the applicant, the sentencing judge accepted that there was no evidence that the applicant was suffering from any psychiatric condition.
Finally, in the absence of a proper diagnosis, her Honour also placed little weight on the psychologist's observations, as well as the psychologist's comment that the applicant suffered from an untreated major depressive order.

[21]

Determination of Ground 1

I respectfully think that this ground can be resolved concisely.
In the remarks on sentence, her Honour emphasised the profound objective seriousness of each offence. There was no error in that assessment.
Thereafter, the sentencing judge assessed count two as more serious than count one. Bearing in mind that the former featured anal penetration of sufficient force to cause a four-year-old child to bleed, an event that he subsequently graphically recalled, there was no error in that further degree of discrimination.
Nor can it be said that the sentencing judge somehow became confused with the idea of "the worst class of case"; if her Honour had done so, she would have imposed two life sentences.
It is true that her Honour emphasised the grave abuse of trust constituted by a mature man subjecting his four-year-old son to two different forms of sexual intercourse whilst the boy was in isolated circumstances and completely at the mercy of his father. There was no error in that approach either.
As for the "missing factors", force or the threat thereof would hardly be necessary to complete these offences against a four-year-old child. In similar vein, one would hardly expect a child of that age to protest or resist. As for planning, the fact is that the offences occurred on two separate occasions, and detailed planning would hardly be necessary to complete these offences against such a vulnerable victim in any event. It is true that the offences were not said to have been representative of other offending, but that hardly detracts from the objective gravity of each of them. As for the duration of the offences, there was no precise finding of fact made about that; even if the offences may have been relatively short, that does not detract from the assessments of objective seriousness that were made.
The final point to be made about this analysis is that the absence of aggravating features does not of itself demonstrate that the assessments of objective seriousness made here were in any way mistaken.
Because I discern no error whatsoever in the assessments of objective gravity made by her Honour, I would not uphold Ground 1.

[28]

Determination of Ground 3

In answering the question raised by this ground, I shall consider three matters: statistics maintained with regard to the offence in question; judgments of this Court in appeals against sentence relating to that offence; and structural questions about the sentencing of sexual offenders against children. Sentencing statistics
Annexed to this judgment are the statistics maintained by the Judicial Commission of New South Wales with regard to the offence of aggravated sexual intercourse with a child under the age of 10 years (as can be seen, I have extracted only the statistics pertaining to "post-Muldrock" sentences).
It can be seen immediately that the aggregate head sentence and the aggregate non-parole period imposed here are at the very top of the range of sentences actually imposed for this offence between January 2009 and 23 September 2018.
On the one hand, the highly adverse combination of objective and subjective features that pertained here could be said to have rendered that outcome very likely, perhaps inevitable. On the other hand, whenever a sentence asserted to be manifestly excessive can be shown to be at the very top of the range of sentences actually imposed - reflecting as they do the distilled wisdom of many judges, over many years - that gives one pause for thought.
Also thought-provoking is the fact that, despite the unquestionable objective gravity of what the applicant did to his own son, this was not a case in which an individual child was sexually assaulted over many years on many occasions; as I have recounted, the complainant was the subject of two offences, committed on two separate occasions, over the space of about two weeks.
Nor was this a case in which the perpetrator was to be sentenced for sexually assaulting multiple children, whether on one occasion or a number of occasions. Of course, his criminal record for doing just that was a highly relevant subjective factor in the sentencing process. But the simple fact is that the aggregate head sentence was required to reflect the objective criminality of two offences committed against one child.
I accept, of course, that statistics are a very blunt tool in an exercise such as this, and can in no way be determinative. I also accept that the range with regard to the proper exercise of sentencing discretion is not set by what has occurred in the past; it is set by the maximum penalty provided by Parliament. Still and all, I think that the statistics of sentences previously imposed for this offence - both by highly experienced sentencing judges at first instance, and by this Court - provide some support for the proposition that this aggregate sentence may be manifestly excessive. Decisions of NSW CCA
I turn now to a chronological conspectus of decisions of this Court in appeals, brought by both offenders and the Crown, in broadly similar matters. The following are decisions of this Court that are accessible through the statistics maintained by the Judicial Commission, supplemented by judgments to which the parties invited our attention, save for the following.
I do not discuss the decision of this Court in MRW v R [2011] NSWCCA 260, simply because it pertained to a single example of a different offence committed against a much older child and that carried a markedly shorter maximum penalty.
Nor shall I refer to the first instance decisions to which counsel invited our attention, not because of any lack of respect for the experience and learning of those sentencing judges, but simply because a plethora of first instance examples, from which one could argue for or against the proposition of manifest excess, could be analysed.
In Leslie v R [2013] NSWCCA 48, the applicant was sentenced for one count of attempted sexual intercourse with a child under 10 years, and two counts of aggravated sexual intercourse with a child under that age. He had pleaded guilty to all offences before trial, but 18 months after his arrest. Two offences were taken into account on a Form 1: aggravated enter premises with intent, and detain for advantage.
In a nutshell, the applicant, then aged in his early 20s, took an eight year old girl from her home to a nearby house. He threatened her with death if she did not comply with his demands. He attempted to place his penis in her vagina. Thereafter he subjected her to digital/vaginal penetration. He then pulled her head down onto his penis, penetrated her orally, and ejaculated in her mouth. The victim suffered profound physical and psychological injuries.
The applicant had suffered an upbringing that featured physical aggression towards him, his own ordeal of sexual abuse, and abuse of alcohol by adults around him. He himself commenced to abuse alcohol and prohibited drugs at the age of about 11 years.
At the time of the offending, the applicant was on bail and subject to a warrant. He was affected by alcohol and prohibited drugs at the time of the offences, and had no memory of them, although he expressed remorse for what he had done. The applicant also had previous convictions for property offences and serious personal violence offences.
At first instance, a total head sentence of imprisonment for 23 years 6 months with a total non-parole period of 16 years 2 months was imposed.
This Court engaged in a review of sentences previously imposed in broadly similar appeals. Ultimately, McClellan CJ at CL (with whom Latham and Adamson JJ agreed) expressed the view that, but for the youth of the applicant, the first instance sentences did not require correction. Reference was made to the importance of not imposing a crushing sentence upon a person in his early 20s, however, and it was accepted that there should be intervention on the basis of manifest excess.
On resentence, a total head sentence of imprisonment for 19 years was imposed, with a total non-parole period of 13 years.
In MD v R [2015] NSWCCA 37, the applicant pleaded guilty to two counts of aggravated sexual intercourse with a child under the age of 10 years. There was also an indecent assault of a person under the age of 16 years taken into account on a Form 1.
Objectively, the applicant had sexually assaulted his eight-year-old natural daughter whilst she was in the bath. He inserted his penis into her mouth for a few seconds. Thereafter he placed his penis between her buttocks and rubbed it up and down (the indecent assault). Finally, he inserted his penis into her mouth again for a matter of seconds. A victim impact statement spoke powerfully of the effects of the offending upon the victim.
When confronted, the applicant immediately admitted his guilt, and pleaded guilty in the Local Court. The applicant was aged 36 at the time of the offences, and had no prior criminal record.
At first instance, a total head sentence of imprisonment for 10 years 3 months was imposed, with a total non-parole period of 7 years 8 months. The head sentence of the first count was imprisonment for 9 years, and of the second count 9 years 9 months.
On appeal, this Court (constituted by Gleeson JA and Johnson and Hall JJ) accepted that the relationship between the total non-parole period and the total head sentence did not reflect the finding of special circumstances that had been made by the sentencing judge. On re-sentence, this Court effected a marginal reduction to the non-parole period, and imposed an identical total head sentence of 10 years 3 months with a total non-parole period that was reduced by five months to 7 years 3 months.
In the decision of BR v R [2015] NSWCCA 255, the applicant had pleaded guilty in the Local Court to 41 offences, of which 16 were placed on a Form 1, and 25 were dealt with substantively.
Over a period of seven months, the applicant had sexually assaulted five victims aged between 5 and 12 years. The offences included sexual intercourse, and some of them had been recorded by the applicant. After his arrest, he was found to be in the possession of child abuse material.
The applicant was aged 52 years at the time of offending. His only previous offending was an assault occasioning actual bodily harm. At least at one stage, he had blamed the victims for the commission of the offences.
A 25% discount was applied to the starting point of all indicative offences. Special circumstances were found, but they led to a reduction that was very small.
In the event, an aggregate head sentence of imprisonment for 23 years was imposed at first instance, with an aggregate non-parole period of 17 years. The longest indicative head sentence (a count of sexual intercourse with a child under 10 years under authority, and to which the Form 1 was "attached") was imprisonment for 20 years (in accordance with the discount of 25%, its starting point must have been 27 years).
Simpson J (as her Honour was then) rejected the proposition that the aggregate sentence was manifestly excessive. Bathurst CJ and RA Hulme J agreed with Simpson J.
In Bravo v R [2015] NSWCCA 302, the applicant sexually assaulted his stepdaughter over a period of two years, when she was 9 to 11 years of age. He was found guilty of 11 offences at the conclusion of a trial by jury, some of which featured sexual intercourse, and the most serious of which was penile/anal intercourse with ejaculation.
In all, he was sentenced for five counts of aggravated indecent assault, and six counts of aggravated sexual intercourse with a child aged under 10. The victim had come to regard the offences as "almost normal".
At all stages, the applicant refused to accept his guilt. He had the benefit of prior good character.
At first instance, an aggregate head sentence of imprisonment for 22 years with an aggregate non-parole period of 16 years was imposed. The longest indicative sentence was imprisonment for 20 years, which was provided for the offence described by me above.
On appeal, more than one error was conceded by the Crown. On resentence, however, RA Hulme J (with whom Beazley P and Johnson J agreed) came to the view that no lesser sentence was warranted in law.
In R v Scavera [2016] NSWCCA 145, the respondent to a Crown appeal had pleaded guilty in the Local Court to one count of possession of child abuse material, one count of aggravated indecent assault upon a person under 16, and two counts of aggravated sexual intercourse with a person under the age of 10.
In a nutshell, the respondent had been babysitting a six-year-old boy who suffered from autism spectrum disorder, and who was "a particularly vulnerable individual". The respondent indecently assaulted him, performed oral sex on him, and subjected him to digital penetration of his anus. The respondent had also made a video of his offending.
He subsequently admitted what he had done, and received a 25% discount for the utilitarian benefit of his early pleas.
The respondent had been subjected to an upbringing that was described as dysfunctional but not unusual. A noteworthy subjective factor was that the respondent had been previously convicted of indecent assault of a person under the age of 10, and had been sentenced to probation as a result.
At first instance, a total head sentence of imprisonment for 6 years 6 months with a total non-parole period of 4 years 2 months was imposed (clearly, special circumstances were found).
As a result of the successful Crown appeal, a total head sentence of imprisonment for 10 years with a total non-parole period of 7 years was substituted. For the offence that reflected the oral sexual intercourse, this Court imposed a head sentence of 7 years 6 months (of which the starting point before the maintained 25% discount must have been 10 years).
In Franklin v R [2016] NSWCCA 319, the applicant sexually assaulted his niece over a period of eight years, during which time she was aged between 7 and 13 years. The offending included penile/vaginal sexual intercourse with ejaculation. Some of the offences were filmed by the applicant.
In all there were 18 counts, comprising of 9 counts of indecent assault upon a child under 16 years, 1 count of aggravated sexual intercourse with a child under 10 years, 6 counts of aggravated sexual intercourse with a child above 10 years and under 14 years, 1 count of using a child for pornographic purposes, and 1 count of sexual intercourse with a child under 10 years. There were also three offences on a Form 1: an offence of possessing child abuse material and two offences of aggravated filming of a person in private without consent.
The applicant pleaded guilty to all offences in the Local Court, and received a 25% discount as a result. He possessed a minor criminal record. At first he had seemed to blame the victim for what occurred, but had come to accept that it was entirely his fault, and expressed his hatred for himself.
At first instance, an aggregate head sentence of imprisonment for 27 years with an aggregate non-parole period of 18 years was imposed. After more than one error was upheld, on resentence RA Hulme J (with whom MacFarlane JA and Bellew J agreed), imposed a reduced aggregate head sentence of imprisonment for 24 years, but with an unchanged aggregate non-parole period of 18 years.
Finally, in ZA v R, the applicant pleaded guilty in the Local Court to sexual offences committed against his own daughter over a period of 18 months, during which time she was 8 to 9 years of age. There were 10 counts, seven of which featured sexual intercourse in various forms in circumstances of aggravation constituted by the victim being under the authority of the applicant.
The applicant possessed a criminal record that disentitled him to leniency. He was in his late 30s when the offending occurred.
At first instance, an aggregate head sentence of imprisonment for 26 years with an aggregate non-parole period of 18 years was imposed. The longest indicative head sentence was imprisonment for 15 years, provided for an offence of penile/anal sexual intercourse with the victim when she was nine years of age (in light of the 25% utilitarian discount, its starting point must have been 20 years).
On appeal, the propositions that the principle of totality had been wrongly applied, and that the sentence imposed was manifestly excessive, were rejected.
What can one glean from that necessarily superficial summary? I think that one can say that, at the least, the aggregate sentence imposed, bearing in mind that two offences had been committed on two occasions against a single victim, was a very stern one, when compared to sentences countenanced as not demonstrating error, or imposed on resentence, by this Court. And I think one can go further: the conspectus of judgments of this Court in broadly similar matters over the past decade or so suggests to me that this aggregate sentence may well be manifestly excessive; I refer in particular to the outcomes in R v Scavera and Franklin v R. Coherence in sentencing
The third and final aspect of my determination is a structural one. In my opinion, the aggregate sentence imposed here, if correct, raises the question of whether there is any "room left" for the commensurate imposition of sentence upon an offender who possesses the adverse subjective case of this applicant, but who is to be sentenced for multiple offences committed against multiple children. Is such a person to be subject to an aggregate head sentence of 40, 50 or 60 years?
One response to my rhetorical question could be that the maximum penalty of the offence under consideration is imprisonment for life without possibility of parole, and in appropriate cases that is the sentence that should be imposed. But I think that that approach would be a significant alteration to sentencing practice in this State with regard to any offence, other than a murder of the utmost seriousness. To express that proposition another way: I do not believe that longstanding sentencing practice in this State can or should be putatively altered simply to permit this aggregate sentence comfortably to "fit in".
In short, I think that structural considerations about sentencing in matters that are even more objectively grave than this one, support the proposition that this aggregate sentence is manifestly excessive. Conclusion regarding Ground 3
Sentencing statistics as the reflection of the accumulated wisdom of many judges over many years; decisions of this Court - dealing with allegations of manifest excess or inadequacy, and featuring re-sentence on occasion - that, whilst not authoritative in the strict sense, are undoubtedly very persuasive; and structural concerns about overarching coherence in sentencing for this offence, including with regard to even more objectively grave matters: in my opinion, each of these supports the proposition that the aggregate sentence imposed here goes beyond being what is undoubtedly a very stern sentence. In combination, they argue powerfully in favour of that proposition.
In my respectful opinion, despite the undoubted gravity of the crimes of the applicant, and the very adverse subjective picture, the aggregate sentence imposed by her Honour is manifestly excessive.
I would uphold this ground.

[29]

Resentence

No evidence was placed before us by either party contingent upon the stage of resentence being reached. Nor were we asked, if we came to this stage, to revisit any finding of fact, or evaluative judgment, made by the sentencing judge.
Inevitably, this case calls for the imposition of a very lengthy sentence on re-sentence. To recap: two penetrative sexual assaults, on separate occasions, carrying a maximum penalty of life imprisonment and standard non-parole periods of 15 years, committed by a father against his own son, leading to physical and undoubted psychological harm. The victim little more than a toddler, aged four years. A complete absence of remorse or insight on the part of the applicant. A recalcitrant, deliberate refusal to abide by a regime designed to minimise the chance of this very kind of offending re-occurring. Perhaps most troubling of all, a proven sexual attraction to children, upon which the applicant has been prepared to act, manifested over many years, against many children.
In all those circumstances, and despite the damaged life of the applicant, there is an undoubted necessity to emphasise by way of the sentence to be imposed denunciation, personal deterrence, general deterrence, and protection of the community by way of a measure of incapacitation.
In my opinion, the indicative head sentence for count one (the penile/oral intercourse) should be imprisonment for 14 years, with an indicative non-parole period of 10 years 6 months. The indicative head sentence for count two (the penile/anal intercourse occasioning physical injury) should be imprisonment for 18 years, with an indicative non-parole period of 13 years 6 months.
Finally, there should be a degree of implicit partial concurrence between those indicative head sentences. In my opinion, the aggregate head sentence should be imprisonment for 22 years, with an aggregate non-parole period of 16 years 6 months. For the reasons I have given above with regard to Ground 2, the commencement date adopted by the sentencing judge should be replicated.

Gibbons (a pseudonym) v R

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