[2000] HCA 54
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
(2017) 270 A Crim R 556
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
DL v R (2018) 265 CLR 215
[2018] HCA 32
GG v R [2023] NSWCCA 102
Haines v R [2021] NSWCCA 149
House v The King (1936) 55 CLR 499
[1936] HCA 40
JM v R [2014] NSWCCA 297
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 54
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301(2017) 270 A Crim R 556
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
DL v R (2018) 265 CLR 215[2018] HCA 32
GG v R [2023] NSWCCA 102
Haines v R [2021] NSWCCA 149
House v The King (1936) 55 CLR 499[1936] HCA 40
JM v R [2014] NSWCCA 297(2014) 246 A Crim R 528
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
KS v R [2024] NSWCCA 147
Lyons v R [2017] NSWCCA 204
Mill v The Queen (1988) 166 CLR 59[1988] HCA 70
Minehan v R [2010] NSWCA 140(2010) 201 A Crim R 243
Nguyen v The Queen (2016) 256 CLR 656[2016] HCA 17
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Patel v R [2022] NSWCCA 93(2022) 366 FLR 314
Pearce v The Queen (1998) 194 CLR 610239 A Crim R 469
R v MAKR v MSK [2006] NSWCCA 381(2006) 167 A Crim R 159
R v Porte [2015] NSWCCA 174
Judgment (13 paragraphs)
[1]
The applicant's subjective case
The sentencing judge considered the applicant's case in some detail. It was not submitted that she failed to have regard to the subjective case or gave it inadequate weight in assessing the aggregate sentence. It was conceded that the subjective case was not powerful. In response to that position, I do not propose to summarise the applicant's subjective case in the same degree of detail as her Honour did.
The applicant was born in 1990. He and his older brother were raised in Sydney by their parents who remain married. He described a positive and loving upbringing with supportive parents and denied exposure to domestic or physical abuse.
He attended a local public school until Year 4 when he was accepted into an opportunity class at a public school which was out of area. He then attended a Catholic college between Years 7 and 10 and local High School in Years 11 and 12 receiving the second highest grade in mathematics for his year in the Higher School Certificate (hereafter "HSC").
He was a good student who performed well when he applied himself. Although he reported occasional binge drinking in his youth, he actively avoided being incapacitated from alcohol. Prior to his arrest, he drank socially and has no history of illicit drug use, nicotine use, or problematic gambling.
His only physical health problems were the result of dislocating his shoulder several times and fracturing his collar bone playing sport at the age of 18. As a result of muscle and ligament damage following surgery, these injuries continue to cause him pain.
The applicant was not diagnosed with any psychiatric or psychological concerns during his adolescence.
Although the applicant aspired to work in adventure-based youth work, his shoulder and collarbone injury meant there were few options in that field. Instead, he began working in respite care with children with disabilities for a period of time. He also reported working as a disability support worker at a warehouse for approximately one year before returning to work at Woolworths for around two years. For several years prior to his arrest, he was employed intermittently at his father's timber business.
Dr Collins was of the view his work history was not at a level commensurate with his ability.
The applicant disclosed to Dr Collins that he was sexually touched by a family member on a few occasions when he was approximately 10 years old. Her Honour was prepared, on balance, to accept the truthfulness of this disclosure. Although the applicant told Dr Collins he did not believe these incidents had any bearing on his offending, Dr Collins opined that the alleged abuse when the applicant was younger significantly accelerated his sexual awareness.
The applicant reported that he is bisexual and described his sexual attraction as being specific to a person rather than a gender. He stated that his family are supportive of his sexual orientation.
In his evidence he nominated an attraction to boys aged six and above however acknowledged receipt of CAM featuring babies and toddlers. He further acknowledged that the day prior to his arrest he advertised himself as a dad with a son and requested that people only add him if they had a young boy so that they could "trade" material.
Dr Collins reported that the applicant acknowledged his offending resulted from his sexual interest in prepubescent male children which he was unable to control. She opined that his contact with like-minded individuals online provided him with a sense of community and a space where he was not judged which served to normalise his conduct.
Whilst her Honour accepted that some of what the applicant said online was bravado and puffery designed to gain popularity and connectedness with like-minded others, she found that the applicant nevertheless created and used dedicated social media accounts with many contacts to communicate about the sexual abuse of children (typically boys) and to trade CAM. While the applicant maintained that some of the CAM he received did not particularly interest him, he agreed he used such material to trade for material that was to his interest.
In his first report, Dr Furst opined that the applicant presented with a pattern of behaviour, arousal and sexual interest indicative of a paedophilic disorder (of a non-exclusive type presumably because the applicant endorsed a sexual attraction to both males and females) and opined that his paedophilic disorder was the primary motivation for his offending. In his supplementary report, Dr Furst reported that there "appears to be a fairly strong correlation between boys being sexually abused and subsequent sexual offending as adults".
It was contended on behalf of the applicant that the court would accept that the sexual touching that occurred when the applicant was a child had a bearing on the sentence to be imposed because, it was contended, that conduct contributed to his criminality and reduced the applicant's moral culpability: R v AGR (unrep, 24/7/1998, NSWCCA) at [13]. Her Honour considered that submission but found that there was insufficient evidence to find on balance that it contributed to his offending or that it had any real bearing in reducing his moral culpability or moral responsibility.
Her Honour then considered the relevance of the applicant's paedophilic disorder. After citing R v Engert (1995) 84 A Crim R 67 and accepting that paedophilia is a mental condition, her Honour was not satisfied that it reduced the applicant's moral culpability in any meaningful way. This was because the applicant was a mature and apparently intelligent adult at the time of his offending. He knew of his sexual attraction to boys prior to meeting the mother of Child 1. Thereafter, he repeatedly placed himself in positions that gave him access to boys and the opportunity to offend over and over again. In her Honours' view, the evidence clearly demonstrated that over a significant period of time, the applicant chose to offend against multiple children and deal with large quantities of CAM for his own sexual gratification, making efforts to hide his predilection but making no efforts to stop.
Her Honour went on to find in the alternative that even if the applicant's paedophilia diagnosis should be seen as a matter ameliorating his moral culpability or responsibility, that would be offset by the fact that the scale and nature of his offending required significant weight to be afforded to deterrence and protection of the community.
Her Honour then noted that the applicant had not had contact with his brother or with other acquaintances since his arrest and that his most regular contact to date (COVID-19 permitting) had been with his mother and aunt. He experienced frequent periods of COVID-19 isolation and lockdown. She noted that the applicant has been moved within the gaol, apparently as a result of others in the prison becoming aware of the nature of his offending and making threats against him and that he is currently accommodated in the Special Management Area Placement Wing ("SMAP").
Her Honour observed that the applicant will likely have few supports while he serves his sentence. It is also reasonable to assume the treatment he has received from others within the gaol may continue at least for some time. Such matters are likely to make his experience of custody harder and may mean his reintegration into the community will be more difficult upon his eventual release. Her Honour took this into account.
Her Honour noted that Dr Collins reported that the applicant presented with mixed mood symptomatology including a tendency to worry and ruminate and that he was feeling anxious about his family, the victims and the likely court outcome. Dr Collins opined that he described persistent sadness arising from dissatisfaction in relation to career aspirations and has suffered low mood since early adulthood which was likely complicated by feelings of guilt and shame associated with his sexual interests and offending.
Dr Collins noted further that the applicant reported feelings of anxiety and sadness as a result of media attention which resulted in him being moved around the prison due to threats. In her opinion his presentation that suggested a lower grade but longer term depressive condition such as persistent depressive disorder did not meet the full criteria for a diagnosis of anxiety disorder even though he had symptoms consistent with a generalised anxiety disorder.
Her Honour accepted that the applicant suffered a depressive condition and symptoms consistent with anxiety disorder, both of which would make his time in custody more onerous and difficult.
Her Honour noted the applicant's apology letter to the court in which he described feeling a sense of "relief" when he was arrested and acknowledged that he did not tell anyone or seek help because he was scared about consequences.
Her Honour was satisfied that he displayed remorse and contrition.
Although the applicant had no criminal history, in light of the nature of his offences, the period over which they were committed and the significant abuse of trust, her Honour was not satisfied that this factor entitled the applicant to any particular degree of leniency.
As for his risk of reoffending and prospects of rehabilitation, her Honour referred to the expert opinions on this but noted that a very troubling matter was the applicant's limited insight. Although the applicant maintained he was beginning to understand the lifelong consequences of his offending, her Honour noted that he maintained a belief that Child 1 derived enjoyment from the offending and at times initiated such conduct. The applicant reported that he "wanted to make it as enjoyable for him as he could" and that when Child 1 would say things like "ow", he would "try and change it up or do something different to make him feel better".
Her Honour also noted that the applicant expressed a belief that harm was not caused when he offended whilst a child was sleeping or unaware. Furthermore, he took comfort from the fact he was not the person perpetrating the, sometimes abhorrent, acts of sexual abuse and cruelty upon the children within the material he received. He described in his evidence that such material made him feel better about what he was doing because he was not doing anything violent to the children against whom he committed the contact offences.
Her Honour found that the applicant posed a moderate risk of reoffending, and that his prospects of rehabilitation were guarded.
Her Honour then considered the purposes of sentencing and then said this about the principle of totality:
"The principle of totality is clearly a very important consideration in the present sentencing exercise. The reality is that having determined an indicative sentence appropriate to the objective gravity of each individual offence, if I was then to partially accumulate to reflect the separate nature of the offender's repeated conduct, the result would be the imposition of a sentence that would be crushing and manifestly excessive. At the same time, I have endeavoured to be mindful of the need to ensure that an offender who commits multiple offences on multiple discrete occasions does not receive some kind of discount for multiple offending.
In applying the totality principle, I have accommodated the fact that although different offences criminalise different conduct, there is significant overlap between many of the offences - particularly those that relate to CAM - and have taken care not to unduly accumulate notional sentences.
As will be apparent from the indicative sentences that are indicated within Annexure C that will be provided to the parties, as will be apparent from those indicative sentences and when I then impose the aggregate sentence, faithful compliance with the totality principle has meant that the offender has in fact received relatively modest to no increase for much of his offending.
I am mindful this is the offender's first sentence of imprisonment, and it will be a lengthy one and appreciate that each year in gaol has a greater impact on a person than the preceding year."
Her Honour considered the question of special circumstances. She found them for the State offences but noted that that is not reflected in the overall sentence because the factors which could constitute special circumstances had already been considered and synthesised in the aggregate sentence her Honour imposed. Her Honour went on to state:
"In my view, any reduction to the effective aggregate non-parole period would result in a sentence that would fail to reflect the gravity of the offending and would fail to pay appropriate regard to the purposes of sentencing including denouncing the offender's conduct and imposing punishment for his offending."
Her Honour then imposed the aggregate sentence set out above. The indicative sentences were listed in Annexure C to her Honour's judgment but for ease of reference they are set out here:
[2]
In relation to the Commonwealth offences:
1. Sequence 2 and taking into account Sequence 1, indicative sentence of imprisonment of 4 years and 2 months;
2. Sequence 3, indicative sentence of imprisonment of 3 years;
3. Sequence 9, indicative sentence of imprisonment of 3 years and 7 months;
4. Sequence 10 and taking into account Sequence 181, indicative sentence of imprisonment of 3 years
5. Sequence 309, indicative sentence of imprisonment of 1 year and 10 months;
6. Sequence 310, indicative sentence of imprisonment of 1 year and 10 months;
7. Sequence 317, indicative sentence of imprisonment of 1 year and 10 months;
8. Sequence 321, indicative sentence of imprisonment of 1 year and 2 months;
9. Sequence 314, indicative sentence of imprisonment of 1 year and 2 months.
[3]
In relation to the State offences:
1. Sequence 170, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
2. Sequence 191, indicative sentence of imprisonment of 7 years and 2 months with a non-parole period of 5 years and 2 months;
3. Sequence 202, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
4. Sequence 244, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
5. Sequence 294, indicative sentence of imprisonment of 7 years and 2 months with a non-parole period of 5 years and 2 months;
6. Sequence 171, indicative sentence of imprisonment of 7 years and 2 months with a non-parole period of 5 years and 2 months;
7. Sequence 28, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
8. Sequence 5, indicative sentence of imprisonment of 8 years and 5 months with a non-parole period of 6 years and 1 month;
9. Sequence 194, indicative sentence of imprisonment of 8 years and 5 months with a non-parole period of 6 years and 1 month;
10. Sequence 198, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
11. Sequence 203, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
12. Sequence 333, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
13. Sequence 208, indicative sentence of imprisonment of 8 years and 5 months with a non-parole period of 6 years and 1 month;
14. Sequence 274, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
15. Sequence 211, indicative sentence of imprisonment of 8 years and 5 months with a non-parole period of 6 years and 1 month;
16. Sequence 213, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
17. Sequence 224, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
18. Sequence 227, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
19. Sequence 260, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
20. Sequence 278, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
21. Sequence 286, indicative sentence of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months;
22. Sequence 296, indicative sentence of imprisonment of 8 years and 5 months with a non-parole period of 6 years and 1 month;
23. Sequence 254, indicative sentence of imprisonment of 9 years and 7 months with a non-parole period of 6 years and 11 months;
24. Sequence 257, indicative sentence of imprisonment of 9 years and 7 months with a non-parole period of 6 years and 11 months;
25. Sequence 290, indicative sentence of imprisonment of 9 years and 7 months with a non-parole period of 6 years and 11 months;
26. Sequence 297, indicative sentence of imprisonment of 9 years and 7 months with a non-parole period of 6 years and 11 months;
27. Sequence 6 and taking into account Sequence 7, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
28. Sequence 210 and taking into account Sequences 212, 215 and 217, indicative sentence of imprisonment of 4 years with 6 months with a non-parole period of 3 years and 3 months;
29. Sequence 214 and taking into account Sequence 219, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
30. Sequence 216 and taking into account Sequence 220, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
31. Sequence 230 and taking into account Sequences 233 and 234, indicative sentence of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months;
32. Sequence 235, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
33. Sequence 236 and taking into account Sequence 223, indicative sentence of imprisonment of 3 years and 7 months with a non-parole period of 2 years and 7 months;
34. Sequence 237 and taking into account Sequences 232, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
35. Sequence 238 and taking into account Sequences 222 and 229, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
36. Sequence 241 and taking into account Sequences 240 and 251, indicative sentence of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months;
37. Sequence 243 and taking into account Sequence 261, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
38. Sequence 245 and taking into account Sequence 248, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
39. Sequence 247 and taking into account Sequence 242, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
40. Sequence 253 and taking into account Sequences 256 and 258, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
41. Sequence 259 and taking into account Sequences 262, 263, 265 and 266, indicative sentence of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months;
42. Sequence 267 and taking into account Sequence 283, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
43. Sequence 269 and taking into account Sequence 281, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
44. Sequence 270 and taking into account Sequences 275, 277 and 280, indicative sentence of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months;
45. Sequence 271 and taking into account Sequence 273, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
46. Sequence 272 and taking into account Sequences 292 and 298, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
47. Sequence 289, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
48. Sequence 295 and taking into account Sequence 285, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
49. Sequence 300 and taking into account Sequence 299, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
50. Sequence 15, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
51. Sequence 21, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
52. Sequence 22, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
53. Sequence 23, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
54. Sequence 26, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
55. Sequence 305, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
56. Sequence 306, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
57. Sequence 33, indicative sentence of imprisonment of 3 years with a non-parole period of 2 years and 2 months;
58. Sequence 173, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
59. Sequence 307, indicative sentence of imprisonment of 3 years and 7 months with a non-parole period of 2 years and 7 months;
60. Sequence 308, indicative sentence of imprisonment of 3 years and 7 months with a non-parole period of 2 years and 7 months;
61. Sequence 176, indicative sentence of imprisonment of 3 years with a non-parole period of 2 years and 2 months;
62. Sequence 209 and taking into account Sequence 221, indicative sentence of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months;
63. Sequence 303, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
64. Sequence 332, indicative sentence of imprisonment of 4 years and 2 months with a non-parole period of 3 years;
65. Sequence 184 and taking into account Sequences 169, 182 and 185, indicative sentence of imprisonment of 3 years and 4 months and a non-parole 2 years and 5 months;
66. Sequence 187, indicative sentence of imprisonment of 2 years and 8 months with a non-parole period of 1 year and 11 months;
67. Sequence 323, indicative sentence of imprisonment of 2 years and 8 months with a non-parole period of 1 year and 11 months;
68. Sequence 188 and taking into account Sequences 186, 189 and 193, indicative sentence of imprisonment of 3 years and 4 months and a non-parole 2 years and 5 months;
69. Sequence 199 and taking into account Sequences 190, 192 and 195, indicative sentence of imprisonment of 3 years with a non-parole period of 2 years and 2 months;
70. Sequence 201 and taking into account Sequences 204 and 207, indicative sentence of imprisonment of 3 years with a non-parole period of 2 years and 2 months;
71. Sequence 205 and taking into account Sequence 200, indicative sentence of imprisonment of 2 years and 8 months with a non-parole period of 1 year and 11 months;
72. Sequence 197 and taking into account Sequence 196, indicative sentence of imprisonment of 2 years and 8 months with a non-parole period of 1 year and 11 months;
73. Sequence 225 and taking into account Sequences 218, 228 and 231, indicative sentence of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 9 months;
74. Sequence 226, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;
75. Sequence 239 and taking into account Sequences 246, 249 and 250, indicative sentence of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 9 months;
76. Sequence 252 and taking into account Sequence 255, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;
77. Sequence 264, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;
78. Sequence 284 and taking into account Sequences 268 and 301, indicative sentence of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 9 months;
79. Sequence 287 and taking into account Sequences 276, 282 and 288, indicative sentence of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 9 months;
80. Sequence 293 and taking into account Sequence 291, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;
81. Sequence 301 and taking into account Sequences 172 and 279, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;
82. Sequence 11, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;
83. Sequence 304, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;
84. Sequence 32, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;
85. Sequence 311, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year 6 months;
86. Sequence 312, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;
87. Sequence 174, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;
88. Sequence 315, indicative sentence of imprisonment of 11 months with a non-parole period of 8 months;
89. Sequence 316, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;
90. Sequence 318, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;
91. Sequence 324, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;
92. Sequence 325, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;
93. Sequence 319, indicative sentence of imprisonment of 2 years and 1 month with a non-parole period of 1 year and 6 months;
94. Sequence 179 and taking into account Sequence 320, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months;
95. Sequence 206, indicative sentence of imprisonment of 1 year and 2 months with a non-parole period of 10 months;
96. Sequence 183, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;
97. Sequence 180, indicative sentence of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 9 months;
98. Sequence 178, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;
99. Sequence 326, indicative sentence of imprisonment of 11 months with a non-parole period of 8 months;
100. Sequence 327, indicative sentence of imprisonment of 11 months with a non-parole period of 8 months;
101. Sequence 175, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;
102. Sequence 328, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;
103. Sequence 329, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;
104. Sequence 330, indicative sentence of imprisonment of 1 year and 6 months with a non-parole period of 1 year and 1 month;
105. Sequence 331, indicative sentence of imprisonment of 1 year and 10 months with a non-parole period of 1 year and 4 months.
[4]
Ground 1: Incorrect maximum penalty
As set out above, the applicant pleaded guilty to nine Commonwealth offences. contrary to the Criminal Code. The most serious of those offences were the five offences of transmitting CAM using a carriage service in circumstances of aggravation, namely involving transmissions on three or more occasions and two or more people contrary to s 474.24A(1)(a)(iii) of the Criminal Code.
The Crown accepted that the sentencing judge had regard to the incorrect maximum penalty for the five offences contrary to s 474.24A(1)(a)(iii). The Crown table of offences setting out the particulars and maximum penalties for that offence referred to the maximum penalty as being 30 years imprisonment and that is the maximum penalty her Honour referred to as being the maximum penalty in Annexure A to her reasons.
The maximum penalty for the s 424.24A(1) offence was only increased from 25 years imprisonment to 30 years on 22 June 2020 by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Measures) Act 2020 (Cth). The offences for Sequences 10, 309, 310, 317 and 321 pre-date that change which means that the relevant maximum penalty at the time of the offending was 25 years imprisonment, not 30 years.
As Beech-Jones J (as his Honour then was) observed in Andreata v R [2015] NSWCCA 239 at [28], with the agreement of Ward JA (as her Honour then was) and Adams J, "Given the significance of the maximum penalty to the sentencing process (Markarian v R [2005] HCA 25; 228 CLR 357 at [31]) it is difficult to conceive of a circumstance in which the misstatement of the maximum sentence would not result in House v R error … ."
The question of whether an incorrectly stated maximum penalty in an indicative sentence for one of a large number of indicative sentences had the capacity to influence the result was considered in Benn v R [2023] NSWCCA 24 at [86]. Although the Crown submitted on the facts in that case that it did not, the court (Gleeson JA with whom N Adams and Ierace JJ agreed) held that the error did have that capacity given that the sentencing judge mistook a maximum penalty for one offence when determining the total criminality of the applicant's offending. Further, there was nothing in the reasons to suggest that his Honour dealt with that count wholly concurrently with any other offence.
[5]
Applicant's submissions
Senior Counsel for the applicant dealt with Grounds 2 and 3 together. Ground 2 initially only made complaint about the indicative sentences for the 26 offences which carried life imprisonment (sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act). It was contended that the sentencing judge erred in providing the same indicative sentences for different groups of offences and should instead have fixed different indicative sentences. It was submitted that the facts were not sufficiently similar to justify the same indicative sentence for some of those offences. A number of specific examples were provided.
Sequences 254, 257, 290 and 297 (the details of which are extracted above at [113]-[116]) were the four counts of anal intercourse with Child 1. Her Honour considered them to be the most serious and assessed them as being above mid-range. Senior counsel for the applicant accepted that there were factors which tended to increase the objective seriousness of these offences including the abuse of trust and authority and the fact that the child was seven or eight years old (young but not at the top of the age range). Further, the offences were committed about two years after the applicant started to abuse Child 1 by which stage the applicant had created an environment in which Child 1 was conditioned to the offending. Despite this, it was submitted that the facts for Sequence 254 were "little more than a statement of the offence elaborated only by the nature of the intercourse". There were marginally more facts disclosed in Sequence 297 and Sequence 290 involved the applicant ejaculating into Child 1's anus and the response from Child 1.
Complaint was made that the indicative sentence for the four anal intercourse counts was the same: imprisonment for 9 years 7 months with a non-parole period of 6 years 11 months. It was submitted that this was contrary to individualised justice which requires an individualised assessment of the criminality involved in each offence: JM v R [2014] NSWCCA 297 at [39(4)].
It was further submitted that the indicative sentence for Sequence 290 was manifestly excessive, as were Sequences 254, 297 and 257. It was submitted that this approach was inconsistent with her Honour's observation that any ambiguities in the facts had been resolved in the applicant's favour.
[6]
Supplementary notes
During the hearing of the appeal, two issues arose which led to the parties being given leave to file supplementary notes. The first issue was the extent to which the generous application of the totality principle (given the sheer number of offences) was relevant to the question of manifest excess. The second issue arose when senior counsel for the applicant accepted that she had not identified in her written submissions which of the 105 indicative sentences were relied upon as being manifestly excessive.
The applicant's supplementary note was received on 21 May 2024.
As for the first issue, it was submitted that totalling the indicative sentences in order to test an assertion of manifest excess in the aggregate sentence is an unnecessary and potentially distorting distraction. The applicant's submission was that there was no utility in adding the indicative sentences (or individual sentences, if an aggregate were not set) as part of the consideration of whether an aggregate sentence (or total effective sentence) is manifestly excessive. This was said to be because the total of the indicative sentences says nothing, or at least very little, about the total criminality involved and the just and appropriate sentence: cf Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [37],[39] per Bell and Keane JJ, [61]-[64] per Gageler, Nettle and Gordon JJ; see also R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]-[16].
It was further submitted that in many cases totalling the indicative or individual sentences could reach a "draconian" length of time; the fact that the total of the individual or indicative sentences imposed on the applicant could be many times the applicant's life expectancy says nothing about any assessment of criminality and the proper sentence to flow from that.
It was also submitted that there could be no expected relationship between the total of the indicative sentences and the aggregate sentence imposed for them such as 25% or 50% or 75% of the total. It was submitted that in the absence of such a relationship, calculating the total of the indicative sentences could probably only be for the purpose of attempting to demonstrate to the offender that he or she received a "great outcome". But that is no measure of the total criminality involved or the propriety of the aggregate sentence.
[7]
Crown submissions
It was submitted that no error is disclosed in the fact that the sentencing judge gave the same indicative sentences for the sexual intercourse offences with Child 1 which involved anal intercourse. In relation to those four counts, the sentencing judge described each as above mid-range and indicated a sentence of 9 years 7 months with a non-parole period of 6 years 11 months. Each offence involved anal intercourse of a child well below the age of 10 years and an abuse of trust.
The Crown relied upon the fact that there was minimal detail in the Agreed Facts and in those circumstances the small differences in the circumstances of the offending provides little to no basis to differentiate between the objective seriousness of the offending. The sentencing judge clearly stated that the offences involving anal intercourse were the most serious of the s 66A offences (noting that there is not always a hierarchy) and explained why the indicative sentences for these offences were longer than for the other s 66A offences involving fellatio and digital penetration. It was submitted that her Honour's approach did not infringe the principles in JM v R, but rather exposed a process of reasoning to clearly differentiate between other kinds of sexual intercourse offending for which the applicant stood to be sentenced.
It was submitted that the complaint about the failure to differentiate between the sexual intercourse offences where the applicant put his penis in the child's mouth (Sequences 5, 194, 208, 211 and 296) should also be rejected for the same reasons. This is because the lack of detail in the description of the offences meant it was impossible to distinguish the criminality between some of them. Further, the level of detail accompanying the other offences of the child fellating the applicant is not of such qualitative difference to properly differentiate findings as to objective seriousness.
It was noted that no complaint is made in relation to the lack of differentiation between the s 66A offences where the applicant fellated Child 1, because it is recognised there was a limitation in the Agreed Facts. But it was submitted that this same limitation applies with equal force to the offences about which the applicant complains there is a lack of differentiation. It was also noted that the applicant accepts that in relation to the offences of digital/anal penetration there appears to be some degree of differentiation.
[8]
The Crown's note
In response to the supplementary note filed on behalf of the applicant, it was submitted that the decision of Nguyen v The Queen, as cited by the applicant, was a consideration of totality in the context of two offences for which the appellant was sentenced which relied upon a common element and which were inextricably linked (per Bell and Keane JJ at [39]). The Crown accepted the principle at [37] of Nguyen that the sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentence such that the overall sentence was just and appropriate to the totality of the appellant's offending behaviour.
It was submitted that the totalling of all of the indicative sentences is not an irrelevant exercise as it illustrates the degree to which the totality principle was applied by the sentencing judge and the extent of notional concurrency, leading to a "telescoping" of the aggregate sentence. The exercise of adding indicative head sentences is but one mechanism to test the cogency of the applicant's argument that manifestly excessive indicative sentences contributed to a manifestly excessive aggregate sentence.
As for the 83 indicative sentences that the applicant contends were manifestly excessive, it was submitted that the applicant neither made submissions nor provided any analysis in support of those bare numbers. The Crown provided a helpful colour coded table setting out the facts, victim, offence provision, nature of offending and indicative sentence for each of the offences identified by the applicant as being manifestly excessive (or not). It is not possible to be reproduced but I shall refer to some aspects of that table in my consideration below.
[9]
Consideration
Senior counsel for the applicant dealt with Grounds 2 and 3 concurrently and I propose to do the same. Although it was contended at the hearing (under Ground 2) that a significant number of the 105 indicative sentences were manifestly excessive, the ground of appeal was framed as being error in the fact that "for the most part" the sentencing judge did not differentiate the facts of the sexual intercourse offences, beyond the nature of the intercourse. In other words, it was submitted under Ground 2 both that many of the indicative sentences were manifestly excessive and that "House" error (House v The King (1936) 55 CLR 499; [1936] HCA 40) is established because out of the 105 offences, her Honour fixed the same indicative sentence for different groups of offences. I will deal with these two aspects of Ground 2 in turn.
The sentencing judge imposed an aggregate sentence for the State offences pursuant to s 53A of the Sentencing Act. The relevant principles regarding the fixing of indicative sentences were summarised by R A Hulme J (Hoeben CJ at CL and Adamson J (as her Honour then was) agreeing) in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39]. Some of those principles include (citations removed):
1. It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a "blanket assessment" by simply indicating the same sentence for a number of offences is erroneous;
2. Section 53A(2) is "clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges";
3. One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence.
The reference to the "requirements of Pearce v The Queen" in JM v R is a reference to the need when sentencing for multiple offences to create a "cascading or 'stairway' sentencing structure" when the principle of totality requires some accumulation of sentences. I shall discuss the relevance of the totality principle to the claim that the aggregate sentence is manifestly excessive below.
[10]
Re-sentence for Commonwealth offences
It is necessary to re-sentence the applicant for the nine Commonwealth offences given the conceded error in Ground 1.
In the event of re-sentence, the applicant relied on an affidavit of Sarah Hedberg affirmed 24 April 2024. It was read, subject to two objections conceded by the applicant. The affidavit detailed that whilst in custody Mr Harden has undertaken a number of courses including Health Survival Tips, Skills Check, a mandatory safety course, Entrepreneur and New Business Certificate III and Positive Lifestyles Programs for Individuals.
The applicant's case notes demonstrate that he has also been attending church and before his recent transfer to Mid-North Coast Correctional Centre he had been employed in various positions with "positive reports" regarding his performance. Case notes throughout his time in custody record that he is well-behaved and polite. He has been subject to a number of lock-ins due to sickness and staff shortages. He has also been the target of a number of attacks by fellow inmates, the most recent of which resulted in his relocation from Junee Correctional Centre in late 2023.
It was submitted on behalf of the applicant that this Court would impose a lesser aggregate sentence in relation to the Commonwealth offences. Additionally, this Court would allow greater concurrence with the aggregate sentence for the State offences because to do otherwise would mean that reducing the Commonwealth aggregate sentence would make no difference. It was submitted there were three reasons why a lesser sentence is warranted.
First, there should be recognition of the lower maximum penalty for five of the nine offences. The other four offences all have a maximum of 15 years imprisonment. Secondly, the 40% discount that is appropriate should have a real noticeable effect on the sentence imposed otherwise it loses its utilitarian value. Thirdly, the contents of the recent affidavit were relied upon. It was submitted that the recent affidavit evidence bears out the sentencing judge's reasonable assumptions about the treatment that the applicant might experience in custody given the nature of his offending.
Finally, it was submitted that the court would have regard to the material in Annexure B relevant to the 40% discount. Although the court was not invited to review the amount of the discount, it was submitted that the documentation speaks more favourably of the applicant than a mere arithmetical acceptance of the 40% discount.
[11]
Re-sentence
The applicant did not challenge the findings made by the sentencing judge and I propose to resentence the applicant on the basis of the unchallenged factual findings made by the sentencing judge: DL v R (2018) 265 CLR 215; [2018] HCA 32 at [9]). The additional material showed that the applicant has been of good behaviour in custody and is not a management issue.
I have set out some of the facts above. When he was arrested, the applicant was in possession of thousands of items of child abuse material, was producing child abuse material, advertising such material across multiple platforms, and transmitting this material on a regular basis to trade it with others, who urged the applicant to offend against Child 1. In return, the applicant sought and received humiliating and degrading content. I accept the Crown submission that the applicant's conduct supported and expanded the trade of child exploitation material including the exploitation of Child 1, 2, 3, 5, and 7.
Turning first to the five offences of transmitting CAM using a carriage service in circumstances of aggravation: Sequences 10, 309, 310, 317 and 321. They all carry maximum penalties of 25 years imprisonment. Her Honour assessed them all as being below mid-range.
Sequence 10 involved the transmission on 229 occasions over 38 days of child sexual abuse material containing images of Child 1. Sequence 181 (under the same offence provision) was taken into account in relation to Sequence 10. It took place just under a period of two years over 38 separate days and pertained to 229 transmissions of CAM in relation to Child 1.
Sequence 309 was the same offence in relation to Child 2. It occurred over a three-month period and involved 30 transmissions.
Sequence 310 was the same offence in relation to Child 5 and pertained to a two-month period with 15 transmissions.
In relation to Sequence 317 (Child 5), there were only two days separated by about six months and only 14 transmissions. There were no transmission offences in relation to Child 6.
In relation to sequence 321 (Child 7), there were three transmissions on one day.
The remaining four offences all carried maximum penalty of 15 years imprisonment: Sequences 314, 2, 3 and 9.
Sequence 314 (transmitting CAM using a carriage service) pertained to Child 5. It was only on one day and involved four images. It was assessed as below mid-range.
[12]
ORDERS
Accordingly, I would propose the following orders:
1. Grant leave to appeal against sentence.
2. Allow the appeal in part.
3. The aggregate sentence imposed for the nine Commonwealth offences (with two additional offences on a s 16BA schedule) is confirmed (commencing on 8 May 2020 and expiring on 7 November 2025).
4. The aggregate sentence imposed for the 105 State offences (with the 63 additional offences on a Form 1) of imprisonment of 27 years is varied to commence on 8 November 2022 and expire on 7 November 2049 with a non-parole period of 19 years to commence on 8 November 2022 and expire on 7 November 2041.
5. The total effective sentence of imprisonment is 29 years and 6 months commencing on 8 May 2020 and expiring on 7 November 2049 with a non-parole period of 21 years and 6 months commencing on 8 May 2020 and expiring on 7 November 2041.
6. The earliest date the offender will be eligible for release to parole is 7 November 2041.
[13]
Endnotes
s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
s 16BA of the Crimes Act 1914 (Cth).
Snapchat is a multimedia messaging application that allows registered users to exchange pictures and videos, which can be shared directly through the application or by uploading media from the user's camera gallery and sent directly to other users or through group chats. Such material can potentially be saved for later unlimited viewing.
Telegram is a cloud-based instant messaging service which enables users to send text and voice messages and animated stickers, make voice and video calls and share an unlimited number of images, documents, user locations, contacts and music.
Kik is an instant messaging mobile phone application which uses data or wi-fi to transmit and receive messages, photos, videos, sketches, mobile web pages and other content and preserves users' anonymity by allowing users to register without providing a telephone number or valid email address.
Wickr is an instant messaging application which allows users to exchange end-to-end encrypted and content-expiring messages including photographs, videos and file attachments.
Tcpt, 17 May 2024, p10.
Ibid.p11.
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: 18 October 2024
Parties
Applicant/Plaintiff:
Harden
Respondent/Defendant:
R
Legislation Cited (5)
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Measures) Act 2020(Cth)
rker v Director of Public Prosecutions (1992) 28 NSWLR 282
Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
PN v R [2024] NSWCCA 86
R v AGR (unrep, 24/7/1998, NSWCCA)
R v Engert (1995) 84 A Crim R 67
R v Gavel [2014] NSWCCA 56; 239 A Crim R 469
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294
RA v R [2024] NSWCCA 149
RO v R [2019] NSWCCA 183
Tenenboim v R [2024] NSWCCA 1
Turner v R [2021] NSWCCA 5
Category: Principal judgment
Parties: Grant Harden (Applicant)
Rex (Respondent)
Representation: Counsel:
M Avenell SC (Applicant)
S Traynor (Respondent)
HEADNOTE
[This headnote is not to be read as part of the judgment]
Grant Harden sought leave to appeal against two aggregate sentences imposed by Judge Huggett (as her Honour then was) in the District Court on 13 May 2022. The applicant was arrested on 8 May 2020 and has remained in custody since that date. He pleaded guilty in the Local Court and was ultimately sentenced in relation to 105 offences under the Crimes Act 1900 (NSW) and nine offences under the Criminal Code Act 1995 (Cth).
The State offences included (but were not limited to) 26 offences of sexual intercourse with boys under 10 years of age, 35 offences of sexually touching boys under 10 years of age and 11 offences of using children under 14 years to produce child abuse material. A further 63 State offences were taken into account in sentencing. The State offences related to seven boys, who were related to the applicant or involved in a soccer team of which the applicant was the coach. The Commonwealth offences included offences of using a carriage service to transmit child abuse material, advertising such material. The applicant was entitled to a 40% discount for his plea of guilty and post offence conduct. He had no prior offences on his record and was diagnosed with paedophilia, a condition from which he knew he suffered when he took on the role of coaching an under six soccer team. The offences were of an extreme nature and the child abuse material of a most shocking kind.
Judge Huggett imposed an aggregate sentence of 5 years and 6 months for the Commonwealth offences and a partially accumulated aggregate sentence of 27 years with a non-parole period of 19 years for the State offences. The total effective sentence was 30 years with a non-parole period of 22 years.
The applicant raised three grounds of appeal which contended in summary:
(i) The wrong maximum penalty was applied to five of the Commonwealth offences.
(ii) The sentencing Judge did not differentiate between the facts of the State offences and imposed identical sentences depending on the nature of the sexual intercourse involved.
(iii) The aggregate sentence for the State offences was manifestly excessive.
The Court held (N Adams J, Harrison CJ at CL and Hamill J agreeing), granting leave to appeal, allowing the appeal, and exercising the sentencing discretion afresh:
(1) In relation to ground 1, the sentencing Judge was provided with the wrong maximum penalty by the Prosecutor which was not corrected by the lawyers appearing for the applicant. In the result, the proceedings miscarried, ground 1 was established and it was necessary to re-sentence the applicant in relation to the Commonwealth offences.
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, Andreata v R [2015] NSWCCA 239 and Benn v R [2023] NSWCCA 24 applied.
(2) In relation to ground 2, the sentencing Judge differentiated between the counts insofar as the evidentiary material allowed her to do so. The material tendered lacked detail and her Honour commented on this. No error was established under ground 2.
(3) In relation to ground 3, the offending was prolific, repetitive, and involved an egregious breach of trust in relation to seven children and their parents. The applicant's subjective case was limited and his lack of prior convictions was not a mitigating factor in the circumstances. There was a need for a significant custodial sentence. While the aggregate sentence for the State offences was "stern", it was neither unreasonable nor plainly unjust. Ground 3 was rejected.
DPP (NSW) v TH [2023] NSWCCA 81 applied.
(4) In re-sentencing for the Commonwealth offences, the court would have imposed somewhat higher indicative sentences, but the aggregate sentence was the same as that imposed by the sentencing Judge. A slight adjustment to the commencement date was made to allow for an extra period of six months concurrency.
(5) In the result, the total effective sentence was reduced by a period of six months.
JUDGMENT
HARRISON CJ at CL: I have had the considerable advantage of reading in draft the detailed and comprehensive judgment of her Honour Natalie Adams J. I agree with her Honour's conclusions and with the orders she has proposed.
It will be apparent that her Honour has chosen in the circumstances of this case to endorse and apply the trial judge's approach extensively to recite the facts that give rise to the multiplicity of counts of sexual or indecent conduct by the applicant against seven male children and the production, solicitation, advertisement and transmission of child abuse material between late 2017 and May 2020. The full extent of the applicant's criminality could not be comprehended otherwise. I agree with her Honour's characterisation of the applicant's offending as appalling and depraved.
Although the facts of this offending make for uncomfortable and distressing reading, this Court should not attempt in a case such as this, for fear of potentially causing alarm, to draw back from publishing the details of the kind of behaviour for which the applicant was sentenced and against the length of which sentence he now appeals. In terms of general deterrence, if not more broadly, no-one in the community ought to be in any doubt about the consequences of committing crimes of this type against children or about the reasons why the sentence imposed in the Court below was not excessive.
HAMILL J: I enjoy the great advantage of having read the draft judgment of N Adams J and am grateful for her Honour's comprehensive summary of the facts and findings of the learned sentencing Judge and careful analysis of the legal issues that arise on this appeal. I have also read the short concurring judgment of Harrison CJ at CL.
I agree with N Adams J that ground 1 should be upheld and that the Court must move to re-sentence in relation to the Commonwealth offences. I also agree that grounds 2 and 3 are not established. Subject to what follows, I agree with the reasons provided by N Adams J. The matter upon which I will write briefly is not determinative of the outcome, arose during oral argument, and was then subject to notes provided by counsel after the hearing. While I make these separate observations, I do not perceive there is very much between N Adams J and me on this issue.
The matter concerns the issue of totality and the utility - or "inutility" as it was put by Senior Counsel for the applicant - of adding up the individual indicative sentences and then comparing the accumulated number of years thereby derived with the aggregate sentence imposed. Other than in a case with a very small number of counts (say 2 or 3), I am not persuaded that this arithmetic process is of any assistance to an appellate court in reaching a conclusion as to whether an aggregate sentence is manifestly excessive. Nor do I believe that such a process assists in determining whether or not the principle of totality was properly applied by the primary Judge. N Adams J accepts at [385] that "there are limitations in adopting an arithmetic approach to ascertaining the degree of notional concurrence in an aggravated sentence".
GROUNDS OF APPEAL
The applicant raises the following three grounds of appeal:
Ground 1: Her Honour applied an incorrect maximum penalty to five of the nine Commonwealth offences resulting in error in the Commonwealth aggregate sentence;
Ground 2: For the most part, Huggett DCJ did not differentiate the facts of the sexual intercourse offences, beyond the nature of the intercourse; and indicated identical sentences for these offences, depending on the nature of the intercourse.
Ground 3: The aggregate State sentence is manifestly excessive, in particular because the indicative sentences are excessive.
As for Ground 1, regrettably, the sentencing judge was provided with an incorrect maximum penalty for five of the nine Commonwealth matters. The error was contained in the Crown sentencing summary and not corrected by the applicant's legal representatives. The Crown properly conceded that, consistent with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, such error requires this Court to re-sentence the applicant in relation to the Commonwealth offences. That concession was properly made for reasons to which I will return.
The applicant addressed Grounds 2 and 3 together. The nub of this application for leave to appeal is that even having regard to the applicant's considerable criminality and the multiplicity of charges he faced, the effective aggregate sentence imposed was "unreasonable or plainly unjust".
Remarks on sentence
Her Honour sentenced the applicant on 13 May 2022.
I propose to use the word "applicant" rather than "offender" for consistency when recounting the findings of the sentencing judge verbatim. Otherwise, I have used the same footnotes and largely the same language as her Honour did, although I have summarised and re-worded portions of the reasons.
Her Honour commenced her reasons by noting that the seven young male victims would be referred to as Child 1, Child 2 etc. At the relevant time, Child 1 was the applicant's stepson and Child 7 was his nephew. Child 2 through to Child 6 were friends of Child 1 (and Child 3 and Child 6 are brothers). The applicant was also the soccer coach of Child 1, Child 2, Child 3 and Child 5.
Her Honour then provided a document headed "Table A" which sets out for each offence the sequence number, the short form of the offence and relevant section of the Crimes Act or Criminal Code under which the offences were laid, the maximum penalty and for the state offences and any applicable standard non-parole period. I have incorporated the contents of that schedule into these reasons for ease of reference.
Her Honour then made a number of general observations relevant to the sentencing exercise.
First, her Honour noted the "almost insurmountable" task of sentencing an offender for so many serious offences charged under different legislation, with different maximum penalties and some overlapping criminality.
Secondly, her Honour noted the large number of uncharged offences referred to in the Agreed Facts particularly in relation to Child 1 and to a lesser extent Child 2 and Child 3. She noted (uncontroversially) the bases upon which such evidence is usually relevant but observed that the "number and gravity" of the offences before her were such that the uncharged acts assumed "little to no relevance".
Thirdly, her Honour noted the large number of matters to be taken into account on Forms 1. She did not outline the facts in relation to those 38 schedules but would have regard to their "nature and gravity." Her Honour was satisfied that it was "appropriate and proper" to take those offences into account in relation to the nominated principal offences but observed that it would have been preferable had they been placed on fewer schedules in relation to Child 1. Her Honour then correctly stated the applicable law as to how to treat those matters by reference to cases such as Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 and Abbas (and Ors) v R [2013] NSWCCA 115.
Fourthly, her Honour noted that she had had regard to, inter alia, the Judicial Commission sentencing statistics, and the "Comparative Cases filed on behalf of the Offender" which was compiled using the sentencing tables available on the Public Defenders' website. After noting the use of such material, her Honour observed:
"Justice is nothing if it is not individualised and the penalties imposed upon other offenders for approximately like offending say very little about the appropriate sentence for this offender and his offending. What I must do is determine the appropriate sentence in the circumstances at hand having regard to the legislative guideposts of the maximum penalty and any applicable standard non-parole period, my assessment of the objective gravity of each offence, the offender's subjective features and the sentencing principles concerning the commission of sexual offences upon children and offences involving CAM which have been expressed by the courts on many occasions and to which I will come."
In the present matter, the incorrect maximum penalty was applied to the five most serious of the nine Commonwealth offences. The Crown's concession that this error materially bore on the aggregate sentence for the Commonwealth offences should be accepted. An interesting question arises as to whether if her Honour had applied an incorrect maximum penalty for only one of the 105 State offences it could be said that such an error had the capacity to influence the result, but it is not necessary to make any finding in that regard.
It is necessary for this Court to re-sentence the applicant in relation to the aggregate sentence for the nine Commonwealth offences. I propose to do so after I consider Grounds 2 and 3.
Criticism was next made of the indicative sentences for the five instances of fellatio which involved the applicant placing his penis inside Child 1's mouth. The objective seriousness of these offences was found by her Honour within mid-range. These were Sequences 5, 194, 208, 211 and 296 (the details of which are extracted above at [97], [98], [102], [104], [111]). It was submitted that the same indicative sentence was imposed for these five offences despite there being some differences between them. Sequences 194, 211 and 296 involved little more than a statement of the offence. Sequence 208 involved Child 1 moving his head up and down the applicant's penis for a seemingly longer period than there was evidence in the other offences. Sequence 5 involved ejaculation and masturbation.
The indicative sentence for each of these five offences was imprisonment for 8 years and 5 months with a non-parole period of 6 years and 1 month. That translates to a head sentence of 14 years with a non-parole period of about 10 years 1 month which, it was submitted, was excessive.
The same submission was only faintly pressed in relation to the 10 counts of fellatio with Child 1 which involved Child 1's penis being in the applicant's mouth, because it was accepted that the Agreed Facts did not differentiate between these offences. Rather, complaint was made that the indicative sentences of imprisonment for 7 years 10 months with a non-parole period of 5 years 8 months was manifestly excessive.
As for the offences involving digital-anal penetration of Child 1 and Child 2, it was accepted that there was some differentiation between them; the indicative sentences for Sequences 170, 202, 244 (Child 1) and 28 (Child 2) were imprisonment for 7 years 10 months with a non-parole period of 5 years 8 months, while the indicative sentences for Sequences 191, 294 and 171 (Child 1) were imprisonment for 7 years 2 months with a non-parole period of 5 year 2 months. It was accepted that the higher sentences appeared to flow from where there was evidence of some response from the child (by either buttock clenching, body movement or physical or verbal resistance) in the Agreed Facts. Despite this, it was submitted that the differentiation was "limited" and that the indicative sentences were excessive.
The applicant's submissions focussed on the indicative sentences for the sexual intercourse offences, as they were the longest. It was submitted that they supported the broader submission that the indicative sentences for the State offences are generally excessive. Thus, it was submitted in oral submissions that other indicative sentences were manifestly excessive as well. This was particularly so given the partial accumulation on the aggregate sentence for the Commonwealth offences.
Overall, it was accepted that the aggregate sentence imposed was for a sustained course of criminal conduct in the context of a "lack of a compelling subjective case", apart from his post-arrest conduct warranted. Despite this, it was submitted that the aggregate State sentence and the effective total sentence does not engender a sense that full credit has been given to the 40% discount.
Further, it was submitted that in any event, where non-parole periods are fixed, it is those sentences that should be added. If they were individual sentences, one would usually expect a non-parole period to be set: s 44(1), (2) cf s 45(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW ("Sentencing Act"). Given that only non-parole periods can be accumulated: s 55(1), (2), (4), it would only be the non-parole periods that could be added, not the entire indicative sentences.
As for the second issue it was submitted that the applicant contends that the following indicative sentences for the State offences are manifestly excessive:
170, 191, 202, 244, 294, 171, 28, 5, 194, 198, 203, 333, 208, 274, 211, 213, 224, 227, 260, 278, 286, 296, 254, 257, 290, 297, 6, 210, 214, 216, 230, 236, 237, 238, 243, 245, 253, 259, 267, 270, 271, 272, 289, 295, 300, 15, 21, 22, 23, 26, 305, 306, 33, 173, 307, 308, 176, 303, 332, 323, 188, 225, 226, 252, 264, 301, 11, 304, 32, 311, 312, 315, 316, 318, 324, 319, 206, 183, 178, 326, 175, 329, 331
It was not submitted that the following indicative sentences were excessive:
235, 241, 247, 269, 209, 184, 187, 199, 201, 205, 197, 239, 284, 287, 293, 174, 325, 179, 180, 327, 328, 330
It was submitted that the indicative sentences are not excessive. Although the sentencing judge had a "starting point" of nearly 16 years imprisonment (with rounding) with a non-parole period of 11 years and 6 months for the anal intercourse of Child 1 when aged seven and eight (before a 40% discount is applied), this is not excessive, when considering the legislative guidepost of the maximum penalty of life imprisonment and the standard non-parole period of 15 years and finding that the offences were all above the mid-range. These offences were aggravated by the breach of trust, that they occurred in the child's home, the age and vulnerability of the child, and the fact that the offending was filmed for the purpose of sexual gratification and later sharing and trading. Despite finding that the offences were above mid-range, the sentencing judge gave an indicative non parole period before discount which was lower than the standard non-parole period.
Similarly, the indicative sentences for the acts of fellatio of 8 years 5 months with a non-parole period of 6 years 1 month (Sequences 5, 194, 208, 211 and 296) when Child 1 was aged six, seven and eight are not excessive.
It was submitted that even if this Court concluded that some of the indicative sentences were at the higher end of the sentencing range or excessive, this ground of appeal is against the aggregate State sentence. The applicant's focus on the sexual intercourse offences (which were less than a quarter of all the offences for which the applicant was to be sentenced) means that even if some of these indicatives were excessive, they did not lead to a manifestly excessive aggregate sentence.
The Crown made additional submissions, some of which I have adopted in my consideration below.
The first complaint under Ground 2 is that the sentencing judge erred in that, contrary to JM v R, she failed to sufficiently distinguish between the four indicative sentences for the anal intercourse offences (and to a lesser extent some of the other groups of indicative sentences). That complaint falls for consideration in the context of how the proceedings were conducted before her Honour.
An Agreed Statement of Facts signed by the applicant was tendered at the proceedings on sentence. Given the large number of offences, it is understandable that the applicant accepted that there was no necessity for those facts to contain any more detail than they did for the purposes of sentencing. It would also have been fully understood by the applicant's legal representatives that an aggregate sentence would need to be imposed which would require her Honour to identify 114 indicative sentences, 105 of which were for the State offences.
Her Honour was clearly aware of the need to assess the criminality involved in each offence individually. Her sentencing remarks reflect this. She noted at the outset that the facts for some of the offences did not go beyond a simple description of the acts which were relied upon to support each charge (in the passage of the Remarks on Sentence extracted above at [35]). As the summary of her Honour's remarks make clear, despite this, she went through the laborious task of assessing the objective seriousness of each of the 105 State offences. She also clearly set out the basis for distinguishing between groups of offences.
To the extent that complaint is made that the four anal intercourse offences were not sufficiently differentiated in the indicative sentences, that complaint is to be considered in the context that her Honour was being asked to assess the seriousness of the offending from a brief description of a 24 second video (Sequence 254), a 13 second video (Sequence 257), a 19 second video (Sequence 290) and a six second video (Sequence 297). Given that many of the aggravating features of that offence were common to these four charges when combined with the limited facts, a complaint of a failure to provide individualised justice cannot be sustained in relation to these four indicative sentences.
As for the similar complaints about some of the other indicative sentences, I do not accept that the fact that the same indicative sentence was fixed for small different groups of offences all charged under the same section (s 66A) means that the applicant was deprived of individualised justice. A similar conclusion was arrived at in Turner v R [2021] NSWCCA 5, albeit in a case involving far fewer offences. One of the grounds of appeal in Turner v R contended that the sentencing judge had failed to comply with the provisions of s 53A(2) of the Sentencing Act by not assessing individually the criminality involved in the offences. Reliance was placed on the fact that offences contrary to a particular provision all had the same indicative sentence fixed. In dismissing that ground, Garling J (with whom Payne JA and Davies J agreed) observed at [59] that the mere fact that the same indicative sentence is fixed for multiple offences does not of itself and without more indicate an impermissible approach to determining the objective seriousness of the offence and that "[t]his is particularly so in circumstances where…each of the offences were contrary to the same section of the Crimes Act and each was committed during a single sustained course of offending over a lengthy period of time".
It was common ground that the sentencing judge faced a difficult sentencing task given the very large number of offences. Despite the magnitude of the process, her Honour grouped the offences for the same type of offending together to make an appropriate assessment of the objective seriousness noting that there was some variation within that range. Her Honour then went about the task of providing indicative sentences for all of the 105 offences. There was little to differentiate between the facts for some of the offences given the constraints of the Agreed Facts and given the repetitive nature of the conduct. This difficulty was acknowledged by her Honour.
Taking the s 66A offences by way of example, of the 26 offences under that section her Honour did not simply fix the same indicative sentence for all of them. Rather, she distinguished them and fixed different indicatives where she considered it appropriate given the limitations of the brief facts she was provided with.
For sequences 170, 202 and 244, (digital/anal intercourse with Child 1) she fixed indicative sentences of imprisonment of 7 years and 10 months with a non-parole period of 5 years and 8 months.
Although it is to be accepted that her Honour did not fix 105 different indicative sentences, that fact does not mean that she erred by making a "blanket assessment" of the offences. Although it may have been an error had her Honour fixed the same indicative sentence for every offence, what she did was a long way from that.
This aspect of Ground 2 is not established.
Before turning to the second part of Ground 2, which is connected with Ground 3, I note in passing that the first part of Ground 2 alleged a failure to apply individualised justice in relation to the 105 separate offences. It was not framed as a complaint that "a significant portion of the substructure upon which the aggregate sentence is based is faulty": AJ v R [2023] NSWCCA 158 at [37]. The recent decisions of RA v R [2024] NSWCCA 149, KS v R [2024] NSWCCA 147 and PN v R [2024] NSWCCA 86 have all considered the question of whether latent error in an indicative sentence can establish error in an aggregate sentence in the absence of a corresponding ground of appeal that the aggregate sentence is manifestly excessive (as in this case). In KS v R, the court (Adamson and Stern JA, Wright J) observed the following at [74] (after reviewing the relevant authorities):
"In conclusion, even if an indicative sentence, viewed in isolation, is regarded as excessive this will not, of itself, be sufficient to impugn an aggregate sentence which is not alleged to be manifestly excessive. In the absence of patent error, the applicant can only successfully impugn the aggregate sentence if he demonstrates that the aggregate sentence is manifestly excessive."
Although the court in RA v R (Adamson JA, Wilson and Dhanji JJ) unanimously dismissed the appeal, Wilson J and Dhanji J reached different conclusions as to whether latent error in an indicative sentence alone warrants the intervention of an appellate court to re-sentence an offender (putting to one side any suggestion that the aggregate sentence is manifestly excessive). Although Wilson J arrived at the same conclusion as the court did in KS v R, Dhanji J arrived at a different conclusion. After considering the respective arguments at [124]-[136], his Honour observed the following at [134]:
"On a practical level, it would be a strange result if an indicative sentence which was infected by specific error but otherwise within range triggered the power to resentence but a finding that the same indicative sentence was not affected by specific error but was manifestly excessive, did not trigger that power. If anything, it might be thought that a manifestly excessive indicative sentence was more concerning with respect to the process in arriving at the aggregate sentence."
His Honour went on observe the following at [136]:
"To be clear, I do not mean to suggest that any finding of manifest excess in an indicative sentence will enliven this Court's power to resentence. To take an obvious example, a short indicative sentence, which the reasons for sentence indicate would, if separately sentenced, have been made to run wholly concurrently with a longer sentence, is unlikely to be found to have had the capacity to have affected the aggregate sentence. I would not, however, contrary to the Crown's submission, distinguish between the approach to be taken to latent and patent errors in an indicative sentence."
Given that it was conceded on behalf of the applicant that the real complaint is that the aggregate sentence is manifestly excessive and that Ground 2 is merely relied upon to provide a possible explanation for that, I do not consider it necessary to resolve this issue given the manner in which the ground was argued.
I turn then to consider the second aspect of Ground 2: whether some of the indicative sentences were manifestly excessive such as to suggest that the aggregate sentence is manifestly excessive.
To succeed in a ground of appeal contending that a sentence (or, as in this case, an aggregate sentence) is manifestly excessive, an applicant must establish that the sentence is "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. The relevant principles were summarised by R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and I agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows:
● "Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
● Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
● It is not to the point that this Court might have exercised the sentencing discretion differently.
● There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
● It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The relevant principles applicable to a ground of appeal contending that an aggregate sentence is manifestly excessive were also summarised by R A Hulme J in JM v R at [40] and include the following (citations removed):
1. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence;
2. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive;
3. A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved; and
4. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.
Although it was ultimately submitted that 83 of the 105 State offences had an indicative sentence which was manifestly excessive, the focus of the submissions at the hearing was on the sexual intercourse offences and in particular the four s 66A offences which involved penile/anal intercourse. The indicative sentence for these four counts was 9 years 7 months imprisonment with a non-parole period of 6 years and 11 months. It was submitted that support for the contention that these indicative sentences were too high is demonstrated when it is considered that the "starting point" (prior to the 40% discount) was nearly 16 years imprisonment (with rounding) with a non-parole period of 11 years and 6 months.
I am not satisfied that indicative sentences of 9 years 7 months imprisonment with a non-parole period of 6 years and 11 months for penile/anal intercourse with the applicant's stepson is manifestly excessive given that the maximum penalty of life imprisonment, the standard non parole period of 15 years imprisonment, the finding of objective seriousness of "above the mid-range" (of which no complaint is made) and the applicant's subjective case which was, as was conceded during oral argument, not particularly strong. Further, the "starting point" non-parole period was well below the SNPP.
During the hearing of this application, it was submitted that the applicant did not need to prove that the indicative sentences were manifestly excessive "because that was not a test being applied to the indicatives" and that it only needed to be established that they were "too high". [7] It was also submitted that the claim that some of the indicative sentences were excessive did not require identification of which ones these were. [8] It is to be accepted that the appeal is against the aggregate sentence and not the indicative sentences; the ultimate question is whether the aggregate sentence is manifestly excessive. But it seems to me that simply demonstrating that many of the indicative sentences were "too high" cannot be looked at in isolation before the application of the totality principle.
By way of example, if an offender were sentenced for 20 offences to an aggregate term of 10 years imprisonment and each of the 20 indicative sentences ranged from 7 to 9 years imprisonment, the fact that some of them may have been "too high" says nothing about whether the aggregate sentence is manifestly excessive given the significant notional accumulation.
Given that many of the aggravating features were common to each count, my conclusion that the indicative sentences for the most serious offences are not manifestly inadequate flows on to my findings that the remaining indicative sentences are not manifestly excessive either. I do not propose to repeat the serious aspects of the applicant's offending. I have already set it out in some detail. Having regard to the guideposts of the maximum penalties and SNPPs in the context of the facts and her Honour's findings, I am not satisfied that any of those sentences are unreasonable and plainly unjust.
Even if I were satisfied that some of the indicative sentences were "too high" or even "manifestly excessive", as JM v R and the numerous cases which have followed it establish, that does not mean necessarily that the aggregate sentence is manifestly excessive. That is due to the proper application of the totality principle, which applies to indicative sentences: JM v R at [41].
The sentencing judge was required to consider questions of notional accumulation and concurrence: Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70. In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, McHugh, Hayne and Callinan J confirmed (at [45]) that "[a] judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
This Court considered the totality principle in R v MAK; R v MSK in the context of offenders who had committed multiple sexual assaults in company on more than one victim. The court (Spigelman CJ, Whealy and Howie JJ) observed (at [15]) that when a court is sentencing an offender for multiple offences, including when there are different victims, it is necessary to ensure that the aggregation of all of the sentences is a "just and appropriate measure of the total criminality involved". The court went on to observe that an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences needs to be maintained for at least two reasons. The first of these reasons is that the severity of a sentence is not simply the product of a linear relationship. The court then went on to observe the following at [17]-[18]:
"[17] The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.
[18] A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences."
These two passages highlight the tension in applying the totality principle when there has been such extensive offending over years with different victims as in the present case. The aggregate sentence had to reflect very significant criminality. In applying the totality principle, the sentencing judge was required to impose a sentence that did not suggest that the applicant was being offered some kind of a discount for multiple offending.
It is unsurprising that the submissions in support of Ground 3 focussed on the length of the indicative sentences rather than a complaint about any misapplication of the totality principle. The aggregate sentence of 27 years with a non-parole period of 19 years was imposed for 105 offences, 26 of which carried a maximum penalty of life imprisonment.
During the hearing of the appeal, it was observed that the total of the indicative sentences was 443 years and 11 months. I accept the applicant's submission that this is a total of what is effectively the head sentences. But her Honour specified a non-parole period for each of the 105 indicative sentences (even though she was not required to). If all of the non-parole periods are added together the total amounts to 324 years and 10 months.
It is to be accepted that there are limitations inherent in adopting an arithmetic approach to ascertaining the degree of notional concurrence in an aggregate sentence for so many offences. Despite this, I do not consider the applicant's submission that there is no utility in adding the indicative sentences together to highlight the very considerable degree of notional concurrence the applicant received in the aggregate sentence. I note that the same exercise was undertaken in GG v R [2023] NSWCCA 102 at [90] in assessing a complaint of manifest excess which included a complaint about the lack of notional concurrence in an aggregate sentence.
In considering whether the aggregate sentence of 27 years with a non-parole period of 19 years is manifestly excessive, I have had regard to the number and nature of the 105 offences. Of those offences, 26 involved sexual intercourse with a child under 10 years of age which carried a maximum penalty of life imprisonment. Those offences contrary to s 66A involved anal/penile intercourse, fellatio, and digital/anal penetration. The offences were committed over a three-year period on a child in his care.
The aggregate sentence also needed to comprehend 24 counts of sexual touching of Child 1 under 10 years, contrary to s 66DA(a) which carries a maximum of 16 years and a standard non-parole period of 8 years. Those offences involved masturbating and ejaculating on the child, and various other kinds of touching which were recorded, plus the additional offending for similar matters taken into account by way of the numerous Form 1s. The aggregate sentence also needed to take into account the aggravated indecent assault offences against Child 1, which also carried a maximum of 10 years and standard non parole period of 8 years and where additional offending was reflected in the Form 1 matters.
In addition to the multiple offending against Child 1, the aggregate sentence also needed to reflect the 10 offences of sexual touching contrary to s 66DA committed against Child 2 as well as the additional sexual offending against Child 3, Child 4, Child 5 and Child 6. As for Child 7, he was only two years old. The sexual act directed towards him contrary to s 66DC carried a maximum penalty of 7 years.
The applicant's subjective case was limited to one of remorse and post offence conduct such as to warrant a discount of 40%. Otherwise, he had guarded prospects of rehabilitation and there was no basis to reduce his moral culpability. Deterrence needed to be given significant weight in the sentencing exercise.
The applicant's offending was prolific, repetitive and involved an abuse of the trust placed in him by Child 1's mother and the parents of six other children. There have been numerous statements by this Court of the need for significant custodial sentences for offences of this nature. In Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81, Beech Jones CJ at CL (with whom Garling and Yehia JJ agreed) allowed a Crown appeal against the manifest inadequacy of an aggregate sentence imposed for sexual offences on the applicant's young stepson. His Honour reviewed a number of decisions considering sentences imposed for offences contrary to ss 66A, 66C and 61J of the Crimes Act and noted the following at [50]:
"At the risk of stating the obvious, the utility of considering these cases is not to contrast and compare the aggregate sentences imposed with the aggregate sentence imposed on the respondent in this case. Given that each aggregate sentence relates to range of different offences, such a comparison has little or no utility other than revealing the application of the totality principle in different cases (Sharma v R [2022] NSWCCA 190 at [4]−[6] and [8]). Instead, the relevant comparators are the indicative, or individual, sentences for particular offences. In this respect, these cases speak in unison about the very significant custodial sentences that are imposed or indicated for offences under ss 66A and 66C(2) (or s 61J(1)), especially those that involve penile penetration.
Although it was submitted on behalf of the applicant that this decision was of little assistance given it only concerned one s 66A offence, I am satisfied that the statement of principle is apposite.
In Dinsdale v The Queen Gleeson CJ and Hayne J described a finding of manifest excess (at [6]) as a "conclusion". I have considered the applicant's principal submission that an aggregate sentence of 27 years imprisonment (partially accumulated on an aggregate sentence for the Commonwealth sentences such that the effective aggregate head sentence is 30 years with a non-parole period of 22 years) following a discount of 40% suggests a starting point that is manifestly excessive. There is no doubt that this is a stern sentence, but I am not persuaded that it is unreasonable or plainly unjust given the significant criminality for which the applicant stood to be sentenced.
I would dismiss Grounds 2 and 3.
The Crown disputed that the affidavit on resentence demonstrated that the applicant was in a markedly different position from that in which he was at the time of sentencing in 2022 on the bases that his prospects of rehabilitation have not improved, and the sentencing judge knew that he would be placed in SMAP as is common with offenders of this nature.
It was submitted that a reduction of the indicative sentences for the s 424.24A(1) offences does not necessarily result in an overall reduction of the aggregate sentence when applying the principle of totality: Haines v R [2021] NSWCCA 149. Detailed submissions were provided in support of the Crown's submission that, despite the error in the maximum penalty, no lesser sentence is warranted.
Sequence 2 (possessing CAM obtained using a carriage service) related to the CAM located on the Galaxy S9 in a PIN-protected folder named "Secure Folder" which contained CAM images and videos. Part of this material had been self-produced by the applicant and was Category 1 material depicting the seven known child victims, the majority of which was geotagged as having been created at the applicant's premises. The folder named "Secure Folder" also contained CAM of other non-identified but real children. A total of 3,348 images and videos were located on the Samsung S9 all of which formed the basis of the Sequence 2 offence. Sequence 1 contained the CAM located on the Apple iPhone: 177 CAM images and videos which the applicant had downloaded using the internet, the majority of which were Category 1: s 474.22A(1) taken into account when sentencing him for the Sequence 2. Her Honour found Sequence 2 was within the mid-range.
Sequence 3 (advertising CAM using a carriage service) relates to the applicant's conduct between 5 April 2019 and 5 May 2020 of advertising his possession of CAM using a carriage service. He posted over 100 advertisements as described above at [235]. Her Honour found the objective seriousness to be within mid-range. In advertising to others, the applicant demonstrated the degree to which he was prepared to share this material with others but only after receiving images from them.
Sequence 9 relates to the applicant's conduct between 16 November 2017 and 8 May 2020 of sending CAM he had made of Child 1 and to a lesser extent Child 3 and receiving CAM of real but unidentified children in exchange. The largest portion of CAM the applicant received and accessed was contained in links - the offending sharing 180 links between himself and one person alone. The exchange with other users is very disturbing and is extracted above at [242]-[263]. Her Honour assessed this as within the mid-range.
Although I accept the Crown submission that the indicative sentences for these four offences would play a lesser role in the determination of the overall aggregate sentence, Sequence 9 in particular warranted a significant indicative sentence.
I have considered the principles in relation to sentencing for such offences as set out in R v Porte. I have also had regard to the decisions in Bisiker v R [2022] NSWCCA 110 and Lyons v R [2017] NSWCCA 204. Whilst acknowledging the limitation of statistics, the Crown relied on a review of the statistics for the s 474.24A(1) offence committed before 23 June 2020 which showed that for the four offenders, they all received terms of imprisonment, with the aggregate term being 2 years, 4 years, 5 years and 6 years.
The possession and distribution of images of sexual abuse, torture and humiliation of very young children, including toddlers and babies constitutes serious offending. I accept the Crown submission that the Agreed Facts reflect that the applicant was seeking out more extreme content from those with whom he traded.
Although there is some overlap between the Commonwealth offending, the offences are aimed at different aspects: possession, transmission and advertising of CAM over the internet and telecommunications.
I have also considered the degree of overlap in criminality between the State and Commonwealth offences. Of the 105 offences, 94 were child sexual assault offences. Only 11 of those 105 offences related to CAM. They were the 11 offences of using a child under the age of 14 years for the production of CAM contrary to s 91G(1) with the maximum penalty of 14 years imprisonment and a SNPP of 6 years imprisonment.
I note in passing that, although I have previously queried the practice of imposing an aggregate sentence under s 53A of the Sentencing Act for Commonwealth offences (Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314 and Tenenboim v R [2024] NSWCCA 1), the decision in Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556 is still routinely followed and I propose to do so in this matter.
Despite the fact that her Honour proceeded on the basis that the maximum penalty for the five aggravated offences was 30 years, she imposed very low indicative sentences for those offences even having regard to her finding of below mid-range of objective seriousness. The indicative sentences I would arrive at, applying the lower maximum penalty, are slightly higher than those indicated by her Honour. The indicative sentences I have arrived at for Sequences 2 and 9 are also slightly higher and the remaining indicative sentences are the same. Applying the totality principle, I have arrived at an aggregate sentence which is slightly higher than that imposed by her Honour.
As I observed in RO v R [2019] NSWCCA 183 at [119], the usual practice of this Court is that, after hearing oral submissions, the decision is reserved and judgment delivered at a later date. This practice renders it impractical to reconvene the court to give a "Parker" warning in the event that a conclusion is made that a higher sentence is warranted in law: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. Nor do I consider it appropriate to state what that higher aggregate sentence was for the reasons explained in RO v R at [123].
Despite the fact that I would not arrive at a lesser aggregate sentence for the Commonwealth matters than imposed by her Honour, in re-sentencing the applicant I am required to consider the totality principle given the aggregate sentence for the State offences. Having regard to the overlap in criminality, I would commence the aggregate sentence for the State offences six months earlier than her Honour did to allow some further concurrence.
In her helpful if rather blunt note, Senior Counsel for Mr Harden submitted:
4. In many cases with a number of offences for sentence - and it would not even take a case such as this, with many very serious offences - the total of the indicative sentences could easily reach some draconian length of time. Here, Adams J added them up to something in excess of 400 years. (Without the utilitarian discount, it would have been more than 650 years.) This is more than 15 times Mr Harden's age and probably five times his life expectancy. But what difference would it make, to any assessment of criminality and the proper sentence to flow from that, if the total were 300 or 200 or only 100 years?
5. There is no, and it is very doubtful there could be, an expected relationship between the total of the indicative sentences and the aggregate sentence imposed for them. (For example, that the aggregate sentence must or should be 25% or 50% or 75% of the total of the indicative sentences.) In the absence of such a relationship, calculating the total of the indicative sentences could probably only be for the purpose of attempting to demonstrate to the offender that he or she received a great outcome through the difference between the total of the indicative sentences and the aggregate sentence. But that is no measure of the total criminality involved nor the propriety of the aggregate sentence."
I agree with those submissions. I also agree that the submission reflects the principles of totality discussed in cases such as Nguyen v The Queen (2016) 256 CLR 656 at [37], [39] (Bell and Keane JJ), [61]-[64] (Gageler, Nettle and Gordon JJ) and R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]-[16].
N Adams J undertook a similar exercise in GG v R [2023] NSWCCA 102 at [90] and in R v Stefanac [2022] NSW CCA 129 at [67]-[68]. As I have said, I doubt this is a helpful exercise other than in a case where there are so few counts that the degree of notional accumulation and concurrence can, more or less, be discerned. Sentencing, including the proper application of principles of totality, is more intuitive and instinctive than such a mechanical approach allows. In Stefanac, N Adams J and I reached different conclusions on the issue of totality, with Beech Jones CJ at CL agreeing with her Honour. However, our different conclusions had little to do with this aspect of her Honour's reasons. Neither the then Chief Judge nor I referred to this part of the judgment.
More importantly, I agree with N Adams J that the sentencing Judge in the present case did not err in her application of the totality principle in settling on the aggregate sentence for the state offences. The sentencing Judge stated the principle clearly and correctly and the outcome does not suggest a latent error in the application of the principle. I agree with N Adams J, for the reasons her Honour provides, that the sentencing Judge did not err in failing to differentiate between the offending (ground 2) and that the aggregate sentence imposed for the state offences was not manifestly excessive (ground 3).
As to re-sentencing, I agree with the orders proposed by N Adams J which involve no more than a six-month adjustment to the commencement date of the sentence for the state offences. The aggregate sentences remain the same as those imposed in the District Court. This was a remarkably serious course of criminal conduct. There were multiple victims, egregious breaches of trust of seven children and their families, profound impact on the known victims, and a level of moral and libertine wickedness that the Court rarely encounters. As distressing as they are to recount and to read, it was appropriate that her Honour set out in detail the terrible facts of this case to explain why, even after a substantial discount is applied to the indicative sentences, the total accumulated sentence is as severe as it is.
N ADAMS J: The applicant seeks leave to appeal against two aggregate sentences imposed upon him on 13 May 2022 by Judge Huggett (as her Honour then was) at the District Court in Sydney. The applicant was arrested on 8 May 2020 and has been in continuous custody since that date.
The applicant pleaded guilty in the Local Court to very serious sexual offending against young boys, the production, advertising and publication of child abuse material and the possession of child abuse material including violent sexual assaults on babies and toddlers. One of the victims was his stepson and another was his nephew. Others were members of the soccer team he coached. The offending comprised sexual or indecent conduct by the applicant against seven male children, and the production, solicitation, advertisement and transmission of child abuse material between late 2017 and May 2020.
To describe the extent of the applicant's depraved behaviour as appalling would be an understatement. The applicant was not in a position to deny the offending because most of the time after he sexually assaulted Child 1 he digitally recorded the abuse, published it online as child abuse material, used the recording of him abusing the children to trade child abuse material with other offenders and also encouraged other likeminded offenders to obtain more explicit child abuse material in relation to children they had access to by agreeing to perform requested acts on his own stepson. He left a long digital trail.
The applicant ultimately pleaded guilty to:
1. 105 offences contrary to the Crimes Act 1900 (NSW) ("Crimes Act"). They included:
1. 26 offences of sexual intercourse with a child under the age of 10 years contrary to s 66A(1) with a maximum penalty of life imprisonment and a standard non-parole period (SNPP) of 15 years imprisonment;
2. 35 offences of sexually touching a child under the age of 10 years contrary to s 66DA(a) with a maximum penalty of 16 years imprisonment and a SNPP of 8 years imprisonment;
3. 3 offences of inciting a child under the age of 10 years to sexually touch a person contrary to s 66DA(b) with a maximum penalty of 16 years imprisonment and a SNPP of 8 years;
4. 22 offences of carrying out a sexual act with or towards a child under the age of 10 years contrary to s 66DC(a) with a maximum penalty of 7 years imprisonment;
5. 8 offences of indecent assault of a person under the age of 16 years contrary to s 61M(2) with a maximum penalty of 10 years imprisonment and a SNPP of 8 years imprisonment;
6. 11 offences of using a child under the age of 14 years for the production of child abuse material contrary to s 91G(1) with the maximum penalty of 14 years imprisonment and a SNPP of 6 years imprisonment.
1. In addition to these 105 offences, the applicant asked that 63 further State offences be taken into account on 36 separate Forms 1. [1] Of these offences, 33 were contrary to s 66DA(a), one was contrary to s 66DA(b), 16 were contrary to s 66DC(a) and 13 were contrary to s 61M(2).
2. Nine offences were contrary to the Criminal Code Act 1995 (Cth) ("Criminal Code"). They included:
1. five offences of transmitting CAM using a carriage service in circumstances of aggravation, namely involving transmissions on three or more occasions and two or more people contrary to s 474.24A(1)(a)(iii) with the maximum penalty of 25 years imprisonment;
2. one offence of transmitting CAM using a carriage service contrary to s 474.22(1)(a)(iii) with the maximum penalty of 15 years imprisonment;
3. one offence of advertising CAM using a carriage service contrary to s 474.22(1)(a)(iv) with the maximum penalty of 15 years imprisonment;
4. one offence of possessing CAM obtained using a carriage service contrary to s 474.22A(1) with the maximum penalty of 15 years imprisonment;
5. one offence of producing CAM for use through a carriage service contrary to s 474.23(1) with the maximum penalty of 15 years imprisonment.
1. Two offences contrary to ss 474.24A(1)(a)(iii) and 474.22A(1) were put on s 16BA schedules. [2]
In addition to pleading guilty in the Local Court, his post arrest conduct was such that he received a 40% discount on his sentence. Apart from that factor, the applicant did not present a compelling subjective case on sentence. Although he exhibited remorse, he had limited insight into his offending. Although he had no criminal history at the time of sentence, that was not a mitigating factor in the circumstances. He was raised in a loving family and did well at school. He has no cognitive impairment or mental illness besides having been diagnosed with paedophilia. He knew he suffered from paedophilia when he became the stepfather to the four-year-old victim and when he chose to coach the under six-soccer team.
The sentencing judge was confronted with a highly complex sentencing task. Not only was she required to sentence the applicant for 114 separate offences (and take into account another 38 charges on multiple schedules), she was required to balance that significant criminality as against the subjective factors to which I have referred. Even having regard to the 40% discount, it was inevitable that a significant term of imprisonment would be imposed.
For the State offences the applicant was sentenced to an aggregate sentence of 27 years imprisonment commencing on 8 May 2023 and expiring on 7 May 2050 with a non-parole period of 19 years and an aggregate sentence of 5 years and 6 months imprisonment commencing on 8 May 2020 and expiring on 7 November 2025 for the Commonwealth offences for which no non-parole period was set.
Allowing for some concurrence the applicant's effective sentence was a non-parole period of 22 years commencing on 8 May 2020 and expiring on 7 May 2042 and a head sentence of 30 years imprisonment expiring on 7 May 2050.
Her Honour then indicated that due to the large number of offences she proposed to make her findings of objective seriousness after recounting the facts of each offence or groups of offences. Her Honour then went on to express how she proposed to address the objective seriousness of each of the offences:
"I appreciate the task of assessing the objective seriousness of individual offences (whether attracting a standard non-parole period or not) is not a mathematical or formulaic process. Rather, it involves the consideration of all relevant features revealed by the evidence and the making of a judgment as to objective gravity within a range of seriousness for such an offence. While the language used to describe findings regarding the objective gravity of an offence attracting a standard non-parole period can differ to that used for an offence that does not attract a standard non-parole period, for uniformity I intend to adopt the same language.
The ranges I have used in assessing the objective seriousness of each offence is that for an offence of its type, the offence at hand falls:
● '(to varying extents) below mid-range';
● '(to varying extents) within mid-range'; and
● '(to varying extents) above mid-range'.
I have used the word 'range' deliberately because even within this method of classifying objective gravity, there is a continuum. Accordingly, offences within the same notional range of objective gravity may in fact receive a different indicative sentence because they fall at a different spot within that said range. The extent to which this is so will be apparent by the different indicative sentences announced."
Her Honour then went on in some detail to consider the relevant factors she had regard to when assessing the objective seriousness of each of the 114 offences. She noted that age is an element of each offence and not to be double counted but observed (correctly) that the actual age of a victim relative to the applicant's age and the victim's respective vulnerability remained a relevant consideration. She also observed that the further removed a child was from the upper age limit for each offence, the more serious it was.
In addition to age, her Honour noted the significance of the relationship between the applicant and each victim. It varied as between the children, but the common feature was that each parent trusted the applicant to care for their son when in his company and the applicant exploited that trust. To varying extents the children were each under the applicant's care, supervision and/or authority. The offences committed against Child 1 were committed in his own home by the applicant who was his stepfather. Those committed upon Children 2 to 6 occurred in a context whereby those children were in the applicant's home having been invited over. The offending in relation to Child 7 occurred in a context in which the applicant was minding him. Her Honour noted that she would not "double count" these features.
Her Honour went on to note that all of the offending had to be considered in the context that the applicant knew of his sexual attraction to boys before Child 1 became part of his life, when Children 2 to 6 were invited to spend time at his home and when he was minding Child 7. Although there was no planning per se, there was no need for any because the applicant created an environment where he could offend, conceal and re-offend as and when he desired for his own sexual gratification. In the circumstances, his lack of planning afforded him little mitigation.
There was no violence or threats of violence, but none was needed. Some offences occurred when a child was sleeping or preoccupied playing Fortnite (an online game). Further, over time, Child 1 became so accustomed to what the applicant was doing that force, violence or threats was not in fact needed. Her Honour then quoted McCallum J (as her Honour then was) in R v BA [2014] NSWCCA 148 at para [33] to the effect that lack of violence is not a mitigating factor:
"An aspect of the seriousness of sexual offences committed against young children is that their youth and inexperience deprives them of the capacity to resist or protect themselves. The fact that an adult entrusted with the care of a child is able to prey upon the child's trust and vulnerability to commit sexual offences without resort to the use of force is hardly a mitigating factor. It speaks of a pernicious abuse of trust."
Her Honour then noted that the majority of the "contact" offences (sexual assaults) were captured within video recordings so the approximate duration of each offence could be ascertained, although typically several contact offences were committed in the one episode in which CAM was produced. Her Honour then noted that she proposed to include details of the CAM when describing the assaults but noted that they are separate offences to be considered separately. Although the contact offences were typically of a short duration, affording undue weight to that factor risks minimising or ignoring the "serious consequences sexual offending upon children invariably causes even if such offending be brief".
Her Honour then turned to consider the type of sexual intercourse for the offences involving that element. Her Honour accepted that there is no fixed hierarchy of seriousness in the different forms of sexual intercourse, but observed that the actual nature of the intercourse and the circumstances in which it took place is a very relevant consideration citing R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [97].
It was noted the acts of sexual intercourse committed upon Child 1 involved digital penetration, fellatio, and anal intercourse, at times involving a degree of force and causing Child 1 pain. The one act of sexual intercourse committed upon Child 2 was an act of digital intercourse. Her Honour was satisfied that on the facts in this case the anal intercourse was more objectively serious than the other types of intercourse and the act of the applicant placing his adult penis into Child 1's mouth was "slightly" more serious than Child 1's penis being placed inside the applicant's mouth.
As for the offences of sexual touching, her Honour had regard to the nature of the conduct, the circumstances in which it occurred, the degree of physical contact involved and skin to skin contact particularly with a more intimate part of the body was objectively more serious than contact through clothing and/or to a less intimate part of the body.
Her Honour then noted that in assessing the objective seriousness in relation to the offences involving CAM the relevant factors including possession, dissemination and transmission of such material are set out in Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 and R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294. Her Honour then applied these principles and made the following observations as to the applicant's conduct in relation to the CAM overall:
1. All of the material involved actual children and much of it involved young children;
2. Some of the material received by the applicant depicted conduct that occasioned extreme physical cruelty, harm and degradation upon babies and toddlers;
3. While the Agreed Facts reveal that the applicant recorded and thus produced CAM of all of his contact offences, the CAM he produced that is relied upon to prove each s 91G(1) offence was typically very small in quantity and considerably less serious in terms of what it depicted. While the Crown could have charged a rolled-up offence and thereby included more serious material, that course was not preferred;
4. There is nothing to suggest that the applicant had proximity to those responsible for bringing the material he received from others into existence;
5. The applicant participated in the making, disseminating or trading of CAM on a very regular basis over the period of his offending including up to the day of his arrest. Indeed, on the day of his arrest, he produced material in relation to Child 1 that was filmed live to Snapchat (Sequence 301);
6. The applicant was in possession of a large amount of CAM in the form of still images and videos. While the precise number of children depicted in the material is unknown, it clearly depicts many children. The applicant's purpose for possession was for his own sexual gratification as well as to connect with like-minded others in order to exchange material. While some of the material he possessed was produced by others, his involvement and dealings with such material helped create a market for the continued exploitation and abuse of children;
7. The applicant was not involved in the sale of any material, nor did he receive any financial benefit. He did however receive other benefits from the transmission of material including the receipt of material that either aligned with his personal sexual preferences or with material with which he could trade with others for material that was to his interest;
8. The applicant's online transmission of CAM was to a number of persons that cannot be definitively quantified;
9. Some limited planning and sophistication was involved, including the use of different usernames, PIN-protected folders and encrypted messaging services; and
10. There was no risk of the material being seen by vulnerable people. It was however intended to be seen and/or acquired by like-minded persons susceptible to act in the manner described or depicted given the applicant's active participation in a collaborative network of like-minded persons.
Her Honour then moved to consider the Agreed Facts which are set out in the documents headed "Agreed Statement of Facts", "Supplementary Agreed Facts" and "Annexures A, C, E, G, H, I and J". Her Honour noted that the documents were lengthy and that she had "considered their full import".