KAB v R

The Proceedings in 2009

1. The applicant was originally charged with a large number of child sexual assault offences. The complainants in each instance were the applicant's step-daughters. The matter proceeded in the Local Court as a committal for trial and, pleas of not guilty having been entered to the indictment at arraignment, a trial date of 28 September 2009 was fixed.
2. The matter came on for trial but did not immediately proceed. On 30 September 2009, on what would have been the third day of the trial had it commenced as listed, the applicant was arraigned on a fresh indictment containing fewer charges. He entered a plea of guilty to each of the ten charges on the fresh indictment.
3. The indictment spanned a period of about nine years. The ten charges were representative of the applicant's conduct over that time.
4. The charges against the applicant together with some brief detail of each, and the sentences imposed upon him by the sentencing judge on 25 November 2009, are as follows. Offence Brief Details Maximum Penalty Sentence Imposed Count 1 In 1998 or 1999 when in bed with both complainants the applicant rubbed his leg against BS's vagina and genital area. Aggravated Indecent Assault Child was aged 11 years 7 years NPP 15 months 9 days; additional term 15 months 9 days. s.61M(1) Crimes Act 1900 Count 2 In 1998 or 1999 whilst in bed with BS the applicant put his hand inside the child's underwear & digitally penetrated her vagina, causing pain Aggravated Sexual Intercourse with Child Between 10 & 16 & Under Authority Child was aged 11 years. 10 years 25 months 15 days s.66C(2) Crimes Act 1900 Count 3 In 1998 or 1999 when in his bedroom with BS, the applicant removed his clothes & exposed his erect penis to the child. He then thrust his penis in and out of the child's mouth for ten minutes. Aggravated Sexual Intercourse with Child Between 10 & 16 & Under Authority The child was aged 11 years. 10 years 25 months 15 days s.66C(2) Crimes Act 1900 Count 4 In 2003 the applicant undressed BS, removed his own clothes, and then had penile-vaginal intercourse with her. He withdrew & ejaculated on the child's stomach. Carnal Knowledge by Step-father of Step-daughter BS was 16 years old. 8 years 2 years, 11 months, 21 days s.73 Crimes Act 1900 Count 5 In 2004 or 2005 the applicant was in bed with BS. He instructed her to turn on her side and, having lowered his underpants, inserted his penis into the child's vagina, to ejaculation. Sexual Intercourse with Person under Special Care BS was 17 years old. 4 years 1 year, 8 months, 12 days s.73(2) Crimes Act 1900 Count 6 Aggravated Indecent Assault In 2000 or 2001 the applicant, who was naked, was in bed with BS. He called EMS to come into the bed. He then put his hand under her clothing and rubbed her breast, at the same time rubbing his penis up & down her back. When it became erect he thrust it between her legs until he ejaculated. EMS was 11. 7 years NPP 2 years, 6 months, 18 days; additional term 2 years, 6 months, 19 days s.61M(1) Crimes Act 1900 Count 7 7 years Aggravated Indecent Assault In 2003 or 2004 the applicant called EMS into his bedroom. He asked her to scratch his stomach, and then moved her hand to his penis and forced her to masturbate him until he ejaculated. EMS was 14. 5 years SNPP NPP 2 years, 6 months, 18 days; additional term 2 years, 6 months, 18 days s.61M(1) Crimes Act 1900 Count 8 Aggravated Sexual Intercourse with Child Between 14 & 16 & Under Authority On an occasion in 2004 the applicant was in bed between BS and EMS. BS asked for permission to go to a party. The applicant replied "if you're a good girl". He then put his hand inside her underwear, rubbed her genitals, and inserted a finger in and out of the child's vagina for 10 - 15 minutes. This left the child in some pain for a number of days. She was 15 years old. 12 years NPP 4 years 3 months, and additional term 4 years 3 months. s.66C(4) Crimes Act 1900 Count 9 Sexual Intercourse with Person under Special Care In 2006 when EMS was 17 the applicant called her into his bedroom & bed. He rubbed his penis against her body and tried to fondle her genitals. When she protested he restrained her with an arm around her head and roughly digitally penetrated her, causing pain. 4 years 1 year, 3 months, 9 days s.73(2) Crimes Act 1900 Count 10 Sexual Intercourse with Person under Special Care In 2006 when EMS was still 17 the applicant called her into bed with he & the child's mother. When the mother left the applicant pushed two fingers into the child's vagina. When she protested he pulled her back towards him & forced his fingers in & out of her vagina. After this he allowed her to go to a funeral he had previously refused to let her attend. 4 years 1 year, 3 months, 9 days s.73(2) Crimes Act 1900

1. The effective sentence was an overall period of 13 years, made up of a non-parole period (NPP) of 8 years and 9 months to date from 15 November 2009, and an additional term of 4 years and 3 months. The sentence expires on 15 November 2022.
2. There was a finding of special circumstances, and the overall non-parole period is approximately 67% of the overall total term. There was a degree of concurrency, as is illustrated by the table prepared by the Crown and annexed at the end of this judgment.
3. The facts were before her Honour as an agreed statement. The applicant married the mother of his victims in May 1996, when BS was 8 and EMS was 6 years old. The applicant moved into the children's family home. He exercised parental authority over them.
4. The children sometimes got into bed with their mother at times when the applicant was also present. He habitually slept naked. The first contact of a sexual nature with the girls was when the applicant took advantage of these occasions to press his naked body up against the children. The sexual touching worsened thereafter, escalating to acts of fellatio and penile-vaginal intercourse, as noted in the table above.
5. When BS and EMS began menstruating, the applicant kept a diary of the relevant dates. Her Honour did not accept the innocent explanation the applicant gave for his possession of these diaries, three of which were found by police.
6. There are five counts relevant to BS which relate to the period in which BS was aged from 11 to 17 years of age. There are also five counts relating to offences against EMS, spanning the period when EMS was also aged between 11 and 17 years of age. The brief details of each count are noted in the table.
7. Late in 2007 the complainants spoke to each other about what the applicant had done to them. They made formal statements to police in October 2008.
8. The applicant was arrested soon after. He was interviewed by investigating police and admitted to acts of both oral and penile-vaginal intercourse with BS, and incidents of digital intercourse and masturbation with EMS.
9. The applicant was 44 years of age when he appeared for sentence. He did not give evidence, but relied upon a psychiatric report from Dr. Olav Nielssen prepared for the purpose of the sentence hearing. The history the applicant gave the doctor included an account of having been sexually assaulted himself as a child, although the applicant told Dr. Nielssen that he did not regard that experience as having any role to play in the commission of the offences. The applicant reported significant use of alcohol since about age 13, and having sought treatment in the past for depression, although without disclosing his offences. The offender had a consistent work history, having been employed as a labourer, prison officer, and council ranger.
10. Dr. Nielssen concluded that the applicant was of normal intelligence, and suffering from chronic low grade depression and alcohol dependence. The doctor recorded the applicant's acknowledgement that his conduct to his step-daughters had been wrong. He expressed remorse for his crimes to Dr. Nielssen.
11. In sentencing the applicant, her Honour referred to the role he played in the lives of his step-daughter, as a father figure, whom the children should have been able to trust. She noted that the offences had occurred over a lengthy period, commencing when the children were too young to understand the wrongness of the applicant's conduct, or to resist it. Her Honour concluded that the applicant had "groomed" each of the girls to habituate them to sexualised behaviour, and thus to accept it. She concluded that there was a degree of planning involved and that he had exploited his authority over his victims to obtain their compliance.
12. Her Honour assessed the seriousness of each offence, concluding that each count other than the first fell well above the mid-range of objective gravity.
13. She was not able to conclude that the offender was truly contrite, given that he had disputed parts of what had been tendered as "agreed facts" and had, during his consultation with Dr. Nielssen, appeared to blame the children for the sexual activity. Given the applicant's lack of insight her Honour could not make any positive finding about the applicant's prospects of rehabilitation.

The Proposed Appeal

1. The applicant advanced six grounds of appeal, although one ground, ground 5, was abandoned at the hearing of the matter. The grounds are: 1. In sentencing the applicant in respect of counts 1 and 6, her Honour erred in concluding that the standard non-parole period applied; 2. her Honour erred in concluding that the applicant was not entitled to any leniency by reason of his prior good character; 3. her Honour erred in concluding that the fact that the applicant had been sexually abused as a minor should be given no weight; 4. her Honour denied the applicant procedural fairness when she concluded that the objective seriousness of count 5 was aggravated by the fact that the applicant exposed the victim to the "high risk of pregnancy"; 5. [abandoned]; and, 6. The sentence in respect of count 1 was manifestly excessive.

Ground 1 - Error in the Application of a Standard Non Parole Period

1. The applicant contends that her Honour erred in applying a standard non-parole period to counts 1 and 6, wrongly considering that the offences attracted a 5 year SNPP. As the Crown conceded, no SNPP applied at the time of the commission of these offences, the SNPP provisions having been introduced after the commission of the offences, from 1 February 2003. Her Honour was thus in error in that regard.
2. The applicant submits that, because of that error, her Honour "overvalued" the appropriate punishment, with the sentences wrongly inflated as a result.
3. The maximum penalty that applied to these offences was one of seven years imprisonment. Her Honour assessed count 1 as "not the most serious example" of an offence of its kind (AB 32); she assessed count 6 as well above the mid-range of objective seriousness (AB 34). The sentences imposed upon the applicant were, Count 1: 2 years, 6 months and 18 days, with a NPP that was half of the head sentence; and Count 6: 5 years and 37 days, with a NPP that was half the head sentence.
4. The sentences themselves are not indicative of "overvaluation" of punishment. That imposed in relation to count 1 was well below the SNPP period of 5 years her Honour mistakenly thought applicable, with a NPP of about 15 months. The sentence imposed for an offence that her Honour had assessed as well above the mid-range of objective seriousness exceeded 5 years by a matter of days, with a NPP of 2 and a half years. Nothing in those figures supports a conclusion that the error as to the applicability of a SNPP was wrongly determinative of the sentences imposed.
5. Additionally, the sentence imposed for count 1 was wholly subsumed in sentences imposed with respect to counts 2 and 3, whilst the sentence imposed for count 6 was wholly subsumed by the sentences imposed for counts 4 and 7. In that sense, the penalties of which the applicant complains were somewhat illusory, since no discrete punishment attached to the crimes reflected by counts 1 and 6.
6. Although error has been established, it did not materially affect the penalties imposed. In my view it could not be said that another, lesser sentence was warranted: s.6(3) Criminal Appeal Act 1912.

Ground 2 - Error in not Extending Leniency for Prior Good Character

1. As her Honour recognised, the applicant was a person of prior good character, in that he had no criminal convictions. She did not, however, extend any leniency to the applicant to recognise that feature of his case. The applicant complains of error in this regard, relying upon the High Court decision of Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267..
2. Ryan was similarly a case involving an offender sentenced for child sexual assault offences. The appellant had formerly been a priest, and there was evidence that, in addition to being a person with no former criminal convictions, he had over many years involved himself in charitable works for the good of the community. Despite that, the sentencing judge extended no leniency at all to Mr. Ryan in recognition of his "character, reputation, positive works, and achievements" (at [18]).
3. The applicant relies upon a passage from the judgment of McHugh J at [25] where it was observed, "If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances."
4. McHugh J gave one of five judgments in Ryan, the others being from Gummow, Kirby, Hayne and Callinan JJ. Although their Honours were generally in agreement about the relevance of evidence of good character, the applicant overstates the effect of the principles involved.
5. In his judgment, McHugh J referred to the relevance of good character in the sentencing context as being capable of suggesting that the offender's crimes were out of character and thus unlikely to be repeated, thereby going to the prospects of rehabilitation (at [29]). Such evidence could also suggest that a "morally good" person was less deserving of punishment than a "morally neutral or bad" person (at [30]).
6. Reading on in the judgment of McHugh J, it is plain that the two sentences extracted and relied upon by the applicant received a degree of qualification. It is clear that his Honour was not intending to lay down an absolute rule that sentencing judges must always ameliorate the penalty to be imposed upon an offender where that offender is a person of good character.
7. The obligation imposed upon sentencing judges is to "take into account" an offender's former good character, but the weight to be given to that feature is a matter for the sentencing judge, whose discretion in that regard is wide. As McHugh J said (at [33]), "Sentencing is not a mathematical process. Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance [footnotes omitted]."
8. Evidence of the applicant's good character was of the absence of any criminal convictions, together with three character references. It did not include, as was the case in Ryan, evidence of good works by the applicant over many years.
9. In determining the sentences to be imposed upon the applicant, her Honour specifically referred to and took into account the fact that the applicant had not previously been convicted of any criminal offences. She then went on to consider the weight to be afforded that feature. Her Honour gave it no ameliorating weight because she considered that the applicant had exploited his character to abuse his two step-daughters repeatedly over a period of many years.
10. Whilst the applicant complains that her Honour was not entitled to rely upon s.21A(5A) of the Crimes (Sentencing Procedure) Act 1999 because not all of the offences before the court were "child sexual offences" as defined by the Act, and because she made no express finding in that regard, it is not certain that her Honour was in fact referring to the operation of that provision, which provides, "In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence."
11. Since she made no reference to the section, it seems likely that her Honour was doing no more than balancing the applicant's good character against the countervailing factors relevant to the exercise of her discretion in determining the weight to be given to character evidence. Those factors included the repeated nature of the offences, the length of time over which the offences had been carried out, the fact that there were two children who had been exploited and abused, and that the commission of the offences represented a grave breach of trust.
12. Having considered those features, her Honour concluded that the absence of criminal convictions was a matter of no significant weight in the circumstances of the case. That was a conclusion available to her in the exercise of the sentencing discretion.
13. The other evidence of good character was the testimonial material. Since her Honour treated this evidence with considerable circumspection, it is useful to provide some detail of it.
14. There were three references for the applicant tendered by him to the sentencing court. [1] The first was from his mother (not the grandmother of the complainants) who, unsurprisingly, regarded her son as a loving and "family-minded" individual of whom she was proud. It is unclear whether the author was aware of the detail of what the applicant had done; she referred only to the applicant as having "confessed to his wrongdoings". Since her Honour had the report of Dr. Nielssen in evidence, which recorded the applicant's denial of some aspects of the agreed facts and his attempt to place blame upon his victims, it was not extraordinary for the sentencing judge to regard this reference as of little or no weight.
15. The second reference, from a short-term employer and friend of seven years shared some of the same difficulties. The author's information about the offences appeared to have been obtained from the applicant's "admissions" to him. How complete those admissions might have been was not established in the evidence. The author of the testimonial otherwise regarded the applicant as a compassionate family man. As the sentencing judge noted, it is hard to reconcile this opinion with the objective reality of the applicant's crimes, diminishing the weight to be given to the document in the circumstances.
16. The final testimonial was from another family member, the husband of an aunt of the applicant. The author of that document referred to the applicant as a trustworthy and capable employee, and a person of integrity. He expressed himself as "blown away" by the charges against the applicant. As with the other testimonials, it is not clear what information the author had as to the charges against the applicant.
17. It was open to the sentencing judge to conclude that evidence of this nature was of very limited weight and, ultimately, that it contributed nothing to a case for clemency in recognition of good character.
18. Her Honour did not fail to take the evidence of good character into account; rather, she considered it carefully, and concluded that it was of insufficient weight as to have any ameliorating impact upon the sentences to be imposed.
19. There is no error in that approach and this intended ground must fail.

Ground 3 - Error in not giving Weight to the Sexual Abuse of the Applicant as a Child

1. As noted above, the applicant told Dr. Nielssen that he had himself been sexually abused as a child over a period of years, by an uncle. The abuse was said to have included anal penetration. No complaint had ever been made to police. The applicant gave no evidence before her Honour, and so the only evidence before the sentencing judge was the hearsay account contained in Dr. Nielssen's report.
2. Her Honour referred to the issue in her judgment, and noted the potential relevance of the childhood abuse of an offender. She concluded, however, that in the circumstances of the case before her, that the particular feature of the case could have no mitigating effect on sentence. The applicant contends that such a conclusion was simply not open to her Honour, submitting that "there was no material before the court which would have diminished the importance of that earlier abuse".
3. That submission presupposes that the issue of childhood abuse was in fact of "importance" in the first place. There is no reason to conclude that it was.
4. For a history of childhood sexual abuse to be taken into account as a mitigating feature of an offender's subjective case, the fact of the abuse must be established on the balance of probabilities, as must a conclusion that the history of abuse was a contributory factor in the offender's own offending conduct: R v AGR (Court of Criminal Appeal, 24 July 1998, unreported).
5. As to the first criteria, the applicant gave no evidence of the abuse he claimed to have suffered, and his account of it was not able to be tested in cross-examination. That alone meant that her Honour was entitled to treat the claims with some circumspection: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58] - [59].
6. Even if the offender's self report to Dr. Nielssen was sufficient to establish that abuse had occurred, there was nothing before the court to establish its causal connection to the commission of the index offences. Whilst Dr. Nielssen referred to studies suggesting a link between childhood abuse and adult offending, he did not positively conclude that such a link existed in the applicant's case. Indeed, he recorded without comment the applicant's statement that he had not believed there to be any link between the abuse he suffered and that which he perpetrated. The applicant described the abuse he experienced as violent and threatening, whilst characterising what he had himself done as taking the affection of his step-daughters for him "the wrong way", with "one thing leading to another" (AB 53). There is no obvious link to be drawn and, without specific evidence on the point, her Honour was entitled to treat the evidence as she did.
7. The applicant complains that her Honour should have considered the issue of childhood abuse when considering his prospects of rehabilitation but, in circumstances where the evidence did not establish any causal connection between abuse and offending, it is difficult to see why that should be so. If the applicant's childhood experiences had no relevance to his adult offending, even his determination to seek counselling or treatment relevant to his experiences (something of which there was no evidence) could have had no impact on the prospects of rehabilitation.
8. The weight to be given to the evidence relating to childhood sexual abuse was very much a matter for her Honour. The fact that she accorded it little or no weight is not demonstrative of error, and the applicant has failed to show that there was error in this regard.

Ground 4 - Asserted Denial of Procedural Fairness

1. The sentencing judge concluded that the conduct reflected by count 5 was made more serious because it placed the complainant at risk of pregnancy. Her conclusion in that regard was based upon material in the agreed facts referring to the offence as one involving ejaculation into the vagina of a post-pubescent female.
2. The applicant complains that, in making a finding of that nature, which was adverse to the applicant, and which the Crown had not submitted should be made, her Honour denied the applicant procedural fairness, in that she did not raise the aggravating feature of the risk of the pregnancy with the applicant and give him an opportunity to comment upon it.
3. In support of this ground the applicant seeks to adduce evidence which was not before her Honour of a vasectomy he says he underwent prior to the commission of count 5. Since this is information which was known to the applicant at the time of his sentencing hearing, and which he chose not to place before the sentencing court by way of evidence, there is a question as to whether he should now be permitted to rely upon it: R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417.
4. Whilst there is an issue as to the admissibility of this material in these proceedings, the applicant's complaint is of a denial of procedural fairness, and so it is unnecessary to determine whether the evidence should be admitted. To determine this ground, the evidence of the vasectomy the applicant claims to have undergone is largely immaterial.
5. The evidence upon which the sentencing judge concluded that the applicant had exposed BS to a high risk of pregnancy was contained within the agreed facts. The applicant consented to the tender of the statement of facts, which referred to the applicant as having ejaculated into the vagina of BS during the commission of count 5. BS was then aged 17 years. Without any information from any party as to any form of birth control being of relevance, the conclusion her Honour drew was clearly available on the evidence placed before the Court with the applicant's consent.
6. Two matters are of relevance.
7. Firstly, the risk of pregnancy is a risk which can be said to be ordinarily present in every case where semen is deposited into the vagina of a post-pubescent woman. There should be no surprise in the notion that a sentencing court might have regard to that risk when assessing the objective gravity of an offence, or considering whether any particular feature of its commission aggravated its seriousness.
8. Of all of those present in court during the sentence proceedings, the applicant was in the best position to know that the risk of pregnancy which, on the evidence, appeared to have been a real one, was largely absent by virtue of the surgical procedure he knew he had undergone.
9. Whether or not the Crown had made submissions asking the Court to draw a conclusion about the risk of pregnancy is not determinative of the question of procedural unfairness. The Crown relied upon factual material tendered to the court which in itself supported an inference that there was a risk of pregnancy in relation to count 5. That there was in fact little or no such risk was something known to the applicant. It would have been a simple matter for the applicant to have called evidence about the vasectomy he had undergone. Of course, evidence that a vasectomy had been undergone would not necessarily have wholly eliminated the risk of pregnancy - that would have depended on the efficacy of the procedure in the applicant's case.
10. Secondly, the circumstances in which sentence was imposed should be borne firmly in mind. The sentencing judge was here sitting at a country circuit sittings of the District Court. Such sittings are characterised by a large number of matters which have to be dealt with in a limited amount of time. Her Honour was probably responsible for hearing not just the applicant's case, but trials, other sentences, and a wide variety of short matters. It is highly likely, as is usual during circuit sittings in that jurisdiction, that her Honour took the evidence and submissions of the parties knowing nothing about the case prior to its commencement, and then gave sentence at some time (often after 4pm) which would cause minimal disruption to the hearing of trial matters listed during the sittings.
11. The conclusion drawn by her Honour as to there being a risk of pregnancy was an inference available on the evidence, even though the basis on which her Honour concluded that the conduct put the complainant at a "high" risk of pregnancy is not apparent from the material before her Honour.
12. The requirement of procedural fairness has been described in this way in this Court, although in a very different context. "[…] fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to take a different view."
13. This passage, from Parker v DPP (1992) 28 NSWLR 282 at 296 is the decision that gave rise to the now well-known "Parker Warning", that being a warning that an appellate court must give to an appellant where the court is considering increasing a sentence, rather than upholding the appeal or dismissing it.
14. The principle outlined in Parker and the requirement there imposed upon judges hearing appeal matters is of considerably lesser significance in the context of sentence proceedings at first instance.
15. In a recent decision from this Court, Toole v R; Toole v R [2014] NSWCCA 318, a requirement of giving notice to the parties in sentence proceedings of conclusions of significance was regarded as overly burdensome and impractical. "The circumstances in both cases are radically different from those in sentencing proceedings in the District Court. Not uncommonly a judge will have a number of cases before him, hopefully some or all of which will be disposed of during the day. The circumstances of each may be simple or complex. The Crown will often hand up written submissions which may deal with a few or, on the other hand, a myriad of issues and which may or may not contain concessions. Generally defence counsel, but not the judge, will have had those submissions in advance. The Crown may make concessions in the course of oral submissions. For a judge, who may wish to reserve because of the difficulties of a particular case, or so that he or she can deal with other cases in their list, in those circumstances to be obliged to read or listen to those submissions with a fine tooth comb, so that he or she can comprehensively identify any concessions and bring any with which he or she does or may disagree, to the attention of defence counsel, is to place a burden on the judge that the system cannot, and in my view should not, have to bear. The judge is there to read or listen to what is put before him or her and to decide, in light of the relevant statutory provisions and other law, the sentence appropriate to impose. The representatives of the parties have the obligation to raise matters that argue in favour of their respective clients, they can fairly be assumed to know them (or they should not be practising in the jurisdiction), and in sentencing proceedings I do not believe "fair procedure requires ... that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties or their representatives". I do accept that if a judge gives a positive indication that he or she is disposed to adopt a particular argument or approach, and a party or legal representative in reliance on that indication, also adopts a particular course, then the judge will, because of his or her or own conduct, come under an obligation to warn of the possibility of any change of view. To maintain silence when the judge's view has changed is to mislead and is in character no different from representations that are or become misleading in other fields of activity:" Toole v R; Toole v R [2014] NSWCCA 318 at [43] to [45].
16. The pressures placed on sentencing judges at first instance by a high workload could never prevent this Court from intervening where there has been injustice to a party; such is not the case here.
17. Here, her Honour gave no indication that she subsequently failed to follow that the feature of ejaculation into the vagina was of no significance in determining the gravity of count 5 crime. Nor did she ignore a concession to that effect made by the Crown, since the Crown made no reference to the risk of pregnancy or otherwise in its submissions. Her Honour simply assessed the evidence placed before her by the parties, and sentenced the applicant accordingly. There was no obligation on her Honour to draw to the attention of the parties what would ordinarily be appreciated as an obvious risk of penile/vaginal intercourse.
18. Even if the evidence of the vasectomy the applicant had in 2004 was before the sentencing court, it is unlikely to have made any material difference to the sentence. Whilst ejaculate containing semen carries a risk of pregnancy, thus arguably increasing the seriousness of a particular offence, the depositing of ejaculate which does not contain semen or which cannot result in pregnancy is still a serious matter which is capable of increasing the gravity of an offence. That much is plain from authorities which deal with fellatio involving ejaculation into the victim's mouth: R v MS [2005] NSWCCA 322 at [16]; R v Oloitoa [2007] NSWCCA 177. Even without the risk of pregnancy ejaculation into a victim's body is an act which adds to the degradation of the victim, and can heighten the overall seriousness of the crime.
19. In my view, even if it might be said that the inference drawn as to a "high" risk of pregnancy was not open or should have been raised with the parties, no lesser sentence is warranted in law, or could have adequately reflected the gravity of count 5.

Ground 6 - the sentence imposed for count 1 was manifestly excessive.

1. To some extent, the matters referred to above in relation to the first proposed ground of appeal are relevant to this ground. The applicant complains that the sentence imposed - a NPP of 15 months and 9 days with an additional term of the same length - is manifestly excessive.
2. As has been often stated by this Court, to establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was unreasonable or plainly unjust: Markarian v R [2005] HCA 25; 228 CLR 357 at [25]. This has to be established in a context where there is no single correct sentence and in circumstances where sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and the proper application of principle. This Court may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion differently: Vuni v R [2006] NSWCCA 171 at [33].
3. Whilst, as her Honour concluded, count 1 was not the most serious of aggravated indecent assaults, it remained a serious offence of its type involving rubbing the genitals of an 11 year old girl, to whom the applicant was in a position of trust, with the contact involving skin to skin contact. The incident was not isolated, but occurred in the context of repeated acts of a similar nature, thus denying the applicant the leniency that could have attached to a single event.
4. It is also of relevance to note that the sentence that was imposed was wholly subsumed by sentences for other offences, in circumstances where it could not necessarily be concluded that the sentences imposed for the other counts was capable of comprehending the criminality involved in count 1 (Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41).
5. A sentence of the order of that imposed could not be said to be unreasonable or plainly unjust in the circumstances that pertained here.
6. This ground must also fail.

The Extension of Time for Appeal and the Question of Leave

1. The time within which an appeal should have been brought expired on 24 February 2010. The Notice of Intention to Appeal was not filed until 21 November 2013.
2. The application for an extension of time in which to appeal, and leave to appeal, is supported by an affidavit from the applicant of 31 October 2013. He asserts that he was not advised about an appeal by his legal representatives after sentence was imposed upon him on 25 November 2009. This assertion is contradicted by the affidavit of the applicant's then solicitor, who both spoke to the applicant about the prospect of an appeal, and wrote to him on the subject on 30 November 2009. From that evidence it is apparent that the applicant accepted the contemporaneous advice of his lawyers that any appeal was unlikely to be successful.
3. The applicant asserted in his affidavit that he did not pursue an appeal due to impecuniosity and a belief that he would not receive legal aid. As a consequence he did nothing about pursuing an appeal until 4 March 2013, when he filed an application for legal aid, which was subsequently granted.
4. There was then further delay whilst those instructed considered the matter and prepared grounds of appeal.
5. The Crown objects to the extension of time, and submits that leave to appeal should not be granted.
6. The power of the Court to extend the time in which to seek leave to appeal is a discretionary one, and it is unfettered: Arja v R [2010] NSWCCA 190, per Basten JA at [4].
7. In relation to an application for leave to appeal out of time, this Court said in Edwards v R [2009] NSWCCA 199, at [8] "The Court has a discretion with respect to extension of time under s.10(1)(b) Criminal Appeal Act 1912. In exercising that discretion, the Court has regard to the prospects of success on the application for leave to appeal itself: R v Young [1999] NSWCCA 275 at [30] ff. The Court will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed, especially if the delay is considerable: R v Beattie [2000] NSWCCA 201 at [17]."
8. The delay here has been inordinate, and no adequate explanation for the failure to file a Notice of Intention or Notice of Application within time has been advanced. Whilst the affidavit of the applicant refers (apparently wrongly) to the lack of legal advice available to him at the time of sentencing, and to his subsequent inability to fund an appeal, that does not provide any satisfactory explanation for the extensive delay. The applicant, whilst not a lawyer, is an individual of normal intelligence with a consistent work history. There is no reason to conclude that he was incapable of taking steps himself to file a Notice of Intention to appeal.
9. In R v Lawrence (1980) 1 NSWLR 122 at 148 it was said, "On many occasions, it has been observed by Courts of Criminal Appeal that intending appellants should not assume that delays in filling notices of appeal or applications for leave to appeal, and especially considerable delays, will automatically be excused: see, for example, R v Sunderland (1927) 28 SR (NSW) 26; 44 WN 197; R v Tyrrell (Court of Criminal Appeal, 31st May, 1974, unreported) and R v Waterhouse (Court of Criminal Appeal, 20th September, 1979, unreported). This Court takes the opportunity to emphasize again that it should not be assumed that a failure to give notice of appeal, or notice of intention to appeal, or to furnish proper grounds of appeal within time will be excused. Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed."
10. No exceptional circumstances have been advanced such that, notwithstanding the delay, the appeal should be permitted to proceed. Those factors tell against a grant of leave.
11. The other consideration for the Court is the question of merit. For the reasons referred to when considering the grounds advanced, I do not consider that the applicant has demonstrated that his proposed appeal has merit.
12. The community has a strong interest in criminal matters being finalised within acceptable timeframes. That is particularly so in matters involving an offence of personal violence (as a sexual assault inherently is); and even more so where the offences were committed against children. In the absence of some compelling explanation for the failure of the applicant to prosecute his appeal within a reasonable period, and having regard to its unmeritorious nature I would not grant an extension of time to the applicant to pursue his appeal.
13. Even had an extension of time been granted, I would not have granted leave to appeal.

Orders

1. The orders I propose are as follows: 1. The application for an extension of time in which to appeal is refused.

Endnote

1. It is noted that the transcript refers to four testimonials, but only three were the subject of tender. It may be that the fourth document, as opposed to testimonial, erroneously included in the count was the psychiatric report. 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: 08 April 2015