Grange v R

Offences against JJ - 1 x s 61M(2), 1 x s 91G(1)(a)

1. JJ's father was a close personal friend of the applicant. The two offences against JJ were committed during a visit by the applicant to his friend's home, when JJ was approximately 1-2 years old. The applicant approached the child when she was standing naked in the toilet. She said she needed help. The applicant lifted the child over the top of his camera, placed on the floor with the lens facing upwards, and spread her buttocks with his fingers (indecent assault contrary to s 61M(2)). The applicant recorded images of JJ's anus and then her genitals (contrary to s 91G(1)(a)). The recording is of one minute and 30 seconds duration, in Category 3. Her Honour indicated a head sentence of 5 years for the indecent assault and 4 years and 1 month for making the video recording.

Offences against NG - 1 x s 61M(2), 1 x s 91G(1)(a)

1. Sequence 1 concerning NG was a particularly depraved and appalling offence under s 66A of the Crimes Act. The offending was constituted by penile-oral sexual intercourse with NG when she was eight weeks old. The victim's mother was a friend of the applicant's wife. She brought her baby for a visit to the applicant's home. This was the only occasion when the applicant had any contact with the child. While the two women were outside smoking the applicant partially inserted his penis in the baby's mouth. She squirmed, coughed and turned her head away. The applicant rubbed the end of his penis around the child's mouth and apparently stimulated a sucking reflex. He again put his penis in the baby's mouth, thereby interfering with her breathing, and she licked and sucked it until he ejaculated into her mouth. He removed the ejaculate with his fingers.
2. For this offence her Honour nominated an indicative head sentence of 21 years with a non-parole period of 14 years and 4 months. Sequence 2 concerning NG was the filming of the penile-oral intercourse, in two segments totalling eight minutes and 28 seconds, charged under s 91G(1)(a). The material is in Category 4 on the CETS scale, "penetrative sexual activity between children or between adult(s) and child(ren)". Her Honour indicated a sentence of 6 years with a non-parole period of 4 years and 1 month for sequence 2.

Possession of child abuse material - s 91H(2) of the Crimes Act

1. Each of the three DVDs that are the subject of the single offence against s 91H(2) (seq 12) contained a one-hour recording depicting naked prepubescent males and females in a setting described by the learned judge as a "pageant". The recordings were classified as Category 1 according to the CETS scale. The maximum penalty for the possession of this material is 10 years. Her Honour indicated a fixed term of one year.

Ratio of non-parole period

1. In the applicant's aggregate sentence for the State matters, her Honour was not satisfied that the proportion to be served without parole should be adjusted for the purpose of extending the time during which the applicant would be under supervision in the community. That consideration therefore did not satisfy her Honour of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, upon consideration of the effect of partly accumulating the aggregate sentence for the Commonwealth offences, her Honour reduced the non-parole period in the aggregate for the State matters to a period of 20 years and 6 months. That represented 68% of the head sentence of 30 years for the State matters. As a result of her Honour having adopted a commencement date for the Commonwealth sentence that would accumulate 2 years of the non-parole period for the Commonwealth matters on the non-parole period for the State offences, an overall effective non-parole period of 22 years and 6 months was imposed representing 75% of the overall head sentence.
2. In accordance with that adjustment, her Honour also adopted a ratio of 68% in nominating the non-parole periods for the indicative sentences for the State offences, with the exception of the single s 91H offence, for which a fixed term was indicated.

The applicant's subjective case

1. The applicant was between 31 and 37 years old when the offences were committed. He was 38 when he was sentenced and is now 39. The applicant was educated to year 10. He left school in 1988 and commenced work in the field of fire sprinkler installation, in which he remained employed by the same company for 21 years up to the date of his arrest. The applicant had no long-term relationship prior to that with his present wife, which commenced in about 2010. They were married in 2018. They have not had children together. The applicant has no prior convictions for relevant offending, only for relatively minor traffic matters. Her Honour accepted that he was of prior good character
2. The only significant subjective circumstances are those identified in the report of Dr Furst, based upon an hour-long interview with the applicant in custody, by Audio Visual Link, on 15 March 2021. The applicant disclosed excessive and habitual consumption of alcohol since his early 20s, with increased tolerance and failure to control his alcohol abuse, leading Dr Furst to a diagnosis of Alcohol Use Disorder. The applicant also disclosed that he had extensively viewed adult heterosexual pornography on the internet since his teens (that is, over the course of 20 years) and that from his late 20s or early 30s he had developed an interest in and sexual attraction to female children aged between five and 15 years. He told a Community Corrections Officer who prepared a Sentencing Assessment Report that he had "hidden his sexual attraction to children his entire life".
3. Dr Furst found that the applicant met the criteria for a diagnosis of Paedophilic Disorder, meaning that he has recurrent and intense sexually arousing fantasies, urges or behaviours involving prepubescent children. Dr Furst characterised this Disorder as non-exclusive, as he continues to be attracted to adult females. In Dr Furst's opinion: The exploitation of/offending against those three female child victims largely took the form of covert/voyeuristic recordings, a form of video recording that he said he found particularly arousing. Those recordings and the offences as a whole against [the three child victims] were also directly driven by his paedophilic disorder and related deviance, ie deviant sexual arousal.
4. The applicant acknowledged to Dr Furst his need for treatment, which the doctor said is clearly required. Dr Furst recommended a comprehensive assessment of the applicant by a clinical psychologist with a view to having him participate in a high intensity form of psychological therapy. He also recommended treatment with anti-libidinal medication, the effectiveness of which, in the doctor's view, is more strongly supported by evidence than "all currently available psychological programs, both programs available in custody and in [the] community". In his consultation with Dr Furst, in his interview with the Community Corrections Officer and in letters to the sentencing judge, the applicant acknowledged his need for treatment and expressed willingness to undertake it. The applicant's wife remains supportive of him and informed her Honour that she would assist and cooperate in any program of rehabilitation or psychotherapy.
5. Her Honour accepted that the applicant would remain in protective custody for the whole of his incarceration but she was not satisfied that his experience in prison would be significantly harsher than for "the typical prisoner". His conditions in prison were taken into account but with "very modest" adjustment.

Ground 5 - assessment of subjective case and prospects of rehabilitation

Insight and remorse

1. Her Honour concluded that the applicant's concealment of his sexual interest in very young girls, over an extended period of time, demonstrated that he was aware at the time of his acts in relation to the three victims "that his offending was abhorrent". That finding was open on the evidence. It does not appear that in the sentence proceedings the applicant disputed that he was aware, at the time of commission of the offences, of the wrongfulness of his conduct, although her Honour imputed to him some prevarication or evasion in that regard.
2. Her Honour made this finding: [402] The offender's own comments demonstrate that he does not comprehend the significant harm done to his contact offence victims. He said [in his interview with Community Corrections for the Sentence Assessment Report that] he did not believe that the victims would remember his offending and subsequently would not be affected by his actions. The suggestion that they suffered no harm because they were too young to remember must be rejected outright.
3. Whether a positive finding of harm to the victims was open to the sentencing judge on the evidence before her is considered below in relation to the objective seriousness of the offending and in relation to the applicant's contention that the aggregate sentence for the State offences is manifestly excessive. Irrespective of what view may be taken on that question, it was open to her Honour to regard the applicant's view about lack of harm to the victims as a self-serving presumption that revealed, on his part, a lack of concern for the risk of such harm and a lack of insight into the gravity of his offending.
4. Her Honour accepted that the applicant had expressed "some remorse" and "some acceptance of his responsibility for the offending" by entering early pleas of guilty. The applicant expressed shame, self-disgust and remorse in his consultation with Dr Furst and in two letters addressed to the Court. The letters acknowledged "the betrayal of trust and the pain I have caused" and "the damage my actions have done to the victims and the families that has left them angry and hurt". Section 21A of the Crimes (Sentencing and Procedure) Act requires that a sentencing judge should take into account the following matter: (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)
5. Her Honour said: [403] Overall, I am not satisfied on balance that the offender has expressed remorse to the relevant statutory standards, but I do take his remorse and limited insight into account in his favour. In this context, the fact that he has not yet received treatment may be some explanation for his lack of insight. The fact that he was able to conceal his offending and that he knew it was wrong, however, indicate that his remorse was something that only manifested after a significant period of serious offending, a time within which he had ample opportunity to reflect on his actions and seek assistance.

Allowance for diagnosed Paraphilic Disorder

1. Her Honour quoted the following paragraphs from Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [202]-[205] (Price J (with whom Basten JA and Walton J agreed): [202] A matter that was raised in written submissions by the respondent was that his offending was contextualised by his diagnosis of paraphilic disorder. In making this submission, the respondent was referring to what was said by Kirby J in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [126] ("Ryan"): [126] The appellant's paedophilia is an explanation for his sexual attraction to young persons. It is not a defence to the criminal conduct in which he engaged. However, depending on the evidence or other material available to the sentencing judge, it might be appropriate, in sentencing such an offender, to consider the common cause of his multiple offences as that cause is relevant to evaluating the totality of his wrongdoing. Doing this might allow a court, sentencing him, to view his actions in context by reference to a major contributing cause of his offending, if not the major cause of it. [203] However, in Ryan McHugh J said at [40]: [40] Whether or not paedophilia is an 'underlying condition' - and it appears not to be a psychiatric illness - it is by no means clear that a paedophile should be punished 'less severely than would be appropriate for a series of wilful and completely unconnected offences'. If two men commit similar offences against children - one because he was a paedophile and the other for sexual gratification - I doubt that the general public would see any difference in the two cases. Indeed, the public view - which cannot be disregarded if courts are to maintain the confidence of the community - may be that the paedophile should get the heavier sentence of the two because he is more likely to reoffend. There is certainly judicial authority for that view. In Channon v The Queen [[1978] FCA 16; (1978) 33 FLR 433], Brennan J, then a member of the Federal Court, said: 'An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period.'" [204] His Honour then referred to Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 473, at [41]: [41] In Veen v The Queen (No 2), a majority of this Court referred to the fact that an offender may have a condition that makes him or her a danger to society because of the propensity to reoffend. But the majority noted that, although the condition may be said to diminish his or her 'moral culpability for a particular crime', it is a double-edged sword. The protection of society is a material factor in fixing an appropriate sentence. As a result, a person suffering from that condition may not only be disentitled to receive any reduction in sentence because of that condition but the need to protect society may require a longer sentence than would otherwise be the case. [205] Although the respondent's paraphilic disorder may be seen to provide an explanation for his offending and reduce to some extent his moral culpability, in my view, it heightens the need for specific deterrence.
2. After considering other relevant authorities concerning the manner in which Dr Furst's diagnosis of Paraphilic Disorder - Paedophilia could be taken into account, her Honour held as follows: [429] […] I respectfully adopt the analysis of Price J in Director of Public Prosecutions (Cth) v Beattie. I accept the offender's diagnosis of non-exclusive paedophilic disorder and find that it was an underlying cause of the offending. Dr Furst opined, and I accept, that "the large collection of child exploitation material […] was the direct result of his related paedophilic interests". Dr Furst also said, "the recordings and the offences as a whole against [the victims] were also directly driven by his paedophilic disorder and related deviance". In that sense the offender's diagnosis provides some explanation for his offending. However, I also find that the consequent reduction in the offender's moral culpability is but modest. That is because the offender did not labour under any other mental health condition nor did he suffer from other social disadvantages or addictions; instead he chose to offend against multiple victims over a significant period of time. He also dealt with significant quantities of child abuse material, over a considerable period of time. That material was of the most reprehensible kind and he did so for his sexual gratification. Significantly, and as he acknowledged, he made efforts to conceal his predilection. He did so successfully for an extended period of time. I find that his offending was deliberate, and he knew that what he was doing was wrong. His offending accordingly involved the repeated making of choices; choices to harm the most vulnerable members of our society.
3. Subject to further consideration, below, of the question of harm to the victims, and reading the last sentence of the above passage as referring to the applicant's choices to perpetrate the acts with which he was charged, her Honour's findings at [429] were open to her.
4. The Sentencing Assessment Report concluded that the applicant was at a moderate or medium risk of reoffending. Her Honour fairly observed that, "given the length of the sentence I must impose, there is a degree of artificiality in any prediction of the circumstances upon release": [432]. Whilst acknowledging that the applicant was genuine in his willingness to undertake treatment, her Honour noted that the outcome of treatment was, necessarily, unknown.
5. All of the above considerations caused Her Honour to state that her view was "guarded about the offender's prospects of rehabilitation". Contrary to the applicant's submissions in support of ground 5, that assessment was open to the learned judge. I do not accept the applicant's characterisation of the remarks on sentence as "minimising the subjective features of the applicant's case". A balanced evaluation was made. I would reject ground 5.

Grounds 1 and 3 - harm to victims - the sentencing judge's reasons

1. In many sentence proceedings for child sexual offending the Crown has tendered victim impact statements, parents' observations and/or expert reports. From the accumulation of what has been proved in such cases it is clear that victims of such offending commonly suffer immediate and/or delayed psychological damage. The psychological effects upon individual victims vary widely across the cases but those effects are often very substantial, ongoing and life changing.
2. In par [256] of her Honour's remarks (set out at [47] above), the judge imputed maximum psychological harm to all victims of child sexual offending as an a priori conclusion. By "maximum" I refer to her Honour's general statements that "sexual offences against children are catastrophic", that they "rob children of their innocence, sexualise them before they reach psychological and physical maturity, displace their sense of trust in adults and inevitably create confusion that lasts well into adulthood". In the immediately following paragraphs of the remarks, [257]-[264], there are citations of authorities in which harm caused to child sexual abuse victims has been considered. The balance of her Honour's reasoning reflects a generalised assumption of substantial harm to the victims in this case, for example in par [402] quoted at [80] above, but there is no finding of any specific harm and no reference to evidence, judicial experience or psychological research in the public domain that might establish that any of the three victims suffered the very high level of substantial and enduring harm described at [256]. Of the evidence that had a bearing upon whether or not substantial psychological harm was caused, her Honour dismissed as irrelevant the fact that HS appeared to be asleep during five of the offences (see [133]-[134] below) and discounted the circumstance that NG, at eight weeks old, was too young to have registered the sexual acts committed against her (see [139] below).
3. The very high indicative and aggregate sentences nominated by her Honour are only explicable on the basis that severe psychological harm was imputed to each victim as an aggravating factor in all of the offending. The indicative and aggregate sentences could not be justified in the absence of that factor. The structure of the remarks, also, shows that her Honour treated the maximum enduring psychological harm described at [256] as a given for each victim in this case. This was made explicit at [475], where her Honour said this: [475] The harm caused to children by offences of this type no doubt, that is s 61M(2) offences, contributed to the setting of the substantial standard non-parole period of eight years. It is important that sentences for s 61M(2) offences reflect this grave element implicit in the offence itself.
4. Her Honour cited R v Gavel [2014] NSWCCA 56 in support of that statement. The case is considered at [116]-[119] below. In my view it is not correct that harm caused to child victims is a "grave element implicit in the offence itself", for any of the sections under which the charges were laid in this case. Where substantial harm to the child victim is in issue, it must be established beyond reasonable doubt if it is to be taken into account on sentence. As earlier mentioned, proof to that standard is usually readily available by inference from the facts of what the young victim has consciously experienced. In this case for reasons given at [128]-[144] below, there was no basis for a finding of substantial psychological harm to any of the applicant's three victims. Her Honour erred in imputing such harm as if it could be taken as a given upon legal authority.
5. As the cases contain some very wide statements concerning psychological impacts of child sex offending, at times expressed in universal terms, I will refer to and endeavour to reconcile a number of judgments that her Honour may have understood as supporting her approach. I will not refer to the sentences imposed in the cases now cited, as the purpose of referring to them is to identify principles, not to make a comparison of penalties.

Authorities on harm to victims of child sex offences

1. Statements of two distinct types have been in made appellate judgments concerning the harm done to victims of child sexual offences: first, generalisations about the psychological harm that is commonly caused and that is expected to be caused and, secondly, statements regarding how a sentencing judge is to determine what, if any, specific actual harm has been suffered by the victim in an instant case, as a factor aggravating the seriousness of the offending.
2. As to the first, the authorities are replete with statements to the effect that statutory offences of sexual activity with children have been enacted, with high maximum penalties, because legislatures regard sexual activity with children as harmful to them. It is acknowledged in appellate judgments that over recent decades legislatures and courts have increasingly become aware of the harm that may be done to children by this type of offending. An example is the following extract from the judgment of this Court (Payne JA, Price and Garling JJ) in R v ND [2016] NSWCCA 103 (emphasis added): [38] The commencement point of addressing this appeal is to identify the seriousness of an offence against s 66A of the Crimes Act. The legislation conveyed that degree of seriousness by fixing a maximum term of imprisonment of 25 years and a standard non-parole period of 15 years. [39] The reasons for this are clear: the age of a victim, which the Crown has to prove beyond reasonable doubt as being under 10, demonstrates in and of itself, the vulnerability of the victim to offences of this kind. Further, the likelihood that such a young person would be able to resist an adult is very low. As well, Courts have acknowledged the long-term psychological effects that such conduct can have upon a child. All of these features combine to demonstrate why the legislature and the Courts regard this offence as very serious.
3. Similarly, in Clarkson v The Queen; E J A v The Queen [2011] VSCA 157 at [33] the Victorian Court of Appeal said that the enactment of statutory offences for sexual activity with children is "founded on a presumption of harm".
4. Statements of this general nature do not go beyond identifying the protective social purpose of the offence provisions and giving emphasis to the courts' obligation to heed the seriousness with which Parliament views this category of crime. They serve much the same purpose as references to the high maximum penalties prescribed. Such general statements obviously cannot assist in evaluating the specific actual harm occasioned to a child victim in an individual case, relative to assessing the gravity of the offending.
5. Statements of this first type do not purport to hold that specific actual harm to every victim is, as a matter of law, intrinsic to child sexual offending or that it must be deemed to have occurred whenever such an offence has been committed. Not only is it possible that in a particular case a child victim may suffer relatively minimal harm from minor or fleeting sexual contact, which may nevertheless constitute an offence, but, further, the nature and degree of harm caused in child sex cases is widely variable. It would be nonsense to deem the same nature and degree of significant harm in every case and it would be meaningless to deem the occurrence of actual harm without specifying its severity, which could not be done, differentially, by general deeming of a particular level of harm.
6. From of judicial statements on harm to child sex offence victims in the second category referred to above, it is clear that the question of what harm has actually been suffered in a case for sentence is an issue of fact to be determined on evidentiary material available to the sentencing judge, not a matter of principle governed by general observations in the first category. The issue of specific actual harm engages s 21A(2)(g) of the Crimes (Sentencing Procedure) Act, as follows: (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (g) the injury, emotional harm, loss or damage caused by the offence was substantial
7. R v Berg [2004] NSWCCA 300 was a sentence appeal concerning an offence of aggravated dangerous driving causing death. The sentencing judge said that he took into account s 21A(2)(g) but did not specify whom he considered had suffered substantial harm. At [30] Howie J noted that the judge would have been in error if he was referring to the deceased, because the death was an element of the offence and could not be additionally taken into account as an aggravating factor: s 21A(4). His Honour continued as follows: [31] If his Honour was referring to the emotional harm suffered by the deceased's relatives, there is some question as to whether his Honour had sufficient evidentiary material on which to make that finding. There was in this case, unusually perhaps, no victim impact statement. Nor was there any other material that indicated to any particular degree the effect upon the relatives of the deceased by her death. Clearly, one can presume that it would have had an impact. However, this is an aggravating factor and if it is to be taken into account there must be appropriate evidentiary material on which his Honour could be satisfied to the appropriate degree that the injury, emotional harm, loss or damage was substantial.
8. At [38] Spigelman CJ agreed with that statement, Wood CJ at CL said this: [48] […] I would sound a note of caution in relation to the proper approach to fact-finding concerning the impact of a crime upon other members of the community or, upon the victim. If that is to be achieved by way of victim impact statements, then an injustice may occur in relation to a person standing for sentence, in so far as the maker of the statement would not normally be available for cross-examination. [49] I add that caution in support of the general proposition that extreme care needs to be taken by those who prosecute and defend these cases, and also by trial Judges in always ensuring that there is a proper evidentiary basis for any findings of fact which go towards aggravating or mitigating a sentence.
9. In DBW v R [2007] NSWCCA 236 the offender pleaded guilty to, amongst other offences, the commission of an act of indecency, namely, masturbating in the presence of his son aged between one and one and a half years - contrary to s 61O(2) of the Crimes Act. There was evidence before the sentencing judge that approximately three years after the offence the child victim was behaving in a sexualised manner at school. This Court was not persuaded that the judge had taken into account the aggravating factor of substantial harm to the child, pursuant to s 21A(2)(g), but held that in any event he would have been entitled to do so.
10. Spigelman CJ referred to a decision of Hunt J (as he then was) in R v Muldoon (NSWCCA, 13 December 1990, unreported) where it was said that in order to make a valid assessment of what would happen in the future to a young victim of sexual abuse, a sentencing judge would require: the results of studies conducted over a significantly broad base and over a significant period of time into the lasting effects of sexual abuse upon young children […] and, if necessary, […] some psychiatric assessment from a qualified source. [The full passage from Hunt J's judgment is quoted in R v Tuala [2015] NSWCCA 8 at [55]].
11. In the following passage Spigelman CJ (Simpson and Harrison JJ concurring) held that such extensive evidence would no longer be expected (emphasis added): [39] […] Unfortunately, over the last few years, the public and the courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse. His Honour's observations in Muldoon are of no assistance today. [40] In my opinion, the Crown in its submissions, and his Honour in the exercise of the sentencing discretion, would have been entitled to proceed on the basis that there was a substantial risk of emotional harm arising from the Applicant's conduct. In any event, as I have noted, the psychologist's report in this case accepted effects of the very character discussed in Muldoon.
12. This was not a holding that under s 21A(2)(g) the aggravating factor of substantial harm caused to a specific victim may be found, to a particular or broadly describable degree, in the absence of evidence, although his Honour accepted that "a substantial risk of emotional harm" could be seen in the nature of the offending and could be treated as an aspect of objective seriousness. The Chief Justice's observations support the ready drawing of an inference of specific, substantial harm to an individual victim from limited observational and/or expert evidence, fortified by the Courts' experience of having received proof of substantial psychological harm in other cases and further fortified by reference to research and learning in the public domain.
13. Subsequent to the decision in DBW v R, Spigelman CJ's observations concerning reliance upon the courts' experience have been acted upon by sentencing judges and by this Court. An example of the readiness with which harm to the victim may be inferred in these cases may be seen in Enriquez v R [2012] NSWCCA 60 at [47]-[52]. With effect from 1 December 2018 that approach has been given statutory force by s 25AA(3) of the Crimes (Sentencing Procedure) Act, in the following terms: 25AA Sentencing for child sexual offences (3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).
14. Whether a child has suffered, as a result of sexual offending in a particular case, trauma, or long-term emotional or psychological harm, and if so of what severity, remains a question of fact under s 21A(2)(g) and s 25AA(3). The latter provision does not deem that such harm must be taken to have been suffered. By reason of the courts' accumulated experience in child sex offences cases, a modest amount of evidence will often support an inference beyond reasonable doubt that the aggravating factor of substantial emotional harm under s 22A(2)(g) has been proved to the criminal standard.
15. RP v R [2013] NSWCCA 192 further illustrates that the question whether substantial harm has been caused to a victim of child sexual offending has to be resolved on the evidence and with caution as to the sufficiency of the evidence, as stated in R v Berg. The applicant in RP v R had pleaded guilty to a single count of indecently assaulting an 11-year-old girl. The offence was committed between 1978 and 1980 and was charged under s 76 of the Crimes Act as then in force, being a provision to effect similar to the current s 61M(2). The offending was of a relatively low order, constituted by the applicant, then aged 29 years, rubbing cream on the victim's chest. The Crown tendered a victim impact statement made some 30 years after the offence when the victim was aged approximately 41 years. She described pervasive, ongoing, life changing emotional effects.
16. Price J (with whom Simpson and RA Hulme JJ agreed) held as follows: [27 […] [The victim] undoubtedly suffered harm, however, the contents of her statement went well beyond what might be regarded as the type of harm expected from the circumstances of the applicant's offending. [28] As the victim impact statement raised harm that was more deleterious than could generally be expected from the circumstances of the offence, the judge was obliged to approach the statement with caution. The harm that [the victim] described was not supported by other evidence. His Honour cited the judgment of Wood CJ at CL in R v Berg, as quoted at [101] above. The Court concluded that the sentencing judge had uncritically accepted the victim's statement in finding that she "suffered profoundly" with "psychological problems throughout her entire life". The appeal was upheld on the ground of manifest excess because the sentence reflected attribution of excessive weight to the victim impact statement.
17. Some judicial statements of the first type referred to above, employing terms of the widest generality about severe psychological harm to victims, appear alongside specific findings of substantial actual harm to the victim with whom the subject appeal is concerned, based upon clear evidence in the case. The conjunction plainly does not mean that the aggravating factor of harm has flowed from the pronounced generalities rather than from the evidence in the case in question. In SW v R [2013] NSWCCA 255 the offender pleaded guilty to one count of sexual intercourse with a boy aged between five and six years, constituted by inserting a rectal syringe and forcing water through the boy's anus. He was physically hurt and remained in pain and discomfort for some time afterwards. A detailed expert report was tendered on sentence, establishing "grave and long-term consequences for the victim arising from this offence" - in the words of Johnson J (with whom Hoeben CJ at CL and Bellew J agreed), at [51]. Johnson J said this (emphasis added): [52] Sexual abuse of children of very tender years will inevitably give rise to psychological damage emanating from (at least) the confusion in the young mind of the victim of abuse. As RR v R [2011] NSWCCA 235 at [147] exemplifies, a single act of sexual abuse may have a substantial impact upon the psychological state of a young victim, with the likelihood of long-term adverse consequences. In this case, the very young victim has sustained significant adverse psychological consequences which may be traced back to the Applicant's crime.
18. Johnson J's reference to the suffering of psychological damage by child victims generally is a statement of the first type referred to above, identifying a frequent outcome of sexual conduct towards children that underlies the creation of the offences and the fixing of high maximum penalties. In SW v R there was evidence of specific actual harm to the victim, which supported the factual finding of "grave and long-term consequences". Despite Johnson J's use of the word "inevitably" at [52], I do not understand his Honour to have intended to lay down as a matter of law, in the nature of a principle of deeming, that psychological damage must in every case be taken to have occurred and to be a factor in assessing the seriousness of the offending, irrespective of the evidence.
19. RR v R, to which Johnson J referred, is merely an illustration of the point that aggravation of the seriousness of an offence by the occasioning of "substantial harm", pursuant to s 21A(2)(g) Crimes (Sentencing Procedure) Act, is evidence-dependent and is not a foregone conclusion on the basis of judicial generalisations about the effects of child sexual offences. RR v R involved a single act of sexual intercourse by penile-oral penetration committed against a five-year-old girl. She had run to complain to her mother immediately after the offence, "white, scared, crying and angry", in the mother's words. The victim impact statement established that she subsequently had to undergo blood tests, that she was engaged in weekly counselling and that she exhibited a significant change in personality, from being extroverted and confident to being quiet, constantly worried and insecure. According to the victim impact statement her relationships with adults and children had been seriously affected. It was from that evidence that the gravity of the offending was found to have been aggravated by harm to the victim.
20. R v MJB [2014] NSWCCA 195 was a Crown appeal against inadequacy of an aggregate sentence for seven aggravated indecent assaults (s 61M(2)) committed against four girls aged respectively between eight years and 12 years, together with several counts of recording pornographic images of the victims (s 91G(1)(a)). The Crown tendered impact statements of two of the victims, against whom the most serious indecent assaults had been committed. One of them said that the abuse had "ruined" her life. The other said that she had been diagnosed with severe depression, had made multiple attempts on her life, suffered flashbacks and panic attacks and experienced extreme difficulty in intimacy with the opposite sex.
21. Notwithstanding that evidence, the sentencing judge had rejected a Crown submission that the offences against those two victims involved the aggravating factor of substantial harm pursuant to s 21A(2)(g). In her reasons for upholding a Crown appeal, Adamson J (with whom Hoeben CJ at CL and Fullerton J agreed) said the following (emphasis added): [48] [Her] Honour did not consider the evidence to permit the inference that the victims suffered substantial emotional harm. The correctness of this finding, by reason of the limited challenge made by the Crown, does not arise for review. However, before addressing the substantive challenge [manifest inadequacy], I propose to make some observations about this finding, since it tends to imply, contrary to the fact, that these offences were not particularly serious. [49] It is of the nature of the offences of which the respondent was convicted that the victims suffer emotional harm and in many, if not most, cases the harm may fairly be described as substantial. The damage done to children who are the victims of sexual assault and other sexual abuse by adults is well known and can be assumed. The maximum sentences imposed by Parliament, and, more recently, the stipulation of standard non-parole periods, are indications of the seriousness of the offences, adjudged by the harm they generally, if not inevitably, cause. Her Honour's finding was, however, made in the context of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, which provides that it is an aggravating factor if the victim, relevantly, suffers substantial emotional harm. This provision is of general application in that it applies to sentencing generally and not merely to sentencing offenders who have committed sex offences against children. [50] The victim impact statements of SM and ET comprised relevant evidence of the harm to them. After discussion of the evidentiary use of victim impact statements and the provisions governing that subject, her Honour continued: [53] The victims' statements were tendered without objection. No argument was addressed to what weight ought to be attributed to them. Their contents were closely in accordance with the expected consequences of conduct such as the respondent's. It is difficult to understand why her Honour was not prepared to infer, on the basis of the statements, that the victims suffered substantial emotional harm as a result of the offending conduct.
22. In the context of the whole passage from [49] to [53], I understand Adamson J to have used the word "assumed" in the sense of "readily inferred". At [49] where her Honour spoke of "damage … that can be assumed", she also spoke of harm that child sexual offences "generally, if not inevitably, cause" and said that such harm may be described as substantial in "many, if not most, cases". Her Honour did not purport to be stating an axiomatic principle that causation of substantial harm must be taken as a given in every instance of child sexual offending. My understanding of Adamson J's reasoning is further confirmed by her Honour's expression of puzzlement, at [53], that the sentencing judge was "not prepared to infer, on the basis of the statements, that the victims suffered substantial emotional harm as a result of the offending conduct". In subsequent decisions Adamson J's judgment has at times been referred to as if it establishes that the gravity of child sexual offending may always be regarded as aggravated by substantial harm to the victim, without direct or circumstantial evidence: see for example R v Tuala [2015] NSWCCA 8 at [56], [75]. With respect, I do not read Adamson J's judgment in that sense.
23. R v Gavel, to which the learned sentencing judge referred as mentioned at [92] above, was a Crown appeal concerning an aggregate sentence passed for, inter-alia, one count of aggravated indecent assault (s 61M(2)) and three counts of sexual intercourse (s 66A) committed against an eight-year-old girl. A number of features of the case led, cumulatively, to the Court upholding the Crown's contention that the sentence was manifestly inadequate. One such feature was that the harm occasioned to the victim was considerable. As described in a victim impact statement, the once "bubbly, outgoing and fun loving eight-year old girl" had become confused and apprehensive in home and school settings, with friends and others. One year after commission of the offences, extensive psychological support had been undertaken, with the victim continuing to manifest anxiety, confusion, mistrust, shame, anger and guilt.
24. The Court (Leeming JA, Johnson and Hall JJ) addressed the matter of harm to the victim as follows (emphasis added): [104] The sentencing Judge referred to the victim impact statement, noting that it was "an eloquent and insightful testimony to the serious psychological consequences that these offences have had upon [the victim]". Her Honour then stated that, without seeking in any way to trivialise or minimise the effect of the offences upon the victim, "this is not a matter where the harm is a matter of aggravation". [105] In so concluding, the sentencing Judge was addressing the statutory aggravating factor in s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 as to whether the injury, emotional harm, loss or damage caused by the offence is substantial. [106] This Court has stated that sentencing Judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences and that, as a result, care needs to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm: Stewart v R [2012] NSWCCA 183 at [61]. [107] In the area of sex offences committed against young children, s 66A(2) provides for a very substantial penalty. It may be taken that a factor which contributes to the setting of this penalty (and the standard non-parole period) is the expectation that substantial harm will result to a young child victim of sex offences. [108]-[109] [The court summarised the victim impact statement]. [110] This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]. [111] This factor no doubt contributes to the setting of the heaviest maximum penalty known to the criminal law for s 66A(2) offences, accompanied by a standard non-parole period of 15 years. It is important that sentences for s 66A(2) offences reflect this grave element implicit in the offence itself. [112] This is an important feature in the present case. Young child victims are especially vulnerable. It is important that sentences passed for s 66A(2) offences recognise the harm done to the victim of the crime: s 3A(g) Crimes (Sentencing Procedure) Act 1999.
25. The highlighted portions of [110] and [111] are expressed in terms of deeming a matter of fact in every instance of child sexual offending. Those statements were not necessary to the Court's decision because the victim impact statement constituted powerful uncontested evidence of profound, long lasting psychological harm to the victim in the instant case. The Court's view that harm to the victim in R v Gavel aggravated the seriousness of the offending and called for an aggregate sentence greater than that which had been imposed in the District Court is fully explicable on the basis that, where the sentencing judge had unreservedly accepted the victim impact statement, a finding of substantial emotional harm under s 22A(2)(g) was inescapable.
26. In R v CTG [2017] NSWCCA 163 the Court (Hoeben CJ at CL, RA Hulme and Wilson JJ agreeing) explained the above quoted passage from R v Gavel in the following terms: [76] The effect of the analysis in R v Gavel is that built into the high maximum sentence for offences under s 66A is the likelihood of future psychological harm. It also allows for a finding of actual psychological harm if there is evidence of that before the court. Here [ie in CTG v R] the possibility of future psychological harm could not be excluded but there was no evidence of it. What is clear, however, for the reasons already set out, was that the absence of evidence of future psychological harm could not be used as a mitigating factor to benefit the respondent. The fallacy in this part of the sentence judgment is to equate no evidence of present psychological harm with evidence of no psychological harm.
27. R v CTG itself was a Crown appeal against the inadequacy of an aggregate sentence for, inter-alia, five counts of sexual intercourse (penile oral penetration) with a three-year-old girl, contrary to s 66A. There were also offences of photographing the sexual acts contrary to s 91G(1)(a). The offending took place over an interval of four months and came to light through police examination of the offender's phone, on which images of sexual acts were recorded. The victim did not initiate complaint. When interviewed by police five months after the last offence, she did not describe the sexual acts but said that the respondent liked playing games with her, that he "takes his shirt off, his pants off and his undies off" and that she saw him naked. She said that "he takes my clothes off" and that he used a black phone to take pictures of her. Based on that interview the sentencing judge found no evidence of substantial injury to the victim because there was no evidence that she had any recall of the acts constituting sexual intercourse.
28. From a number of considerations the Court found that the aggregate sentence imposed at first instance was manifestly inadequate. One consideration was the sentencing judge's failure to find and take into account that the offending had given rise to a risk that a psychological reaction would emerge and be damaging to the victim. Hoeben CJ at CL said: [74] […] What the Crown was conceding in the oral exchanges on sentence was that he was unable to identify any actual psychological harm at the time of the sentence proceedings, but it was unclear and he was unable to say to what extent there might be ongoing psychological harm in the future. That was a reasonable submission and did not merit the peremptory observation by the sentencing judge that to make such a finding would involve "speculation in the extreme".
29. R v CTG illustrates that where the evidence on sentence does not support a finding of extant substantial psychological harm to the victim as an aggravating factor, the sentencing court may nevertheless take into account that the offending has exposed the victim to a material risk of future psychological detriment, for example as he or she matures and gains an understanding of what occurred and its sexual significance.
30. In EG v R [2015] NSWCCA 21 an offender aged 65 pleaded guilty to one count of aggravated sexual intercourse with a child under 10 years of age and under his authority, contrary to s66A(2). While his two-year-old granddaughter was lying on a change table the offender momentarily licked her vagina on the outside. There was some evidence that the offender was affected by mild dementia, stroke and depression. Almost immediately the chid told her mother what had occurred. The sentencing judge accepted a victim impact statement from the mother to the effect that that the child spoke about the act almost daily in the weeks after it occurred and that she had developed and was demonstrating what the mother described as "sexualised behaviour". The judge also accepted aspects of the victim impact statement that asserted harm occasioned to other members of the family, namely, difficulty for the child's parents coping with her "sexualised behaviour", the necessity for them to take time away from work to deal with this phenomenon and "lengthy emotional trauma" experienced by the complainant's siblings.
31. The sentencing judge referred to SW v R and RR v R and concluded as follows on the issue of substantial emotional harm caused by the offence: In this case the very young victim has sustained significant adverse psychological consequences which may be traced back to the applicant's crime … although only time will tell how far-reaching the psychological consequences upon the complainant child will be. There has been undoubtedly some considerable harm done to this very young child in the commission of the offence and therefore to her family and the broader community … I regard what occurred as a very short-lived aberrant instance of wrong yet very serious criminal behaviour with significant ramifications for the child in the wider community.
32. Hoeben CJ at CL (with whom Harrison and RA Hulme JJ agreed) upheld a ground of appeal that the judge had "erred in giving too much weight to the victim impact statement". His Honour noted that the statement had been objected to and that the offender's counsel had disputed its contents and submitted there was no injury or substantial emotional harm to the victim. Hoeben CJ at CL said this: [28] […] No submission by the Crown traversed that assertion of "no injury" or "no substantial emotional harm" as a mitigating factor under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999. Nor did the Crown make any submissions in support of the proposition that "the injury, emotional harm, loss or damage caused by the offence was substantial" as set out in s 21A(2)(g) of that Act. It would, of course, have been necessary for the Crown to establish that aggravating feature beyond reasonable doubt. [29] Apart from the [victim impact statement], when her Honour came to consider the issue of harm to the complainant and her family, the evidentiary position was this. The agreed facts did not allege an injury to the complainant. There was no material by way of a psychological/psychiatric report in relation to actual or anticipated future psychological or emotional harm to the complainant. She was aged 2 years when the offence occurred and she had made no disclosure to the police. The offence had not involved any penetration and had occupied a few seconds. [30] When her Honour dealt with this issue in her sentence judgment, she observed that the offending had "serious repercussions" and referred to the cases of SW v R and RR v R noting in the latter case that the very young victim had sustained significant adverse psychological consequences. Her Honour found "the same might be observed in the circumstances here although only time will tell how far-reaching the psychological consequences upon the complainant child will be". [Hoeben CJ at CL then quoted the findings of the sentencing judge referred to at [124] above]. [31] It is accepted that a victim of child sexual abuse will usually suffer some emotional harm and that this is not a matter which the Crown is required to prove beyond reasonable doubt (DBW v R [2007] NSWCCA 236 at [39] per Spigelman CJ; R v MJB [2014] NSWCCA 195 per Adamson J). There does, however, need to be a reasonable factual basis for conclusions such as were arrived at by her Honour in this case. The facts in SW v R were significantly different. There was much more serious sexual offending which occurred on numerous occasions to a much older child. In RR v R the victim was aged 5 and again had been subjected to significantly more serious offending over a longer time. For reasons already given, I am respectfully of the view that the first sentence of [31] overstates the import of the judgments of Spigelman CJ in DBW v R and of Adamson J in R v MJB.
33. At [32] Hoeben CJ at CL cited RP v R for the proposition that attribution of excessive weight to a victim impact statement may constitute error in sentencing, quoting the passage of Price J's judgment in RP v R that has been reproduced at [109] above (which in turn incorporates part of Wood CJ at CL's judgment in R v Berg that is set out at [101] above). The Chief Judge continued as follows: [35] While her Honour did not in terms find that the matters in the [victim impact statement] gave rise to an aggravating factor of the kind specified in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 her treatment of that material had the same effect. In my opinion her Honour erred in doing so. [36] As her Honour accepted, the circumstances of this case were "unique and unusual". The offending was at the bottom level of seriousness for offences of this kind. The consequences described in the [victim impact statement], both in relation to their effect on the complainant and the family, went beyond that which would normally be expected. For full weight to be given to those matters, more than an uncritical acceptance of the [statement] was required. Some additional support of the kind discussed in RP v R and R v Tuala was required.
34. Generalised judicial statements about the expectation of psychological trauma to victims of child sex offending have not transformed the matter of substantial emotional harm from an aggravating factor under s 21A(2)(g) that must be established beyond reasonable doubt into a concluded matter of principle. That was made clear by Basten JA in Hordern v R [2019] NSWCCA 138, as follows: [57] The judge held, correctly, that the exposure of young children to sexualised behaviour can have long term detrimental effects, in that it can rob children of their innocence, sexualise them before they have psychological maturity, displace the sense of trust a child should have in adults and may create confusion that lasts into adulthood. The judge also noted a submission by the prosecutor that sexual abuse of children of very tender years "will inevitably give rise to psychological damage emanating from at least the confusion in the mind of the victim of abuse", referring to the judgment of this Court in SW v R [2013] NSWCCA 255 at [52]. The facts in SW may well have supported such a finding. The offence involved anal abuse of a five year old boy involving penetration which caused immediate pain and discomfort, which lasted for some time. There was expert evidence before the Court which "emphasised the grave and long-lasting consequences for this victim arising from this offence." However, care should be taken in generalising from the circumstances of that offence and the evidence before the Court in that case, as if a principle of law were involved. [58] In particular, this Court [in Hordern v R] did not have the benefit of any psychological evidence, either relating to the victims or to the effects of sexual abuse generally, which might have indicated particular long term consequences. Statements made by sentencing judges in other cases with respect to specific outcomes of a kind which experts may have difficulty in predicting, should be treated with caution. In SW v R, Johnson J accepted the causal link between an offence and psychological harm: "In this case, the very young victim has sustained significant adverse psychological consequences which may be traced back to the Applicant's crime." [59] More important in assessing the objective seriousness of the offending is the risk of serious long-term harm, which is reflected in the maximum sentence. That is a material consideration even in cases where the evidence does not demonstrate immediate distress, or subsequent abnormal behaviour, as in SW v R. […] [61] Indecent assault lies in the lower range of offences involving sexual conduct towards children. Any element of penetration would have involved a more serious offence. Taking account of the circumstances noted above, regarding the ages of the victims and the degree of physical contact, and giving some weight to the fact that the assault on the younger girl was witnessed and perceived to be wrong by her older sister, and that the offences were committed in their home, the objective gravity should be assessed as falling in the middle of the range of objective seriousness for that offence. The moral culpability of the applicant is aggravated because the conduct involved a breach of the extended supervision order, and by the capacity of the offending to cause lasting harm, whether or not it did so in the individual cases.

Harm to the victims in the present case

1. The above survey of relevant authorities shows that it was not open to the learned judge to sentence on the basis that objective seriousness was aggravated by substantial harm to the victims, such as that described at [256] of the remarks, without evidence to support a finding of such harm beyond reasonable doubt. That is a very significant matter in this application because, exceptionally for this class of offending, the victims' obliviousness to the applicant's acts and to their sexual character precluded any inference of specific harm.
2. In the great majority of cases sexual offending against a child comes to light because the victim reports the physical acts and complains that they were sexual, or at least improper. Consequently, there is usually no doubt that the victim was conscious of the acts and of their nature. From that starting point a ready inference is usually available that at least some emotional or psychological harm will have been occasioned. The child may be very young and may not have fully understood the sexuality of the act. Incomplete understanding commonly compounds, rather than ameliorates, the confusion, anxiety, loss of trust and enduring sense of insecurity that the child will suffer. It is not uncommon for children who are only two to three years old to report sexual misconduct, having been disturbed by it and, possibly, sensing an aspect of sexuality or at least of misconduct.

No evidence of HS or JJ having been aware of the abuse

1. The offending against HS and JJ was not discovered through complaint from them but as a result of police viewing the applicant's video recordings of the incidents. JJ, at 1-2 years old, was obviously too young to be interviewed. There is no basis in the evidence for inferring that she was aware of the indecent nature of the applicant's conduct as described at [68] above or that she distinguished what he did from everyday physical care by an adult. There is no evidence that she was aware or could have understood that the applicant was filming her.
2. HS was interviewed by police attached to the Child Abuse Unit on 18 October 2019, aged five years. She had no knowledge of any of the conduct that was the subject of the s 61M(2) charges or the s 61O(2) charge or of having been filmed. That is consistent with the following circumstances: 1. The first eight indecent assaults against HS, as summarised in the chronological table at [58], were committed when HS was no more than three years old. With respect to four of those first eight matters, namely, seq 53, 32, 34 and 36, there is no evidence from which it could be inferred that HS would have distinguished the applicant's physical contact from the attention of adults that would have been part of her routine care and hygiene. The other four matters, seq 47, 49, 41 and 43, were of an overtly sexual character but given HS's lack of awareness when interviewed and the absence of physical injury or discomfort, as referred to at (4) below, there was no evidence that HS found these acts significant or disturbing, or that she was conscious of the sexual nature of what had occurred, or that she was affected by it. It would have been open to the learned judge to find that there was a risk of HS retaining memory of those four overtly sexual matters and suffering disturbance from them in the future. 2. The indecent assaults of HS committed when she was 3-5 years old (seq 3, 6, 19 and 23 - see [58]), all appear to have taken place while she was asleep. The video recordings did not show her face nor any part of her body other than the region of her buttocks and genitals. They showed that she did not move or react in response to the applicant's indecent acts. There was no evidence that she was conscious of the touching in those four matters. 3. With respect to the s 61O(2) offence against HS (described at [60] above) HS gave no indication of having been aware of wrongdoing towards herself, or any indecency. There was no evidence that she distinguished the applicant's conduct, following her bath on this occasion, from physical care. There was no evidence that she felt any discomfort or suffered any psychological reaction. 4. None of the s 61M(2) or s 61O(2) offences against HS involved force or any degree of physical pressure or abrasion that would likely have been painful or uncomfortable. Nor was there any threat made by the applicant to induce her to submit, or any persuasion or psychological manipulation. The applicant opportunistically used occasions when the child was in an innocent state of undress, or asleep, to touch and view her private parts when she, apparently, was unaware of him doing anything out of the ordinary.
3. If HS and JJ had noticed and reported the applicant's offending acts towards themselves and had complained of them as wrongful, leaving no doubt that they were aware of the acts and of their sexuality, or at least their impropriety, then there would have been a basis upon which her Honour could have applied judicial experience and the results of psychological research in the public domain to infer that substantial psychological harm would have been caused. In the absence of such awareness on the part of these two victims, it was not open to her Honour to find that either of them was robbed of innocence or sexualised, as referred to at [256], by the applicant's secretive, surreptitious acts - disgraceful and appalling as those acts are to those who have learned of them through the investigation and prosecution of the applicant.

Sentencing judge's view of indecent assaults on HS during sleep

1. Sequence 3 is one of the s 61M(2) offences committed against HS when she was 3-5 years old. The video recording is consistent with the victim having been asleep. Her Honour expressed the following conclusion with respect to seq 3: [292] […] If she was asleep she would have been particularly vulnerable and if she was awake she would have been aware of the offender's conduct. I am unable to determine, for this or any subsequent similar offences, whether the victim was asleep or awake; in my view it makes little material difference in terms of objective seriousness. Both scenarios are objectively serious for different reasons.
2. With due respect, the factual question of whether the child was asleep at the time of the indecent assaults in sequences 3, 6, 19 and 23 (and during the sexual intercourse in seq 56) could not be passed over in this manner. There was no evidence that HS would experience any psychological effect from sexual touching that occurred during sleep and that did not wake her. The learned sentencing judge did not identify any judicial experience of such a phenomenon of causation, or any research that might support it. Hence, in respect of the five offences where it was not proved beyond reasonable doubt that HS was awake when touched, substantial harm to the victim could not be found. No doubt, the applicant's taking advantage of the child's vulnerability during sleep, by touching her in a sexual manner in that state, would be relevant to the gravity of the crime. However, the gravity would be much less in such circumstances than if HS was conscious and aware of being sexually touched and if she suffered immediate, delayed and/or ongoing distress in consequence.

Excessive indicative sentences for s 61M(2) and s 610(2) offences

1. For the s 61M(2) and s 610(2) offences against HS and JJ, her Honour's starting points for indicative sentences, prior to discounting by 25% for the applicant's pleas of guilty, may be grouped as follows: 1. For each of the least serious indecent assaults involving contact with the victims' thighs and buttocks but not with their genitals - seq 53, 32, 36, 3 and 19 in the table at [58], the s 61O(2) matter in seq 9 at [59] and the s 61M(2) offence against JJ at [68] - indicative sentences of around 5 years for each offence were adopted, implying starting points of around 6 years and 8 months. 2. For the most serious matters involving direct contact with the victims' genitals (seq 41, 43, 6 and 23 in the table at [58]) or contact of the victim's feet with the applicant's penis (in the case of seq 47 and 49) the indicative sentences were around 6 years and 3 months for each offence, implying starting points of around 8 years and 4 months.
2. In the absence of any evidentiary basis for finding beyond reasonable doubt that either of these two victims suffered or would suffer any physical, emotional or psychological harm, the indicative sentences that I consider warranted on a sound assessment of objective gravity are in the order of two thirds of the terms that her Honour nominated - as may be seen in the table at [154] below. Her Honour's indicative sentences for these matters disclose an excessive assessment of objective gravity, which occurred because of the learned judge's uniform attribution to the victims of a high degree of psychological harm that was not the subject of findings of fact and where findings of harm would not have been open on the evidence.

S 66A offence against HS

1. With respect to the s 66A offence against HS, described at [63] above, the observations made at [131(2)] and [134] apply: the evidence did not establish that the child was awake when this digital penetration took place and there was no evidence that could have supported a finding beyond reasonable doubt that HS suffered any physical discomfort or emotional or psychological disturbance, or that she would suffer any such harm in the future. This single count of sexual intercourse involved facts very similar to the touching of HS's genitals charged under s 61M(2) in sequences 41, 43, 6 and 23 (see the table at [58]). The only difference is that on the s 66A count, the applicant put his fingers inside the child's labia. The slight aggravation in physical terms exposes the applicant to the higher maximum penalty under s 66A. However, an assessment of the objective seriousness of the offence must take into account that the conduct in this matter was only marginally more grave than in a number of the indecent assault charges.
2. For the s 66A offence against HS her Honour's indicative head sentence of 9 years implies that the term would have been 12 years if it had followed a trial. In my view, the indicative sentence of 9 years after discounting for the plea of guilty is plainly excessive, taking into account the minimal extent of the intercourse, the victim having been unaware and not having been shown to have suffered harm and all other objective and subjective circumstances. An appropriate head sentence after trial would not have exceeded 6 years, which would equate to 4 years and 6 months after applying the discount. Her Honour's indicative sentence again reveals an unwarranted imputation of aggravation by harm to the victim.

S 66A offence against NG

1. In the commission of the offence against NG, described above at [69], the baby obviously suffered physical discomfort from the abuse. Her Honour said this: [338] All right minded members the community would be disgusted and disturbed by the offender's abhorrent conduct. It is criminal conduct of the gravest kind. [339] I also reject the submission made on behalf the offender that the victim was not harmed. Albeit she was but an eight week old baby, I respectfully adopt the observations of Wilson J in R v LS [2020] NSWCCA 148 at [147]: … it cannot be assumed that the young age of the victim lessens the seriousness of the offence because it is unlikely there will be psychological harm. It is the experience of the courts that sexual crimes against children occasion harm to the victims. [340] The victim may come to learn what was done to her as a baby in the years to come. The offending has also no doubt affected her family in many detrimental ways.
2. In R v LS, the offence to which Wilson J's comments appear primarily to have been directed was of an assault with act of indecency in which the male offender placed his erect penis in contact with the vagina of an 18-month-old baby. While having due regard to Wilson J's observations, in the particular circumstances of the present case the question whether NG suffered a subliminal psychological reaction to what occurred or whether she would or might suffer a delayed or long-term reaction to the event is a question of fact upon which a finding beyond reasonable doubt would have to rest upon some evidentiary foundation. Nothing in the evidence before the learned sentencing judge, nor in my own experience, nor anything stated by her Honour as to her experience in other matters, provides a foundation for concluding that NG, at eight weeks, would have had sufficient consciousness or would retain sufficient memory to be psychologically affected by this event.
3. R v JP [2015] NSWCCA 267 was a Crown appeal against inadequacy of sentence for one count of sexual intercourse with a child under 10 and under authority (s 66A(2) of the Crimes Act). The offender was a 25-year-old woman with intellectual disability who had been persuaded by her co-offender to use her tongue on the vagina of her six-week-old baby and to make and send photographs of the act. The sentencing judge found that because of the child's age, there could have been no psychological harm and there was no physical harm. Efforts had been made to ensure that the child was never told of what occurred. The judge concluded that if those efforts were successful, the child would suffer no psychological harm as a direct consequence of the offence. In the appeal the Crown accepted that it was open to find that a six week old baby had no capacity to register or remember events but referred to the risk that the child would suffer psychological harm if she later found out what her mother had done.
4. All members of this Court considered that the sentencing judge had erred in some respect, although they differed as to what the error was, and all agreed that the Crown inadequacy appeal should be dismissed. The majority so held on the basis that although the sentence was manifestly inadequate the Court should exercise its discretion not to intervene. Price J made the following assessment of objective gravity: [77] The cunnilingual abuse of a 6 week old baby by her mother is a crime of the vilest nature. The depravity of the respondent's offending is enhanced, in my opinion, by her intention to send pictures of her sexual acts to the co-offender for his sexual gratification. [78] The degree of responsibility of a mother to keep her baby safe is of the highest order. The respondent breached her position of trust towards her daughter in the grossest way. [79] When offences of this kind are considered, it is often submitted on behalf of an offender that as the young child would not have been in the position to understand or even appreciate what occurred, there could be no evidence of psychological harm. Indeed, the primary judge made such a finding. I do not understand how the fact that a child was unknowing can be seen to reduce the objective seriousness of the offence. An unknowing child is a vulnerable victim, who is unable to take any action to protect him or her self from abuse of any kind, let alone the sexual abuse of a mother. A 6 week old baby is helpless and dependant on the care and protection of his or her parent or guardian. [80] The gross breach of trust and utter vulnerability of the respondent's baby constitute serious aggravating factors on sentence.
5. Price J's observations at [79] do not support imputation of psychological harm, as an aggravating factor, where the victim has not been conscious of the abuse. The offending in such a case is objectively serious on the basis, not of imputed psychological harm, but of exploitation of extreme vulnerability. Nothing in the above passage suggests that substantial emotional harm could be taken to be established for the purposes of s 21A(2)(g) in a case where no inference was open, for want of evidence that the victim knew what had occurred.
6. The objective seriousness of the count concerning NG fell to be assessed upon the basis of the depravity that it exhibited - which requires no further elaboration - and with recognition that the applicant was prepared to run the risk of compromising the baby's health and welfare in order to derive his deviant gratification. The indicative term adopted by her Honour of 21 years implies that a starting point sentence of 28 years would have been imposed had the applicant been convicted after a trial. That would equate to, or perhaps exceed, a sentence that the applicant's acts would have attracted if they had resulted in the death of the child and if he had been convicted of murder by criminal negligence. Her Honour's indicative term, exhibiting that equivalence, apparently reflects her attribution of "catastrophic" psychological harm that would afflict the child for the whole of her life. The indicative term for this count must have made a significant contribution to the aggregate. The indicative term is manifestly excessive in the absence of any evidence or finding of substantial, enduring harm to the child.
7. Of course, even when it is recognised that NG was not shown to have suffered any lasting physical or psychological harm, the ndicative sentence on this count had to be of sufficient severity to acknowledge the revulsion of the community with respect to such depraved conduct and the need for denunciation: s 3A of the Crimes (Sentencing Procedure) Act, pars (f) and (g). General and specific deterrence and protection of the community are additional statutorily recognised purposes of sentencing that are engaged in relation to this count. Taking into account all objective and subjective circumstances, the purposes of sentencing would be fully served by a starting point sentence for this count of no more than 12 years, reducing to 9 years after deducting 25% for the applicant's early plea.

Consideration of Stewart v R [2012] NSWCCA 183

1. Stewart v R [2012] NSWCCA 183 was an appeal against sentence on a single count of sexual intercourse with an adult female without consent. A victim impact statement prepared by a social worker was tendered by the Crown. It indicated that since the offence was committed the victim had suffered sleep disturbances, intrusive thoughts, panic attacks, anxiety in public places, difficulty concentrating and hyper-vigilance. Although some of her symptoms were diminishing, the statement conveyed that they might continue for many years to come. One ground of appeal challenged the manner in which the impact of the offence upon the victim had been assessed by the sentencing judge, referring to the following passage from his remarks on sentence: [As far as I am concerned, cases of sexual assault have significant effects on the victim. There are two particular ways, they result in significant distrust as far as the victim is concerned in forming relationships, particularly with males if the assailant was a male. The other very broad area that is affected is the confidence or self-confidence of the victim is significantly damaged, they have concerns about their own self-worth, sometimes that is demonstrated by self-harm but there are other ways in which it is demonstrated. There is no satisfactory material yet available to indicate how long those matters may last, I always proceed on the basis that they will continue to be present for a very long time. One of the reasons for that is that this Court does have to deal with assaults of some age and it is notable that victims in those cases are still showing signs of the trauma resulting from attacks that occurred many years earlier. There is no way of knowing whether this will diminish in time if so, to what extent […].
2. The appellant complained that the sentencing judge had taken into account "presumed harm" that was irrelevant to his sentence. Button J (McClellan CJ at CL and Price J concurring) held as follows: [61] This Court has held that sentencing judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences. Because of that entitlement, care needs to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999: see, for example, Doolan v The Queen [2006] NSWCCA 29; (2006) 160 A Crim R 54 at [21]-[24], R v Cunningham [2006] NSWCCA 176 at [52]-[55], and King v R [2010] NSWCCA 33 at [33]-[42]. [62] Having said that, it would have been preferable for his Honour not to have expressed himself in terms of generalities in this case. A better course would have been to make findings of fact founded on the evidence tendered in the proceedings. In particular, it was undesirable for his Honour to indicate an approach that his Honour "always" adopted with regard to a finding of fact as to how long psychological sequelae will last. [63] I consider that this ground may have had some force if there had been evidence that the victim had suffered no psychological injury as a result of the offence, or if there had been no evidence either way.
3. The ground asserting erroneous presumption of harm to the victim was rejected because the sentencing judge had ample evidence, in the victim impact statement, to support his factual finding that substantial harm had been occasioned. Where the evidence on sentence directly or by inference establishes ongoing psychological detriment to the victim, recognition of that detriment as a factor increasing the seriousness of the offending would seem to carry no risk of double counting. Whilst the expectation of such harm is a reason for child sexual offences having been created and for high maximum penalties having been prescribed, emotional or other harm is not an element of offences such as ss 61M(2), 61O(2) and 66A and cannot be taken to be encompassed in a verdict or plea.
4. The error complained of in Stewart v R is exhibited in the remarks on sentence in the present case. However, in contrast with Stewart v R, on this application grounds 1 and 3 have force and should be upheld because there was no evidence that could have substantiated psychological harm to the victims independently of the attribution made by her Honour.

Ground 6 - manifest excess

1. The conclusion sought by the applicant pursuant to ground 6, that the aggregate sentence for the State offences is manifestly excessive, "does not depend upon attribution of identified specific error in the reasoning of the sentencing judge" and may "not admit of amplification except by stating the respect in which the sentence is inadequate or excessive": see Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).
2. I have concluded for the reasons stated above that her Honour made excessive assessments of the objective seriousness of the s 61M(2), s 61O(2) and s 66A offences on the basis of unsupported attribution of harm to the victims and that inflation of the gravity of the offences is revealed by indicative sentences that greatly exceed what would follow from a supportable assessment of objective seriousness.
3. With respect to the s 91G(1)(a) offences her Honour correlated the indicative sentences to variations in the objective gravity of the video recordings. The longer indicative sentences nominated in this category were for counts concerning recordings of sexual offences against HS, where significant additional offences of a like kind were listed on a Form 1. Her Honour's indicative sentences for the s 91G(1)(a) matters are identified at [65], [66], [68] and [70], above. I consider that the entire scale of them is plainly excessive, revealing and attributable to excessive assessment of objective seriousness. The terms of imprisonment that I would consider appropriate to the gravity of the respective instances are set out in the table at [154] below and are in the order of approximately two thirds the length nominated by her Honour in each case.
4. Her Honour took into account what she regarded as a "substantial overlap" between, on the one hand, HS seq 17, 20, 42, 48, JJ seq 1 and NG seq 2, being the s 91G(1)(a) counts concerning video recording of sexual offending, and on the other hand the substantive sexual offences themselves. Her Honour's aggregate sentence reflects significant notional concurrence between the indicative terms and a substantial part of that concurrence must necessarily be between the penalties for the sexual offences and those for the corresponding s 91G(1)(a) counts. In resentencing I would adopt the same approach.

Aggregate sentence

1. I am of the view that the aggregate sentence imposed by her Honour for the State offences is manifestly excessive having regard to a proper measure of the objective seriousness of the individual counts, taking account of the totality of offending and accepting the learned sentencing judge's findings regarding the applicant's subjective case. In resentencing I would proceed from the indicative sentences as set out in the following table. Seq HS - s 61M(2) offences Indicative head/npp HS under 3 yrs 47 Applicant moved HS's feet to touch his penis. 3y 9m 2y 4m 49 Applicant moved HS's feet in contact with his penis until he ejaculated. 4y 3m 2y 9m HS 2-3 yrs old 53 Applicant lifted HS from the toilet in his home so that she was above the camera and held her upper thighs to spread them apart, recording her vagina and anus. 3y 2m 2y HS 3 yrs old 32 HS naked in a public toilet; applicant parted her buttocks to expose her anus. 3y 1y 11m 34 HS naked in a public toilet; applicant wiped her vagina with a tissue. 3y 1y 11m

36 Applicant removed HS's dress and underpants in lounge room of his home then held the child's legs apart above the camera to film her vagina and anus. 3y 10m 2y 6m

41 HS sitting in a car seat not wearing underpants; applicant moved the seatbelt away from her vagina, exposing it, and used his hand to part her labia majora. 3y 10m 2y 6m 43 The description of the offence is the same as for seq 41 except that the seatbelt was not moved. 3y 10m 2y 6m HS 3-5 yrs old 3 HS lying on her side on a lounge in the applicant's home with her pyjama pants pulled down around her thighs, apparently asleep; the applicant touched her upper thigh and spread the skin to reveal her vagina and anus. 3y 4m 2y 2m 6 HS lying on her side on a lounge in the applicant's home, apparently asleep, with her buttocks and vagina exposed; the applicant used his fingers to touch and spread the labia majora, and further exposed her vagina. 3y 8m 2y 3m

19 HS lying on a lounge in the applicant's home, apparently asleep; the applicant lifted bedding revealing HS naked with her hand partly covering her vagina; the applicant moved her hand to expose a clear view. 2y 8m 1y 9m

23 HS lying on her side on a lounge in the applicant's home, apparently asleep, naked. The applicant touched her buttocks and labia majora with his fingers and further exposed her vagina. 3y 8m 2y 3m HS 3-5 yrs old - s 61O(2) offence 9 HS naked in the bathroom of the applicant's home; he used a towel to dry her. The applicant lifted HS over a camera positioned at a low point and parted her legs to expose her vagina; then stood her back on the floor, turned her around, focused the camera on her buttocks and told her to bend over, which she did. HS used her hands to spread her buttocks and the applicant recorded a close-up view of her vagina and anus. 2y 10m 1y 10m HS 3-5 yrs old - s 66A offence 56 HS lying naked on her back on a lounge in the applicant's home when the applicant used his index and middle finger to part her labia majora and labia minora and expose her vaginal canal. Applicant's fingers remained in contact with the vaginal opening for 60 seconds. Sufficient digital penetration to constitute sexual intercourse. HS did not move in response to the touching and appears to have been asleep. 4y 6m 3y s 91G(1)(a) videos paired to sexual assaults of HS CETS Cat 3 17 Recording of the s 66A sexual intercourse offence in seq 56. 2y 8m 1y 9m 20 Recording of the s 61M(2) offence in seq 19, taking into account on a Form 1 the filming of s 61M(2) offences in seq 3, 6 and 23 and the s 61O(2) offence in seq 9. 3y 6m 2y 3m 42 Recording of the s 61M(2) offence in seq 43, taking into account on a Form 1 the filming of s 61M(2) offences in seq 32, 34 and 41. 3y 3m 2y 1m 48 Recording of the s 61M(2) offence in seq 49, taking into account on a Form 1 the filming of s 61M(2) offences in seq 36, 47 and 53. 3y 3m 2y 1m s 91G(1)(a) videos independent of assaults of HS - CETS Cat 1 HS 3 yrs old 37 Three segments, each of less than 1 m; all showing HS in a car seat without underpants. 2y 1y 4 m HS 2-5 yrs old 26 Three segments, of between 1 m 7 sec and 2 m 26 sec; two are of HS naked standing or walking in the applicant's lounge room, focused on her vagina and buttocks, one is of her in a car seat without underpants. On a Form 1, two offences concern 30 sec recordings of HS naked on a lounge in the applicant's home and a third shows her sitting naked on a toilet 2y 3m 1y 6m HS 3-5 yrs old 14 Five segments, of between 18 seconds and 3 m 12 sec; four segments are of HS naked in a bath, one depicts her vagina while she is on a lounge in the applicant's home. 2y 10m 1y 10m JJ - 2020/206715 2 The applicant approached JJ, aged approximately one or two years, standing naked in the toilet of her home. She said she needed help. The applicant lifted the child over his camera on the floor and spread her buttocks with his fingers (indecent assault contrary to s 61M(2)). 3y 2m 2y 1 The applicant recorded images of JJ's anus and then her genitals at the time of seq 2 (contrary to s 91G(1)(a)). Recording of 1m 30 sec duration, CETS Cat 3 2y 3m 1y 6m NG - 2019/358214 1 Penile-oral sexual intercourse with an eight week old female baby. 9y 5y 10m 2 Video recording of seq 1; 8m 24sec, CETS Cat 4. 4y 2y 7m Possession of child abuse material - s 91H(2) 12 Three DVDs each with the same one-hour recording of naked prepubescent males and females in a "pageant". CETS Cat 1. 1y fixed

1. The non-parole periods in each indicative sentence are approximately 65% of the head sentence. I propose an aggregate sentence with a non-parole period that is also 65% of the full term. The need to achieve a 75% ratio in the overall effective sentence, when the Commonwealth non-parole period is accumulated by 2 years, constitutes a special circumstance for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act. As earlier mentioned, the Commonwealth sentence is not sought to be challenged in the application for leave to appeal and there is an absence of challenge to her Honour's accumulation of 2 years of the Commonwealth non-parole period beyond the expiry of the State non-parole period.
2. I propose the following orders: 1. Grant leave to appeal against sentence. 2. Allow the appeal. 3. Quash the sentence passed in the District Court on 26 July 2021 and in lieu thereof sentence the applicant as follows: 1. For the State offences, the applicant is sentenced to an aggregate term of imprisonment of 20 years commencing on 1 October 2019 and expiring on 30 September 2039 with a non-parole period of 13 years expiring on 30 September 2032; 2. For the Commonwealth offences, the applicant is sentenced to an aggregate term of imprisonment of 4 years and 6 months commencing on 1 June 2031 and expiring on 30 November 2035 with a non-parole period of 3 years and 4 months expiring on 30 September 2034. 1. The overall effective sentence is 20 years with a non-parole period of 15 years. 2. The earliest date upon which the applicant will be eligible for release to parole is 30 September 2034.

Endnotes

1. Sentencing Judgment at [98]
2. Sentencing Judgment at [27].
3. Sentencing Judgment at [256]
4. Sentencing Judgment at [475]
5. Sentencing Judgment at [292]

Amendments 13 February 2023 - Cross-references updated 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: 20 February 2023