JP v R

Court of Criminal Appeal (NSW)|2024-03-11|Before: Ward P, Rothman J, Wright J

JUDGMENT

WARD P: I agree with Rothman J.
ROTHMAN J: The applicant, "JP", seeks leave to appeal the sentence imposed upon him in the District Court at Newcastle in respect of two charges to which the applicant pleaded guilty at the earliest opportunity, namely, in the Local Court. The applicant pleaded guilty to two charges of sexual intercourse with a child aged between 14 and 16 years in circumstances of aggravation, namely, that the victim was under the authority of the applicant, contrary to s 66C(4) of the Crimes Act 1900 (NSW).

Circumstances of Count 1

On or about 29 January 2022, the victim and her younger sister were in bed. The younger sister was asleep on her side facing the wall and the victim was cuddling and "talking to" her pillow, which, apparently, the victim does when she feels lonely and frustrated. The victim was wearing "Minnie Mouse" pyjama shorts, a shirt, underpants and bra. The applicant approached the victim on the sofa bed and asked if she was "okay".
The applicant kissed the victim on the side of the lips. The victim was shocked and speechless. The applicant "made out" with the victim by kissing her multiple times on the lips. The applicant told the victim this was to distract her from being stressed; the applicant kissed the victim's neck.
The applicant asked the victim to go outside. The victim agreed and the victim and the applicant went outside where they talked about why she feels anxious and talks to her pillow.
The victim felt light-headed, and the applicant carried her back into the apartment. He put the victim back in the bed next to her sister. The victim laid on her back facing the ceiling. The applicant kissed her on the lips.
The applicant touched the victim on the breast area and then moved his hand down to the victim's vagina and touched her vagina on the top of her clothing. The applicant then put his hand inside the victim's underwear and inserted his finger into her vagina (Count 1). The victim felt confused and nervous as to why the offender was doing this to her and felt she lost control of her body.

Circumstances of Count 2

The applicant pulled the victim's pants down. The applicant kissed the victim again. The applicant took his pants off. The applicant stood in front of the victim and said, "you're not ready". The victim tried to say no but felt that she had "lost control" of her body and was "turned on". The victim pulled the applicant towards her by placing her hand on the back of his neck and kissed him on the lips.
The applicant got on top of the victim and engaged in penile/vaginal penetration (Count 2). The applicant had his hand on the back of the victim's head while he penetrated her. The applicant was moaning. The victim described the applicant's motion as "humping". The applicant engaged in sexual intercourse with the victim for three to five minutes before he ejaculated. The victim was too embarrassed to look at the applicant, who proceeded to clean himself with wet wipes.
The applicant put the victim's underpants back on and kissed the victim again by leaning over the top of the victim and kissing her mouth upside down. The applicant said, "that's cool like a spiderman kiss".
On Tuesday 3 February 2022, the victim participated in an electronically recorded interview with Police and disclosed the above offending. The victim provided her notebook to Police, in which she had written notes about the incident. The note was in the following terms: "28.1.22 The most confusing this [JP] has done on me? Trying to figure out why? - made out - touched me - sexed? Unixspedidly [sic] & out of controllaball [sic]? But why a stepfather do that to me? Instead of his girlfriend, mum? He said that kissing me will take my mind off what I was thinking? He say's [sic] he loves me? & I am young butifull [sic]? + cute?"
DNA analysis was conducted on the underwear of the victim worn on the night of the offending. The semen of the applicant was detected on the back of the underpants.
The applicant was cautioned and arrested on 3 February 2022. The applicant participated in an Electronically Recorded Interview of Suspected Person (ERISP) in which he said they had stayed at Jesmond Executive Apartments and denied the offending.
The applicant did not give evidence in the sentencing proceedings.

Psychologist's Report

A report of Dr Derek Gilligan, Forensic Psychologist, was tendered before the sentencing court and the applicant tendered a letter to the sentencing judge. There was no cross-examination of Dr Gilligan. The parties provided written submissions, or an outline of submissions, to the court.
The psychologist's report refers to the applicant reporting to the psychologist that he felt "ashamed, embarrassed and is disgusted in himself. He became tearful as he expounded upon the depths of his disappointment and profuse self-loathing. He disclosed that he feels sorry that he did it, and that every time he thinks about it, he is acutely aware of how he has affected [the victim's] life".
Further, the psychologist recorded that the applicant said, "it's not something small, it will likely affect [the victim] for the rest of her life, in a bad way, and that's something I have to live with for the rest of my life". The applicant reported being perplexed about his offending, and that he had been "incessantly ruminating" over the matter every night since the offence was committed. He has no answers to the issues giving rise to the offending.
The report of Dr Gilligan refers to the psychosexual development of the applicant in the following terms: "[The applicant] further disclosed that he has never entertained imaginal fantasies of underage partners, to stimulate his masturbatory fantasies and denied any sexual thoughts of the victim prior to the offending. [The applicant] reported he has only had a couple of casual sexual partners in between his relationships, that he met out socialising at nightclubs."
The report records that the applicant referred to his sex life with previous partners and CF as "happy" and, in the case of CF, regular. After dealing with the well-known issues associated with risk assessment and the measurement of risk assessment, on testing, the applicant scored, in relation to one such test, comparable to 8 per cent of persons who would be expected to reoffend over a three-year period.
On the static risk estimate, the applicant scored within the range of 7 per cent and 9 per cent of those likely to engage in sexual recidivism. In other words, the applicant would, on the combined testing scale, generally be classified as "moderate-low" in terms of the risk of reoffending.
His youth involved multiple childhood traumas. His mother was an alcoholic, which was concealed prior to the applicant reaching the age of 13 but would have compromised her capacity to attend to the emotional needs of her children. The alcoholism escalated, resulting in the applicant suffering substantial emotional and physical neglect as well as physical violence.
Apart from the effect such behaviour has on coping by way of negative modelling, the trauma-genic family context occasioned the onset of significant anxiety, low mood, and self-esteem issues. "[The applicant] has sustained symptoms of protracted low mood (dysthymia) characterised by poor self-esteem and low self-worth with anxiety" since childhood.
The symptoms of the foregoing have been, at times, severe and have manifested in poor coping, exacerbated by suicide ideation, and attempts, resulting in inpatient admissions. His development and maturation were impeded, and this resulted in a deficiency in the applicant in his capacity to formulate efficacious methods for coping and resolving problems. As a consequence, he has retained a proclivity towards impulsive behaviour and inadequate planning.
The applicant has remained beset by: "mental condition[s] of dysthymia and anxiety, resulting in episodes of emotional distress. He has adopted maladaptive avoidant style coping, frequently turning to substance use. Consequently, his psychological disorder persisted into adulthood, rendering him relatively ineffectual …" "… [The applicant's] index offending behaviour can be best understood in conjunction with an exacerbation of his mental health dysfunction and maladaptive avoidant coping. [The applicant] experienced amplified levels of stress arising from employment, financial, and accommodation instability and continued abusive patterns within his relationship with his mother." "… His inadequate problem-solving abilities impeded his capacity to manage and procure practical resolutions, thereby intensifying his sense of despair. It appeared that his medication was inadequate to ameliorate such symptoms, and he sought alternative methods to mitigate his affliction."
The psychologist's report raises the distinct possibility that the applicant obtained illicitly procured prescription medication, which the psychologist suggests may have been Benzodiazepine, and expressed the opinion that, because of the applicant's low insight, "he resorted to default patterns of binge alcohol".
The alcohol use, possibly in conjunction with Benzodiazepine, was thought to have compromised his capacity for good planning, problem-solving, metacognition, consequential thinking, and ultimately self-regulation. The psychologist thought it plausible that the culmination of stressors, together with the applicant's "precarious mental state engendered sexual arousal, with sexual thoughts triggered by negative emotions, that typically he would manage through sexual release. Such tendencies may have primed his engagement in the offending behaviour."
The psychologist maintained that the applicant does not appear to have a stable and enduring sexual deviant pathology and there is an absence of chronic sex offending. Rather, according to the psychologist, it appears that the applicant encountered the victim and experienced a loss of control. "His intoxication, lack of awareness about what he was doing, and the impulsive nature of the offending behaviour in this regard, were most likely primarily contributory. In this way, his offending is reactive, contextual, situational and impulsive, rather than instrumental, planned and predatory."
The psychologist reached the conclusion that, as already stated, the applicant did not have a sustained sexual deviancy and noted that a community-based sentence would facilitate the applicant's psychological treatment at a recommended dose, which would also facilitate his psychological treatment and support his engagement in pro-social routines such as family relationships and employment, which would also have the corollary of financing his treatment.
Of course, the offending in question occurred at a time when the applicant was in a "family relationship", but he was not, at the time, undergoing treatment. The letter from the applicant to the sentencing judge expressed shame and acknowledged guilt and the effect of his conduct on the victim. In prison, the applicant has undergone a drug programme and an emotional well-being programme.

Remarks on sentence

The remarks on sentence were delivered ex tempore after a short hearing, of just under two hours in duration. After setting out the circumstances of each of the offences and the circumstances of the plea, the learned sentencing judge referred to the submissions of the applicant and the Crown as to the proper categorisation of the objective seriousness of the offending.
Her Honour came to the view that the digital penetration fell just below the mid-range, while the penile/vaginal penetration in the top of the mid-range. Her Honour noted that each offence occurred on the one night during a single course of conduct and referred to the authority that the applicant exercised over the victim.
There was no suggestion of any such behaviour on a prior occasion. Nevertheless, her Honour noted that the first offence occurred at a time when the victim was lying next to her sister, who was asleep. The younger sister could have woken at any time, which, in the view of her Honour, was a factor to be considered in assessing objective seriousness.
Further, in relation to Count 2, the penile/vaginal penetration was unprotected; there was ejaculation; and a consequential concern "about disease and pregnancy".
Her Honour noted the breach of trust element of the offending but made clear that it was impermissible to double count, in circumstances where the authority exercised by the applicant was a feature of the elements of the offences charged and there were common elements between breach of trust, on the one hand, and being under authority, on the other hand.
Her Honour noted that there was no physical force used. Nor were there any threats made to the victim. The digital penetration was for a short period and the timing of the penile/vaginal penetration was noted and has already been stated.
Her Honour considered some aggravating features, being, the circumstance that the offending occurred in the home of the victim, where she should have been able to feel safe. The offence was not part of a planned or organised criminal activity; was spontaneous; and her Honour acknowledged that remorse had been shown.
The learned sentencing judge remarked that she accepted "beyond reasonable doubt" that the applicant was remorseful, although, because it is an ameliorating factor, the standard of proof is on the balance of probabilities. Her Honour also noted that the applicant had taken responsibility for his conduct.
Most relevantly, given the grounds of appeal, her Honour remarked that the hardship to which the psychological report referred was not such that it was "elevated to hardship or dysfunction" or "of the type found in Bugmy" [1] , but the applicant had a very difficult childhood with his mother being an alcoholic and his father having abandoned him at a young age. The applicant has abused alcohol and, at different times, cannabis, and small amounts of methylamphetamine.
The learned sentencing judge then referred to mental health factors and said: "[The applicant] has suffered from anxiety, and in effect what the report said is at about this time there was a number of factors that he was experiencing in terms of his mental health that would have contributed to the offending. I do accept also that he realises the requirement now to seek treatment, and he has done what he can in custody … in this connection. That was a drug programme and an emotional wellbeing programme."
Her Honour remarked that there was no history of sexual offending and, on the report, no sexual deviance in nature. Her Honour noted the damage to the complainant and the confusing and fearful situation into which the victim was placed by her stepfather. Her Honour also noted the onerous conditions of custody as a result of the Covid-19 restrictions.
Further, to the mental health aspects, her Honour noted: "[The legal representative for the applicant] said that because of [the applicant's] mental health, less weight should be given to general deterrence. In my view, there still has to be significant weight given to general deterrence. The courts have repeatedly stated the requirement for stern sentences to protect children in the family environment."
Her Honour noted the criminal record and that, while it was not a very serious criminal record, it disentitled the applicant to the leniency ordinarily shown to a first offender. Further, he has previously only served short-term periods in custody.
Her Honour found special circumstances as a result of the need for treatment upon release and assistance in reintegrating into the community. Unfortunately, given his low level of risk, the applicant will not be eligible for relevant treatment in custody. In imposing the aggregate sentence, her Honour was mindful of the two separate offences, in one course of conduct, and the principle of totality.

Submissions of parties

Written submissions were filed on behalf of the applicant and those submissions were clarified and emphasised in oral submissions. After setting out the circumstances of the offences as recounted in the Agreed Facts and emphasising the low risk of reoffending, the applicant set out the principles applicable to the consideration of mental illness in determining an appropriate sentence.
The applicant submits that the mental condition under which he labours was directly or indirectly causative of the offending and ought to have ameliorated her Honour's assessment of the objective seriousness of the offence. The applicant acknowledged that mental illness will not always ameliorate a sentence. Whether the sentence is ameliorated is part of the exercise of the discretion of the sentencing judge.
The applicant relied upon passages to which these reasons have already referred and, in particular, the opinion expressed by Dr Gilligan that the applicant's mental state engendered his sexual arousal, triggered by negative emotions, primed his engagement in the offending behaviour. The psychologist's report, as already stated, referred to his "intoxication, lack of awareness … and the impulsive nature of the offending behaviour … were most likely primarily contributory".
Further, notwithstanding that the Court raised with Counsel the ameliorating aspects of mental illness that was not causative, the applicant did not seek to broaden the grounds of appeal. If the applicant's psychological conditions were not causative, the learned sentencing judge may have ameliorated the sentence on account of the effect of the mental conditions on the appropriateness of the applicant being a vehicle for general deterrence, the absence of a need for specific deterrence of any great note, and the more onerous conditions to be suffered by the applicant while in prison. Arguably at least, her Honour did that and, it seems understandably, the applicant did not raise these issues and the Court need not deal with them.
The applicant's submission on the first ground of appeal was not confined to the proposition that the learned sentencing judge did not give sufficient weight to the circumstance of the causative psychological condition. Rather, the submission was that the sentencing judge paid no regard to those circumstances in assessing the need for specific deterrence or in evaluating the conditions to be experienced in prison, and, in failing so to do, the sentencing judge erred in principle in a manner that, even on the exercise of discretion, should give rise to intervention of the Court.
The foregoing factors were agitated in relation to the first ground of appeal and were also contributing factors for the proposition that the sentence imposed upon the applicant was manifestly excessive. In relation to Ground 2, the applicant also relied upon the isolated nature of the offending, the absence of sexual deviance in the applicant, and the other circumstances already mentioned.
The applicant provided a summary of cases, said to be of a similar kind, for appropriate comparison of the sentences imposed and, on the argument of the applicant, the range available in the circumstances of this offending.
The Crown, on appeal, took issue with the submission of the applicant that the learned sentencing judge appeared to accept Dr Gilligan's opinion that the applicant's mental illness had a contributing effect on the offending. First, the Crown agitated that Dr Gilligan did not find that the applicant's mental health was a material contributing factor to his offending. Rather, Dr Gilligan, as earlier stated, considered that the mental health coupled with the stressors of financial and accommodation problems and the consumption of alcohol exacerbated the applicant's anxiety and depression and experienced a loss of control.
Further, the Crown points to the remarks on sentence [2] to show that the learned sentencing judge considered the applicant's mental health as one of several issues relevant to his circumstances at the time of offending. Consequently, the Crown submits that her Honour gave less weight to general deterrence in the exercise of her sentencing discretion.
As to Ground 2 of the appeal, manifest excess, the Crown relies upon the principles applicable, and that it is for the applicant to show that the sentence imposed was "unreasonable or plainly unjust". This, on the Crown's submission, the applicant has failed to do.
The Crown analysed the cases upon which the applicant relies and submitted that they are of very little assistance in the present appeal and do not demonstrate or support a conclusion that the applicant's sentence is manifestly excessive.
Lastly, the Crown submitted that, even if the Court were minded to find error of a kind that warranted intervention, it is required to undertake, separately and independently, the sentencing discretion, and do so afresh. If the Court were to undertake that task, in the submission of the Crown, the Court "would not form the opinion that a less severe sentence is warranted in law", relying on the matters to which the Crown referred in its submissions on manifest excess.

Determination

Before dealing with the submissions of the parties and the issues on the appeal, it is appropriate to reiterate the basis upon which the Court can intervene in the exercise of a sentencing discretion (or any other discretion). As has been clarified at the highest level in this country on several occasions, intervention by an intermediate appellate court in the exercise of a discretion will occur only when the judge at first instance acts upon a wrong principle; allows extraneous or irrelevant matters to guide or affect the exercise of the discretion; mistakes the facts; or fails to take into account some material consideration. [3]
Otherwise, if an error of that kind is incapable of being identified, but it appears that, on the facts and circumstances before the Court, the result is unreasonable or plainly unjust, then the Court may infer an error of the foregoing kind, even though unidentifiable. Such a manifest error may then be corrected, but only in circumstances where the result is "unreasonable or plainly unjust". [4]
In the judgment in Obeid, supra, the Court set out the principles applicable to intervention based on manifest error and said: "[443] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
The applicant, in Ground 1 of the appeal, raises an issue of principle. Before dealing with that issue of principle said to arise as a consequence of the Remarks on Sentence of the learned sentencing judge, it is important to reiterate that this Court on appeal should not be concerned with "looseness of language", nor "unhappy phrasing". [5] Nor, in the words of the High Court, should a court on appeal construe the judgment below "minutely and finely with an eye keenly attuned to the perception of error". [6] Such an injunction is even more relevant when the Court is dealing with Remarks on Sentence that are delivered ex tempore.
In dealing with the first ground of appeal, it is necessary to re-state the principles that have been summarised on several occasions relating to the manner in which mental illness or mental or emotional impairment or disability are accommodated in the sentencing process. The most oft-quoted passage is the summary by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], in which his Honour summarised, but not exhaustively, the manner in which mental health conditions are assessed. He said: "[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].
In Aslan, [7] Simpson J (with whom Adams and McCallum JJ agreed) reiterated the foregoing principles and referred to the Court frequently having to grapple with the effect of mental illness or other mental or emotional problems on sentencing. Her Honour reiterated that the principles summarised by McClellan CJ at CL were not absolute and satisfaction of one or other of the principles does not necessarily involve an amelioration of the sentence. Each of those factors must be assessed in the individual who is before the court for sentencing.
As was pointed out by Gleeson CJ in Engert, [8] there are times when the existence of a mental condition or problem requires condign punishment, in order to give appropriate weight to the protection of the community. Notwithstanding the sentiments expressed by the High Court in Muldrock v The Queen, [9] there are times when mental problems or psychiatric problems, which cause a lack of capacity to reason, or a diminished executive functioning, require condign punishment so that the offender adopts learned behaviour from the consequences of prohibited conduct.
Nevertheless, as can be seen from the well-known and oft-cited summary of McClellan CJ at CL, above, only Principle 1 relates to a mental problem that is causative or has contributed to the commission of the offence in a material way. The other principles, summarised by his Honour, are applicable, whether or not the mental or psychiatric problem is "causative".
It should also be reiterated that McClellan CJ at CL stressed the circumstance that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. Even a disorder or problem of modest severity may moderate the need for general or specific deterrence or render the offender an inappropriate vehicle for general deterrence and constitute circumstances that would render the custodial sentence significantly more onerous. [10]
At least in part, the applicant relies upon the psychiatric problems being "causative". Without seeking to treat the principles summarised by McClellan CJ at CL in De La Rosa as prescriptive, Principle 1 requires the mental health issues to contribute to the commission of the offence "in a material way".
As already stated, the psychological report expresses the opinion that the degree to which the "cognitive distortions" contributed to the commission of the offence is unknown. There can be no doubt, accepting the psychological report, that the tendencies may have "primed his engagement in the offending behaviour". But the tendencies to which the psychologist is referring is the incapacity to deal with stressors, coupled with his precarious mental state exacerbated by the use of, or overuse of medication and alcohol.
Overwhelmingly, it seems, the opinion expressed by the psychologist is that the applicant's alcohol use, perhaps coupled with the use of Benzodiazepine, compromised his capacity for good planning, problem-solving, and that these were the tendencies that have substantially primed his engagement in the offending behaviour. Not only was it open to the learned sentencing judge to find that the psychological difficulties were not causative, it was, in my view, the correct finding and not a mistake of fact on which the applicant may rely for the purpose of showing error of the kind that would warrant intervention.
The more difficult question turns on whether the learned sentencing judge considered the psychological problems in each of the relevant ways in which her Honour should have. I accept, for present purposes, particularly because the sentencing remarks were given ex tempore, that her Honour took into account his mental health difficulties in considering general deterrence, as part of the sentence to be imposed.
I do not accept the applicant's submission that her Honour's findings were that no weight should be given to that aspect. Rather, her Honour, having considered the mental health issues, determined, in the course of exercising her discretion, that there was still some significant weight that was required to be given to general deterrence.
There can be little doubt that general deterrence remained a factor in the determination of an appropriate sentence for the applicant. It is not clear whether the way her Honour dealt with general deterrence examined the degree to which the applicant was an inappropriate vehicle for general deterrence, but to find that her Honour did not do so would be to examine her Honour's remarks, delivered ex tempore, with an eye to error rather than objectively.
Her Honour does not deal, expressly, with the effect the mental health issues may have had on specific deterrence (Principle 4 of the De La Rosa summary), nor with the effect of the mental health on the conditions of imprisonment. It is necessary, however, to reiterate that sentencing is an intuitive process. [11]
The intuitive or instinctive process of sentencing will often, particularly when performed by an experienced judicial officer, such as the learned sentencing judge, take factors into account in the overall exercise of the discretion, when those factors are not expressly adumbrated. Her Honour was plainly correct in her assessment of the seriousness of the offence and the subjective case of the applicant.
Offences against minors by a significantly older adult are extremely serious and often, if not always, will lead to life-long traumatic consequences on the victim. While I would hesitate to use the word "stern" in terms of the sentences that should be imposed, it is certainly the case that, subject to the exercise of the discretion of the judicial officer, condign punishment for such offences is appropriate. Her Honour plainly had the mental illness issues at the forefront of her consideration. It was a factor mentioned in each category to which her Honour referred. I consider that error on the basis of Ground 1 has not been disclosed.
As to Ground 2, I consider each of the factors upon which the applicant has relied in relation to manifest excess. I make it clear that I do not consider the sentence, overall, to be manifestly excessive. It is certainly within the range available to her Honour, even when one takes account of the 25 per cent reduction. I also accept each of the findings of her Honour and consider the applicant has failed to disclose that the sentence is either unfair or plainly unjust.
The criminal law operates on the fundamental premise that mankind has free will. If conduct is prohibited by the law, then an individual is, subject to certain qualifications, assumed to be capable of obeying the law. The qualifications include circumstances in which free will is suborned or diminished either wholly or partially, such as self-defence, provocation and, necessarily, mental health issues that impact upon the capacity of the individual to control actions or the ability to determine that which is right or wrong.
The mental health problems under which the applicant was suffering at the time of this offending did not, in my view of the psychological report, impact upon his ability to control his conduct, nor affect his ability to understand right from wrong. An understanding of the psychological issues suffered by the applicant as outlined in the psychologist's report leads to the conclusion that one may understand the factors causing the offending, but those factors do not exculpate or diminish the moral culpability associated with the offending.
Because, in my view, error has not been disclosed on the basis of either Ground 1 or Ground 2, I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
WRIGHT J: I agree with Rothman J.

Endnotes

Bugmy v The Queen (2013) 349 CLR 571; [2013] HCA 35.
Remarks on Sentence at pp. 6-7.
House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ).
Ibid; see also Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221 at [443] (Hulme J, with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed).
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ).
Ibid. See also Lin v R [2023] NSWCCA 304 at [44] (Rothman J, with whom Ward P and Davies J agreed).
Aslan v R [2014] NSWCCA 114.
R v Engert (1995) 84 A Crim R 67.
(2011) 244 CLR 120 at 139; [2011] HCA 39 at [54].
De La Rosa, supra, at [178] (McClellan CJ at CL).
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [52]-[54] (McHugh J). 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: 14 June 2024

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