Hillman v R

Court of Criminal Appeal (NSW)|2021-02-17|Before: Hoeben CJ, Price J, Davies J

Offence and sentence The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by her Honour Judge Shead SC (the sentencing judge).

The applicant pleaded guilty in the Local Court to four offences: persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) (Crimes Act), two counts of aggravated indecent assault on two further victims, pursuant to s 61M(2) Crimes Act and one count of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act.
The applicant was sentenced to an aggregate sentence of 21 years imprisonment with a non-parole period of 15 years and 9 months. The sentence was backdated to commence from 29 January 2018 (the date of arrest) and expires on 28 January 2039. The non-parole period (NPP) expires on 28 October 2033.
The following table sets out the offences, maximum penalties applicable, the standard non-parole period (SNPP), and the indicative sentence for each offence. Seq Offence Maximum and SNPP Indicative sentence 7 Persistent sexual abuse of a child JC (step-daughter) from age of 6-15 years 25 years 14 years 7 months S 66EA Crimes Act 8 Assault occasioning actual bodily harm, JC 5 years 3 years S 59(1) Crimes Act 1900 (NSW) 3 Aggravated indecent assault of a child TG aged 11 10 years 6 years S 61M(2) Crimes Act 1900 (NSW) SNPP 8 years NPP 4 years 6 months 4 Aggravated indecent assault of a child, AM, aged 13 10 years 5 years 3 months NPP 3 years 11 months S 61M(2) Crimes Act 1900 (NSW) SNPP 8 years

The applicant seeks leave to appeal on the grounds that:

Ground 1 - Her Honour erred in her assessment of the applicant's prospects of rehabilitation

Ground 2 - Her Honour erred in her assessment of the objective criminality of the indicative sentences which informed the aggregate sentence

Ground 3 - Her Honour's sentence was manifestly excessive and a different sentence is warranted at law

Facts of the offences

The applicant was the step-father of the victim JC. She was born in New Zealand on 6 April 2000. The applicant commenced a relationship with the victim's mother shortly after JC was born and married the victim's mother when the victim was aged three. The offending against the victim commenced when she was six years old. Six of the incidents particularised occurred in New Zealand. The remainder of the offending occurred in NSW. The family moved to Australia when the victim was 11 or 12 and the offences continued until the victim was aged 15.

Particulars of the s 66EA offence

The applicant committed a number of sexual offences against the victim in New Zealand (1-6) and New South Wales, Australia (7-10): 1. The applicant first touched the victim in 2006 when she was six years old. The applicant rubbed the victim's genitals outside her clothes. Later he touched her underneath her underwear and this occurred on a number of occasions (ingredient offence s 61M(2)). 2. In 2009 when the victim was aged nine she went into her mother's room to get some lollies. The applicant had finished showering in the ensuite and came into the room with just a towel on. The victim was on the bed. The applicant pulled down her pants and underwear and inserted his finger in her vagina causing the victim to feel a burning sensation. The applicant was naked at this time. The victim saw the applicant's penis go hard and was scared. The victim asked him what he was doing and told him to stop. The applicant watched to make sure no-one was coming (ingredient offence s 66A(2)). 3. In 2011 when the victim was aged 11 she had a friend sleep over. They were in separate beds in the same room. During the night the applicant came into the room, knelt beside the victim, removed her underwear and performed cunnilingus on her (ingredient offence s 66C(2)). 4. Immediately after this act of cunnilingus the applicant inserted his finger in her vagina. After this the applicant left the room and the victim cried (ingredient offence s 66C(2)). 5. On a later occasion in 2011, the applicant digitally penetrated the victim's vagina when he and the victim had been sitting on the couch under a blanket (ingredient offence s 66C(2)). 6. Sometime between 2011 and 2012, the applicant took the victim to his place of work. On the way they rounded up sheep. The applicant drove onto a back road and stopped the car. He pushed his car seat back and lay back as far as the headrest would allow. He picked the victim up so that she was sitting on top of him with her legs on either side. He rubbed his erect penis on her vagina through her clothing. He told her that it felt good (ingredient offence s 61M(2)).

Particulars of offences in NSW 1. In 2012, after the applicant and his family had moved to Australia, the victim was in her room asleep, with the door shut. The applicant came into the room and shut the door behind him. He got into the victim's bed and began kissing her on the mouth. He told her to open her mouth, but she refused. The applicant took his clothes off and removed the victim's pants telling her he was going to "put it in". The victim said "No" but the applicant put his penis in her vagina. The victim felt pain. During penile/vaginal intercourse, the applicant pulled the victim's hair which hurt her. He stopped after he had ejaculated. When he left the room the victim cried. The victim was aged 12 at the time. After the incident, she went to the toilet and saw blood when she wiped her vagina (ingredient offence s 66C(2)). 2. In 2012, the applicant and the victim were on the couch watching television. The others in the house were asleep. The applicant put a blanket over them and digitally penetrated the victim's vagina while placing her hand on his erect penis. The applicant removed his fingers from the victim's vagina when the victim's younger brother woke up (ingredient offence s 66(2)). 3. In 2013 at Campbelltown, the applicant was driving the victim home from netball. He pulled over, removed the victim's clothing, touched her breasts and vagina and had penile/vaginal sex with her until he ejaculated. The victim was aged either 12 or 13 years old at the time (ingredient offence s 66C(2)). 4. In 2015 at Caringbah, the applicant pulled over in a car while driving the victim. He positioned her on his lap and had penile/vaginal intercourse with her until he ejaculated (ingredient offence s 66C(4)).

The following extracts from JC's interview with police provide a graphic account of the offending:

"It started happening more often when we moved to Australia." "When we moved to Australia then it was more than just fingers." "When mum left the house or was at work or was with her friends it would happen. There are so many times it's hard." "It happened in different places but the exact same, he just did as he pleased, like as if I was lying there dead." "He would force himself onto me." "He would put his dick inside my vagina." "I don't know how many times it happened." "There were so many times." "There were so many different times." "Too many to count." "He would do this to me so many times like I didn't even know how many. I couldn't count. There was just too many." "He would bribe me." "He would buy me smokes." "He would give me money." JC told police that the offending occurred on every occasion that her mother was either asleep or not at home and that the applicant treated her as if she was his girlfriend. When he found out that she had a boyfriend, the applicant was angry and acted as if she was cheating on him. JC told police: "It was as if he thought he owned me, in a way."

None of the above was controversial and was admitted by the applicant in his statement to police.

Assault occasioning actual bodily harm JC (Sequence 8)

In 2016, sometime after the sexual abuse had stopped, the applicant and victim argued and the applicant told her to leave the house. During the argument, the applicant picked the victim up by the throat and lifted her in the air so that her feet were off the floor. This left a large mark around her neck. The applicant threw her on a bed and began punching her in the head. He did not stop until another family member intervened.

Aggravated indecent assault TG (Sequence 3)

Upon moving to Australia the applicant and the family went to live with relatives. This included the applicant's 11 year old cousin, TG. The victim and TG shared a room. One night, JC and TG fell asleep in TG's parents' room. Early the next morning after TG's parents had left for work, the applicant came into the room and got into bed with the two girls. The applicant was lying behind TG and tried to pull her around to face him. He grabbed her under the armpits and positioned her on top of him. He tried to put his hands inside her underwear, but she pushed his hands away. The applicant put his hands on TG's bottom and pulled her against him really hard. While they were both clothed, he used his hand to line up his penis with her vagina. The applicant used his hand to touch her on the vagina. She moved his hand away and began to cry. TG later told JC what had happened.

Aggravated indecent assault AM (Sequence 4)

The victim invited her 13 year old friend, AM, for a sleepover when her parents were out. The two girls were on a bed watching a movie when the applicant came home. JC left the room. The applicant got into the bed and kissed AM on the lips and touched her on the bottom. AM ran out of the room and told JC what had happened. JC confided that the applicant had done this to her and told her she could not tell anyone. The incident was reported to police about a month later on 15 November 2013. AM was interviewed electronically by the police. The applicant was interviewed by police and denied the incident. JC was also interviewed and she denied the incident and any abuse by the applicant. Following this, the friendship between the two girls ended and AM retracted her allegation as she did not think anyone believed her.

Disclosure by JC

JC told her mother's friend on Christmas Day 2017 that she had been sexually abused by the applicant. A report was later made to police. The applicant was interviewed, arrested and electronically interviewed on 29 January 2018. He made extensive admissions about the persistent sexual abuse of JC, as well as admitting to the touching of TG and AM.

Subjective case of the applicant

The applicant pleaded guilty in the Local Court and was entitled to the statutory discount of 25 per cent for his plea of guilty due to its utilitarian value. The applicant gave evidence on oath during the sentence proceedings expressing remorse and outlining aspects of his personal background and the offending.
The applicant relied on a psychologist's report of Mr Borkowski. In this he recounted a background in New Zealand where both his mother and stepfather were heavy drinkers. He recalled some form of sexual experimentation in childhood with his cousins which was limited to kissing. He also recalled an incident where his uncle had asked him to fellate him and he ran away.
The applicant left school and home at the age of 17 years. He had relationships with several women. During one of these relationships he had a child when he was aged 22. When he was in his late twenties he met the victim's mother whom he married and with whom he had three other children.
The applicant had been working since his early twenties and he was working during the period of the offending in New Zealand and in Australia.
The applicant had never been diagnosed with any mental illness or other developmental disorders. In the report of Mr Borkowski, the applicant denied having paedophilic interests and apart from the victim, said he had never fantasised about young people. The applicant told Mr Borkowski that since being arrested, he had been asking himself why and how he offended in the way he did. He accepted that he "had an urge that he acted on that he should not have". Mr Borkowski noted that the applicant had been unable to understand or identify why he committed the sexual offending or why it had gone on for so long. Mr Borkowski administered the Static-99 test which revealed that the applicant was of average risk of re-offending. Mr Borkowski suggested that consideration should be given to a diagnosis of paraphilic disorder. Ultimately, Mr Borkowski was of the opinion that the applicant's motivation to engage in treatment "bodes well" for his prospects of rehabilitation.
In giving evidence on sentence, the applicant confirmed the truth of what he had told the psychologist. He accepted responsibility for the offending. He expressed remorse for what he had done and said that he deserved to be in gaol. Some limited evidence was given about his current custodial conditions.
In cross-examination, the applicant agreed it was possible he was a paedophile or that he had paedophilic tendencies. He gave evidence that the offending ceased in 2015 because the victim JC did not wish him to continue. He could give no explanation for why he did not stop before this when he knew that the victim did not want him to commit sexual offences on her before 2015.
The applicant said that he had not yet been able to talk to any professional about why he had committed the offences. The applicant agreed that the sexual experimentation when he was young did not play any part in his offending. He said that he knew that what he did was wrong and that he knew that the offending would impact on JC "a lot".

Section 66EA offence

Her Honour found that the objective seriousness of the offending, which formed the basis of the s 66EA offence, was "in the very high range for the offending conduct contemplated by that crime". Her Honour set out 18 factors that informed her assessment that the objective seriousness of the offending was in the high range: 1. relationship and abuse of trust: the abuse of trust was gross given that the applicant was a parent to the victim, she was under his control, and the victim was entitled to trust the applicant; 2. the victim was vulnerable: the victim was abused in her home, and in a car where she was the only passenger. The applicant did with her what he pleased; 3. the age of the victim: the victim was only six years old when the offending commenced. The age difference of 24 years between the applicant and the victim was relevant to the objective seriousness; 4. the acts themselves: the acts of penetration which occurred when the victim was nine and 12 and included repeated acts of penile/vagina penetration leading to ejaculation was very grave offending; 5. the length of time of the acts of sexual abuse: the acts of sexual abuse were not of short duration; 6. physical pain suffered by the victim; 7. the applicant's offending involving sexual gratification; 8. the sexual abuse continued for a lengthy period of time: The victim suffered abuse from the age of six to 15. At the commencement of the offending, the victim did not understand what was happening. Her early childhood and later her teenage years were sullied by "grotesque perversion at the hands of her step-father". 9. the representative nature of the conduct: the applicant admitted that he had sexual intercourse with the victim sometimes once a week, once a month and sometimes once every three months; 10. the applicant knew what he was doing was wrong; 11. the applicant persisted in the offending despite the victim telling him to stop; 12. the conduct was brazen and caused the victim additional distress: it included offending which occurred when someone else was in the room; 13. the applicant took advantage of his greater physical size; 14. the harm to the victim was considerable; 15. there was a risk of pregnancy; 16. there was a degree of coercive conduct; 17. the victim was forced to keep the offending conduct secret for many years; and 18. the applicant was interviewed in relation to AM's allegations and denied the incident: JC denied any abuse. Her Honour found: "no doubt this must have been a confusing experience". Her Honour found that "JC ... was told to conceal the offender's conduct in relation to another victim". Despite the intervention of police at the time, the applicant continued to offend against JC for a further two years.
Her Honour found that the offending was aggravated because it was committed in the home of the victim; s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999 (NSW); and because the applicant held a position of trust; s 21A(2)(k).

Assault occasioning actual bodily harm - JC (Sequence 8)

Her Honour found that the objective seriousness of the assault occasioning actual bodily harm on JC fell above the mid range for such offending bearing in mind that the victim was aged 15 or 16 and the applicant was a father figure; the attack was directed to vulnerable parts of the victim's body; the applicant had to be pulled off the victim by another relative; and the attack happened in the victim's own home.

Aggravated indecent assault - TG (Sequence 3)

Her Honour found that the objective seriousness of the offence against TG was just below the mid range. Her Honour found that the applicant used his superior size to place the victim on top of him; that the five or 10 minutes when the offending occurred was not insignificant and that he committed the offence for sexual gratification. Her Honour held that it was an aggravating factor that the offence occurred in the victim's home; s 21A(2)(eb) and where there had been abuse of trust; s 21A(2)(k). TG was aged 11 at the time of the offending.

Aggravated indecent assault - AM (Sequence 4)

Her Honour found that this offence fell slightly below the mid range. Her Honour found that there was a breach of trust aggravating the offence, s 21A(2)(k). Her Honour found this offence was more serious because the applicant caused JC to be involved in the denials. Her Honour said: "The pressure on JC and her emotional manipulation by her stepfather, who of course, was her father figure, was apparent. He admitted to police that he told her not to say anything about her own abuse. I find that this offence is rendered more serious by the broader context in which it was committed. It involved not only an innocent and vulnerable child visitor to the offender's house and her sexual abuse, but the inveigling of his primary victim in its cover-up. In all of these circumstances I find that this offence falls slightly below the mid-range." (Reasons 51) AM was aged 13 at the time of the offending.

Other findings

Her Honour determined that this was a case where there was a strong need for general and specific deterrence. Her Honour found that the following factors were made out in mitigation, namely the absence of a significant criminal record, s 21A(3)(e); and remorse shown by the applicant; s 21A(3)(i). Her Honour declined to find special circumstances. The commencement of the sentence was backdated to 29 January 2018.

Prospects of rehabilitation

Her Honour found it was troubling that the applicant had said he would never have admitted the abuse of JC had the victim not disclosed it. Although the applicant had shown some insight and remorse as to the offending, her Honour was not prepared to find that he had good prospects of rehabilitation: "I find that the offender's sexual attraction to children is dangerous and that he has demonstrated that even in situations where he is aware that his conduct is wrong, he is unable to stop himself and on the evidence before me he is yet to understand why he committed the offences. Accordingly, it cannot be said that his prospects of rehabilitation are reasonable." (Reasons 61)
While her Honour accepted that the applicant had expressed a desire to engage in treatment, she maintained her opinion that the magnitude of his sexual attraction to children remained substantial.
Given the number of victims and the length of time over which he offended, her Honour found that his prospects of rehabilitation must remain guarded and that he continued to be a risk to the community.

Ground 1 - Error in assessment of applicant's prospects of rehabilitation

The applicant submitted that her Honour had erred in her assessment of the applicant's prospects of achieving successful rehabilitation. This was because the offences against AM and TG were singular events and because his offending ceased well before his arrest. The applicant submitted that her Honour was wrong in her assessment, and that the applicant's prospects of rehabilitation were good.

Consideration

The assessment of an offender's prospects of rehabilitation is a question of fact that is to be determined by the sentencing judge after weighing all the admitted evidence: Stoeski v Regina [2014] NSWCCA 161 at [38].
Despite the singularity of the offending against TG, the applicant then went on to offend against AM and continued his offending against JC. More importantly, the offending against AM was singular because she immediately complained about this conduct. Given that AM's complaint was investigated by the police in 2013, the applicant must have been well aware of the risks should he be caught offending against anyone other than JC. When viewed in context, the singularity of the assaults against TG and AM do not support an assessment of good prospects of rehabilitation as submitted by the applicant.
In assessing the applicant's prospects of rehabilitation, her Honour was entitled to take into account that when first confronted with an allegation of sexual misconduct against a child, he was prepared to lie to police to avoid the consequences of his wrongdoing. He continued to sexually offend against JC. This occurred against an insidious background whereby he persuaded his primary victim to lie to the police and then continued to offend against her for another two years. It was well open to the sentencing judge to be guarded about his prospects of rehabilitation.
The applicant also relied on the fact that he ceased to offend against JC two years before his arrest without any other matter on his record as indicative of error in her Honour's findings. The evidence before her Honour was that the applicant had asked the victim when she was 15 whether she wanted to continue the relationship. When she said that she did not, the offender ceased offending against her some time in 2015. Her Honour accepted that the applicant was aware that the victim had never welcomed his advances nor consented to the offending. Nonetheless, her Honour did find in his favour on the issue of remorse, that the applicant had voluntarily ceased offending.
The cessation of the offending must be viewed in the context of the age of the victim and that she was finally able to speak against her step-father. Further, the applicant's submission does not take into account the further family violence directed at JC in 2016 (a year before the disclosure).
The fact that the applicant had not offended sexually against JC since 2015 until his arrest in January 2018, after he had engaged in nearly 10 years of sexual abuse against her, does not greatly assist him. Her Honour was entitled to give this factor little weight when assessing his prospects of rehabilitation.
The applicant submitted that this case could be distinguished from other cases of historical sexual abuse. This was because he had demonstrated for two years his ability to live in the community without any further offending. The applicant submitted that this demonstrated good prospects of rehabilitation.
While there were factors which might ordinarily favour the applicant's prospects of rehabilitation, such as the early plea of guilty and expression of remorse, there were too many other factors which were deeply disturbing about the applicant's longstanding offending and lack of insight. This militated against a finding that the applicant had good prospects of rehabilitation. Her Honour undertook an independent assessment of the evidence which involved balancing the competing facts. Her Honour's conclusion that the applicant's prospects of rehabilitation were guarded was well open to her on the evidence. This ground of appeal has not been made out.

Ground 2 - Her Honour erred in her assessment of the objective criminality of the indicative sentences which informed the aggregate sentence

The applicant submitted that her Honour erred in her approach to the s 66EA offence in that her Honour treated the relevant penalties which applied to the ingredient offences as if all of the offending had occurred in New South Wales. The applicant submitted that this failed to take into account that the six earliest ingredient offences occurred in New Zealand and it was only the last four which took place in New South Wales. The applicant submitted that the relevant comparative offences for the first six ingredient offences were the New Zealand offences which in some cases carried lower maximum penalties than those in New South Wales.
Put another way, the applicant submitted that when considering the particulars of the ingredient offences committed in New Zealand, the sentencing judge should have had regard to the relevant maximum penalties applicable to those offences in New Zealand as distinct from those in New South Wales. The practical effect of that submission was explained as follows. By reference to the ingredient offence of sexual intercourse with a child, the maximum penalty in New Zealand was imprisonment for 14 years whereas the maximum penalty for such an offence in New South Wales was 20 years. Similarly, the ingredient offence of sexual intercourse with a child aged under 10 also carried a 14 year maximum sentence in New Zealand.
It was agreed between the parties that there was no authority on the point, i.e. that the maximum penalties which apply to ingredient offences which make up a s 66EA offence are those which apply to offences in the jurisdiction where the offending occurred.

Consideration

There are at least two significant difficulties confronting the applicant's submission. The first and most obvious is that s 66EA properly construed does not support the applicant's submission.
Section 66EA (prior to the 2018 amendments) relevantly provided: "(1) A person who, on three or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years. (2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion. (3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales. ..."
A sexual offence is defined in s 66EA(12) as: 1. an offence under s 61L, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 780, 78Q or 80A, 2. an offence of attempting to commit an offence referred to in paragraph (a), 3. an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b).
Accordingly, the section defines "sexual offence" in such a way that an offence committed outside of New South Wales is encompassed by the equivalent New South Wales provision. There was no issue that the sentencing judge referred to the equivalent New South Wales offences when setting out the ingredient offences and referred to their relevant maximum penalties. The clear inference is that her Honour then took the maximum penalties into account in a limited way so as to inform her understanding of the overall objective seriousness of the offending.
The gravamen of the s 66EA offence is sexual offending against a child on three or more occasions, which is reflected in the maximum penalty of 25 years. This provides the sentencing yardstick.
In Burr v R [2020] NSWCCA 282 (Burr v R) Johnson J (with whom Leeming JA and Rothman J agreed) said at [164]-[165]: "164 The maximum penalty for a s 66EA offence (prior to the 2018 amendments) was imprisonment for 25 years. That maximum penalty represents the legislature's assessment of the seriousness of a s 66EA offence and, for that reason, provides a sentencing yardstick: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. Consideration of sentencing decisions for s 66C(3) offences involves a different sentencing yardstick. 165 I have considered the sentencing decisions for s 66EA offences relied upon by the Applicant. These were R v Manners, R v Fitzgerald, Hitchen v R [2010] NSWCCA 77, IS v R [2011] NSWCCA 142, ARS v R [2011] NSWCCA 266, DS v R (2012) 221 A Crim R 235; [2012] NSWCCA 159, AC v R [2016] NSWCCA 107, R v Van Ryn [2016] NSWCCA 1, Mills v R and R v DM [2018] NSWDC 62. As might be expected, these cases involved a range of ingredient offences which constituted the s 66EA offence and a variety of objective and subjective considerations which led to the particular sentencing outcome in each case. The sentences imposed in those cases extended from a term of imprisonment for six years with a non-parole period of four years and three months (R v Manners) to a term of imprisonment for 16 years with a non-parole period of 12 years (Hitchen v R)."
As that extract makes clear, the maximum penalties for the ingredient offences assist only as a guide when sentencing for an offence contrary to s 66EA. The sentencing judge appreciated this when her Honour said: "... It is not appropriate to approach the sentencing task by considering what sentences the individual offences that make up the s 66EA charge would have attracted had they been charged as isolated offences, although the penalties for those offences might assist as a guide in determining the overall objective seriousness for the offending..." (Reasons 31)
While reference was made by the sentencing judge to the relevant maximum penalties for the ingredient offences as if they had been committed in New South Wales, this was to allow an understanding of how serious such offences would be considered if dealt with separately.
Under the heading "Sentencing Approach", her Honour further observed that when sentencing for an offence contrary to s 66EA it has been said that an offence against the section is more serious than the ingredient offences which comprised the individual acts.
This was made clear in Langbein v R [2008] NSWCCA 38 and R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5. The sentencing judge made it clear that she understood the distinction when she observed: "[There was] nothing to suggest that the Parliament intended sentencing for a course of conduct that had crystalised into a s 66EA conviction to be more harsh than sentencing for the same course of conduct had it crystalised into convictions for a number of representative offences." (Reasons 53)
It follows that no error has been revealed in her Honour's approach to s 66EA.
That is enough to resolve this issue against the applicant. There is, however, another significant problem which effectively prevents the applicant relying upon this submission.
The applicant's submission on this issue was not raised before the sentencing judge in the sentence hearing. This Court has said on a number of occasions that parties should be bound by the way in which they conduct their case and ought not on appeal, raise a new or different case.
In Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79], [81], Johnson J said: "79 This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. If material error is demonstrated, before the Court would proceed to resentence the Applicant, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 720-721 [79]. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]. ... 81 ... The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]."
For the reasons already stated, none of the preconditions necessary to enable this new case to be raised on appeal, have been made out. This ground of appeal should be dismissed.

Ground 3 - Her Honour's sentence was manifestly excessive and a different sentence is warranted at law

The applicant noted that the indicative sentence for the s 66EA offence was 19 years and 6 months, which after the discount for the early plea of guilty, produced an indicative figure of 14 years and 7 months. The applicant submitted that when that sentence was compared with that imposed in Hitchen v R [2010] NSWCCA 77 (Hitchen v R) it was at the same level of seriousness as that imposed on the applicant in that case, i.e. 16 years with a non-parole period of 12 years. The applicant submitted that despite this similarity in the length of the sentences, the offending in Hitchen v R was far more serious than that in this case.
In developing that argument, the applicant relied upon the following statements of principle in Mills v R [2017] NSWCCA 87 (Mills v R) by R A Hulme J (with whom Leeming JA and Beech-Jones J agreed): "69 It is useful, however, to note the case of Hitchen v R to which the applicant referred. It involved an offender sentenced in the District Court to a total term of 24 years with a non-parole period of 18 years for an offence contrary to s 66EA with sundry other offences relating to child pornography that were the subject of sentences or were taken into account. The sentence for the s 66EA offence was 16 years with a non-parole period of 12 years after a 25 per cent reduction on account of the offender's plea of guilty. 70 The s 66EA offence in that case involved offending over a three year period against a child from when she was aged seven. There were 12 separate occasions of intercourse (oral, vaginal and anal). There were also 36 occasions on which the child was subjected to acts of indecency. Some of the offences were photographed or recorded on video giving rise to some of the child pornography offences. The sentencing judge found that the s 66EA offence was in the worst case category. Howie J in this Court (McClellan CJ at CL and Rothman J agreeing) made the same assessment. Error was found in excessive accumulation of sentences with the result that the overall sentence was reduced to 18 years with a non-parole period of 14 years. The sentence for the s 66EA offence was undisturbed. 71 Reference to a single case provides no basis to draw a conclusion of manifest excess in the present case. However, Hitchen v R does serve to illustrate what a worst category case can be. As bad as it is, the present case is not there, nor very close to it. Yet against the maximum penalty of imprisonment for 25 years, the starting point adopted by the primary judge of 22 years is commensurate with an assessment that it was within that realm. In my view, it was unreasonable to assess the sentence at that level and it follows that the resulting sentence of 16 years and 6 months is manifestly excessive."
The applicant submitted that the comments of R A Hulme J are apposite to this case. The applicant submitted that while the objective seriousness of the offence in this case is above the midrange, it was not so serious as to warrant an indicative sentence so close to the maximum penalty (The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [20]).
The applicant also relied on statistics which put the offending in the highest range of sentences for this kind of offending. The applicant submitted that when Sequence 7 was disregarded, the effect of the indicative sentences imposed for the remaining offences accounted for 6 years and 5 months of the aggregate sentence. The applicant submitted that this was excessive and strongly suggested that there had been a failure to take into account issues of totality and accumulation. The applicant submitted that these sentences had been inflated by her Honour's assessment of the objective criminality in circumstances where the offending did not warrant that level of accumulation. This was particularly so when regard was had to the heavy notional sentence indicated for the s 66EA offending.
The applicant noted that the effect of the length of a sentence was not linear nor did it produce an arithmetic calculation but has a harsher and more substantial effect on an offender. The applicant submitted that having indicated a very large sentence in respect of the s 66EA offence, there was little or no room for a further sentence to be imposed. In making that submission, the applicant accepted that some accumulation was warranted but submitted that the extent of the notional accumulation in this case was indicative of error.
The applicant submitted that her Honour had failed to consider that this very long sentence was crushing in that it would leave the applicant with a sense of hopelessness and destroy any expectation of a useful life after release. On that issue, the applicant relied upon the statement of principle by Simpson J (with whom Barr and Latham JJ agreed) in R v Wilson [2005] NSWCCA 219 at [37]: "37 ... It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality."
Having regard to that statement of principle, the applicant submitted that the indicative sentences and the level of accumulation were such as would establish that the aggregate sentence in the matter is manifestly excessive.
The Crown noted that the indicative sentence for the s 66EA offence was 14 years and 7 months following the 25 per cent discount for the utilitarian value of the plea of guilty. The Crown further noted that her Honour found that the objective seriousness of this offence was at the "upper end" of the range when considering the 10 separate episodes which informed the charge, the period of time over which the applicant had maintained an unlawful sexual relationship with his stepdaughter and the gross breach of trust that this entailed. The Crown submitted that her Honour clearly set out in her reasons why this matter was at the upper end of the range in terms of objective seriousness as opposed to above midrange as contended for by the applicant.
The Crown submitted that the indicative sentence for the s 66EA offence was reflective of the finding that the offence was in the high range. The Crown noted that this Court had recently held that caution should be exercised when asserting manifest excess for an offence, contrary to s 66EA which was said to be supported by statistics or with respect to reliance upon comparative cases.
On those issues, the Crown relied upon Burr v R at [160]-[162] where Johnson J agreed said: "160 Caution should be exercised where a ground asserting manifest excess is supported by sentencing statistics. This is particularly so in this case as the sentencing statistics relied upon by the Applicant concern offences prosecuted under s 66C(3) Crimes Act 1900 and not for s 66EA offences where the ingredient offences are s 66C(3) offences. In Mills v R, R A Hulme J noted at [68] that the limited number of s 66EA sentencing decisions meant that sentencing statistics were of little use ... ... 162 With respect to reliance upon comparative cases, it is appropriate to keep in mind as well the statement of Ierace J (Bathurst CJ and Price J agreeing) in Wright v R at [52]: "As the applicant recognised, there are limitations to the use of comparative cases; the Court must take a "careful approach" and needs to weigh the similarities and dissimilarities of the objective and subjective circumstances between each case: MLP v R [2014] NSWCCA 183 at [44]. Even so, a close alignment of such circumstances in comparative cases yielding lesser sentences is not determinative of manifest excess. Rather, it is inconsistency in the application of relevant legal principles that is significant: Vandeventer v R [2013] NSWCCA 33 at [43], [45]-[46].""
The Crown submitted that the s 66EA offence for which her Honour was notionally imposing a sentence was more objectively serious than that in Mills v R. It submitted that the facts in Mills v R disclosed an offence involving four offences for three particularised incidents which occurred over three years when the victim was aged between 11 and 14 years. The Crown submitted that in comparison her Honour was sentencing the applicant for an offence which involved 10 ingredient offences commencing when the victim was six years old and extending over nearly 10 years.
The Crown submitted that the undiscounted starting point in Mills v R was 22 years, compared to the starting point in this case of 19 years and 6 months. The Crown submitted that in Mills v R the Court resentenced the applicant to 13 years and 6 months which was 1 year and 1 month less than the indicative sentence of 14 years and 7 months in this case. It was the Crown's contention that what was said in Mills v R did not have the same degree of application here.
The Crown submitted that there was no error in her Honour's assessment of the objective criminality in all the offences when regard is had to the type of conduct, the particulars, the persistent nature of the abuse and the young age when the offences commenced. The Crown submitted that the classification of the objective seriousness of offending is one for the discretionary evaluation of the primary judge (Mulato v Regina [2006] NSWCCA 282 at [37]). The Crown submitted that in the present case her Honour found that the objective seriousness was at the upper end of the range and that the applicant had not successfully demonstrated error in that finding.
The Crown submitted that in relation to the non 66EA offences, the indicative sentences assessed for them were well open on the evidence: TG (Sequence 3) - SNPP of 8 years with an indicative sentence of 6 years with a non-parole period of 4 years and 6 months. AM (Sequence 4) - an indicative sentence of 5 years and 3 months with a non-parole period of 3 years and 11 months. JS (assault occasioning actual bodily harm) - an indicative sentence of 3 years.
In summary, the Crown relied upon the following considerations to establish that the aggregate sentence was not unreasonable or plainly unjust: 1. the s 66EA offence, which had a maximum penalty of 25 years imprisonment, was a very serious example of an offence of that kind, assessed by her Honour as "in the very high range". There were 10 particularised instances of offending which represented a course of conduct perpetrated by the applicant against his stepdaughter over 10 years when she was aged between 6 and 15 years; 2. general and specific deterrence, punishment and protection of the community were significant factors in the sentencing exercise; 3. the aggregate sentence encompassed not only the very serious offence of persistent child sexual abuse against JC, as well as another offence of violence, but needed to comprehend two discrete episodes of sexual offending against two other children; 4. the s 61M(2) offences carried a maximum penalty of 10 years imprisonment with a SNPP of 8 years demonstrating the seriousness with which the community viewed such offending; 5. the applicant's sexual offending against children continued even when a complaint had been made about his conduct; 6. the applicant's offending was aggravated by the gross breach of trust that had been placed in him and which allowed him access to the victims; 7. when looking at the aggregate sentence imposed, compared to the indicative sentences, there was a considerable degree of accumulation, which was not unwarranted given the need to reflect the offending against three separate victims; 8. the subjective case of the applicant was unremarkable and supported little by way of additional mitigation; and 9. her Honour found that the applicant knew what he was doing was wrong but continued regardless, committing the offences for sexual gratification.

Consideration

In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J conveniently summarised the principles relevant to this ground of appeal. His Honour stated: "443 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. 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 parties accepted the above as a correct statement of principles applying to considerations to be taken into account when it is submitted that a sentence is manifestly excessive or manifestly inadequate.
In order to resolve this appeal, it is necessary to set out the sentencing judge's concluding remarks at pp 70-71 of her reasons: " ... the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters that I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 28 years with a non-parole period of 21 years. After applying a discount of 25% for the early plea of guilty the effective aggregate sentence is imprisonment for 21 years with a non-parole period of 15 years and nine months. As required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, the indicative sentences I would have imposed are as follows. For the s 66EA offence, namely, persistent sexual abuse of a child, that is JC, I would have imposed an indicative sentence of imprisonment for 19 years and six months. Applying the discount of 25% the effective indicative sentence for this offence would have been reduced to 14 years and seven months. For the Sequence 4, s 61M(2) offence, namely aggravated indecent assault on AM, I would have imposed a sentence of imprisonment for seven years. Taking into account the 25% discount the effective indicative sentence for this offence would have been reduced to five years and three months. Given that this offence attracts a standard non-parole period, I indicate that the effective non-parole period for this offence after discount would have been three years and 11 months. For the Sequence 3, s 61M(2) offence, namely the aggravated indecent assault on TG, I would have imposed a sentence of imprisonment for eight years. Taking into account the 25% discount the effective indicative sentence for this offence would have been reduced to six years. Given that this offence attracts a standard non-parole period, I indicate that the effective non-parole period for this offence after discount would have been four years and six months. For the Sequence 8, assault occasioning actual bodily harm offence committed on JC, I would have imposed an indicative sentence of imprisonment for four years. After applying the 25% discount the effective indicative sentence would have been reduced to imprisonment for three years. ... You are sentenced to an aggregate term of imprisonment for 21 years with a non-parole period of imprisonment for 15 years and nine months. A 25% discount has been applied for your early plea of guilty. ..."
From my reading of that part of her Honour's reasons, it is tolerably clear that her Honour applied the 25 per cent early plea discount to the aggregate sentence as well as to the indicative sentences. The problem thereby created was not identified by the parties and no submissions were made in relation to it until final addresses by the Crown in the appeal. Even then it was only lightly touched upon.
From the language used I have concluded that what her Honour has done involves not only an error in process but also of substance. This is because the start point for the aggregate sentence specified by her Honour is 28 years. Apart from the error in applying a discount to the aggregate sentence, such a high start point skews the sentence calculations towards a very high sentence indeed.
That what has occurred involves an error of substance is clear from what was said in Jackson v R [2021] NSWCCA 15 where Price J (with whom Hoeben CJ at CL and Fagan J agreed) said: "113 In oral argument, Ms Rodger, the applicant's counsel accepted that the written submissions founded on the notional or undiscounted starting point of the aggregate sentence were misconceived and no longer relied upon. It is well settled that consideration of the undiscounted starting point of an aggregate sentence is of no assistance in determining manifest excess. The reasons for this were explained by Hoeben CJ at CL in Elsaj v R [2017] NSWCCA 124 at [56]: 'The opening proposition of the applicant to the effect that "a starting point of 22 years imprisonment is manifestly excessive in this case" is wrong and unhelpful. Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes it clear that discounts for a guilty plea are to be applied to the indicative sentences, not the aggregate sentence. To the extent that there is any doubt on that issue, it has been resolved by such cases as R v Nykolyn [2012] NSWCCA 219, Subramaniam v R [2013] NSWCCA 159, JM v R [2014] NSWCCA 297 and R v Cahill [2015] NSWCCA 53. There is in fact no "starting point" in respect of the aggregate sentence imposed in this case, either notionally or otherwise. The aggregate sentence represents the result of the instinctive synthesis of sentencing principles by the sentencing judge having regard to the particular facts of this case and the indicative sentences. The indicative sentences are those which he would have imposed had the aggregate sentencing procedure not been available.'"
That statement of principle highlights another problem in her Honour's methodology. The instinctive synthesis approach to sentencing, particularly when handing down aggregate sentences, involves an assessment of the notional indicative sentences applying all relevant discounts and as a result of those calculations the formulation of an appropriate aggregate sentence. This includes having regard to totality and accumulation. That clearly did not happen here. Her Honour appears to have taken as her starting point the selection of an aggregate sentence and then subsequently set out the indicative sentences which appear to have had only a minor role in the formulation of the aggregate sentence.
It follows that I have concluded that error has been disclosed in the sentencing process and that the applicant has to be resentenced.

Resentence

As was explained by R A Hulme J in Mills v R, there continues to be a dearth of comparable cases where s 66EA has been applied. That situation is likely to remain the same given the substantial amendments to the section which were brought about by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).
As was accepted at the hearing, the subjective case for the applicant is not particularly compelling. Moreover, by comparison with the offending against JS over a period of 10 years, the assessment of the objective seriousness of the non s 66EA offences is excessive and needs to be reduced.
My assessment of the objective seriousness of the applicant's offending is largely consistent with that of the sentencing judge, i.e. that it is well above the midrange but not so grave as to warrant the maximum penalty or close to it. Serious and all as it is, it does not qualify as a worst case, such as was described in Hitchen v R.
No information was provided to the Court as to the applicant's current conditions of custody and matters of that kind. Accordingly, on resentence, I have before me substantially the same material which was before the sentencing judge. Other than the actual sentencing process, there has been no challenge to the fact finding by her Honour.
On the basis of that material, I propose the following orders: 1. Leave to appeal against sentence is granted. 2. The appeal is allowed. 3. The sentence imposed by Shead SC DCJ on 26 July 2019 is quashed. 4. In lieu thereof, I impose an aggregate sentence of 19 years with a non-parole period of 14 years. The aggregate sentence is to commence on 29 January 2018. The applicant will be eligible for parole on 28 January 2032.
I propose the following indicative sentences: Sequence 7 - s 66EA - 14 years and 6 months. Sequence 8 - s 59(1) (JC) - 2 years and 7 months. Sequence 3 - s 61M(2) (TG) - 3 years and 9 months with a non-parole period of 2 years and 9 months. Sequence 4 - s 61M(2) (AM) - 3 years with a non-parole period of 2 years and 3 months.
PRICE J: I agree with Hoeben CJ at CL.
DAVIES J: I agree with Hoeben CJ at CL.

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: 22 March 2021

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018(NSW)

(Crimes Act 1900(NSW)

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