Harden v R

The applicant's subjective case

1. 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.
2. 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.
3. 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").
4. 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.
5. 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.
6. The applicant was not diagnosed with any psychiatric or psychological concerns during his adolescence.
7. 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.
8. Dr Collins was of the view his work history was not at a level commensurate with his ability.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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".
15. 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.
16. 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.
17. 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.
18. 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").
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. Her Honour was satisfied that he displayed remorse and contrition.
25. 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.
26. 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".
27. 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.
28. Her Honour found that the applicant posed a moderate risk of reoffending, and that his prospects of rehabilitation were guarded.
29. 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."
30. 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."
31. 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:

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.

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.

Ground 1: Incorrect maximum penalty

1. 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.
2. 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.
3. 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.
4. 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 … ."
5. 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.

Applicant's submissions

1. 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.
2. 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.
3. 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)].
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.

Supplementary notes

1. 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.
2. The applicant's supplementary note was received on 21 May 2024.
3. 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].
4. 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.
5. 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.

Crown submissions

1. 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.
2. 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.
3. 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.
4. 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.

The Crown's note

1. 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.
2. 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.
3. 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.

Consideration

1. 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.
2. 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.
3. 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.

Re-sentence for Commonwealth offences

1. It is necessary to re-sentence the applicant for the nine Commonwealth offences given the conceded error in Ground 1.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Re-sentence

1. 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.
2. 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.
3. 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.
4. 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.
5. Sequence 309 was the same offence in relation to Child 2. It occurred over a three-month period and involved 30 transmissions.
6. Sequence 310 was the same offence in relation to Child 5 and pertained to a two-month period with 15 transmissions.
7. 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.
8. In relation to sequence 321 (Child 7), there were three transmissions on one day.
9. The remaining four offences all carried maximum penalty of 15 years imprisonment: Sequences 314, 2, 3 and 9.
10. 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.

ORDERS

1. 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.

Endnotes

1. s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
2. s 16BA of the Crimes Act 1914 (Cth).
3. 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.
4. 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.
5. 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.
6. 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.
7. Tcpt, 17 May 2024, p10.
8. 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