JG v R

Judgment

1. SIMPSON AJA: I agree with Davies J.
2. DAVIES J: The applicant pleaded guilty in the Local Court to the following offences: Counts 1 and 2: Sexual touching of a child aged between 10 and 16 years contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is ten years' imprisonment and there is no standard non-parole period. Count 3: Possess child abuse material contrary to s 91H(2) of the Crimes Act. The maximum penalty for this offence is ten years' imprisonment and there is no standard non-parole period. Counts 4 and 5: Persistent sexual abuse of a child contrary to s 66EA(1) of the Crimes Act. The maximum penalty for this offence is life imprisonment and there is no standard non-parole period. Counts 6, 7 and 8: Indecent assault of person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900. The maximum penalty for this offence is ten years' imprisonment and there is a standard non-parole period of eight years' imprisonment.
3. Counts 1 and 2 involved the child described as AA, count 4 involved the child described as AB, count 5 involved the child described as PC and counts 6,7 and 8 involved the child described as AD.
4. On 26 August 2021 the applicant was sentenced by Judge Hoy SC in the District Court to an aggregate term of imprisonment for 17 years commencing 11 June 2020 and expiring 10 June 2037 with a non-parole period of 12 years expiring 10 June 2032. I will set out the indicative sentences when dealing with the offending that constitutes each of the offences.
5. The applicant now seeks leave to appeal against his sentence on the following grounds:
6. His Honour erred in his assessment of the objective seriousness of the offences under s 66EA(1) of the Crimes Act, that is counts 4 and 5, which informed and inflated the aggregate sentence.
7. His Honour erred in that the sentence is crushing.
8. His Honour erred in that the aggregate sentence is manifestly excessive.
9. His Honour erred in setting the non-parole period at 70.58% of the aggregate sentence, where His Honour had found special circumstances.

The offending

1. Each of the victims was a child and a member of the applicant's extended family. The applicant's half-brother, Mr CG, had a de facto partner, Ms LH. The victim in relation to count 5, PC, was the son of Mr CG. The victim in counts 1 and 2, AA, was the daughter of Ms LH. The victim in count 4, AB, was the son of Ms LH. PC, AA and AB resided part-time with Mr CG and Ms LH in Tarago. The victim in counts 6, 7 and 8, AD, was a male cousin of the applicant. He lived with his parents in Weston, NSW.

Counts 1 and 2

1. These counts involved AA. At the time she was aged 11 years. On 17 April 2020 the applicant was staying at the Tarago home. At about 10pm with the rest of the family, he was seated next to AA outside around the firepit. He had consumed most of a 750ml bottle of whisky. AA had a blanket over her and the applicant had his arm around her shoulders. The applicant then placed his hand near her buttocks whilst she was seated next to him. That made her feel uncomfortable. That constituted count 1. The indicative sentence was 9 months' imprisonment.
2. At about 11pm, AA said that she was going to bed. The applicant said he would come and say goodnight to her. She went to her bedroom and got into bed. A short time later the applicant entered the room. He got into bed and hugged her. He then placed his hand inside her underwear and touched the top of her genital area. She told him that she was tired and he left the room. That constituted count 2. The indicative sentence was 12 months' imprisonment.

Count 4

1. Count 4 involved AB who was the son of Ms LH.
2. On 17 April 2020 at about midnight, the applicant entered the bedroom of AB and PC sometime after the events described in count 2. There was a mattress set up on the floor for the applicant to sleep on, but there was no bedding. AB was sleeping on the top bunk bed when the applicant woke him to ask for some bedding. The applicant then placed his hands inside AB's pants and touched his penis. AB told the applicant to stop, and attempted to remove his hand. However, the applicant continued to touch AB's penis and move his hand up and down. After approximately a minute, the applicant stopped and knelt down at the bottom bunk bed where PC was sleeping. Thereafter, the applicant and the two boys fell asleep.
3. When spoken to by the police, AB disclosed that on a number of occasions in 2019, estimated to be 10 to 15 times, AB and PC attended the applicant's address in Narrabundah, ACT. On these occasions AB would be sitting on the couch when the applicant would place his hand inside AB's pants and touch his penis.
4. All of these occasions, taken together, constitute count 4. The indicative sentence was 8 years' imprisonment.

Count 5

1. This count involved PC who was the son of Mr CG. This offence involved two incidents that occurred in New South Wales and eight incidents which occurred in the ACT.

Complaint 1 (NSW)

1. Sometime around 2016-2017 when PC was aged 11 or 12 years he was at his grandparents' residence in Engadine, NSW. Both PC and AB entered the room where the applicant was sleeping and got into bed with him to watch television. The applicant was in the middle of the bed with AB and PC on either side of him. The applicant placed his hand inside PC's underwear and touched his penis.

Complaint 2 (NSW)

1. Sometime in 2019 when PC was aged 13 or 14 years, the applicant and PC were at Mr CG and Ms LH's property in Tarago. The applicant and PC were playing games inside a shearing shed on the property. The applicant sat down on a small day bed and used his hand to masturbate PC's penis until he ejaculated.

Complaint 1 (ACT)

1. Sometime in about 2017 or 2018 when PC was aged 12 years, he attended the applicant's address in Narrabundah, ACT. The applicant took him to the bedroom where he placed his hand on PC's penis and masturbated him. At the time, PC was unable to ejaculate, and he accidentally urinated on the applicant.

Complaint 2 (ACT)

1. Sometime during 2018 to 2019 when PC was aged 12 or 13 years, he was present at the applicant's address in Narrabundah. PC was playing games on the applicant's computer. The applicant told PC that in return for playing the games he "deserved to get something in return". The applicant then pulled PC's shorts down and masturbated his penis until he ejaculated.

Complaint 3 (ACT)

1. Sometime around 2017 to 2019 when PC was aged 12 to 14 years, he would drive around to numerous locations in the ACT with the applicant. On these occasions PC would be seated in the passenger seat and the applicant in the driver's seat. The applicant placed his hand down PC's pants and held his penis for a period of time. The applicant said, "If you tell anyone my life would be ruined". This occurred approximately five or six times over a number of years.

Complaint 4 (ACT)

1. Sometime around 2017 to 2019 when PC was aged 12 to 14 years he was at the applicant's address in Narrabundah. At about 5pm one afternoon, the applicant gave PC a number of drinks with whisky mixed with Mountain Dew. PC had about four glasses until he felt dizzy.
2. The applicant and PC went into the applicant's bedroom. While PC was naked, the applicant used his hand to masturbate PC, and then placed his mouth over PC's penis and fellated him until PC ejaculated.
3. The applicant attempted to kiss PC on the mouth, but PC moved his head away. The applicant then took hold of PC's hand and placed it on his (the applicant's) penis, and asked PC to masturbate him. PC pulled his hand away with the result that the applicant then masturbated himself in front of PC.
4. After the applicant ejaculated, he and PC had a shower together. During the shower the applicant rubbed soap onto PC's penis and buttocks and thereafter dried him with a towel.

Complaint 5 (ACT)

1. Sometime in 2018 to 2019 when PC was aged 13 to 14 years he was at the applicant's address in Narrabundah. The applicant and PC were seated on the couch in the lounge room when the applicant placed his hands down PC's shorts to just above PC's penis. PC grabbed the applicant's arm and stopped him.
2. The applicant gave PC two or three drinks of whisky mixed with Mountain Dew. He then showed him on the applicant's computer images of children aged eight to ten years having sexual intercourse with each other. The applicant then placed his hand underneath PC's shorts and masturbated him until he was erect. He then picked PC up and carried him into the bedroom where he took off PC's clothes. He then used his hand to masturbate PC's penis until he ejaculated.

Complaint 6 (ACT)

1. Sometime in 2018 to 2019 when PC was aged 13 to 14 years he was at the applicant's address in Narrabundah. The applicant and PC were seated on the couch in the lounge room when the applicant placed his hands down PC's shorts to just above PC's penis. PC grabbed the applicant's arm and stopped him.
2. The applicant then played pornography (adult women having sexual intercourse) on the television so PC could watch it. Once PC's penis was erect the applicant took him into the bedroom where he asked PC to masturbate himself in front of a laptop. PC could see a number of "live" adults appear on the screen, and he understood that these people were watching him in real time. On a number of occasions PC stopped masturbating himself, and when he did so the applicant would grab his hand and move it back up and down his penis. The applicant was also masturbating himself while watching PC masturbate in front of the laptop.

Complaint 7 (ACT)

1. Sometime in 2019 to 2020 when PC was aged 15 years he attended the applicant's address in Narrabundah. The applicant gave PC a number of drinks of whisky mixed with Mountain Dew. The applicant took PC into his bedroom where he and PC removed their clothes. The applicant placed his hand on PC's penis and commenced to masturbate him. He then placed his mouth over PC's penis and fellated him until he ejaculated. The applicant then masturbated himself to the point of ejaculation.

Complaint 8 (ACT)

1. Sometime in 2018 to 2019 when PC was aged 13 or 14 years he was at the applicant's address in Narrabundah. The applicant and PC were seated on the lounge when the applicant placed his hand on PC's penis and commenced masturbating him. They then moved to the bedroom where they removed their clothes. PC got onto the bed, and the applicant said, "Bend over, it will feel good". The applicant then inserted his fingers inside PC's anus. This caused pain to PC, so the applicant removed his fingers.
2. PC then attempted to put his penis inside the applicant's anus, with the applicant encouraging him by saying, "Try harder". PC stopped and the applicant grabbed PC's hand and pointed it towards his anus. PC resisted from placing his fingers inside the applicant's anus.
3. The applicant then placed his penis inside PC's anus but it caused pain to PC who clenched his buttocks, so the applicant stopped. The applicant then used his hand to masturbate both himself and PC until they ejaculated.
4. These incidents together constituted count 5 of persistent sexual abuse. The indicative sentence was 11 years' imprisonment.

Count 6

1. Sometime in 2014 to 2015 when AD was aged 12 or 13 years, the applicant attended AD's residence in Weston, NSW. The applicant and AD were seated on a lounge in the garage at the premises. The applicant placed his hand inside AD's pants and took hold of AD's penis for a period of time. The indicative sentence was imprisonment for 2 years 8 months with a non-parole period of 2 years.

Count 7

1. Sometime in 2014 to 2015 when AD was approximately 12 or 13 years old, the applicant was at AD's residence in Weston. The applicant and AD were in AD's bedroom when the applicant placed his hand inside AD's pants and touched AD's penis for a period of time. The applicant then masturbated AD to the point of ejaculation. The indicative sentence was imprisonment for 3 years with a non-parole period of 2 years and 3 months.

Count 8

1. On another occasion in 2014 or 2015 when AD was 12 or 13 years old he was at the applicant's residence in Engadine. The applicant and AD were watching television in the applicant's bedroom and were both on the bed under the blanket. The applicant placed his hands down AD's pants and took hold of his penis. He then masturbated AD to the point of ejaculation. The indicative sentence was imprisonment for 3 years with a non-parole period of 2 years and 3 months.
2. There were also uncharged acts concerning AD and the applicant. In March 2015 when AD was 13 years old, he attended a family event in Townsville. AD and his mother were staying at AD's aunt's place, and the applicant was also staying there. AD slept on the lounge and the applicant slept on the mattress on the floor next to AD. Each night the applicant reached up from the mattress, took hold of AD's penis and masturbated him. On some nights AD would ejaculate, and on other nights he would roll away from the applicant which caused the applicant to stop.
3. On 12 May 2020 AA disclosed the incidents constituting counts 1 and 2 to her stepsister SG. Mr CJ and Ms LH were immediately advised, and spoke with AA who confirmed what had taken place. The police were informed.
4. On 20 May 2020 Mr CG and Ms LH advised PC what had happened with AA, and PC then disclosed that he had been sexually abused by the applicant. The police were then informed.
5. Ms LH then spoke with her ex-husband, CG, whom she had previously informed about AA's complaint. AB was staying with his father, CG, at that time, and CG told AB about what AA and PC had claimed. AB then advised his father that he had been sexually abused by the applicant. The police were informed.
6. On 26 May 2020 AB was interviewed by ACT police, and 28 May 2020 AA and PC were interviewed by NSW police.

Count 3

1. On 11 June 2020 the applicant was arrested by ACT police and a search warrant was executed at his then premises in the ACT. One of the items seized was a Samsung mobile phone. An examination of it found 2,491 images and 321 videos that met Category 1 and Category 2 criteria of the Child Exploitation Tracking Scale. The images were mainly of boys aged 11 to 13. That resulted in the charge in count 3 of possessing child abuse material. The indicative sentence was 18 months' imprisonment.
2. The sister of the applicant's mother became aware that the applicant had been arrested. She then made contact with the police to advise of a previous complaint against the applicant made by her son AD. These complaints constituted counts 6, 7 and 8 of indecent assault on a child under the age of 16 years. The applicant was charged with counts 6,7 and 8 involving AD on 15 July 2020.

Subjective matters

1. The sentencing judge had two reports from a psychiatrist, Dr Joey Q Le and a sentencing assessment report (SAR). The applicant also gave evidence at the sentence hearing. The applicant had, some days before the sentence hearing, written a letter to the sentencing judge. In the letter he claimed to be suffering at the time of the offending with deep depression, very low self esteem and loneliness. He claimed he was drinking heavily at the time of the offending. He saw his drinking as a significant problem.
2. He told Dr Le that he had a fairly unremarkable upbringing although he experienced physical violence from his brother and a lot of bullying at school because he was apparently overweight and stocky. He left school after year 11 and worked in various jobs including in fast food restaurants, hospitality and information technology, and periods working in aged care and building maintenance. He once had a girlfriend when he was aged 16 years but otherwise had had no romantic relationships.
3. He denied experiencing sexual arousal in relation to children or adolescents. Despite that denial, Dr Le diagnosed him as having a paedophilic disorder.
4. Subsequently Dr Le was asked to provide a supplementary report because the applicant's lawyers informed Dr Le that the applicant took particular issue with the diagnosis of paedophilic disorder and Dr Le's assessment that he was at high risk of future sexual offending. Dr Le reaffirmed his diagnosis despite the applicant disputing it. Dr Le was also not prepared to alter his assessment of the future level of risk of offending. Dr Le noted that the applicant tended to blame alcohol for what had occurred. Dr Le concluded that the applicant's emphasis on an external locus of control suggested that, although the applicant accepted a degree of personal responsibility, the applicant believed that that was mitigated by factors not within his control. He thought that the applicant had some insight into risk factors that contributed to the offending.
5. The author of the SAR noted that the applicant's perception of his relationship with his family was inconsistent with their views, and said that the applicant was unable to comprehend the damage and betrayal his offences had caused. The applicant told the author of the SAR that he performed the acts on the victims to make them feel good and to keep them emotionally close to him. The applicant said that he knew that alcohol lowered his inhibitions, but he committed the offences regardless of his knowledge that his behaviour was inappropriate. However, he vocalised his regret at his behaviour, reflecting on the pain suffered by the victims, and said that he knew he had breached the victims' trust.

Ground 1: His Honour erred in his assessment of the objective seriousness of the offences under s 66EA(1) of the Crimes Act, that is counts 4 and 5, which informed and inflated the aggregate sentence

1. When considering the objective seriousness of counts 4 and 5, his Honour noted that one each of the acts which constituted the offences in counts 4 and 5 occurred in the home of each victim.
2. His Honour, in reliance on Burr v R [2020] NSWCCA 282 and GP (a pseudonym) v R [2021] NSWCCA 180, said that relevant factors included the number of sexual offences, that is unlawful sexual acts committed on separate occasions by the applicant upon the victim, the nature of those offences, the ages of the victim and the applicant and consequent differential, the period of time over which the offences were committed and their context, position and abuse of trust, violence, coercion, threats, and/or admonitions as to non-disclosure.
3. His Honour noted that the acts constituting count 4 involved multiple instances, 10-15, of touching the victim's penis or hands on his penis, and described in the facts as moving his hands up and down and not as masturbation and no instance of ejaculation. His Honour found that count 4 fell just below the middle range.
4. His Honour said that count 5 was far more serious. It extended over a longer period of time, over more than three years, and the specific unlawful acts encompassed ever-increasing sexual assaults commencing with touching the victim's penis, masturbating the victim until ejaculation, and on one occasion, stimulating accidental urination. One of the occasions was the first time the victim had ever ejaculated. There was also an implied threat by way of casting guilt on the victim not to tell anyone.
5. His Honour found that some of the acts encapsulated what could only be described as grooming by plying the victim with alcohol when he was as young as 12 years. His Honour noted that the acts included the viewing of pornography, and ultimately digital and then penile penetration of the victim. His Honour considered that count 5 fell above the middle range.

Submissions

1. The applicant submitted in relation to count 4 that although there were some 10-15 offences over a period of about 15 months, the offences that constituted the s 66EA offence were relatively minor, being sexual touching. Whilst there was a breach of trust, there was no suggestion of coercion, physical violence, grooming, threats, or guilt imposed. The applicant submitted that when the offences that fall within the offence constituted by s 66EA were considered, those offences committed by the applicant were closer to the lower end of the range.
2. The applicant submitted in relation to count 5 that, although the position was more serious than in relation to count 4, with the exception of complaint 6 (ACT) (where the victim believed he was being watched by persons online) and complaint 8 (ACT) (which involved digital and penile penetration) the sexual acts concerned were relatively low down the range of seriousness. When the type of offences that make up a s 66EA offence were considered, the sentencing judge ought to have found that the objective seriousness was middle range rather than above the middle range.
3. The Crown submitted that the evaluation of objective seriousness was within the discretion of the sentencing judge. The Crown submitted that, where a s 66EA offence can be committed where an adult has engaged in as few as two unlawful sexual acts, and where there is no minimum time period over which the relationship must be maintained, where count 4 involved 10-15 acts over a period of 15 months, the sentencing judge's assessment was open to him. The Crown submitted that the significant difference in age and the family relationship were significant matters. There was additionally the abuse of trust.
4. The Crown submitted that the circumstances of count 5 demonstrate that it was far more serious than count 4. The Crown submitted that the nature of the sexual acts meant that the sentencing judge's conclusion that the offence was above the middle range was clearly open to his Honour.
5. The Crown submitted that in relation to count 5, the summary of what the sentencing judge described as complaint 8 (ACT), the sentencing judge omitted the reference to the complainant being able to see a number of "live" adults appearing on the screen of the laptop in front of which the applicant had asked the complainant to masturbate himself. Nor did the sentencing judge refer to the fact that the complainant understood that the people on the screen were watching him in real time.

Determination

1. In my opinion, the sentencing judge's assessment of Count 4 as "just below the middle range", and his assessment of Count 5 as above the midrange were determinations outside the proper exercise of his Honour's discretion.
2. The sentencing judge was given limited assistance in relation to the assessment of objective seriousness and the fixing of an appropriate sentence. Certainly, the Crown identified Burr v R [2020] NSWCCA 282, Hillman v R [2021] NSWCCA 43, GP (a pseudonym) v R [2021] NSWCCA 180 and two cases from District Court judges as relevant authorities. His Honour noted a limited number of cases in the JIRS statistics, and said "No specific pattern of past sentences has been referred to".
3. Burr, Hillman and GP dealt with offending far more serious than the offences constituting count 4 in the present case.
4. In Burr, this Court agreed with the sentencing judge that the objective seriousness of the offending was within the midrange. The perpetrator was 41, the victim was aged 14 and was the daughter of a woman with whom the man was in a relationship. The offending included a number of incidents over a 20 month period involving fellatio and unprotected penile/vaginal intercourse including the perpetrator ejaculating inside the victim.
5. In Hillman, the offending took place over an 8 to 9 year period. It involved multiple incidents which included digital penetration, cunnilingus and penile/vaginal intercourse to the point of ejaculation. The victim was aged 6 to 15 and was the step-daughter of the perpetrator who was in his late 20s and his 30s at the time of the offending. The sentencing judge found that the offending was "in the very high range for the offending conduct contemplated by that crime". This Court found no error in that determination.
6. In GP, the offending took place on four separate occasions within a seven- month period. The victim was aged 12 and 13. The applicant married the victim's mother the day after the first occasion he had penile/vaginal intercourse with the victim. She had known him for 10 years and regarded him as a father figure. There were four occasions of penile/vaginal intercourse, one with ejaculation into her vagina. This Court, on resentencing, agreed with the sentencing judge's assessment that the offending was within the midrange.
7. In Mills v R [2017] NSWCCA 87 the offending took place over a four-year period when the victim was aged 11 to 14. The perpetrator was her father. Three particularised incidents involved penile-vaginal intercourse to ejaculation, but there were other sexual assaults within the period of the offending. Those assaults seemingly included sexual intercourse. This Court held that the finding by the sentencing judge that the level of seriousness was at a high range was open to her Honour.
8. In Xerri v R [2021] NSWCCA 268 the offending took place over a 20-month period when the victim was aged 14 to 15 years. The perpetrator was aged 48 or 49 and was the father of a young man with whom the victim had formed a relationship. On three specified occasions the perpetrator had penile/vaginal intercourse with the victim, ejaculating inside her vagina. Thereafter he had penile vaginal intercourse with her almost every week for a six or seven month period. The sentencing judge found that the offending was "below the mid-range of seriousness of offending although not significantly so". That assessment was not challenged on the appeal to this Court but simply used by the applicant to submit, unsuccessfully, that the sentence imposed was manifestly excessive.
9. In Eacott (a pseudonym) v R [2019] NSWCCA 158 the victim was aged between six and ten years and the perpetrator, who was her father, was aged between 56 and 61. The five specified incidents which, with others appear to have taken place over about a four year period, involved the victim touching her father on his penis on the outside of his clothing, an occasion where the offender asked the victim to whip him to the buttocks and penis with a small whip, an occasion where in the shower when naked the offender asked the victim to masturbate his penis although he did not ejaculate, and an occasion where the offender licked the victim's nipples and vagina. The sentencing judge assessed the objective seriousness as "below the mid-range and towards the lower range but certainly not towards the bottom of that range". On appeal to this Court on the sole ground that the sentence with a notional starting point of eight years was manifestly excessive Leeming JA (Ierace J and Hidden AJ agreeing) said: [24] …In some respects, as the applicant submitted, the conduct was less serious than many of the classes of conduct which are capable of constituting this offence. [25] However, no attempt was made to attack the sentencing judge's assessment of objective seriousness, and rightly so. While the indecent assaults were less serious than many of the individual offences which can constitute s 66EA, their frequency is to be firmly borne in mind. ...
10. In Towse v R [2022] NSWCCA 252, the offender was the stepfather of the victim who was aged nine. The offending took place over a seven day period and included external rubbing on top of clothes of the victim's chest, belly and breasts, and the touching of her skin on her belly, chest, breasts and lips. It also included two occasions where the offender inserted a finger inside the victim's vagina. On another occasion he exposed his erect penis to the victim, and then placed the victim's hand on his penis above his clothing. The sentencing judge found that the offending "falls below the mid-range but certainly not of the lowest of the range created for offences the like nature". A challenge in this Court to the finding of objective seriousness by the applicant failed.
11. Although a number of these cases were decided prior to the amendments which commenced on 1 December 2018 and whilst the earlier form of the section required at least three occasions on separate days whereas the present form of the section requires only two or more sexual acts at any time, the factors identified by Johnson J in Burr at [181] are still relevant and important: GP at [64].
12. With regard to count 4 in the present matter, there is only any detailed evidence in relation to the first of the incidents relied upon to constitute the charge under s 66EA. All that is said about the subsequent incidents are that the applicant would place his hand inside AB's pants and touch his penis. That was said to have happened on an estimated 10 to 15 occasions. It is difficult to see how regard can be had to more than the minimum number of those occasions where there is uncertainty, because the sentencing judge would have to find the number of occasions beyond reasonable doubt.
13. In any event, when regard is had to the findings of objective seriousness in the cases summarised above, it was not open to the sentencing judge to find that this offending was within the mid-range. No form of sexual intercourse was involved in any of the incidents and nor could it be concluded from the brief summary of the 10 to 15 incidents that any form of masturbation occurred. I accept that breach of trust was involved, and that the first of the incidents took place in the victim's home. When considering the matters identified in Burr by Johnson J at [171], the most serious aspect was the fact that the sexual touching occurred over an unspecified period in 2019 on ten occasions, once in April 2020. Otherwise, the offending was at a very low level.
14. There can be no doubt that the offending in relation to count 5 was at a more serious level. It persisted for a longer period of time, it involved the applicant masturbating PC until ejaculation, there was oral intercourse, digital intercourse and attempted anal intercourse. Significantly, there was the occasion where it is likely that the applicant and PC engaged in sexual activity in front of a livestream; that was at least what PC understood at the time.
15. Nevertheless, the cases summarised above provide a reasonable indication that far more serious offending is required to justify a finding that the offending is above the mid-range as the sentencing judge found. Even in some of the cases mentioned, repeated penile/vaginal intercourse including to ejaculation inside the victim did not result in a finding of objective seriousness higher than a mid-range finding. Apart from complaints 6 and 8 (ACT), the offending was at a relatively low level of seriousness.
16. There is no doubt that there are significant difficulties in challenging a finding by a sentencing judge of the objective seriousness of particular offending: Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ, and [46] per Simpson J; Magro v R [2020] NSWCCA 25 at [29] and [31]. The matter was made more difficult in the present case because there was a paucity of authority from this Court upon which useful comparisons could be drawn, and only a few of the available cases were made available to the sentencing judge. The result was that the sentencing judge did not have a great deal to guide him.
17. When regard is had to the admittedly small number of cases from this Court which assist on the question of objective seriousness, I am satisfied that the determinations of objective seriousness made by his Honour were not reasonably open to him. This ground should be upheld.

Ground 4: His Honour erred in setting the non-parole period at 70.58% of the aggregate sentence, where His Honour had found special circumstances.

1. Error having been found in relation to ground 1, it is not strictly necessary to consider this ground. However, in deference to the submissions made, I will deal briefly with this ground
2. The sentencing judge said this: A lengthy sentence with a considerable non-parole period is to be imposed. Whilst no specific submissions have been made as to special circumstances, it seems to me that having regard to partial accumulation arising from the multiplicity of offences and victim together with this being the Offender's first time in custody and time served, substantial (sic) before release validates a necessity for an extended period of supervision on parole, not only to facilitate his assimilation back into the community but to also afford timely referral and participation in relevant psychological treatment and/or sex offender programmes or interventions if considered appropriate upon release. These factors in combination prompt a finding of special circumstances and consequently, albeit slight, adjustment to the usual ratio.
3. His Honour then varied the ratio to 70.58%.
4. The applicant submitted that where a judge finds special circumstances, but imposes a non-parole period slightly less than 75% of the head sentence error may have occurred.
5. A finding of special circumstances is discretionary, and this Court will be slow to intervene in relation to such judgments: MD v R [2015] NSWCCA 37 at [40]; El-Ahmad v R [2015] NSWCCA 65 at [50]. Further, as Gleeson JA said in MD at [42], where this Court intervenes, generally it is because through inadvertence or miscalculation the sentencing judge has not given effect to a finding of special circumstances. An example is AM v R [2020] NSSWCCA 101 where indicative sentences had a ratio of 60% but the aggregate sentence provided for a non-parole period which represented almost 75%.
6. Nothing was said by the applicant's counsel before the sentencing judge about special circumstances. His Honour made clear that there was to be a slight reduction for the reasons he gave. The sentence was a long one in any event, so that even without a reduction, there was plenty of time during the parole period for dealing with the matters his Honour was concerned with. Further, the reduction to 70.5% provided another 9 months on parole; as Gleeson JA also said in MD at [41], the actual periods involved are equally or more important than the ratio: see also Caristo v R [2011] NSWCCA 7 at [11]. There is nothing to suggest any inadvertence or miscalculation.
7. I would reject this ground.

Resentence

1. Error having been found in relation to ground 1, it is necessary to resentence the applicant. For the reasons indicated earlier, I would assess the objective seriousness of Count 4 as being within the low range, and the objective seriousness of Count 5 as being within the midrange.
2. I agree with the sentencing judge's assessment of the objective seriousness of the other counts.
3. The applicant should receive a 25% discount for his early pleas.
4. The applicant was assessed by the psychiatrist Dr Le as having a paedophilic disorder. As noted earlier, the applicant subsequently disputed that assessment. Dr Le provided a second report where he recorded a further telephone consultation with the applicant. Although the applicant disputed the diagnosis and Dr Le's assessment that the applicant was at a high risk of further offending, the applicant said he had had time to reflect on his offending. He continued to blame his offending at least partly on alcohol, but he told Dr Le that he intended never to drink again.
5. Dr Le remained of the opinion in his second report that the applicant suffered from a paedophilic disorder and that his risk of reoffending remained high. Dr Le thought the applicant had some insight into risk factors that contributed to his offending, and Dr Le was prepared to accept that the applicant was remorseful to some extent.
6. On the basis of Dr Le's report, the SAR and a letter written to the court by the applicant, as well as findings that the pleas themselves were expressions of remorse, his Honour was prepared to accept that the applicant was remorseful. I would not differ from that assessment.
7. His Honour said that he could not make a finding, even on balance, of the applicant's risk of reoffending or his prospects of rehabilitation. I agree that, in circumstances where the applicant will not accept the diagnosis of a paedophilic disorder, where he denied sexual attraction to children or adolescents despite all of the offending, where Dr Le assessed him at a high risk of reoffending, and where the SAR assessed him at a medium risk of offending, no favourable conclusions can be drawn about reoffending and rehabilitation.
8. The applicant read an affidavit on the usual basis. That discloses that the applicant has served the whole of his sentence so far on protection, and he has been moved a number of times between prisons. Both of these matters have limited his ability to access programs and education. Being housed on protection is a matter that makes his sentence a more onerous one. The applicant has suffered threats and assaults on a number of occasions. The applicant said nothing about the effects of Covid on his prison experience, but the Crown accepted that the impacts of Covid within the prison system were ongoing.
9. I would specify an indicative sentence of 4 years 6 months for count 4, and an indicative sentence of 9 years for count 5, in each case having deducted the 25% discount for the early plea. I would not vary any of the other indicative sentences.
10. I would impose an aggregate sentence of 13 years. I consider that there should also be a slight adjustment of the statutory ratio for the reasons given by the sentencing judge, and that the applicant should serve a non-parole period of 9 years.

Conclusion

1. I propose the following orders:
2. Grant leave to appeal.
3. Allow the appeal.
4. Quash the sentence imposed in the District Court on 26 August 2021. In lieu, sentence the appellant to an aggregate sentence of 13 years imprisonment commencing 11 June 2020 and expiring 10 June 2033 with a non-parole period of 9 years expiring 10 June 2029.
5. The appellant is first eligible for release on parole on 10 June 2029.
6. WILSON J: I have had the advantage of reading the judgment of Davies J in draft. His Honour has concluded that it was not open to the sentencing judge to assess the gravity of count 4 as "just below the mid range", or that of count 5 as above the mid range and, on that basis, his Honour would uphold ground 1. For the reasons that follow, I have come to a different conclusion.
7. Although the law is well known, [1] and it is not necessary to expostulate upon it, it perhaps bears re-stating that an assessment of the objective gravity of an offence is an evaluative task undertaken by the sentencing judge having regard to a range of factors in the exercise of a broadly based discretion. The assessment is one which, as Gleeson JA observed in Magro v R, [2] "may be susceptible of significantly differing views". That this Court may have reached a different view, even a significantly different view, to that of the sentencing judge is not of itself sufficient to warrant intervention. No doubt for that reason "there are difficulties involved in challenging findings by a sentencing judge as to the objective seriousness of an offence", [3] and this Court "is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge". [4] Only if the sort of error referred to in House v The King is detected can appellate intervention be justified. [5] The well-known passage from that decision of the High Court is as follows: "It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters"[…] that to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so." [6]
8. In support of ground 1 the applicant did not point to any wrong principle upon which the sentencing judge acted. He did not submit that his Honour allowed extraneous or irrelevant matters to guide his assessment, that he failed to consider some material feature, or that he mistook the facts. Rather, his complaint is that "having regard to the objective gravity" of counts 4 and 5 respectively, his Honour erred. With respect to count 4 the applicant submitted: "[…] that [h]is Honour erred in finding that Count 4 falls "just below the mid-range" for offences against this provision. It is submitted that, having regard to the objective gravity of count 4, the offence falls in the low range of offences against s 66EA". [7]
9. Precisely the same argument was advanced with respect to count 5: "It is submitted that [h]is Honour erred in finding that count 5 falls above mid-range" for offences against this provision. It is submitted that, having regard to the objective gravity of count 4 [sic, count 5], the offence falls in the low range of offences against s 66EA". [8]
10. These arguments advance the circuitous proposition that because of the objective gravity of the crimes, the assessment of the objective gravity made by the sentencing judge was wrong. In neither instance has the "error" made by the sentencing judge been identified. Further, the applicant's argument concerns what may be no more than a marginal difference between the assessment made by the sentencing judge and that which he contends should have been made, by reference to imprecise language that does not allow the conclusion he contends for to be drawn.
11. The sentencing judge concluded that ground 4 fell just below the mid-range; the applicant says the offence should have been assessed as falling in the low range. It should be clear without explanation that, on the basis that any range of gravity is typically broken up into low, mid, and high range, if something is below the mid-range it necessarily falls in the low range. By reference to the language used by both the sentencing judge and the applicant, there is no material difference in the assessment of gravity made at first instance and that which this Court is asked by the applicant to make.
12. The conclusion of the sentencing judge with respect to count 5 was that it fell above the mid-range; the applicant contends it was properly assessed as falling within the low range. Again, by reference to the language used, it may be that there is little difference between the assessments of gravity made by the judge and that sought by the applicant, depending upon where upon the notional continuum that falls above the mid-range the sentencing judge concluded this offence fell.
13. There have been a number of decisions of this Court which have cautioned against the practice of focusing on the language of range in arguing for error, or been critical of appeals in which the validity of an assessment of the objective gravity of an offence made by reference to the place accorded to that offence on a range or continuum of conduct is questioned. Although the argument in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 concerned the question of manifest inadequacy, the observations of Basten JA (with whom Beazley P and I agreed) at [82] are instructive: "[…] although it is conventional practice to divide objective seriousness into low, mid and high ranges (sometimes with further detail, such as "near the top of the low range") there is no clear delineation of the scope of each range and it cannot be assumed that all judges apply the terminology uniformly. Accordingly, there is a difficulty in drawing firm conclusions from the penalties with respect to each range."
14. In Martellotta v R [2021] NSWCCA 168 Basten JA, with the agreement of Walton J and Adamson J (as her Honour then was) dismissed an argument concerning the differential assessment made of the gravity of offences committed by co-offenders, that relied upon the language of range. Basten JA said, at [65] - [66]: "It is hardly necessary to observe that there is no standardisation of language when it comes to range in connection with objective seriousness. For example, for an offence with a maximum penalty of 10 years' imprisonment, one judge's mid-range will be from 4-6 years, while another's might be from 3-7 years. This affects the extent to which descriptors such as "low" or "medium" can usefully be translated into numbers. It also prevents meaningful comparison, except in a broad-brush way, between findings of different judges. Although one judge can be expected to use such terms consistently when sentencing co-offenders, there is no lexicon or style guide which obliges different judges to adopt the conventions of their peers. […] This is not to say that the assessment of objective seriousness is arbitrary: it is plainly an important function of a sentencing judge. However, it does not provide the means for precise comparisons […]."
15. A ground of appeal contending for error by reference to the position accorded to an offence on a range of gravity was dismissed in Irmak v R; Dagdanasar v R [2021] NSWCCA 178 ("Irmak"), with the Court making the point at [322], that: "Describing an offence as upper mid-range does not mean that the level of objective seriousness is identical to another case similarly described. It simply means that it falls within that general part of the range".
16. The imprecision of the language of range, and its negligible utility in aiding transparency in sentencing or consideration of error has been pointed to in McDowall v R [2019] NSWCCA 29 at [35] - [37]; Higgins v R [2020] NSWCCA 169 at [78]; Thorp v R [2022] NSWCCA 180 at [86]; and most recently in Decision Restricted [2023] NSWCCA 10, where Button J (with whom Meagher JA and I agreed) said, at [50] - [52]: "[…] the terms of the debate at first instance and in this Court summarised above - whereby a continuous spectrum of objective seriousness, moving from utmost triviality at one end to utmost gravity at the other, is sought to be divided into discrete and contested segments - demonstrates the limitations of such an exercise. The well-known legislative and judicial history is that such an approach arose as a result of the commencement of the statutory regime of standard non-parole periods in 2003. The approach is founded upon the prescriptive analysis of the implementation of that regime undertaken by this Court in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131. But it was subsequently rendered unnecessary by the decision of the High Court of Australia in Muldrock v The Queen (2011) 224 CLR 120; [2011] HCA 39, almost a decade ago. In my opinion, it certainly remains incumbent upon sentencing judges to provide a concise and clear assessment of the objective seriousness of offences for which they are imposing sentence, and the evidence upon which that assessment is based, as an essential component of open justice and instinctive synthesis. But such an assessment should be in terms readily understood by laypersons such as the offender, loved ones of the offender, loved ones of any victim, and members of the community generally. I respectfully think that such assessments should be founded on easily understood English adjectives such as "inconsequential", "trivial", "significant", "serious", "grave", "in the worst class of case", and so forth. Fine distinctions based on artificial segmentation of a spectrum are in my respectful opinion unnecessary; apt to confuse members of the public, lawyers and judicial officers; and liable to give rise to appeal grounds that do not advance the interests of justice."
17. Ground 1 is one which, resting as it does on an interpretation of an "artificial segmentation of a spectrum", does not advance the interests of justice.
18. Nor do I regard the applicant's reliance on a small number of sentencing decisions to argue, [9] in effect, that in other decisions involving an offence contrary to s 66EA, other assessments have been made, as capable of advancing his case. Whether error has occurred in an assessment of objective seriousness cannot be determined by referring to assessments undertaken in unrelated cases with differing facts. That was the conclusion of this Court, differently constituted, in Irmak, where a similar argument was rejected, at [324]: "The cases identified by Irmak necessarily do not lead to the conclusion that the trial judge erred and his finding was not open. Indeed, we do not accept the principal submission advanced by Irmak that a comparison of other cases demonstrates that the finding of objective seriousness was not open."
19. The question is whether the assessment was open, a question that can only be determined by reference to House v The King considerations.
20. Here, the sentencing judge referred to the features identified in Burr v R [2020] NSWCCA 282 and GP (a pseudonym) v R [2021] NSWCCA 180 as relevant to the assessment of the objective gravity of a s 66EA offence. With respect to count 4 his Honour had regard to the age of the child, being between 13 and 15 over the period of the offending; the age difference between the applicant and his victim, being about 15 years; the familial relationship between the applicant and the child; the trust that existed between the parents of the child and the applicant, and which had been grossly abused; that one incident occurred in the home of the child with most of the balance in the applicant's home, both being places where the complainant should have been safe; the number of sexual acts, being 10 to 15; the period of 15 months over which they occurred; and the nature of each sexual act.
21. With respect to count 5 many of the same considerations applied, noted by the sentencing judge as being the familial relationship between the applicant and the child; the trust that existed between the parents of the child and the applicant and the gross breach of it; the fact that all but one sexual act occurred in the complainant's or the applicant's homes, both being places that should have been safe; the number of acts, being 10; and the "ever increasing" seriousness of the individual acts with degrading acts and acts of anal penetration taking place; the grooming in which the applicant engaged, including supplying the child with alcohol to facilitate offending; the period of over 3 years during which the abuse persisted; the age of the child, being 11 - 15 years; the difference in the respective ages of the complainant and applicant, being about 17 years; the exposure of the child to pornography; and his use as a sexual object to broadcast via a web-cam.
22. Having referred to the various individual features, all of them relevant, and none omitted, his Honour observed: "These offences involve an accumulation of various crimes, unlawful sexual acts of independently varying degrees of seriousness as committed against each victim to then constitute the substantive offence. In such circumstances it is overarchingly intrinsically difficult to then apportion a degree of seriousness."
23. Against that background, his Honour made the assessments complained of.
24. I am unable to discern any House v The King error in the process undertaken by the sentencing judge, or with his Honour's conclusions. Thus, if there is error, it could only be on the basis of what is often described as the last category of House v The King error. That is: "[…] if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
25. There is no substantial wrong in my opinion. His Honour carefully considered the features of the applicant's crimes and arrived at an assessment of their gravity which was open. I would dismiss ground 1.
26. Grounds 2 and 3 make the same complaint, differently expressed, that the sentence is too harsh. Bearing in mind the features of all of the offending, I would not reach that conclusion. The cases cited by the applicant, noted at footnote 9, do not make a range by which error can be determined. The question of manifest excess is best determined by reference to the crimes, the maximum penalties applicable, the standard non-parole periods specified for counts 6, 7, and 8, (all of which are set out by Davies J at [2]), and the gravity of each. Those features do not point to the conclusion contended for. I would dismiss these grounds.
27. As to ground 4, I agree with Davies J.
28. I would grant leave to appeal and dismiss the appeal.

Endnotes

1. For example, the widely known decision of Mulato v R [2006] NSWCCA 282, applied innumerable times since.
2. [2020] NSWCCA 25 at [29].
3. Carnaby v R [2022] NSWCCA 250 at [38] (RA Hulme J).
4. Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ).
5. (1936) 55 CLR 499; [1936] HCA 40.
6. Ibid at [505].
7. Applicant's unsigned and undated written submissions at [5].
8. Ibid at [6].
9. Brown v R [2022] NSWCCA 116; Xerri v R [2021] NSWCCA 268; GP (a pseudonym) v R [2021] NSWCCA 180; Hillman v R [2021] NSWCCA 43; Burr v R [2020] NSWCCA 282; Eacott (a pseudonym) v R [2019] NSWCCA 158; IS v R [2011] NSWCCA 142; Hitchen v R [2010] NSWCCA 77; Mills v R [2017] NSWCCA 87.

Amendments 03 March 2023 - Typographical error in Headnote 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: 03 March 2023