GL v R

Berg [2004] NSWCCA 300; [2004] 41 MVR 399 R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 R v Cunningham [2006] NSWCCA 176 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Youkhana [2004] NSWCCA 412 Ragg v R [2022] NSWCCA 150 Regina v Oinonen [1999] NSWCCA 310 RL v R [2015] NSWCCA 106 RO v R [2019] NSWCCA 183 RP v R [2013] NSWCCA 192; (2013) 234 A Crim R 272 Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58 Tomlinson v R [2022] NSWCCA 16 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 Xerri v R [2021] NSWCCA 268; (2021) 292 A Crim R 355 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: GL (Applicant) Regina (Respondent) Representation: Counsel: J Lo Schiavo (Applicant) R Ranken (Respondent)

Solicitors: Cruz, Clowry Law Group Pty Ltd (Applicant) Solicitor for Public Prosecutions (Cth) (Respondent) File Number(s): 2017/95784 Publication restriction: Statutory prohibition on identification of child victim pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A of the Crimes Act 1900 (NSW) Decision under appeal Court or tribunal: New South Wales District Court Jurisdiction: Criminal Date of Decision: 25 October 2019 Before: Priestley DCJ SC File Number(s): 2017/95784

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant appealed against the sentence imposed on him on 25 October 2019 in the District Court. He received a fixed aggregate term of 2½ years' imprisonment for one count of committing an act of indecency towards a child under the age of 10 and two counts of indecent assault of a child under the age of 10 (counts 1-3 respectively - "the state offences"). He received an aggregate term of 6½ years' imprisonment, with a non-parole period of 2½ years, for three counts of committing an act of indecency on a person under the age of 16 while outside Australia (counts 4, 6 and 8), one count of sexual intercourse with a person under the age of 16 while outside Australia (count 5) and submitting to an act of indecency committed by a person under the age of 16 while outside Australia (count 7) (collectively, "the Commonwealth offences"). The sentence for the Commonwealth offences was set to commence at the expiry of the sentence for the state offences. He pleaded guilty and a 20% discount was applied to the total sentence. The total effective sentence was 9 years with a non-parole period of 5 years. The applicant advanced seven grounds of appeal. First, the applicant submitted that the sentencing Judge erred in deciding that the conduct the subject of count 4 was an aggravating factor because of the innocent origins and opportunistic nature of the activity giving rise to the offence (ground 1). Count 4 involved the applicant groping the victim's genitals while carrying him "like an aeroplane". Second, the applicant submitted that the sentencing Judge erred in considering the applicant's failure to confess to police in 2012 reflected a lack of remorse or insight (ground 2). Third, the applicant submitted that the sentencing Judge erred in finding that the offending involved calculated premeditation (ground 3). Fourth, the applicant submitted that the sentencing Judge erred in assessing the objective seriousness of count 3 as being "well into the midrange" by giving unwarranted weight to the impact on the victim (ground 4). Count 3 involved the applicant showering naked with the child and fondling his genitals. Fifth, the applicant submitted that the sentencing Judge erred in finding that wholly concurrent sentences were not appropriate for what was asserted to be three discrete periods of offending. The applicant submitted that the sentencing Judge incorrectly (i) found that the offending was "ongoing over a four-year period" and (ii) ruled out the possibility that each count occurred relatively closer in time, on the basis that the indictment did not include specific date and instead included ranges of dates (ground 5). Counts 2 and 3 occurred when the applicant and the victim's family were visiting the applicant's parents' home, between 10 July and 7 August 2007. Each of the Commonwealth offences occurred in the United States, when the applicant went to visit the victim's family, between 18 December 2009 and 18 February 2010. Sixth, the applicant submitted that the sentencing Judge erred in reducing the discount applied for the applicant's guilty plea from 25% to 20% by taking into account irrelevant considerations beyond the applicant's control, being the prosecution's withdrawal of the most serious charge (ground 6). Seventh, the applicant submitted that, in respect of counts 2 and 3, the sentencing Judge erroneously took into account a standard non-parole period which was not applicable to those offences (ground 7). Counts 2 and 3 were offences contrary to s 61M of the Crimes Act 1900 (NSW). At the time of those offences in 2007, the standard non-parole period ("SNPP") was 5 years pursuant to the Table to Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA"). The SNPP was increased to 8 years on 1 January 2008 with retrospective effect, pursuant to Schedule 1, clause [16] of the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) ("2007 Amendment Act"). Prior to the applicant's plea and sentencing hearing, s 25AA(2) of the CSPA came into effect on 1 December 2018 pursuant to the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), which in its terms requires the SNPP "for a child sexual offence" to be the SNPP "(if any) that applied at the time of the offence, not at the time of sentencing". At the same time, clause 91 of the transitional provisions of the CSPA (Schedule 2) was introduced which provided that the Table to Part 4, Division 1A of the CSPA, as in force prior to the 2018 amendment continued to apply in respect of offences against s 61M(1)-(2) of the Crimes Act which were committed before the 2018 amendment. The Court held, dismissing the appeal (per Hamill J, Brereton JA and Garling J agreeing): As to ground 1 (1) The sentencing Judge's description of the offending was accurate. The means by which the applicant breached the victim's trust was not considered as an aggravating feature, but was a matter that informed the objective seriousness of the offending: [39]-[40] (Hamill J); [1] (Brereton JA); [3] (Garling J). As to ground 2 (2) The sentencing Judge's consideration of the applicant's comments to police in 2012 did not involve taking into account a failure to confess as an aggravating factor. The factual findings made by the sentencing Judge in relation to remorse and insight were open on the evidence: [46]-[49] (Hamill J); [1] (Brereton JA); [3] (Garling J). As to ground 3 (3) There was a substantial body of evidence proving a history of the applicant grooming the victim. That evidence was sufficient to allow the sentencing Judge to make a finding that the offending conduct was not spontaneous and was premeditated to some degree: [53]-[57] (Hamill J); [1] (Brereton JA); [3] (Garling J). As to ground 4 (4) Reading the sentencing judgment as a whole, the sentencing Judge did not find that the harm to the victim was extraordinary or beyond what would ordinarily result from these types of offences. The use of the word "devastating" was apt to describe the ordinary impacts of this type of offending and does not, by itself, establish error in the assessment of objective seriousness: [63]-[69] (Hamill J); [1] (Brereton JA); [3] (Garling J). R v Youkhana [2004] NSWCCA 412 applied. R v Berg [2004] NSWCCA 300; (2004) 41 MVR 399, Doolan v R [2006] NSWCCA 29; (2006) 160 A Crim R 54, R v Cunningham [2006] NSWCCA 176, RP v R [2013] NSWCCA 192; (2013) 234 A Crim R 272 and RL v R [2015] NSWCCA 10 considered. As to ground 5 (5) Having regard to the circumstances of the applicant's offending, none of the indicative sentences sufficiently encompassed the criminality of the other charges. The principle of totality was applied in a way that was consistent with authority and the sentencing Judge's discretion: [76]-[86] (Hamill J); [1] (Brereton JA); [3] (Garling J). Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41, Greenyer v R [2016] NSWCCA 272, Lee v R [2020] NSWCCA 244, Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 and Martin v R [2014] NSWCCA 124 considered. As to ground 6 (6) No evidence was placed before the appeal Court to explain the plea negotiations between the parties, the timing of the prosecution's withdrawal of the most serious charge or if and when the applicant first indicated his willingness to plead. Objectively, the plea was entered late and a discount of 20% for the plea of guilty was within the Judge's discretion: [91]-[96] (Hamill J); [1] (Brereton JA); [3] (Garling J). R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, Regina v Oinonen [1999] NSWCCA 310, R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 considered. As to ground 7 (7)(i) Section 25AA of the CSPA requires the application of sentencing practices and patterns at the time of sentencing but also requires the applicable SNPP to be that which existed at the time of the offending and preserves the operation of s 19 of the CSPA, which restricts the retrospective operation of increases in maximum penalties. On the other hand, cl 91 of Sch 2 of the CSPA preserves the SNPP for offences under s 61M of the Crimes Act, although s 61M has been repealed and reformulated (now s 61KD). It is more appropriate to apply the clear words of s 25AA of the CSPA, rather than a clause of the transitional provisions. In the absence of clear statutory language, the construction of penal statutes should favour the liberty of the subject. Further, given the two amending Acts lead to different conclusions and s 25AA of the CSPA was enacted later in time, s 25AA should prevail. Therefore, the SNPP for the offences charged as counts 2 and 3 was 5 years, and not 8 years as the sentencing Judge determined. This was a material error that had the capacity to affect the sentencing outcome. Having been raised during oral submissions on appeal, leave to add ground 7 was granted and the ground was upheld: [97]-[112] (Hamill J); [4]-[7] (Garling J). Section 25AA(2) contemplates only two distinct phrases, "at the time of sentencing" and "at the time of the offence". While schedule 1, clause [16] of the 2007 Amendment Act had retrospective effect, it did not amend the legislation which existed at the time of the offence [5]-[6] (Garling J). GSH v R; R v GSH [2009] NSWCCA 214, Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55, Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58, Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18, Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251; (2017) 270 A Crim R 33 applied. Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497, R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129, Xerri v R [2021] NSWCCA 268; (2021) 292 A Crim R 355, Tomlinson v R [2022] NSWCCA 16, Nguyen v R [2019] NSWCCA 131, Ragg v R [2022] NSWCCA 150 considered. (7)(ii) Parliament should not be considered to have intended to repeal the retrospective application of the 8-year SNPP for offences committed under s 61M of the Crimes Act before 2008 and reinstate the 5-year standard non-parole period which applied before the CSPA came into effect. Clause 91 has that purpose, and on that view, ground 7 would fail but given that no lesser sentence was warranted than that imposed by the sentencing Judge, it is not necessary to resolve that issue: [1] (Brereton JA). As to re-sentencing (8) The application of the incorrect SNPP by the sentencing Judge does not necessarily mean the appeal should be allowed. The Court must exercise the sentencing discretion afresh. When doing so, the Court assessed the offending as warranting a total effective sentence at least as severe as that imposed by the sentencing Judge. A less severe sentence was not warranted and accordingly the appeal was dismissed: [113]-[124] (Hamill J); [1] (Brereton JA); [8] (Garling J). Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, Davis v R [2015] NSWCCA 90, RO v R [2019] NSWCCA 183 applied. LN v R [2020] NSWCCA 131, Ragg v R [2022] NSWCCA 150 considered.

Judgment

1. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Hamill J. I agree that each of grounds 1 to 6 fail, for the reasons given by his Honour. As to Ground 7, I am inclined to think that Parliament should not be considered to have intended by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 ("the 2018 Amendment Act") to repeal the retrospective application of the 8-year standard non-parole period to offences under s 61M committed before 2008 and reinstate the 5-year SNPP which applied before the commencement of the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) on 1 January 2008, [1] and that clause 91 of the transitional provisions (Schedule 2) of the Crimes (Sentencing Procedure) Act, introduced by the 2018 Amendment Act had that purpose and effect. If that view be correct, Ground 7 also would fail. However, as I entirely agree with his Honour that in any event no lesser sentence was warranted than that imposed by the sentencing judge, and that the appeal should be dismissed on that basis, it is unnecessary that I finally resolve this issue. In those circumstances, it is also unnecessary to resolve in this case the reservations I have elsewhere expressed as to the availability of an aggregate sentence for Commonwealth offences, such as the sentencing judge imposed in this case. [2]
2. I agree with the orders proposed by Hamill J.
3. GARLING J: I agree with the orders proposed by Hamill J and with his reasons.
4. On the difficult question of statutory interpretation, I have concluded that the proper interpretation to be given to s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) is that which Hamill J sets out.
5. For me it is clear, that the Parliament intentionally tempered the significant change made by that provision to the principles by which sentences for historic sexual offences were imposed, by, in s 25AA(2), excluding from the change to current sentencing practices, the standard non-parole periods which existed at the time of the offence. Section 25AA uses two distinct and different phrases: "at the time of sentencing" and "at the time of the offence" each of which refer to a particular point in time.
6. There is no reason to interpret s 25AA(2) as identifying the standard non-parole period which was brought into existence at a later time even if the later amending provision had retrospective effect. That later amending provision, changing the standard non-parole period to eight years, had a retrospective effect but it did not amend the legislation which existed at the time of the offence. Rather it was a later amendment, which could only be applied after its introduction. But it could be applied, retrospectively, to offences committed before it took effect.

The background and facts of the offending

1. The victim of the offences was the applicant's nephew. The agreed facts included a history of visits between the parties when the victim's family lived in various locations overseas. The history included several incidents of a sexualised nature which were not charged but were included to place the charged offending in context. The history included instances of kissing, inappropriate touching, cuddling, play "wrestling", showering and filming the child in various states of undress. There were also strange and inappropriate comments of a "romantic" nature directed to the child in the years leading up to the charged offences. This background of "grooming" was documented in letters and captured in home movies made by the applicant over the years. The applicant also showed the victim pornographic videos including some extreme clips in which children were sexually penetrated by adults, and others depicting bestiality and sexual violence directed to children.
2. There were three periods of charged offending. These coincided with times of extended visits between the families when the victim was under the applicant's care. The relevant periods were: 1. Count 1, committed between 9 July 2006 and 6 August 2006, occurred when the victim and his family visited Australia and stayed with the applicant in the Blue Mountains. 2. Counts 2 and 3, committed between about 10 July 2007 and 7 August 2007, were committed when the applicant and the victim's family were visiting the home of the child's grandparents (and the applicant's parents) on the Northern Beaches of Sydney. 3. Counts 4-8, committed between about 18 December 2009 and about 18 February 2010, occurred when the applicant visited the victim's family in the United States.
3. The first three counts were aggravated by the fact that the applicant was in a position of authority in respect of the victim.
4. The counts on the indictment were as follows: Count 1: Commit an act of indecency towards a child under the age of 10 years, namely 7 years, contrary to s 61O of the Crimes Act 1900 (NSW). Count 2: Indecent assault of a child under the age of 10 years, namely 8 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). Count 3: Indecent assault of a child under the age of 10 years, namely 8 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). Count 4: Commit an act of indecency on a person under the age of 16, namely 10 or 11 years, while outside Australia, contrary to s 50BC(1)(a) of the Crimes Act 1914 (Cth). Count 5: Sexual intercourse with a person under the age of 16 years, namely 10 or 11 years, while outside Australia, contrary to s 50BA(1) of the Crimes Act 1914 (Cth). Count 6: Commit an act of indecency in presence of a person under the age of 16, namely 10 or 11 years, while outside Australia, contrary to s 50BC(1)(c) of the Crimes Act 1914 (Cth). Count 7: Submit to an act of indecency committed by a person under the age of 16, namely 10 or 11 years, while outside Australia, contrary to s 50BC(1)(b) of the Crimes Act 1914 (Cth). Count 8: Commit an act of indecency on a person under the age of 16, namely 10 or 11 years, while outside Australia, contrary to s 50BC(1)(a) of the Crimes Act 1914 (Cth).

Application for leave to file out of time

1. The applicant requires leave pursuant to r 3.5(5) of the Supreme Court Criminal Appeal Rules 2021 (NSW). The initial notice of intention to appeal expired in September 2020, having already been the subject of a 3-month extension granted by the Registrar. The present notice of appeal was filed 12 months later in September 2021.
2. The applicant relied on a document styled "Annexure B to Notice of Appeal - Application for Leave to File a Notice of Appeal After Expiry of the Filing Period". This detailed some Covid-19 and other issues said to explain or justify the delay. The respondent argued that the applicant's solicitors continually neglected opportunities to request further extensions of time and that the interests of justice do not favour a grant of leave in all the circumstances. [4]
3. The fate of the application for an extension of time must be considered in the light of the merit of the proposed appeal against the sentence. Accordingly, it is necessary to consider the grounds of appeal raised by the applicant and the questions raised by s 6(3) of the Criminal Appeal Act 1912 (NSW) before determining the application.

Subjective case of the applicant

1. The applicant did not give evidence at the sentencing hearing. Judge Priestley relied on the histories provided to experts engaged for the purposes of sentencing for these offences and the offences prosecuted in 2012. There were some inconsistencies in those histories which were contained in the reports of Dr O'Dea dated 12 September 2012 and Mr Luke Brabant dated 18 June 2019. Mr Brabant was cross-examined by the Prosecutor.
2. The applicant's criminal history was limited to the 2012 offences which included possession of child pornography and an offence of committing an act of indecency upon the same child. The applicant served 12 months in custody for those offences and was released to parole on 27 October 2013. He had committed no offences since his release.
3. The applicant was 55 years old at the time of sentence. He described close family relationships in his formative years and a "safe" and "secure" upbringing on Sydney's Northern Beaches. He reported some incidents of bullying in his school years and a sexual assault by a stranger when he was 15 years old, [5] although the latter had not been previously disclosed in earlier psychological assessments. [6] He said he had some other negative experiences as he attempted to cope with the demands of tertiary education. He took up various types of employment before completing his qualifications and embarking on a career as a music teacher in his thirties. He reported an incident of violence perpetrated on him by a student which resulted in some post traumatic style symptoms. Issues at a later workplace, a music conservatorium, led to the applicant working odd jobs for a year before returning to live with his parents in 2010.
4. The applicant acknowledged long-standing homosexual paedophilic urges and the use of pornography to satisfy those urges. He indicated he had sought psychological intervention for his deviant sexual interests and anxiety problems during his twenties with limited success. He reported more successful therapeutic results prior to the sentencing for 2012 offences.

Judgment or remarks on sentence

1. The sentencing Judge held that the offending was "considered" and was part of a "sustained pattern" of offending. [7] His Honour had regard to the family context in which the offending occurred and took the view that this supported the imposition of a significant sentence. [8] General deterrence, denunciation and punishment were prominent considerations. [9] His Honour did not accept the opinion of the psychologist that the applicant demonstrated "sound insight" into his offending behaviours. [10] The sentencing Judge noted that there was "[no] persuasive, if any, evidence of remorse." [11]
2. In terms of his assessment of the objective seriousness of the offending of the individual offences, the sentencing Judge found that:

• Count 1 was "comfortably within" the mid-range of objective seriousness for such offences.
• Count 2 fell below the mid-range.
• Count 3 was "well into" the mid-range.
• Count 4 "between low and midrange".
• Count 5 fell in the "low mid-range", and
• Counts 6, 7 and 8 fell in the mid-range. [12]

1. His Honour considered the question of whether there were "special circumstances" for the purposes of sentencing for the state offences. [13] However, because of the structure of the sentence - whereby the Commonwealth sentences were accumulated on those imposed for the state offences - there was no non-parole period set for the state offences. His Honour said he fixed the non-parole period by reference to relevant factors such as the prospect of some additional difficulties in prison given the nature of the offending, some self-reported social deficits, his ageing father for whom he had been the sole carer prior to entering custody and the applicant's need for an extended period of treatment on parole. [14]
2. Judge Priestley found the absence of offending since 2012 to be promising and lent some support to the applicant's claims that he had rehabilitated in terms of his impulse control. These factors grounded an assessment that the applicant's risk of reoffending was minimal. [15] However, his Honour took the view that the lack of reoffending did not outweigh the other purposes of sentencing and that a significant sentence was warranted.

Ground 1: His Honour erred in considering the conduct the subject of count 4 as an aggravating factor

1. Count 4 encompassed behaviour that occurred regularly throughout the relevant period. It involved the applicant picking up the child and pretending to "carr[y] him around like an aeroplane" while holding his crotch. [16] One incident of this nature was captured on video and was the subject of count 4. The applicant submits that the following remarks reveal error which infected his Honour's evaluation of the objective seriousness of this offence: "The facts are, the offender regularly picked the victim up and carried him around like an aeroplane, in the course of which he placed his hand in the victim's crotch, holding his penis. There is no suggestion of this offence being skin on skin. Ordinarily, it is the type of conduct that would be considered possibly no more than below midrange. What is offensive about this behaviour is that since time immemorial, adults have picked up children and carried them around like an aeroplane. It is good fun, most usually causing children to shriek and get excited and enjoy themselves, although it is not immune from the occasional disastrous frightened response. The point is this offender has taken advantage of that, and so far as the victim is concerned, has taken what could have been a normal and healthy child activity and turned it into one of sexual indecency. I consider the objective seriousness of this offence to be on the borderline between low and midrange." [17]
2. Judge Priestley nominated an indicative sentence of 18 months for count 4, noting "the complete betrayal of what should have been innocent fun". [18]
3. The applicant's written submissions argued that the innocent origins of the activity were used as a circumstance of aggravation for the offence. [19] A secondary point made on oral hearing of the appeal was that the conduct was opportunistic and the fact that the activity had "gone obviously in a way it shouldn't have" should not be an aggravating feature. [20]
4. The respondent submitted that the findings as to the nature and offensiveness of the conduct were open to the Judge and appropriately informed the determination of objective seriousness for this offence. The respondent did not concede that the Judge explicitly or implicitly held that this aspect of the facts was used as an aggravating feature of the offending and even if it did, no error of principle was established. The respondent also relied upon the Court's hesitation to "set aside the judgment made by a first instance judge exercising a broadly based discretion". [21] The respondent also challenged the applicant's secondary point, noting the applicant had set up a video camera immediately prior to the incident which indicated some planning. [22]

Conclusions as to ground 1.

1. There is no substance to ground 1. The Judge's description of the offending, whilst discursive and somewhat anecdotal, was accurate and did not purport to elevate the criminality by using the means by which the applicant breached his nephew's trust as an aggravating feature of the offence. The breach of trust was clearly a matter that informed the objective seriousness and his Honour recognised this in assessing the gravity of the offending. The fact that similar activity happened on other occasions goes a long way to defeat the submission that the groping of the child during the aeroplane game was somehow spontaneous.
2. I would reject ground 1.

Ground 2: His Honour erred when he considered the applicant's failure to confess to police on 7 February 2012 as a lack of remorse or insight

1. The applicant submitted under his second ground of appeal that the sentencing Judge's erroneous reference to false statements made by the applicant during "an interview" on 7 February 2012, which were in fact made during the execution of a search warrant, indicated that irrelevant considerations were taken into account in assessing the applicant's level of remorse.
2. The comments made by the applicant to police on that occasion are set out at [73] of the agreed facts on sentence, and those relevant under this ground were as follows: "h. In relation to the Victim's pants being pulled down, he stated, 'It's just "dakking". It, it was just fun. I didn't, it wasn't an intentional thing at [the] time. It was just like a fun, we were just doing, you know, laughing and it wasn't my intention to do anything more than that. I just, it was just funny, that's all.' i. In relation to why it [a video of the applicant and victim 'wrestling'] was located in the briefcase with the other [child pornographic] material, he stated, 'I don't know why it's still on there. It must've been on here originally and I've just ran out of USBs or something [and] it was personal too…' j. He had never had sex, or done any sexual things with the Victim. k. When they wrestled there was close body contact but it was never sexual."
3. Judge Priestley addressed these comments in his sentencing judgment as follows: "In an interview given on 7 February 2012, the offender described the videos showing him pulling the child's pants down as just 'dacking', and explained them away as just being fun, and not an intentional act. He described the video as a family thing, and that he, 'Maybe' stored it by accident. He also said he never had sex nor had done any sexual things with the victim. All of this, of course, is patently untrue, and the expected claims of remorse now being expressed need to be viewed with this history." [23]
4. The applicant submitted on the hearing of the appeal that comments displaying a lack of insight or remorse in February 2012 had limited relevance or significance to an assessment of the applicant's remorse in 2019 for a separate set of offences. [24]
5. The respondent submitted that the passages relied upon by the applicant "do not involve a finding of the kind now complained of." [25] The respondent contended the applicant's previous comments, no matter the circumstances in which they were made, were relevant in assessing his more recent comments to a psychologist and the finding as to the applicant's limited insight were open on the available evidence.

Is error disclosed in the assessment of the applicant's remorse?

1. The applicant's construction of the passage in relation to which complaint is made is not correct. While the applicant sought to contend that the treatment of the comments unduly aggravated the sentence, the applicant could not identify where or how this was done. [26] In reality, and reading the judgment as a whole, there was no aggravation of the sentence based on the applicant's "failure to confess" and the earlier obfuscation had some relevance to an assessment of the applicant's asserted contrition. The remarks merely placed in context the applicant's more recent expressions of remorse by reference to demonstrably untrue statements he made in 2012 regarding the nature of his relationship with the same child. As the respondent correctly pointed out, the evidence of the applicant's remorse came in the form of the plea of guilty and his responses to a psychologist when the applicant said he pleaded guilty so as not to put the family through a trial. [27]
2. Whilst avoiding the need for victims and witnesses to give evidence is relevant to a consideration of remorse, [28] a guilty plea can sometimes be "equivocal" in terms of remorse. This was made clear by Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309: "…the plea is, of itself, equivocal with respect to remorse. A plea may be entered as an acceptance of the inevitable or in order to obtain such advantage as may be afforded in the circumstances. In such a case a plea does not indicate genuine remorse or contrition. Indeed, even a plea of not guilty to a particular offence may be consistent with genuine remorse as to the effect of the offender's particular conduct, acknowledged to constitute a lesser offence, with respect to which the accused is not, or not then, charged. The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for contrition, not for the plea of guilty. The plea in such a case is, at most, evidence of remorse or contrition and, often, not the best such evidence". [29]
3. The sentencing Judge had regard to the applicant's lack of offending since 2012, and found that his engagement in targeted treatment before and after his release for those offences demonstrated some insight, [30] before concluding that that the case establishing genuine remorse was unpersuasive. While his Honour could have taken a more generous approach to the issue, the finding was one of fact and not one with which this Court will interfere lightly. The factual findings as to the applicant's remorse, and the significance of the applicant's earlier statements minimising the sexual nature of his relationship with the victim, were matters for the sentencing Judge to evaluate. His Honour's factual findings were open on the evidence.

Ground 3: His Honour erred in finding that the offending was to be characterised as "calculated premeditation"

1. In respect of all of the counts, the sentencing Judge said: "The nature of his offending and the repeated taking advantage of the child showed not only premeditation, but calculated premeditation." [31]
2. The applicant submitted under ground 3 that the finding of premeditation was not available or open on the evidence. He argued that the offending is correctly characterized as opportunistic, as all incidents occurred during family visits and windows of opportunity which were not planned by the applicant or arranged for nefarious purposes. In support of these submissions the applicant pointed to Judge Priestley's other remarks where his Honour said he had "no confidence that if the same opportunity presented itself to the offender, further offending would not occur". [32] The applicant contended this is contradictory to a finding that the offending displayed "calculated premeditation".
3. The respondent relied upon the steps taken by the applicant to conceal the offending and "the fact they represented a sustained course of conduct" over a long period of time and the evidence of grooming as properly grounding his Honour's finding of calculated premeditation. [33]

Was it open to the sentencing Judge to find the applicant acted with calculated premeditation?

1. The respondent's submissions must be accepted. The impugned finding was based on a substantial body of evidence, none of which was disputed, that proved the history of the applicant grooming the child. The agreed facts showed that the applicant engaged in various activities including filming the victim, creating innocuous code words for sexual activity, bribes of lollies offered to entice the child into engaging in sexual acts and correspondence sent to the victim which included declarations of love and statements like "soon we will be together again." [34] The applicant also admonished the victim not to disclose the abuse.
2. This history of grooming and sexualised behaviour was sufficient to allow the sentencing Judge to conclude that the conduct was not spontaneous but involved a degree of premeditation. There was also evidence in the agreed facts indicating that the applicant showed pornography to the victim on many occasions and made statements calculated to normalise the conduct depicted in the videos. He said things like "this is what normal people do" and "take things from it and learn". [35] These factual allegations were inconsistent with a finding that the charged acts were committed spontaneously or opportunistically.
3. Additionally, the applicant's argument creates a false and unrealistic dichotomy between the opportunism inherent in the individual offences and the premeditation demonstrated by the course of conduct. The finding that his Honour could not be satisfied the applicant would not seize the same opportunity if it arose in the future cannot sensibly be read as a finding that the offending was entirely opportunistic.
4. As with the assertions made under ground 2, the question for this Court is whether Judge Priestley's characterisation of the offences was open on the evidence. [36] Plainly, it was.
5. I would also reject this ground of appeal.

Ground 4: His Honour erred in assessing the objective seriousness for count 3 as "well into the midrange"

1. Count 3 was an incident where the applicant fondled the eight-year-old child's penis in the shower while masturbating himself. The applicant made comments about the nature of the love between them "greater than anyone [could] understand" and that the victim was making him "feel really good". [37]
2. The applicant argued the following passage of the judgment revealed error: "There is no physical violence being used here, but that does not lessen the psychological impact that such conduct is likely to have, and which has become increasingly recognised to have. This behaviour strikes me as manipulative in the extreme, and quite debased in the distortion it brings to what should be a loving and caring relationship. The great sense of betrayal that one might expect here was reflected in the victim impact statement that was read by the victim in Court. I would assess the objective seriousness of this offence as well into the midrange." [38]
3. The applicant's complaint under this ground appears to be that the impact on the victim was implicitly used as a "circumstance of aggravation" and that this was improper given the impacts were not beyond that which would ordinarily result from such an offence. [39] Pressed to identify where in the judgment the sentencing Judge gave unwarranted weight to the impact on the victim, the applicant identified a passage later in the sentencing remarks: "There also needs to be taken into account the heinous nature of the offending, the devastating effect it has had on the victim, and the unpersuasive subjective case of the offender in various respects, particularly in relation to matters of remorse and insight." [40]
4. It was submitted that the use of the adjective "devastating" to describe the impact on the victim suggests that the Judge took the view that the impact on the victim was given "greater weight than that presumed", [41] and that his Honour (erroneously) approached the exercise on the basis that s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was engaged.
5. The respondent again submitted that findings as to objective seriousness remain "classically within the role of the sentencing judge" [42] and that, in this particular case, the impugned remark regarding the psychological impact was made to qualify the earlier comment regarding the significance of the absence of violence in the course of the offending. [43]

Did the sentencing Judge err in his approach to the impact of the offence on the victim?

1. In my assessment, this is the first of the applicant's grounds of appeal that has any real substance. The language employed by his Honour was strong and capable of different interpretations.
2. The correct approach to the application of the aggravating feature in s 21A(2)(g) was explained by Hidden J in R v Youkhana [2004] NSWCCA 412 at [26]: "However, before a judge could find 'substantial emotional harm' within the meaning of s21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery. There was no such evidence here."
3. Reading the sentencing judgment as a whole, I am unable to conclude that Judge Priestley found the harm to the victim in this case to be extraordinary or beyond that which would ordinarily result from such serious offending. The sentencing exercise was complicated and difficult, and I would not presume that his Honour took the impact on the victim into account as an aggravating feature under s 21A(2)(g). His Honour was required to take the impact on the victim into account as part of the complex factual matrix established on the evidence. The victim provided a detailed victim impact statement and this was given appropriate weight in determining the objective seriousness of count 3.
4. Contrary to the arguments advanced by the applicant, Judge Priestley said: "There is no physical violence being used here, but that does not lessen the psychological impact that such conduct is likely to have, and which has become increasingly recognised to have. This behaviour strikes me as manipulative in the extreme, and quite debased in the distortion it brings to what should be a loving a caring relationship. The great sense of betrayal that one might expect here was reflected in the contents of the victim impact statement that was read by the victim in Court". [44] (My emphasis.)
5. A description such as "devastating" is apt to describe the ordinary impacts of offending of this nature and the use of such strong language does not, by itself, establish that the Judge fell into the kind of error discussed by this court in cases such as R v Berg [2004] NSWCCA 300; (2004) 41 MVR 399, Doolan v R [2006] NSWCCA 29; (2006) 160 A Crim R 54, R v Cunningham [2006] NSWCCA 176, RP v R [2013] NSWCCA 192; (2013) 234 A Crim R 272 and RL v R [2015] NSWCCA 106.

Ground 5: His Honour erred in his reasons for finding that wholly concurrent sentences were not appropriate for the three discrete periods of offending

1. In written submissions in support of ground 5, the applicant argued: "The sentences for each of the counts in the three distinct periods should be wholly concurrent. [a]. 1, 2 and 3 [b]. 4, 6, 7 and 8 [c]. 5" [45]
2. The applicant withdrew count 1 from the consideration of this ground at the hearing of the appeal. It was accepted that it occurred at a different time and place to counts 2 and 3 and that some (notional) accumulation was justified.
3. Judge Priestley rejected the suggestion that the sentences imposed for the counts which occurred in the same time period should be wholly concurrent, finding that the sentence for one could not "reflect the total criminality of the other offences". He then said: "It is a pattern of offending, it is not a case of [one] evening there was a cut arm, followed five minutes later by playing aeroplanes, followed by a shower. Further, why should the events occurring over a four-year period be broken down into three brief periods. The unpalatable fact for the offender is that this offending was ongoing over a four-year period. The sentences should reflect that." [46]
4. The applicant challenged two factual aspects of this passage of the sentencing judgment. The first challenge was to the finding that the offending was "ongoing over a four-year period" and the second was that the Judge improperly ruled out the possibility that each count could have occurred closer in time to the other. The applicant complains such an approach cannot be supported in the context of an indictment which did not include specific dates for the different charged acts, but was based on a range of dates reflecting the "windows of opportunity" (family visits) in which they occurred.
5. The respondent accepted that counts 6 and 7 occurred during the same incident, but otherwise submitted all the counts were separate episodes of offending and accordingly wholly concurrent sentences were not appropriate.
6. While the prosecution could not particularise specific dates for the individual offending, the agreed facts indicated that counts 2 and 3 arose from different occasions within the same holiday period. The facts also established that count 4 occurred outdoors (as depicted in the video), which distinguished it in time and place from counts 6 and 7 which occurred sequentially "on an afternoon after school during this period" [47] in the child's bedroom.

The indicative sentences and adjustments for totality

1. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour indicated the following sentences for each of the New South Wales offences: "Count 1 The indicative sentence is two years. I note the extreme nature of the pornography. Count 2 The indicative sentence is one and a half years, and I note the feature here was the repeated open mouth kissing and long hugs. Count 3 The indicative sentence is two and a half years, using a brief summary of the victim as a plaything and the emotive talk. I want to make two things clear; the comments I am making after indicating the sentence is just to refresh the reader's memory as to what the offence was, and I note there that the total of the indicative sentences for the New South Wales offences is six years, and I will determine the aggregate sentence and take account of the discount shortly." [48]
2. Judge Priestley then imposed an aggregate sentence (fixed term) for the state offences: "In respect of the New South Wales Act counts, I will impose an aggregate sentence as permitted by s 53A of the Crimes (Sentencing Procedure) Act. The total of sentence of those three sentences is six years, and allowing for the 20% discount for the guilty plea and rounding it down, gives a term of four years, nine months. Taking into account that two of these offences occurred in the same period, and further taking into account principles of totality and proportionality, I will impose a sentence of four years, but to be further varied by way of implementation, and not in effect due to the considerations discussed below. … The interplay between the New South Wales Act offences and the CCA ["Commonwealth Crimes Act"] offences, specifically, the need to impose separate sentences, gives rise to complexities in implementing a non-parole period for the New South Wales Act aggregate sentence. Absent those complexities the non-parole period for the New South Wales Act offences would have been set at two and a half years. However, it is not clear on the material before the Court what would occur to the balance of the New South Wales Act term if the offender was entitled to parole in two and a half years, and then commenced his sentence before the CCA offences. The conclusion I have reached is that the overall sentence I have decided to impose can be implemented by utilising s 45 of the Crimes (Sentencing Procedure) Act and impose no non-parole period for the New South Wales Act sentences and set instead a fixed term of two and a half years. This will not lessen the overall sentence, but has the effect of the non-parole period for the CCA offences being longer. It also means, as will be seen from the sentence to be imposed for the CCA offences, that the overall non-parole period remains the same. This fixed term of imprisonment for the New South Wales Act offences shall commence today, 25 October 2019, and expire on 24 April 2022. There shall be no non-parole period, which as just discussed, would have expired on that day." [49]

Questions of concurrency and accumulation

1. There is "no general rule that determines whether sentences ought to be imposed concurrently or consecutively". [53] Sentencing judges are entrusted with a wide discretion in determining degrees of concurrency and accumulation when sentencing for multiple offences. [54] The discretion is constrained by the proper application of the principle of totality. The difficulties for this Court in analysing or disturbing such discretionary judgments are more pronounced in cases involving aggregate sentences where the mathematical analysis is "notional" only. [55]
2. Judge Priestley considered the interplay of the separate statutory regimes and the aggregate sentences imposed for the state and Commonwealth offences. His Honour adjusted the commencement dates and proportion between "head sentences" and non-parole periods in order to give effect to his finding as to the totality of the criminality disclosed. Putting to one side that this was the exercise of a discretionary judgment, there was an appropriate degree of notional concurrency between the counts. This is particularly so bearing in mind the sentences indicated for each count and, apart from counts 6 and 7, the distinct and separate acts of criminality encompassed by the individual charges.
3. It is, with respect, wrong in this case to suggest that the sentence imposed for any of the individual charges was sufficient to encompass the criminality disclosed in the other charges for which the applicant stood to be sentenced.
4. I do not accept the arguments in support of ground 5 and would reject that ground of appeal.

Ground 6: His Honour erred by drawing inferences as of the nature and seriousness of the charge and whether this might be the reason for the late guilty plea

1. Under ground 6, the applicant argued that the 20% discount applied for the applicant's guilty plea was improperly reduced from the full discount available (25%), based on irrelevant considerations beyond the applicant's control, namely the timing of the prosecution's withdrawal of the most serious charge. The following reproduces the entirety of the applicant's written submissions under this ground: "46. His Honour found that there was 'no information before me beyond this' in reference to the fact that the Appellant entered a guilty plea after the Crown withdrew a charge. He then went on to state that the more severe the withdrawn charge, the stronger the argument would be that the Appellant should be afforded the benefit of knowing the totality of what was to be charged with before entering a plea. On this basis he found that the full discount was not appropriate. 47. The Court has given the Appellant the benefit of a 20% discount for the utilitarian value of the Plea. 48 The circumstances of the Plea and the nature of the withdrawn charge were not before the Court. The Court erred in not applying the full 25% discount." (Emphasis and capitalisation in original. Citation omitted.)
2. In terms of the guilty plea, his Honour remarked: "Guilty plea The offender was charged with these offences on 29 March 2017. The offender entered his pleas of guilty almost two years later on 25 February 2019. In the interim, the matter had been listed for trial, with that date being vacated on the Crown's application. The matter was still proceeding to trial as of January 2019, and the matter having by then a hearing date of March 2019. The plea was entered after the Crown withdrew a charge. There is no information before me beyond this. On the one hand, I consider there is some merit in an argument that says the accused should only enter his plea when he or she is aware of the totality of the charges against him. On the other, that view is more persuasive the more significant the charge that was withdrawn. Further, authority would appear to be against that first expressed view (see Morton v The Queen [2014] NSWCCA 8). Doing the best I can, and noting that the eight charges now before me were on foot for two years, I do not consider it appropriate to allow the usual 25% discount on the basis of a plea at the earliest opportunity. The plea, however, has some utilitarian value, for it obviates not just the need for the trial, but for the need for the victim and others from America to give evidence. In the circumstances, the discount for a guilty plea should not be the 25% often allowed when the plea is at the earliest opportunity, rather in this case the discount will be 20%." [56]

Legal principles and an evidentiary void

1. The present case was not caught by more recent legislative enactments which provide prescriptive guidance concerning the appropriate "discount" for the utilitarian value of a plea of guilty. [61] In relation to the state offences, the case was governed by the common law, and in particular the guideline judgment on pleas of guilty: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. The situation with the Commonwealth offences was more complicated for the reasons set out in this Court's decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. Those cases do not support the propositions advanced by the applicant. In R v Thomson, Spigelman CJ said: "152. In my opinion, the appropriate range for a discount is from 10-25 percent. 153. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. 154. There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 155. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial."
2. In cases where an offender has made an offer to plead guilty at an early stage, but the entry of the plea is delayed because the Prosecutor declines to accept the offer or where a verdict vindicates the position taken by the offender, it has been held that the offender should not be disadvantaged and should receive the full benefit of their offer to plead guilty to an appropriate charge: see, for example, Regina v Oinonen [1999] NSWCCA 310 and R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535.

Conclusion as to ground 6

1. Based on the evidence before the District Court, a discount of 20% for the plea of guilty was within the Judge's discretion. This ground must also be dismissed.

Ground 7: That his Honour erroneously took into account, in respect of counts 2 and 3, a standard non-parole period that was not applicable to the offences.

1. The seventh ground of appeal was not raised in advance of the hearing of the appeal. During oral submissions, the presiding Judge raised an issue as to the appropriate standard non-parole period ("SNPP") applicable to counts 2 and 3. [63] At that stage, counsel for the applicant sought leave to rely on an additional ground and to file written submissions in support of that ground. Orders were made for the filing of further submissions by both parties.
2. In written submissions before the sentencing Judge, counsel for the applicant indicated that the SNPP for an offence under s 61M(2) (counts 2 and 3) was 8 years. [64] The Prosecutor made a similar submission at the oral hearing in the context of "correcting" an error in a table of comparable cases: "MCDONALD: Yes. The error with the table dealing with the state offences is that standard non-parole period that was applicable, sorry, today, when you're sentencing is actually a standard non-parole period of eight years. Hence, it means that the comparatives that we've put forward really aren't of any assistance. So we've got another table - HIS HONOUR: This is in relation to 61M? MCDONALD: Yes. HIS HONOUR: The standard non-parole period of this offending, it was five years, I believe? MCDONALD: If one looks at the time of the offending, yes. The amending legislation, which introduced the increase in the standard non-parole period to eight years, acted retrospectively. So it applies whatever the time of the offending to any sentences from the time of that amendment." [65]
3. The issue is complicated by various legislative amendments since the introduction of the standard non-parole period for offences under s 61M of the Crimes Act. In the exchange of written submissions after the hearing, the parties disagreed as to the standard non-parole period. Contrary to his submissions at first instance, counsel for the applicant submitted the applicable SNPP was 5 years. The Prosecutor maintained that the SNPP was 8 years. The confusion is understandable considering the history of the applicable legislation and the amendments made over time.
4. Section 61M(2) was introduced into the Crimes Act on 17 March 1991 and carried a maximum penalty of ten years' imprisonment. [66] At that stage there was no SNPP.

Re-sentencing and application of s 6(3) of the Criminal Appeal Act 1912

1. For the foregoing reasons, I would reject the six grounds of appeal raised by the applicant in advance of the hearing. I would grant leave to add the seventh ground and uphold the ground.
2. However, the fact that the sentencing Judge was provided with, and applied, the wrong SNPP does not have the automatic consequence that the appeal should be allowed. The Court must exercise the sentencing discretion afresh and do so without regard to the sentence imposed in the Court below. [79] If the same or a greater sentence would result, the appeal must be dismissed. The Court's power to quash the sentence and pass another sentence will only be exercised if it reaches the opinion that a less severe sentence is warranted.
3. The offending in the present case was extremely serious. It involved a lengthy course of conduct and an egregious breach of trust of both the applicant's nephew and the applicant's own immediate family.
4. Like the sentencing Judge, I do not accept that the offences can be described as opportunistic or spontaneous. That description is contrary to a four-year pattern of abuse that occurred in various locations and was accompanied by inappropriate and ostensibly romantic communications calculated to manipulate the child. This is not to punish the applicant for criminal or sexually inappropriate behaviour that was not charged but to emphasise that the charged offences were far from isolated and to put in context unrealistic submissions made on the applicant's behalf both at first instance and on appeal. This approach is consistent with authority. In Ragg v R, Beech-Jones CJ at CL, by reference to the judgments in the case of LN v R [2020] NSWCCA 131, analysed the way in which such a pattern of offending may be taken into account in sentencing: "38. … The real issue is not so much whether the facts and circumstances of a related offence might be capable of affecting the assessment of the objective seriousness of the subject offence, but how they can affect that assessment. 39. Such facts and circumstances are sometimes considered as part of the context of the offending. Hence, in LN v R [2020] NSWCCA 131 ('LN') at [54] Basten JA observed: 'So long as it is legitimate to view an offence in context, which may include other activities of the offender, it is apparent that context may either render the objective seriousness of the offending greater than would otherwise have appeared or, depending on the extent to which different criteria are involved, may increase the moral culpability of the offender. In either case, the result may be to increase the sentence beyond that which might have been imposed had the surrounding events not been examined. There is no reason in principle to conclude that conduct which may involve criminality should be excluded, whereas conduct not itself criminal could be examined. On any view, conduct adverse to the offender's interests must be established beyond reasonable doubt.' 40. In LN, Basten JA, concluded that it was not erroneous to assess the objective seriousness of the murder of a child by making reference to a series of uncharged assaults on the victim which were committed by the offender in the period preceding the offence (at [55]). 41. In LN (at [151]), Hamill J noted the 'fundamental proposition' that an offender 'is not to be punished for offences with which they have not been charged' and that embraces the general proposition that 'the seriousness of the charged offence should not be assessed by reference to the gravity of the course of conduct or pattern of offending'. However, the latter statement admits of qualification. Hence (at [159]), Hamill J identified four particular respects in which the uncharged assaults on the child in that case were available to be used in sentencing the offender for that child's murder, namely: '(1) To establish that the murder was not an aberration in an otherwise blameless life or to deny leniency on the basis that LN was otherwise a person of good character; … (2) To dispel any suggestion that the [murder] was an isolated incident; (3) [To support] findings as to the applicant's motive and state of mind at the time of the murder …; and (4) To establish that the victim was vulnerable and that the offender knew that the victim was vulnerable because she and her co-offender caused that vulnerability by the commission of the earlier assaults.' 42. In relation to the third use, it has been accepted that an offender's motive is part of the objective seriousness of an offence (Tepania v R [2018] NSWCCA 247 at [112]). Otherwise, I do not take the four circumstances listed by Hamill J as having been intended to be an exhaustive statement of the qualifications to the general principle. In LN, Hamill J concluded that the sentencing judge in that case had gone beyond those qualifications and contravened the fundamental principle that his Honour identified. Hamill J concluded that the offender in that case 'was in effect punished for offences with which she was not charged or convicted' (at [171]). 43. The other judge in LN, R A Hulme J, accepted both Basten JA's and Hamill J's statements of the relevant principles, but disagreed that the sentencing judge erred in the manner found by Hamill J (at [98] to [99]). 44. Although LN referred to uncharged acts, there is no reason why the discussion in that case is not also applicable to the circumstances of this case, where the assessment of the objective seriousness of one offence refers to other offences committed closely in time. Bearing in mind Hamill J's analysis in LN, the relevant passage of the sentencing judgment commences by noting that the 'terror' the victim had previously experienced 'with all that had gone before'. I understand that his Honour's reference, to each of sequences 2, 17, 18 and 19 as being relevant to the seriousness of the other, as embracing the fourth use identified by Hamill J in LN, namely that by the time each appalling act of sexual violence came to be committed, the victim was increasingly vulnerable, and known by the applicant to be increasingly vulnerable, by reason of the previous appalling acts of violence and sexual violence that he had committed against her." [emphasis in original]

Conclusion and orders

1. Most of the grounds argued in this case had little merit. The ground I would have upheld arose in the course of the argument and, it seems, made little difference to the sentencing outcome. Since the applicant was not personally responsible for the delay and non-compliance with the terms of the notice of intention to appeal and I would uphold one of the grounds of appeal (albeit the one added with the leave of the Court and raised by the bench at the hearing), I would allow the applicant an extension of time and grant leave to appeal. However, no different, less severe sentence was warranted and the appeal must be dismissed.
2. I would make the following orders: 1. Extend time in which to seek leave to appeal. 2. Grant leave to appeal against the sentence. 3. Appeal dismissed.

Endnotes

1. See Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 at [10], [16].
2. See Patel v R [2022] NSWCCA 93 at [72]-[74].
3. Between December 2009 and February 2010.
4. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [33], Edwards v R [2009] NSWCCA 199 at [13].
5. Psychological Report, Luke Brabant, 18 June 2019, Ex 1 at p 8.
6. See discussions: Proceedings on Sentence ('POS'), 24 October 2019, p 28.
7. Remarks on Sentence ('ROS'), 25 October 2019, p 4.
8. Ibid.
9. Ibid, p 24.
10. Ibid, p 14.
11. Ibid, p 20.
12. Ibid, pp 4-9.
13. See Crimes (Sentencing Procedure) Act 1999 (NSW), s 44.
14. ROS, 25 October 2019, p 27.
15. Ibid, p 14.
16. Ibid, p 7.
17. Ibid, p 7.
18. Ibid, p 26.
19. Applicant Written Submissions ('AWS') at [14]-[16].
20. Appeal tcpt, 13 April 2022, p 2(37-41).
21. Mulato v Regina [2006] NSWCCA 282 at [37]. See Respondent's Written Submissions ('RWS') at [33]-[34].
22. Appeal tcpt, 13 April 2022, p 18(31-35).
23. ROS, 25 October 2019, p 10.
24. Appeal tcpt, 13 April 2022, p 4(1-16).
25. RWS at [38].
26. Appeal tcpt, 13 April 2022, p 5(4-29).
27. Psychological Report, Luke Brabant, 18 June 2019, Ex 1 at [23] and POS, 20 August 2019, p 29.
28. Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22].
29. R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [117]-[118].
30. ROS, 25 October 2019, p 14.
31. ROS, 25 October 2019, p 19.
32. Ibid, p 20.
33. RWS at [42]-[43].
34. Agreed Statement of Facts, 18 February 2019 at [70].
35. Ibid at [25].
36. Mulato v R [2006] NSWCCA 282 at [37].
37. ROS, 25 October 2019, p 6.
38. Ibid.
39. AWS at [30]-[31].
40. ROS, 25 October 2019, p 24.
41. Appeal tcpt, 13 April 2022, p 10(22-26).