GP (a pseudonym) v R

Background facts

1. The parties agreed facts and the sentencing judge summarised the facts having regard to those agreed facts except, it is submitted, in respect of the matter arising under Ground 1.

Count 1

1. The conduct which gave rise to the s 66EA(1) offence (Count 1) occurred over three periods at four different locations. The offending commenced when victim 1 was 12 and continued whilst the victim was 13.
2. On 22 March 2013, being the day before the applicant's wedding to the victims' mother, the applicant and a number of other family members were present in the family home. The victims' mother told her that the applicant wished to have his back tickled. This was something that they had done before. The victim went into the bedroom where the applicant was on the bed without a shirt. The victims' mother came into the room and said she was going out. The victim then sat on the bed and tickled the applicant's back. The applicant then asked if he could tickle the victim's back. She lay on her stomach on the bed. Whilst tickling her, he put his hands under her shirt and ran his hands around the front rubbing her stomach and breasts.
3. He then got off the bed and closed the door. He pulled the victim's pants down and inserted his penis into her vagina while she was lying on the bed on her back. She felt immense pain. Sexual intercourse lasted 5 to 10 minutes during which time she was crying. When he had finished, he told her not to tell anyone as it would ruin her mother's life. The victim went to her own room and cried but proceeded to act normally around the house. He later told the victim that if she told anyone he would kill himself.
4. The second period of offending was between 23 March and 18 August 2013. The applicant took the victim into the tool shed at the family home and forced her to perform fellatio on him. He also had penile-vaginal intercourse with her in her bedroom on a number of occasions.
5. Then during the same period, the applicant and the victim travelled to Orange to visit some of the applicant's friends and relatives. They stayed with a friend of the applicant in a one bedroom apartment. Whilst in that apartment, the applicant and the victim started drinking alcohol and smoked marijuana. The victim became intoxicated.
6. That night, after the applicant's friend had gone to bed in his own bedroom, the victim was awoken by the applicant. They were both sleeping on a double mattress on the floor of the lounge room. The applicant undressed himself and then undressed the victim taking all her clothes off. He performed cunnilingus on her for a short time before again performing penile-vaginal intercourse with her for a period of 15 to 20 minutes. It was an agreed fact that he ejaculated into her vagina.
7. The third period of offending occurred in September and October 2013. The applicant had been involved in a workplace accident. He was required to see doctors in Canberra. He asked the victim to attend with him on the basis that he had arranged to meet up with her step-brother in Canberra. Whilst the victim was having a bath in the hotel room, the applicant entered the bathroom without any clothes on. He got the victim out of the bath and attempted to have sex with her. He was unable to do so. He then picked her up and carried her onto the bed, inserted his penis into her vagina which again caused pain to the victim.
8. When they met up with the step-brother the next day, the victim begged her step-brother's mother to allow the step-brother to stay in the hotel with them that night. The step-brother stayed the final night in the hotel with the applicant and the victim.
9. Then in the September/October holidays in 2013, the family went on a holiday to Queensland. At some point during their week-long stay, the victim was in the holiday house alone with the applicant. She was sleeping when she awoke to the applicant's presence on top of her. He was naked. She was lying on her back. Again, he proceeded to have sexual intercourse with her, this time, for approximately 15 minutes.
10. The victim did not tell anyone about these events until 2015. At some stage in 2015, the victim was living in a caravan behind the house. The applicant came down to the caravan and tried to get the victim to have sex with him again. On this occasion, the victim texted her boyfriend. The boyfriend came to the house where he spoke to the applicant. The applicant said "I know that she has told you and that she said I had tried it again tonight" and "she wanted it and I didn't force her to do anything".
11. The matter was not reported to the Police at that time.

Count 7

1. On 15 September 2017, the applicant, the victim (victim 2) and her brother were travelling to Sydney so that the applicant and the victim's brother could attend the NRL semi-final. They would be staying with the victim's grandmother whilst they were there.
2. During the course of the journey, at around 7.30pm, the brother was in the backseat. The applicant was driving and the victim was sitting in the front passenger seat. The applicant asked the victim to tickle him to keep him awake. She did so and whilst this was occurring the applicant placed his left hand onto her right knee. Despite the best efforts of the victim to wriggle around and prevent him from doing so, he moved his hand up her thigh and started rubbing her vagina from the outside of her jeans. This process of the applicant continuing to attempt to touch her and the victim attempting to move away continued for approximately 10 to 20 minutes until the victim's brother woke up.
3. When they arrived at the grandmother's house, the victim contacted her boyfriend and informed him of what had happened. She was reluctant to tell her mother because she was concerned it would cause problems with the family. The boyfriend contacted the victims' mother. As it turned out, the grandmother had a conversation with the victim the subject of Count 1, only days earlier, during which the victim had become very upset and said she had been raped but would not say by whom.
4. During a subsequent conversation with victim 1 and her mother, she informed her mother that it was the applicant who had assaulted her. The mother of both victims then contacted the Police.

The applicant's submissions

1. There is no dispute as to the facts as I have summarised them. However, the applicant complains that in the sentencing judge's summary of the facts, his Honour misstated the facts in terms of the number of times that the sexual intercourse involved ejaculation. The agreed facts included only one episode of ejaculation being the offending that occurred in Orange during the period between 23 March and 18 August 2013.
2. In respect of the offending which occurred on the night before the wedding, there was no reference to ejaculation in the agreed facts.
3. In respect of the offending which occurred in the tool shed, there is no reference to ejaculation in the agreed facts.
4. In respect of the offending which occurred in Canberra it is an agreed fact that the victim could not recall whether the applicant had ejaculated.
5. In respect of the offending which occurred whilst on holidays in Queensland it is an agreed fact that the victim did not know whether the applicant ejaculated.
6. The applicant highlights his Honour's remarks on sentence as follows: "[26] In respect of the s 66EA charge the victim TTA was 12 or 13. The unlawful relationship existed for about 7 months. There were a number of instances of penile/vaginal intercourse and clearly at least some were without the consent of the victim. The activity included penile/vaginal intercourse and fellatio. I note that the facts reflect that there was penile/vaginal intercourse on a number of occasions in her bedroom but the victim cannot remember all the details of all occasions. There was ejaculation on some occasions thereby raising at least the possibility of the victim falling pregnant. The intercourse caused the victim pain on a number of occasions. On the issue of the possibility of pregnancy the Crown draws the court's attention to the decision of KAB v R [2015] NSWCCA 55… [27] The extent of any finding I can make is limited to that given some of the acts were penile/vaginal intercourse with ejaculation there was the possibility of pregnancy. Even putting that to one side the possibility of pregnancy the fact of ejaculation in the victim's vagina certainly is a factor in assessing the seriousness of the matter."
7. The applicant submits: [6] "Judge Lerve's factual findings that 'There was ejaculation on some occasions' and that 'some of the acts were penile/vaginal intercourse with ejaculation' were erroneous and inconsistent with the Agreed Facts, which only refer to one occasion when TTA could recall the applicant ejaculating."
8. The complaint is in respect of his Honour's use of the plural rather than the singular.

The respondent's submissions

1. The respondent accepts that his Honour's reference to ejaculation on "some occasions" was an incorrect statement submitting: [7] "As can be seen from the above, his Honour referred to more than one instance of ejaculation at ROS [26] and [27]. This was an incorrect reference to the facts because his Honour referred to 'ejaculation on some occasions' rather than 'ejaculation on one occasion'."
2. However, the respondent submits that the error did not have the capacity to affect the sentencing outcome, primarily because of the nature of the offence. The respondent submits that the active ingredient of the offence is the maintaining of an unlawful sexual relationship and that the important features that affected the objective criminality of the unlawful sexual relationship were the age of the victim, the length of the unlawful relationship, the frequency of sexual activity, the type of sexual activity and use of threats not to disclose the conduct.
3. The respondent refers by analogy to the decision of this court in A v R. [8] In that matter, the sentencing judge incorrectly referred to the weight of the drug as 1.145 kilograms when it was 1.104 kilograms. This Court did not accept that the misunderstanding as to the amount of the methylamphetamine had the capacity to affect the outcome of the sentence for the offence.

Consideration

1. It is not permissible to make a finding of fact adverse to the interests of an offender on sentence, unless the sentencing judge is satisfied beyond a reasonable doubt as to the fact. There being no evidence that ejaculation occurred on more than one occasion, the remark that ejaculation occurred on some occasions was an overstatement.
2. It is well-established that ejaculation into the victim's body can increase the overall seriousness of the offending. [9] It carries with it the risk of pregnancy. Further, as Wilson J observed in KAB, even without the risk of pregnancy, ejaculation into a victim's body is an act which adds to the degradation of the victim. [10]
3. As error has been established, the question which arises is whether that error had the capacity to impact upon the sentencing discretion.
4. As I most recently observed in Facenfield v R, [11] not all errors lead to a conclusion that the exercise of the sentencing discretion has miscarried.
5. In Newman (a pseudonym) v R, [12] Basten JA said at [12]-[14] (with reference to the High Court's judgment in Kentwell v The Queen [13] ): "12 The first limb of the passage states that this Court does not assess, as a matter of fact, whether the error has influenced the outcome; what it does assess is the capacity of the error to have such an effect. An extraneous factor which does not 'guide or affect the determination' involves no miscarriage. It is true that Kentwell referred to a statement by Latham J in Baxter that 'confined error to those that are material in the sense that they have the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the outcome', as differing from the reasoning of the Chief Justice, but did not dismiss it as erroneous. It appears to conform to the High Court's own statement of principle, although the term 'material' is avoided. 13 In stating that the error need not be 'material', Roberts should be understood as eschewing the analysis of effect, rather than capacity to affect. On that understanding, counsel for the Director misread Roberts as saying something different; but the error is understandable and language of materiality is readily open to such a misunderstanding. Following Kentwell, it is best avoided. 14 In contrast to the circumstances in Roberts, where the error was clearly capable of affecting the outcome in a significant manner, the present case raised a question as to whether that was so. Counsel for the applicant, apparently assuming that the Director's concession would warrant this Court setting aside the sentence imposed in the District Court and resentencing the applicant, did not press his ground 2, which alleged that the total sentence was manifestly excessive."
6. I am thus not assessing whether and to what degree the error influenced the outcome. I am assessing whether the error had the capacity to affect the outcome.
7. As is apparent from the wording of s 66EA(1), (which commenced in its current form on 1 December 2018 by virtue of the amendment of the Crimes Act by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)), it is an offence for an adult to maintain an unlawful sexual relationship with a child. An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with or towards the child over any period.
8. "Unlawful sexual act" is a defined term pursuant to s 66EA(15). It is defined by reference to any act that constitutes or would constitute an offence under other sections of the Crimes Act including (but not limited to) ss 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE and 61KF.
9. A person could only be guilty of an offence contrary to s 66EA(1) if the offender engages in conduct that would constitute an offence under one of those sections (on two or more occasions over a period).
10. In Burr v R, [14] the Court considered the ingredients of the offence under the old s 66EA. Johnson J, (with whom Leeming JA and Rothman J agreed), made some general observations concerning sentences for the offence of persistent sexual abuse of a child under the old provision. Those observations included (specifically expressly with reference only to the old provision) that a number of factors will bear upon an assessment of the objective seriousness of the offence including: 1. the number of sexual offences which were committed on separate occasions by the offender against the victim; 2. the nature of the sexual offences committed by the offender against the victim; 3. the age of the victim at the time of the ingredient offences; 4. the period of time during which the ingredient offences were committed against the victim; 5. the age of the offender at the time of the commission of the ingredient offences against the victim and the age differential; and 6. the context in which the offender had access to the victim to commit the ingredient offences over the period of time which constituted the s 66EA offence.
11. Both the new and old sections are concerned with persistent sexual abuse of a child. Whilst the wording of s 66EA has changed since Burr, there is nothing in the new provision which might suggest that the factors identified by Johnson J as being important to assessing objective seriousness under the old provision would be different when sentencing under the new provision.
12. Certainly, as submitted by the Crown, there may be a number of important features to establishing the offence of maintaining an unlawful sexual relationship with a child but a consideration of the conduct constituting the unlawful sexual acts towards the child remains integral to the assessment of objective seriousness.
13. The applicant had sexual intercourse with victim 1 on a number of occasions. The act of ejaculation inside a 12 or 13 year old child adds to the degradation of the child. It is a feature of the offending which must be considered as part of the assessment of the nature of the acts perpetrated by the offender. It may be particularly significant in some circumstances and not as significant in other circumstances.
14. The essential ingredient of the offending is that the offender maintains an unlawful sexual relationship with the child. As that term is defined, the offender cannot be guilty of the offence unless the prosecution establishes that the offender engaged in two or more unlawful sexual acts. However, the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary as if the acts were charged as separate offences.
15. As the sentencing judge found, there were a number of acts of intercourse occurring over a seven month period when the victim was 12 or 13. It was not necessary for the prosecution to particularise precisely how many there were and when and where those acts occurred, provided that there were at least two unlawful sexual acts. Certainly, the type and nature of the acts would be relevant to the exercise of the sentencing discretion but, in circumstances in which it is not an essential element of the offending to make findings as to precisely how many unlawful sexual acts occurred during the period of the maintenance of the unlawful sexual relationship, some uncertainty in the description of each individual act might not have the significance that it might have if considering the circumstances of a specific offence under another section. There may be merit in the respondent's submission that the error did not have the capacity to affect the sentencing outcome.
16. However, I do not think that such a finding is available in this matter as whatever might be said about the significance of the error in the fact finding, the sentencing judge said at [27]: "The extent of any finding I can make is limited to that given some of the acts were penile/vaginal intercourse with ejaculation there was the possibility of pregnancy. Even putting that to one side the possibility of pregnancy the fact of ejaculation in the victim's vagina certainly is a factor in assessing the seriousness of the matter."
17. The sentencing judge expressly identified the fact that ejaculation was a factor in assessing the seriousness of the matter.
18. I am not determining the extent or degree to which the misstatement might have affected the sentencing outcome. Bearing in mind the range of factors which impact upon the sentencing discretion, it may only have been slight, but that is not the test. Once it is established that the error had the capacity to affect the outcome, then this Court must sentence afresh.
19. I am unable to conclude that the error did not have the capacity to affect the sentencing decision and, in those circumstances, the applicant succeeds on Ground 1. This Court must re-sentence.
20. It is not necessary that I consider the second ground of appeal (manifest excess).

Re-sentence

1. For the purposes of re-sentencing and other than in respect of the finding the subject of Ground 1, I adopt the sentencing judge's findings of fact. They were based on agreed facts and have not been impugned in this court.
2. I find that although the applicant engaged in sexual intercourse with the victim on a number of occasions (the precise number is not known) the evidence only permits a finding of ejaculation on one occasion.
3. I accept that the objective seriousness of the matter is within the mid-range (as the sentencing judge did). I should emphasise that in undertaking the sentencing process, it is necessary to identify where within the range of offending for the particular type of offence, the conduct of the offender sits. Maintaining a sexual relationship with a child is a very serious offence. This is reflected in the fact that the maximum penalty for an offence contrary to s 66EA(1) is imprisonment for life. My finding as to objective seriousness is merely an indication of where within the range of this very serious type of offending the conduct of the applicant sits. I have already identified (in my comments under Ground 1) the type of factors which must be taken account of in assessing objective seriousness.
4. For the purposes of re-sentencing, the applicant relies on his further affidavit which was affirmed at the Wellington Correctional Centre.
5. He says that he has completed a number of programs since being placed into custody, including the EQUIPS drug education program and an occupational health and safety training program. He says that he is currently drug-free and on a maintenance program. He has not yet been able to participate in a sex offender specific program as it is too early in his sentence.
6. Although his physical health has been good, he has suffered from anxiety and depression. His depression has worsened whilst in custody. He says he has been subject to vilification and abuse due to the nature of his offences. He was subject to a physical assault which led him to be hospitalised and treated for a fractured skull and cheekbone. He suffers from difficulties due to Covid-19, having regard to the limitation on visitors.
7. I have regard to the further evidence of the applicant but it does not seem to me that this further evidence has any significant impact on the applicant's subjective case. Not all additional evidence relied upon on re-sentence leads to different findings on the offender's subjective circumstances.
8. I also accept that the principles set out in Bugmy v The Queen [15] apply to the applicant and adopt the finding of the sentencing judge in this regard.
9. I accept also the sentencing judge's findings that the applicant has shown remorse and that he has good prospects of rehabilitation. It has not been suggested to the contrary.
10. Indeed, the applicant did not seek to impugn the trial judge's findings on subjective circumstances and I adopt them. It follows also that any adjustment of the statutory ratio arises only by reason of the special circumstances attaching to the partial accumulation of the sentences in respect of Count 1 and Count 7.
11. The applicant is entitled to a 20% discount on account of the utilitarian value of his plea. He is not entitled to any further discount on the basis that in some way he was prepared to facilitate the course of justice.
12. The applicant relies on a number of, what are said to be comparative cases. As is well-known, caution must be exercised before placing too much reliance on comparable cases, [16] particularly as they may often have little in common with the particular circumstances of the offending or the subjective circumstances of the offender. In Mills v R, [17] R A Hulme J noted at [68] that the limited number of s 66EA sentencing decisions meant that sentencing statistics were of little use.
13. In Mills the conduct which constituted the offence involved full penile-vaginal intercourse with ejaculation on a regular basis by a father with his daughter when she was aged 11 to 14. Further, whilst only three occasions were particularised in the agreed facts, it was not disputed that there was a multiplicity of additional offending.
14. The offender entered a plea of guilty and was given a discount of 25%. He was originally sentenced to 16 years and 6 months with a non-parole period of 12 years and 4 months. This Court quashed the sentence and imposed a sentence of 13 years and 6 months with a non-parole period of 10 years.
15. The applicant relies on a number of cases in which lesser sentences have been imposed in respect of different types of charges and different types of offending. Those cases are of little assistance.
16. It is important that any sentence reflect the overall criminality of the offending. Whilst the applicant is being sentenced in respect of one count under s 66EA(1), the conduct which gives rise to the offence involves unlawful sexual acts over differing periods at different places. The offender is not to be sentenced as if he is being sentenced for each individual act as if it constitutes a single offence but any sentence must reflect the criminality of the offending. [18]
17. Without discount I would have imposed a sentence of 15 years, but with the 20% discount on account of the utilitarian value of the early plea, the sentence would be 12 years with a non-parole period of 8 years and 7 months.
18. I adopt the sentencing judge's approach to partial accumulation and commence the sentence on 17 July 2018. The sentence in respect of Count 7 commenced on 17 January 2018. The non-parole period ended on 16 March 2019.
19. The orders I propose are: 1. Leave to appeal be granted. 2. Appeal allowed. 3. The sentence imposed in the District Court is quashed. 4. In lieu thereof, the applicant is sentenced to 12 years imprisonment commencing on 17 July 2018 and expiring on 16 July 2030. 5. I specify a non-parole period of 8 years and 7 months commencing on 17July 2018 and ending on 16 February 2027. The earliest the applicant will be eligible for release will be 17 February 2027.

Endnotes

1. Remarks on Sentence at [26].
2. Remarks on Sentence at [27].
3. KAB v R [2015] NSWCCA 55 at [85]-[86] (Wilson J); R v MS [2005] NSWCCA 322 at [16] (Studdert, Bell and Latham JJ); R v Oloitoa [2007] NSWCCA 177 at [42] (McClellan CJ at CL; Hoeben and Hall JJ agreeing).
4. Remarks on Sentence at [27].
5. [2020] NSWCCA 145 at [64] (Price J; Johnson and Davies JJ agreeing).
6. Applicant's submissions dated 10 November 2020, para 18.
7. Respondent's submissions dated 26 May 2021, para 28.
8. [2020] NSWCCA 145 at [64] (per Price J, Johnson and Davies JJ agreeing).
9. KAB v R [2015] NSWCCA 55 at [85]-[86] (Wilson J); R v MS [2005] NSWCCA 322 at [16] (Studdert, Bell and Latham JJ); R v Oloitoa [2007] NSWCCA 177 at [42] (per McClellan CJ at CL, Hoeben and Hall JJ agreeing).
10. KAB at [86].
11. [2021] NSWCCA 128 at [47] (Harrison and Beech-Jones JJ agreeing).
12. [2019] NSWCCA 157.
13. (2014) 252 CLR 601; [2014] HCA 37.
14. [2020] NSWCCA 282 at [106].
15. (2013) 249 CLR 571; [2013] HCA 37.
16. Burr at [160] (per Johnson J, Leeming JA and Rothman J agreeing).
17. [2017] NSWCCA 87.
18. R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5 at [13(3)-(4)] (per Sully J, Barr J and Newman AJ agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2021