Jonson v R

The Crown submissions

1. The Crown submitted that statutory construction begins with the text in the context of the legislative history and extrinsic material. However, as was pointed out in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is the examination of those materials an end in itself: at [39].
2. The Crown submitted that the text, history and purpose of s 21A(2)(eb) indicate that the section should be not read down to apply only where the offender is not lawfully in the home of the victim.
3. The Crown also submitted that, irrespective of the correct interpretation of s 21A(4), the sentencing judge (in Jonson) was entitled to take into account, as an aggravating factor, that the victim did not have a safe place to which to escape and that her expectation of safety and security had been violated.
4. The Crown submitted that the central words in s 21A(4) were the words "contrary to". It submitted that if the construction of s 21A(2)(eb) for which it contended was correct, although it may modify the common law, it was not contrary to it. It submitted that there was no principle or policy of common law which prohibited taking into account the fact that the offence occurred in the house of the victim where the offender was not an intruder. It submitted that the contrary construction would give s 21A(2)(eb) no work to do.

The authorities

1. The decision which underpinned the subsequent authorities, to the effect that an assault which occurred at the home of the victim could not be taken into account as an aggravating factor where the offender was lawfully at the home, is the decision of this Court in Comert. The applicant in that case was charged with aggravated sexual assault against his wife. The applicant appealed. One of the grounds of his appeal against sentence was that the primary judge erred in determining that an additional aggravating factor was that the offence was committed in the applicant's home. Hidden and Hislop JJ found that the ground of appeal was made out. Their Honours made the following remarks at [29]: "[29] Reading the relevant part of the sentencing Judge's remarks as a whole, there can be no doubt that her Honour did characterise as an 'additional aggravating feature' the fact that the offence was committed in the complainant's home. We are satisfied that, in so doing, her Honour fell into error. No doubt, that would have been an aggravating feature if the offender had been an intruder. However, we are unable to see how a sexual assault on a woman by her husband is rendered more serious because it was perpetrated in the matrimonial home. This, of course, is not to deny the gravity of offences of violence, whether or not of a sexual nature, committed in a domestic setting."
2. Sully J, who dissented, whilst not expressly disagreeing with these remarks, stated that the portion of the remarks of the sentencing judge complained of seemed "no more than an extension of the antecedent proposition that the affront of the offence to the victim was the greater by reason of the fact that she had been sexually assaulted with violence in the then matrimonial home": at [24].
3. Hidden and Hislop JJ cited no authority nor provided any reasons in support of the proposition to which they referred. It was perhaps for that reason that Bryson JA, in R v Kershaw [2005] NSWCCA 56 (Kershaw), stated that the observations of Hidden and Hislop JJ in Comert were not intended to establish, nor did they establish, any general principle: at [23].
4. Nevertheless, the approach in Comert has been followed by this Court on a number of occasions. In EK v The Queen (2010) 79 NSWLR 740; [2010] NSWCCA 199 (EK), R A Hulme J, with whom McClellan CJ at CL and Simpson J (as her Honour then was) agreed, followed Comert, stating that, whether at common law or in terms of s 21A(2)(eb), it is an aggravating factor where an offender intrudes into the victim's home and not where the offender and the complainant reside together: at [79].
5. In Ingham v The Queen [2011] NSWCCA 88 (Ingham), McClellan CJ at CL, with whom James and Davies JJ agreed, stated that s 21A(2)(eb) does not operate to aggravate an offence of assault by a husband against his wife by reason of the fact that the offence was committed in the matrimonial home. His Honour stated that it would be an aggravating offence if a victim is assaulted in her own home by an unauthorised intruder, but not when the offender was lawfully on the premises: at [112]. His Honour, in reaching that conclusion, relied on the decisions of Comert and EK as well as R v Preston (Court of Criminal Appeal (NSW), 9 April 1997, unrep), in which Dunford J, with whom Handley JA and Smart J agreed, stated, in the context of a sexual assault on a woman by an offender who gained access to the woman's house on the pretext of wanting to talk to her, that the criminality was aggravated when committed against a defenceless woman in the sanctity of her own home. With respect, that case does not support the negative proposition that it cannot be an aggravating factor if the offender was lawfully on the premises.
6. A similar approach to that taken in EK and Ingham was taken in BIP v The Queen [2011] NSWCCA 224 at [61]; Essex v The Queen [2013] NSWCCA 11 at [72]; MH v The Queen [2011] NSWCCA 230 at [34] and Pasoski v The Queen [2014] NSWCCA 309 at [54]. The same approach was also taken in NLR v The Queen [2011] NSWCCA 246 at [22]. However, in the latter case, it was stated that a fair reading of the sentencing judge's remarks showed that she was taking into account the fact that the offence occurred in the offender's home as demonstrating a complete violation of the trust placed by the victim in the offender, which was itself an aggravating factor: at [23]. A similar approach was taken in a number of other cases on this issue: see DJM v The Queen [2013] NSWCCA 101 at [8]-[10].
7. Although there has been no decision disapproving Comert and the cases which followed it, reservations have been expressed by members of this Court on a number of occasions. In Oh v The Queen [2010] NSWCCA 148, Kirby J, with whom Beazley JA (as her Honour then was) and Johnson J agreed, stated, whilst noting it was a dispute for another day, that there was no authority which suggested that s 21A(2)(eb) was confined to circumstances of intrusion from outside: at [40].
8. In Melbom v The Queen [2013] NSWCCA 210, the Court held that the sentencing judge had not treated the fact that the offence was committed at the victim's home by a person lawfully entitled to be there as an aggravating factor, so the construction of s 21A(2)(eb) did not directly arise. However, Simpson J (as her Honour then was) stated that the Crown initially sought to challenge the previous decisions of this Court which held that s 21A(2)(eb) did not extend to offences committed in the home of the victim if the offender lived in the same home. She stated that it was not apparent why the challenge was abandoned and expressed the view that the decisions needed to be re-examined: at [1]-[2]. R A Hulme J made the following remarks: "[42] Subsection (2)(eb) was inserted in s 21A by the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) and took effect on 1 January 2008. [43] It has been held in this Court that this provision, and the earlier common law, did not provide that it was an aggravating factor when an offence is committed in the home in which both the offender and the victim reside; it is only an aggravating factor when the offender is an intruder: see the authorities referred to by the applicant (above at [35]) as well as R v BIP [2011] NSWCCA 224 at [60]-[61]; R v MH [2011] NSWCCA 230 at [34]; NLR v R [2011] NSWCCA 246 at [22]; DS v R [2012] NSWCCA 159 at [144]-[148]; and Essex v R [2013] NSWCCA 11 at [72]-[73]. [44] The Crown abandoned its proposed alternative argument in relation to this ground and conceded the correctness of those decisions. This is despite the fact that the plain words of s 21A(2)(eb) do not support the limitation that this Court has placed on their application. It is also despite the fact that it was never intended by Parliament that there should be the constraint upon their application that this Court has imposed: see the second reading speech of the Attorney-General, New South Wales Legislative Council, Parliamentary Debates, Hansard, 17 October 2007 (p 2667ff) where it was said that it would be 'an aggravating circumstance when victims are assaulted in their own homes ... even if it is also the home of the accused'. However, given the concession by the Crown, now is not the occasion for reconsideration of what has been said previously in this Court on the subject."
9. R A Hulme J repeated his remarks in Montero v The Queen [2013] NSWCCA 214; (2013) 234 A Crim R 532 at [46], whilst holding in that case that, in any event, there was no error as it was not the fact that the offence incurred in the victim's home taken alone which was stated to be an aggravating factor: at [52]. In that case, Leeming JA stated that he had similar reservations concerning the earlier authorities: at [1].
10. In Aktar v The Queen [2015] NSWCCA 123, Wilson J made the following comments at [53]-[57]: "[53] In Ingham v R [2011] NSWCCA 88, a decision that has hitherto represented the interpretation of this Court of s 21A(2)(eb), the provision was said to apply only in circumstances where the offender was an intruder. [54] That interpretation was consistent with the position at common law which, prior to the insertion into the Act of s 21A(2)(eb) on 1 January 2008, was that an offence was only aggravated by the fact that it was committed in the victim's home if the offender was an intruder unlawfully within the premises: R v Preston (Court of Criminal Appeal (NSW), Dunford J, Smart J and Handley JA, 9 April 1997, unrep); R v Gazi Comert [2004] NSWCCA 125 per Hidden and Hislop JJ at [29]; EK v R supra, at [79] per RA Hulme J. [55] Although Ingham has been followed in a number of decisions (such as NLR v R [2011] NSWCCA 246; BIP v R [2011] NSWCCA 224; and DS v R [2012] NSWCCA 159), there is considerable force in the proposition that the interpretation and application of s 21A(2)(eb) as noted in Ingham is too narrow, and fails to give effect to the express intention of the Legislature to broaden the common law rule upon which the section is (lightly) based. Proper construction of the provision should, in my opinion, include its application to offences committed within residential premises by an offender lawfully present. [56] There is nothing in the wording of s 21A(2)(eb) to suggest that it must be narrowly construed to identically reflect the common law; indeed, its broad language ('in the home of the victim or any other person') suggests the contrary. [57] If the language used by the Legislature suggests that the provision could or should be more broadly construed than has hitherto been the case, arguably, the ordinary rules of statutory construction should apply to a more thorough consideration of the provision and its interpretation." After referring to the Second Reading Speech, her Honour made the following additional remarks at [63]-[64]: "[63] It seems clear that the legislature intended to recognise the additional distress occasioned to a victim (and consequently the additional criminality of the offence) when the home - a place of safety and refuge - is sullied by the commission within it of a crime. The destruction of a victim's sense of security and repose at home is the same whether the offender was lawfully present or not. The right of all citizens to be free from attack or other crime in their own home, regardless of the basis upon which the offender was present, must be recognised and protected. [64] In the present case, the applicant did not direct any submissions to the proper interpretation of s 21A(2)(eb), or refer to the tension in the authorities regarding its proper construction. Whilst the Crown did consider the issue in its submissions, in the absence of submissions from both parties this is not an appropriate occasion on which to make further comment; however, I respectfully agree with the comments of RA Hulme J in Melbom, and the interpretation there suggested." Hoeben CJ at CL and R A Hulme J reserved their position on the question until the matter was fully argued.
11. In Erazo v The Queen [2016] NSWCCA 139, Davies J stated that, despite being a member of the Court in Ingham, he was now of the view that the Court's construction of s 21A(2)(eb) in that case was too restrictive and that the issue should be revisited, although the present case was not one in which it was appropriate to undertake that task: at [48]. Ward JA, at [2], stated that she shared the same reservations, whilst R A Hulme J, at [77], stated that he did not need to canvass the issue.
12. At the request of the Court, the parties at the conclusion of the hearing provided references to a number of interstate decisions said to be relevant to the common law principle. In Director of Public Prosecutions v Fellows [2002] VSCA 58, a Crown appeal against a sentence for rape, the offence being committed by a member of the victim's family who was not an intruder, Phillips CJ, with whom the other members of the Court agreed, made the following remarks at [37]: "[37] Performing that exercise I have come to conclude that, by reason of its component of entire suspension, it is manifestly inadequate and that, accordingly, his Honour's sentencing discretion has miscarried. I would uphold particulars (a) and (d). It is unnecessary to deal with the others. Put another way, error in these respects makes the sentence explicable. In my opinion, this rape was attended by a number of aggravating circumstances. The victim was in her own home - indeed in her own bed. She was entitled to feel herself safe from any unwelcome attentions by any man - let alone a member of her extended family. The attack was not without some persistence. It had very, very grave consequences. The mitigating circumstances, while substantial, were not, in my opinion, such as to justify total suspension when considered as part of all the circumstances."
13. This seems somewhat inconsistent with the approach taken in New South Wales.
14. In Director of Public Prosecutions v Joyce [2007] VSCA 215, the offence, intentionally causing serious injury, occurred whilst the victim and the offender, who had been in a relationship, were together at the victim's home. The Court accepted that it was an aggravating factor that "the offence was committed in the victim's home in breach of the trust which she imposed in the victim [sic] as her friend and sometime lover after forgiving him for the assault which he had earlier committed on her": at [22], [35]. This also seems contrary to the position in this State, although the fact that the incident occurred in the victim's home was not the only matter taken into account.
15. We were referred to a number of other Victorian authorities: R v Keenan [2005] VSCA 64; Director of Public Prosecutions v Sims [2004] VSCA 129; Director of Public Prosecutions v Devaldez [2003] VSCA 29; (2003) 141 A Crim R 11 and also a decision of the Full Court of the Supreme Court of South Australia, Heuston v The Queen [1993] SASC 4125. However, whilst these cases affirmed that it was an aggravating factor that the offence was committed at the home of the victim by a person who was not lawfully entitled to be there, they did not deal with the question in issue in the present case.
16. In R v DK [2016] ACTCA 7, a case involving sexual assault by a person entitled to be at the premises, the Full Court of the Supreme Court of the Australian Capital Territory made the following remarks at [56]: "[56] While the breach of trust involved in these offences is indisputable, it is not so clear that invading 'the sanctity of the home and, indeed, bedrooms of the victims' is a meaningful aggravating factor, given that DK lived in the house and had every right to be in the house and the children's bedrooms for proper reasons. We cannot see that committing the offences in the children's bedrooms made the offences more serious than if they had been committed anywhere else in the house in breach of DK's responsibility to the children."
17. It can thus be seen that, whilst the decisions in Fellows and Joyce provide some limited support for the contentions of the Crown, and DK provides some limited support for the contentions of the applicant, they do not deal with the issue in a conclusive fashion. Ultimately, the matter must depend on the true construction of s 21A(2)(eb).

Consideration

1. The principles of construction are well established. The task of statutory construction begins and ends with a consideration of the text itself. Context has utility so far as it assists in understanding the text but cannot displace the meaning of the statutory text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 51 at [39]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. The context and purpose of the statute are important because the primary object is to construe the provision so that it is consistent with the language and purpose of all the provisions of the statute. It is not, however, a search for what the person or persons who promoted or passed the statute had in mind: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24]-[25]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [78]; Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523; [2013] HCA 16 at [47].
2. I have set out the text of s 21A(2)(eb) of the Sentencing Procedure Act above. There are two things to note. First, the section in its terms does not impose as a pre-condition for its operation that the offender be an intruder into the victim's home. Second, the aggravating factor is not limited to the home of the victim but extends to the home of any other person. On a literal construction, this could, hardly surprisingly, include the offender's home. It seems to me that, in those circumstances, the legislator did not intend that the operation of the section was limited to circumstances where the offender was an intruder either in the victim's home or some other home.
3. That construction promotes the purpose of the section, namely, that a home is a place which should be safe and secure for persons who reside, or are otherwise present, at such a place. Thus, it would extend to persons (for example, children) visiting a relative's home or, for that matter, persons in a domestic relationship at the home of the offender.
4. That construction is also consistent with the purpose of the legislature outlined in the Second Reading Speech introducing the subsection, to which I have referred above at [10].
5. There remains the question of whether, what I would regard as, the textual construction and the clear legislative intention cannot be given effect because of s 21A(4) of the Sentencing Procedure Act or, put another way, whether s 21A(2)(eb) has to be read down so that it is read harmoniously with s 21A(4): Project Blue Sky at [69].
6. Section 21A(4) limits the power of the Court to take into account an aggravating factor where it would be contrary to a "rule of law" to do so. As I indicated, I am prepared to accept, in the absence of argument, that any part of the "judicially developed body of sentencing principles" constitutes law for the purpose of s 21A(4): see Way at [57]. However, it is not enough for the purpose of s 21A(4) that the particular aggravating factor or the extent of its operation does not form part of such a body of principles. Rather, it is necessary for s 21A(4) to operate such that the taking into account of an aggravating factor in the circumstances of a particular case would be contrary to such principles. Inconsistency with the sentencing principles need be shown before the section has operation.
7. In the present case, s 21A(4) would not operate to limit the operation of s 21A(2)(eb) merely because general sentencing principles up to the present time only recognise as an aggravating factor the fact that the offence was committed in the victim's home if the offence was committed by an intruder. Rather, it would be necessary that there be a general sentencing principle that, unless the offender was an intruder or unlawfully present at the home of the victim, the fact that the offence was committed at the victim's home could not be an aggravating factor on sentence.
8. The authority which is said by the applicants to support the negative proposition is Comert. There are a number of matters to be noted. First, the proposition as articulated in the later authorities which followed it is derived from the comment by Hidden and Hislop JJ, "we are unable to see how a sexual assault on a woman by her husband is rendered more severe because it was perpetrated in the matrimonial home". That statement provides limited support for what was derived from it in cases such as EK and Ingham, namely, that the fact that the offence was committed in the victim's home could not be an aggravating factor unless the offender was an intruder.
9. Second, it is by no means clear that Hidden and Hislop JJ were intending to lay down a negative proposition of the nature of that contended for by the applicant. Their Honours did not expressly articulate such a proposition, nor did they provide any authority to support it. As Bryson JA pointed out in Kershaw at [23], it does not appear that there was any intention to establish any general principle.
10. Third, the authorities to which I have referred do not provide authoritative support for the proposition and the Victorian authorities, if anything, are contrary to it.
11. Fourth, there is no reason in principle to impose the limitation contended for. The reason that the fact that the offence was committed in the victim's home was said to be an aggravating factor was because of his or her entitlement to feel secure in the home. There is no reason that a breach of that security would constitute an aggravating factor in the case of an intruder but not in the case of a person lawfully on the premises.
12. In these circumstances, I am unable to agree that there is a rule of law within the meaning of that expression in s 21A(4) of the Sentencing Procedure Act that the fact that the offence was committed in the victim's home can only be an aggravating factor on sentence if the offender is an intruder. Whilst I am conscious of the care which should be taken in overruling previous decisions of this Court (see, for example, Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 at 269), I am of the view that the decisions which attributed this principle to Comert are plainly wrong and should be overruled.
13. It follows that this ground of appeal has not been made out.
14. There is one further matter I should mention. The fact that s 21A(2)(eb) can extend beyond offences committed by an intruder does not mean that in all cases the fact that the offence occurred in a home will be an aggravating factor. It is necessary for the Court to conclude that, having regard to ordinary sentencing principles, it actually aggravates the offence in question: Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [29].
15. I have had the advantage of reading the judgment of Bellew J in draft. I agree for the reasons he gives that Ground 2 of the grounds of appeal has not been made out.
16. In the circumstances, in my opinion, the following orders should be made: 1. Leave to appeal against sentence granted. 2. Appeal dismissed
17. BEAZLEY P: I have had the advantage of reading in draft the reasons of the Chief Justice in respect of ground 1 of the appeal with which I agree. I have also had the advantage of reading in draft the reasons of Bellew J in respect of ground 2 of the appeal. I agree with his Honour's reasons.
18. Having regard to the issued raised by ground 1 of the appeal, I consider that leave to appeal should be granted. However, as I consider that both grounds 1 and 2 of the appeal should be rejected, the appeal should be dismissed.
19. HALL J: I agree with the reasons and conclusions in the judgment of the Chief Justice, and with the judgment of his Honour, Bellew J;
20. BELLEW J: On 18 February 2015 the applicant pleaded not guilty to an indictment containing the following counts: 1. between 31 December 2010 and 29 April 2011 at Kiama in the State of New South Wales recklessly inflicted grievous bodily harm on (redacted) (Crimes Act 1900 (NSW) s. 35(2)) ("count 1"); 2. in the alternative, between 31 December 2010 and 29 April 2011 at Kiama in the State of New South Wales assaulted (redacted) thereby occasioning actual bodily harm to her (Crimes Act 1900 (NSW) s. 59(1)) ("count 1a"); 3. between 31 December 2012 and 1 March 2013 at Kiama in the State of New South Wales assaulted (redacted) thereby occasioning actual bodily harm to her (Crimes Act 1900 (NSW) s. 59(1)) ("count 2"); 4. on or about 23 March 2013 at Liverpool in the state of New South Wales had sexual intercourse with (redacted) without the consent of (redacted), knowing she was not consenting (Crimes Act 1900 (NSW) s. 61I)) ("count 3"); 5. on or about 23 March 2013 at Liverpool in the state of New South Wales had sexual intercourse with (redacted) without the consent of (redacted), knowing she was not consenting (Crimes Act 1900 (NSW) s. 61I)) ("count 4"); 6. on or about 23 March 2013, at Liverpool in the state of New South Wales, had sexual intercourse with (redacted) without the consent of (redacted), knowing she was not consenting (Crimes Act 1900 (NSW) s. 61I)) ("count 5").
21. Following a trial, the applicant was found guilty of each of counts 1, 4 and 5.
22. On 12 June 2015, the applicant was sentenced to an aggregate term of nine years imprisonment, comprising a non-parole period of six years and five months imprisonment, commencing on 27 February 2015 and expiring on 26 July 2021, the balance of term being two years and seven months imprisonment commencing on 27 July 2021 and expiring on 26 February 2024.
23. By notice filed on 12 April 2016, the applicant seeks leave to appeal on the following grounds: 1. The sentencing judge erred in determining that the offences were aggravated as a result of them being committed in the home of the victim. 2. The sentencing judge erred in his assessment of the objective seriousness of count 1 in that he double counted the commission of the offence in the presence of a child. 3. The sentencing judge erred in his treatment of the applicant's decision to plead not guilty.
24. At the hearing, senior counsel for the applicant did not press ground 3.
25. I have read, in draft, the judgment of Bathurst CJ in respect of ground 1. I respectfully agree with his Honour's conclusions in respect of ground 1.
26. Before turning to consider ground 2, it is necessary to set out the facts of the offending.

The facts

1. Commencing at ROS 2, the sentencing judge found the facts of the offending to be as follows: "The offender and the victim were in a domestic relationship for about ten years. They met in the Fairfield area. At that time, they were both taking illegal drugs, specifically heroin, although neither of them has taken illegal drugs for many years. They moved to the Kiama area about eight years ago. The relationship was an abusive one. The offender was controlling and violent and on occasions, he would kick, hit, punch, and strangle the victim. The victim would cover her bruises by wearing long-sleeved tops and long pants. He controlled her behaviour and would not allow her to contact her family. Despite this there were three children from the relationship, (redacted). On one occasion between 31 December 2010 and 29 April 2011, the offender was physically violent towards the victim. During the course of this argument, he slapped her on the head, causing her eardrum to perforate. This is the subject of the offence of recklessly inflict grievous bodily harm on (redacted). The circumstances were that an argument developed in the lounge room after the victim told the offender she believed that he needed to stop abusing prescription medication. The argument escalated. The victim tried to leave the argument by walking into the bedroom and laying down on the bed. The offender followed her into the bedroom and the argument continued. He became more and more angry and started slapping her around the head a number of times. He slapped her hard across the side of the head causing her left eardrum to perforate. The victim felt a strong pain to the left side of her head. The victim fell to the floor and could not see for a few minutes. The left side of her face went numb. She could not move. She felt disorientated and felt a hot fluid coming out of her ear. She said she had not experienced such pain before. The offender picked the victim up and placed her on the bed. The victim cannot accurately recall how long she remained lying there. The offender called an ambulance and told the triple-0 operator the victim had fallen down the stairs when she was fetching a toy for Sophia, their youngest daughter. The ambulance arrived and the victim was taken to Wollongong hospital. She remained there for several days. She was in a great deal of pain for this period of time. She did not tell any of the staff in the hospital how the injury had occurred because she was afraid the offender would hurt the three children in reprisal. She told all of the medical professionals that she had injured her ear by falling down the stairs. After leaving the hospital, the victim continued to experience pain and required some analgesia. She wanted to see her regular General Practitioner at Kiama Medical Practice but the offender insisted she see a doctor that he knew at Dapto. She consulted Dr Sherrell at the Dapto practice on 28 April and on five subsequent occasions. Dr Sherrell saw the left eardrum was missing - it was completely perforated. The victim experienced dizziness and disturbance to her vision and eye movements for several weeks. The victim had ongoing hearing difficulties. She consulted an audiologist at Macquarie University on 9 May 2013. This consultation revealed that there was a significant difference between the hearing in the right and left ears. The victim experienced crackling, pain and tinnitus (a ringing noise) in the left ear. The left ear had poorer hearing in high frequency tones. This kind of hearing loss is not common for people of the victim's age. The family moved from Kiama to the Liverpool area in March 2013. After they relocated, the offender frequently accused the victim of returning to drugs. She claimed she did not do this. The sexual assaults occurred late at night on 23 March and perhaps in the early hours of 24 March 2013. This was approximately two weeks after the family had moved to Liverpool. Earlier in the evening on 23 March, the family had gone to Woolworths. An argument developed. The offender became very angry because the victim had gone into a part of the shop that he had told her not to enter and she had spoken to a male shop assistant. On returning home the offender forced three children to tell the complainant she was a bad mother. The complainant then made the offender a cup of tea, which he threw at her, burning her arm. The victim went to bed and pretended to be asleep. The offender stayed downstairs watching a pornographic video. He came upstairs later in the evening and got into bed naked. After some discussion the victim then performed oral sex on the offender. This interaction formed the subject of the first charge of sexual assault on the indictment. However, the jury acquitted the offender of this particular charge. The oral sex did not last for very long and the offender did not ejaculate at this point. The offender told the victim to "wet it" which she understood to mean her anus. She complied because she was scared that he would seriously hurt her if she did not. He got on top of her and placed his penis in her anus and proceeded to have penile/anal intercourse with her. She said this lasted for about three to four minutes and that he did not ejaculate. The victim did not consent to this intercourse, she was in pain and could scarcely breath. She attempted to push him away but he continued. The next thing that happened was the offender got off the victim and he told her to "get some wet ones", the victim complied and used wet ones to clean his penis. She did this out of fear. The offender pushed her head back onto his penis using his hand on the back of her neck. Oral sex took place until he ejaculated into her mouth. She then ran into the shower and vomited. The offender knew the victim was not consenting to either the anal or oral sex. The prior violent relationship and the offender's intimidating conduct earlier in the evening would have alerted him to the fact that the victim was not consenting and that she was only participating to the extent that she did because she was afraid of violence occurring as it had on previous occasions. Following these two sexual assaults, the victim decided to leave the offender. She formulated her plan over the weekend. At 9am on Monday 25 March, she called her sister (redacted), whom she had not seen for approximately eight years. When they met later that morning, she told (redacted) in very rough terms what had happened to her. The victim took (redacted) with her. The victim did not take her son, (redacted), because on a previous occasion when she had tried to leave the offender, (redacted) had contacted his father and the offender had intervened and forced the victim to return home. The victim reported the offences to the police and the offender was subsequently arrested"

Ground 2 - The sentencing judge erred in his assessment of the objective seriousness of Count 1 in that he double counted the commission of the offence in the presence of the child

The reasons of the sentencing judge

1. Commencing at ROS 6, the sentencing judge considered the objective seriousness of the offending in count 1. Having summarised the circumstances of that offending, his Honour said (at ROS 7): "In light of the circumstances and nature of the assault, I consider that this offence falls below the mid-range of objective seriousness, despite the fact that the victim's injuries could no longer be considered serious. I take into account the fact that she suffered a perforated eardrum with bleeding that accumulated in two areas, the mastoid region and the middle ear. There was associated deafness as reported by Mr Nakad. The accused caused this perforation. I accept in assessing the objective seriousness that it was not an isolated blow. The offender did not seek immediate medical attention. He waited a day before calling triple-0. As the jury accepted that this offence occurred, there is no reason to reject the evidence of (redacted) regarding what she saw and heard in relation to the offence. Whilst (redacted) did not see the actual blow to the victim, she heard what she described as a "big bang" and then she opened the bedroom door slowly and saw her mother on the floor bleeding. The offence could be considered to be committed in the presence of an eight year old child".
2. Subsequently, his Honour commenced (at ROS 11) to consider the aggravating factors under s. 21A of the Sentencing Procedure Act. In the course of doing so, his Honour said (at ROS 12): COMMITTED IN THE PRESENCE OF A CHILD section 21(2)(e)(a) (redacted) was present when the offender caused injury to the victim's ear. She was not actually in the bedroom when the injury was inflicted but was on the other side of the sliding doors that separate the bedroom from the living area. She heard the slaps happening in the bedroom. She heard her mother fall on the floor. She then came into the bedroom and saw her mother lying on the floor with blood all over her face. It is clear that hearing this assault take place and seeing her mother in that state, had an impact upon (redacted) who was visibly upset when recalling the image of her mother's face when she gave evidence at trial.

Submissions of the applicant

1. Senior counsel for the applicant submitted that those passages of his Honour's remarks set out at [67] above amounted to a "second treatment" of the fact that the offending had occurred in the presence of a child which went "beyond the sentencing judge simply expanding upon his Honour's earlier finding". It was submitted that in these circumstances, it was apparent that the sentencing judge had double counted this aggravating factor when assessing the objective seriousness of count 1.
2. In support of that conclusion, senior counsel pointed out that when dealing with the objective seriousness of the offending, the sentencing judge had found (at ROS 7) that it involved a series of criminal acts, but that he had subsequently stated (at ROS 11) that he did not consider this as an aggravating factor because he had "already taken this into account in assessing the objective seriousness of the offence". It was submitted that in the absence of a similar indication being given by his Honour in respect of the offending having been committed in the presence of a child, the unavoidable conclusion was that such factor had been double counted.

Submissions of the Crown

1. The Crown submitted that aggravating factors, by their very nature, inform an assessment of the objective seriousness of offending, and that it is unexceptional for reference to be made to them on more than one occasion in the course of reasons being delivered. It was submitted that such an approach was completely consistent with the process of instinctive synthesis in which a sentencing judge must engage in determining an appropriate sentence.
2. The Crown submitted that the fact that his Honour had referred to this particular aggravating factor twice did not, of itself, lead to the conclusion that the applicant had been doubly punished. It was further submitted that the absence of any mention, in the passage of his Honour's sentencing remarks set out in [67] above, to his earlier reference to this issue was a clear indication that the matter had not previously been taken into account.

Consideration

1. In considering this ground it is necessary to be mindful of the context in which the sentencing judge's statements were made.
2. In the passage of his sentencing remarks set out in [66] above, the sentencing judge concluded that the objective seriousness of the offending in count 1 fell below the mid-range. It is apparent that in reaching that view, his Honour had regard to the nature and extent of the victim's injuries, particularly the perforation of her ear drum which he found had been caused by the applicant. It was in that context that his Honour made reference to the evidence of the applicant's child. His Honour obviously viewed that evidence as supporting a conclusion that the applicant had caused that injury. That was followed by his Honour's observation that the offending in count 1 "could be considered to be committed in the presence of an eight year old child".
3. Viewed in this way, his Honour's remarks do not indicate that when assessing the objective seriousness of the offending in count 1 he took into account the fact that such offending was committed in the presence of the applicant's child. When read as a whole, the emphasis of that part of his Honour's remarks set out in [66] above was upon the victim's injury, and the evidence given by the applicant's child which his Honour clearly regarded as supporting the conclusion that such injury was caused by the applicant. It was the injury, not the fact that the offending was committed in the presence of the applicant's child, which was the primary focus of this part of his Honour's remarks, and which his Honour took into account in reaching his conclusions regarding the objective seriousness of the offending.
4. Plainly, in the latter passage of his remarks (set out at [67] above) his Honour found that the offending was aggravated because it was committed in the presence of the applicant's child. Nothing said by his Honour in that passage suggests, even remotely, that this had already been taken into account. Indeed, the absence of any reference to it having already been taken into account only serves to confirm that his Honour had not done so. In my view, the contrast drawn by counsel for the applicant in respect of his Honour's approach to different aggravating factors fortifies, rather than weakens, a conclusion that there was no double counting.
5. It follows that this ground is not made out.
6. I agree with the orders proposed by Bathurst CJ.
7. N ADAMS J: I have had the advantage of reading in draft the reasons of both the Chief Justice and Bellew J. I agree with both of their Honours' reasons and the proposed orders and have nothing further to add.

Amendments 06 March 2017 - Correction to citation at [50] and coversheet 03 May 2017 - [58] Names of victim redacted [65] Names of victim and family redacted [66] Name of child redacted [67] Name of child redacted 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 May 2017