Kilby v R

Judgment

1. LEEMING JA: I agree with Davies J and Wilson J that while there should be a grant of leave, this sentence appeal should be dismissed. The judgment of Davies J sets out the circumstances of the offending and the single ground of appeal on which the applicant relies, and the reasons of Wilson J, with which I agree, explain why that ground is not made out.
2. DAVIES J: The applicant was found guilty after a trial by jury of the following offences: Counts 1, 4, 5 and 6: Indecent assault of a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW) (as that section provided between 1 January 2009 and 30 November 2018). The maximum penalty for this offence was 10 years' imprisonment with a standard non-parole period of 8 years. Count 2: Sexual intercourse with a person aged between 10 and 14 years contrary to s 66C(1) of the Crimes Act. The maximum penalty for this offence is 16 years' imprisonment and there is no standard non-parole period. Count 3: Commit an act of indecency with a person aged under 16 years contrary to s 61N of the Crimes Act (as that section provided until its repeal from 30 November 2018). The maximum penalty for this offence was two years' imprisonment and there was no standard non-parole period.
3. The applicant was sentenced by Judge Turnbull SC in the District Court on 20 August 2021 to an aggregate sentence in respect of counts 2-6 of imprisonment for 9 years commencing 1 August 2021 and expiring 31 July 2030 with a non-parole period of 5 years and 5 months expiring 31 December 2026. The indicative sentences were as follows: Count 2: 7 years. Count 3: 9 months. Count 4: 12 months with a non-parole period of 7 months. Count 5: 2 years and 4 months with a non-parole period of 1 year and 5 months. Count 6: 2 years with a non-parole period of 1 year and 2 months.
4. In respect of count 1, the applicant was sentenced to a community correction order for a period of 2 years from 20 August 2021 and expiring 19 August 2023.
5. The applicant now seeks leave to appeal on one ground only as follows: The sentencing judge erred by breaching the De Simoni principle when sentencing for the count 2 and 3 offences by taking into account as an aggravating circumstance that the applicant had abused a position of authority in relation to the victim.
6. The applicant needs an extension of time to appeal. The delay in filing the appeal after the expiry of the Notice of Intention to Appeal is adequately explained, and the Crown did not oppose the extension of time. Time should be extended.

The offending

1. By reason of the limited nature of the appeal, the offending may be briefly summarised in this way. The overall offending involved two complainants, being VH (counts 1-3) and TP (counts 4-6). The offending in relation to VH took place between 30 December 2007 and 31 December 2010. The offending involving TP took place between 31 December 2016 and 9 August 2017.
2. In mid-2008, VH moved to a house in Currawong Street, Bathurst next door to where the applicant lived. VH was nine years of age and was in Year 4 at West Bathurst Public School. VH became friends with one of the applicant's daughters.
3. Count 1 occurred when the applicant's daughter, CH, invited VH to her place to swim in a swimming pool. After playing in the pool for some time VH and CH went into the kitchen to get something to eat. VH was wearing a one piece swimming suit. The applicant was in the kitchen.
4. The applicant first grabbed CH from behind and started tickling her. He then did the same thing to VH. He moved his hands down to VH's vagina and touched her on top of her vagina on the outside of her swimsuit. He also had his left arm across her chest holding her breasts. CH was in the kitchen behind the applicant, and the applicant kept turning VH away from CH's view. VH said, "Stop", and the applicant let her go.
5. When the applicant went away, VH went back into the house and found the applicant's partner, Debbie Hodges, and said to Debbie, "He touched me down there and I didn't like it." Debbie replied, "I don't think he did that. He's not that type of person. I'll talk to him." A short while later, the applicant and Debbie came out, and the applicant apologised to VH.
6. Counts 2 and 3 occurred when VH had a sleepover at CH's house. They slept in CH's bedroom, with CH sleeping in her single bed and VH sleeping on the floor without any blankets.
7. VH fell asleep and woke up to find the applicant touching her buttocks with his hands over the top of her clothes. The applicant rolled VH over so that she was lying on her back. He then put his hand into the leg of her shorts and put two fingers inside her vagina. VH felt pain in and around her vagina. The applicant proceeded to move his fingers up and down, and in and out of her vagina. As he did so, he had his other hand on his penis, masturbating it.
8. Whilst the applicant was penetrating her vagina and masturbating himself, he stopped from time to time to check down the hallway to make sure no one else was awake. He stopped and did that about five times. Each time he came back into the room and put his fingers back into her vagina. He eventually stopped and left the room.
9. VH lay on the floor and cried herself to sleep. In the morning she woke up early and she saw that there was blood all through her shorts.
10. The other complainant, TP, was the daughter of Debbie Hodges' sister. They moved into the house where VH had previously lived, and lived there from about 2015 to 2017.
11. Count 4 occurred when TP was staying with her cousin CH. On the night concerned she felt sick and laid down in the applicant's bedroom. CH and another cousin, ZH, were also asleep in that room. During the night ZH left the room and went out to the lounge room to sleep with her mother Debbie. The applicant then came into the bedroom where TP was sleeping with CH.
12. TP woke up to find the applicant leaning over the bed with his hand under her shirt. His hand moved up and touched her on the left breast on top of her bra. When the applicant saw TP was awake he removed his hand and left the room.
13. A few weeks later, TP was again sleeping over at the applicant's house. TP was sleeping on a mattress on the floor and fell asleep. The applicant got up from where he was asleep and joined TP on the mattress. He moved behind her and placed his right hand around her waist and put his hand on her vagina on the outside of her clothing. TP was unsure how long it went on for, but she started to shake and cry, and she then got up and went next door to her own house.
14. A few months later, TP went to the applicant's house looking for a jumper she had lost. TP asked the applicant about her jumper and he said it was in the lounge room. She went into the loungeroom but could not find it. As she went to leave, the applicant came over and put his hands around her waist on the outside of her jumper. He said: "Can I start doing this?" and said also, "You're not allowed to tell." TP said, "No" and pushed his hands away. The applicant grabbed TP again and started putting his right hand up her shirt underneath her jumper. He touched her stomach and she moved quickly away and went back to her own house.

Remarks on sentence

1. When assessing the objective seriousness, the sentencing judge said: Count 2 was committed in the home. I accept that the complainant was under the authority of the offender. In my view it is a very serious act. … The facts of the case temper in some respects the position of authority, but it is an aggravating feature in relation to each of the complainants in my view, and was present at least in the expectations of the complainants as a consequence of the extended family, and the family interactions, and bearing in mind the offender's apparent family focus, and the regard in which he was held by other members of the family. The deference being undoubted in the minds of the complainants towards him, the expectation would have been that he was there in a position of authority. (emphasis added)

Submissions

1. The applicant submitted that the sentencing judge fell into De Simoni error (The Queen v De Simoni (1981) 147 CLR 383 at 389) in his consideration of aggravating circumstances because his Honour found that the applicant had abused a position of authority when committing the offences. This was because, at the relevant time, s 66C(1) (with which the applicant was charged in relation to count 2) carried a maximum penalty of 16 years' imprisonment. However, the aggravated form of the offence, contrary to s 66C(2) carried 20 years' imprisonment. A circumstance of aggravation was the victim being under the authority of the offender: s 66C(5)(d).
2. The applicant submitted that to find the offence was aggravated by such a factor was to sentence the applicant for an offence with a higher maximum penalty than the offence in respect of which he had been convicted.
3. Similarly, in relation to count 3, the offence against s 61N carried a maximum penalty of two years' imprisonment, whereas the aggravated form of the offence, contrary to s 61O, carried five years' imprisonment. The victim being under the authority of the offender was a circumstance elevating the basic offence to an aggravated offence pursuant to s 61O(3)(c).
4. The applicant submitted that the sentencing judge's words, "aggravating feature", is a specific phrase used pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA") or pursuant to common law principles.
5. The Crown submitted, at the sentencing hearing, the Crown had not submitted that there were any applicable statutory aggravating factors. In defence written submissions at the sentencing hearing, a number of statutory aggravating factors were identified as being relevant, but those submissions said that only two of those were capable of being found, namely (a) the offending occurred in the home of the applicant and his family (s 21A(2)(eb) of the CSPA), but that its aggravating effect was likely to be negligible, and (b) that the applicant abused a position of trust (s 21A(2)(k)), but that any such finding would be tempered by a finding that the offending was opportunistic.
6. The Crown submitted in this Court that the sentencing judge dealt with four matters which were potentially aggravating factors under s 21A(2), being paragraphs (d) previous convictions, (ea) in the presence of a child, (eb) in a home, and (k) abuse of position of trust or authority. The Crown submitted, however, that only two were explicitly referred to as potentially being an aggravating feature under s 21A(2). They were paragraph (ea) which was not enlivened, and paragraph (eb) which was found to exist.
7. The Crown submitted that the other matters (the applicant's criminal history and the issue of authority) were taken into account in other ways. The Crown submitted that when the sentencing judge found the issue of authority was an aggravating factor by reason of the applicant's position, the expression was used in the context of the sentencing judge assessing the facts relevant to the objective seriousness of the offending. It was not a finding pursuant to s 21A (2)(k). Reliance was placed on what was said in Jadron v R [2015] NSWCCA 217; (2015) 253 A Crim R 450; Rainbow v R [2018] NSWCCA 42 and Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504.

The sentence proceedings

1. The Crown submissions to the sentencing judge did not assert any matters of aggravation for counts 2 and 3. Rather, the Crown set out a number of matters said to be relevant to the seriousness of those offences. These included the age difference between VH and the applicant, the duration of the sexual intercourse, the pain and bleeding cause to VH, and the terror VH would have experienced from the applicant's masturbation.
2. The submissions on behalf of the applicant to the sentencing judge identified a number of statutory aggravating factors which might have been relevant, but it was submitted that most would not be found. In relation to s 21(2)(k), the submissions said: For counts 2 - 5, the victims were staying at the home of the offender. The Court would need to be satisfied beyond reasonable doubt that in those circumstances, the applicant used any relevant position of trust in a calculated way: Paul Campbell v R [2018] NSWCCA 42 at [58]. Here, it is submitted the offending was opportunistic and there is no evidence of planning. There are authorities where a breach of trust has been established where a child victim is staying at the house of an offender who is responsible for their care: Rainbow v R [2018] NSWCCA 42. However, any such finding must be tempered by the facts of the case which suggest that the offending was opportunistic. There must be a finding by the court that the offending arose from an abuse of some responsibility or relationship which transcends the usual duty of care between persons in the community in their everyday contact or social dealings: Suleman v R [2009] NSWCCA 70 at [23]. Here, it is submitted that there is insufficient evidence to establish this fact beyond a reasonable doubt, beyond the bare inference that an adult who resides in a home bears responsibility for children who are present.
3. It may be observed that this submission focused only on the consideration of a breach of trust in s 21A(2)(k).
4. During the sentence proceedings the following exchanges occurred between his Honour and counsel for the applicant: BROADBENT: … In respect of count 2 s 66C offence, I do note I have made some submissions on the question of s 21A(2)(k). HIS HONOUR: I would like some assistance with those submissions. Yes, go on. BROADBENT: By way of a simple preliminary matter, under s 66C because the offence charged is pursuant to subs (1) there is an aggravated form of the offence under (2). I have not made reference to the De Simoni issue which arises in that particular instance but that is something which, as I say, is a preliminary matter that ought to be brought to bear in considering the question of whether s 21A(2)(k) is enlivened in the 66C charge. In my submission it cannot be. HIS HONOUR: Just let me catch up there. I have to say, I mean, he was in a position of authority, wasn't he? I mean, as a matter of practicality. I'm not saying it's as a matter of legality. To be quite frank, Mr Broadbent and Mr Crown, these 21A factors so often are inevitably part of any instinctive synthesis and under 21A I can find them present and not take them into account in terms of 21A but I would be remiss in my duty if I didn't recognise that kids playing in a swimming pool are in a context where, on this day, this man was basically looking after them. BROADBENT: Yes. The defence concedes that the location where these matters took place, being the home of the offender, is one where, as the adult in charge, that is a matter that your Honour would invariably take into account. HIS HONOUR: You've got the authority of Rainbow (?) [sic] there. BROADBENT: Yes, your Honour. HIS HONOUR: That seems to me to deal with the point, doesn't it? BROADBENT: It does. The difference in Rainbow was that in that particular case there was - and as I have set out there, it is certainly open to your Honour to make that particular finding. As I recall the-- HIS HONOUR: I think the jury made that finding. BROADBENT: Yes. HIS HONOUR: Whether it has got implications for the sentence is one thing, Mr Broadbent, of course I understand that, but, I mean, that was the narrative account, that was the story that was told and that was the one that was accepted. BROADBENT: Yes, your Honour. The only basis upon which I would seek to distinguish Rainbow, as I recall it, there was an issue of particular mental incapacity of the victim in that case. It is open for your Honour to make such a finding. The submission that I make is that in order to enliven the specific aggravating factor under the legislation and, indeed, all of these matters, as 21 A(5) makes abundantly clear, are matters where even if your Honour does make the finding it does not necessarily aggravate or mitigate a particular matter, however, it is a matter that falls within the instinctive synthesis, your Honour, the general mix. (emphasis added)
5. The Crown did not make any submissions on the point.

Consideration

1. In Burr v R [2020] NSWCCA 282, the victim was the daughter, aged 14 and 15 at the time of the offending, of a woman who was in a relationship with the offender. The offender pleaded guilty to an offence under s 66EA(1) of the Crimes Act constituted by a number of offences contrary to s 66C(3) of the Crimes Act. The offending took place in the offender's home.
2. The sentencing judge said at [76]: … I am mindful of the element of the offences. I am particularly mindful of the fact that and I find it as a fact that he was indeed in a position of authority. I appreciate, again, the age difference between the two. Something in the order of more than 27 years older at the time. He did take advantage of the familiar relationship and his age in order to have access to the victim and commit to these offences as submitted by the Crown.
3. The offender's submissions about that passage were recorded by Johnson J as follows: [110] Mr Funnell, counsel for the Applicant, referred to the Crown written submission in the District Court on the question whether the Applicant was in a position of authority. It was submitted that the finding of the sentencing Judge that the Applicant was in a position of authority (ROS27 at [76] above) involved error as this constituted a finding that the aggravated form of ingredient offence under s 66C(4) Crimes Act 1900 had been committed with this finding being, in turn, an infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. [111] Although the sentencing Judge did not refer to s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999, it was submitted that the sentencing Judge had in fact made a finding that the Applicant had abused a position of authority in relation to the victim with this being contrary to the Crown submission made at the sentencing hearing. [112] Counsel for the Applicant submitted that the sentencing Judge had in fact made a finding which treated the ingredient offences as being s.66C(4) offences for which the maximum penalty (if prosecuted separately) was imprisonment for 12 years, with this approach breaching the principle in The Queen v De Simoni.
4. The Crown had submitted to the sentencing judge in that case that the offender had been in a domestic relationship with the victim's mother, that they resided in the same house, and that the offender was 27 years older than the victim. The offender treated her like a daughter, and there was a power imbalance between them.
5. Justice Johnson said of the De Simoni submission (Leeming JA and Rothman J agreeing): [122] The sentencing Judge referred to what were uncontested features of the factual circumstances of the s.66EA offence which concerned the relationship between the Applicant and the victim, the context in which the incidents which constituted the offence took place, the power imbalance between them and other features which the Crown had pointed to as involving serious features of the offence. [123] His Honour's finding in ex tempore sentencing remarks was based upon acceptance of the Crown submission and nothing more. It ought be seen as his Honour referring to features of the offending conduct which could be described, in ordinary parlance, as involving a position of authority by the Applicant with respect to the victim: Rainbow v R at [31]. This phrase must be read in the broader context of his Honour's findings. [124] I am not persuaded that the sentencing Judge, contrary to the Crown submission, made a finding of the presence of an aggravating factor under s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 in this case. Nor am I satisfied that his Honour has breached the principle in The Queen v De Simoni.
6. In Cordeiro v R [2019] NSWCCA 308, the complainant was a casual employee of the offender. She worked as a hostess on his boat. He operated charter cruises. At the conclusion of one such cruise, he provided her with alcohol, she fell asleep, and he had sexual intercourse with her without her consent.
7. In sentencing the offender, the sentencing judge found that the offence fell below the mid-range of objective seriousness, although not at the bottom or lowest point. In reaching that conclusion, her Honour made a number of factual findings, including that the applicant was in a position of authority in relation to the complainant at the time of the offence and that the applicant breached the trust the complainant placed in him. Her Honour also found that, on the evening of the sexual assault, the applicant had made sexual advances towards the complainant, all of which she rebuffed. Her Honour found that when he committed the offence, the applicant knew the complainant was not interested in sexual contact with him. Her Honour accepted that the offence was spontaneous, but found that the applicant made the decision to assault the complainant after seeing that she was asleep. Her Honour concluded that the applicant's conduct was predatory.
8. The sentencing judge said: The offender was [the complainant's] direct boss and was considerably older than she was. Although [the complainant] was technically off duty at the time of the offence, at the time of the offence the offender nevertheless held the status of being her boss, and to a limited extent he was in a position of authority, and [the complainant] was entitled to trust him, something he encouraged by statements including, 'I won't let anything happen to you'. I make clear however that to the extent there is a degree of overlap between a breach of trust and a breach of a position of authority, I have taken care not to double count."
9. The offender submitted that the finding that he was in a position of authority breached the De Simoni principle. That was because the applicant was convicted of an offence contrary to s 61I, not the more serious offence of aggravated sexual intercourse without consent contrary to s 61J, where a circumstance of aggravation is that the victim is "under the authority" of the offender.
10. Justice Harrison (Simpson AJA and Johnson J agreeing) said at [135]: The problem with the applicant's submission is that it assumes that the s 21A(2)(k) aggravating factor of "abusing a position of authority" and the aggravated sexual assault offence, where the victim is "under the authority" of the offender, capture the same set of factual circumstances. In my opinion, the assumption is incorrect. The aggravating factor directs attention to whether the offender was in a position of authority over the victim; the aggravated offence, on the other hand, directs attention to whether the victim is under the authority of the offender. These concepts are factually distinct. Her Honour did not find that the complainant was under the authority of the applicant. I would reject this sub-ground.
11. In my opinion, the position is no different in the present case. Whilst the sections of the Crimes Act are not the same, the circumstance of aggravation (being "under the authority of") is identical. Furthermore, as in Burr, the sentencing judge made no mention of s 21A(2)(k), and counsel for the applicant had accepted that the sentencing judge could have regard to the issue of authority as part of the instinctive synthesis, and that a finding about the matter did not necessarily aggravate it by virtue of s 21A(2)(k).
12. The sentencing judge's reference was to an "aggravating feature". The terminology in s 21A is to aggravating and mitigating factors. It cannot be easily inferred that his Honour's reference to an aggravating feature was a reference to matters in s 21A(2) when he made no reference to that section except in relation to the matters occurring in a home, a matter his Honour described as an aggravating factor. Determination of the ground of appeal should not turn on fine differences in language, but the applicant's submission that his Honour's use of the term "aggravating feature" was a specific phrase used to pick up matters in s 21A(2) should be rejected.
13. In my opinion, the ground of appeal should not be upheld.

Conclusion

1. I propose the following orders: 1. Extend time to 8 June 2023 for filing the Notice of Appeal. 2. Grant leave to appeal. 3. Dismiss the appeal.
2. WILSON J: I have read the judgment of Davies J in draft and agree with the orders his Honour proposes.
3. At [32] above, Davies J has extracted a portion of the transcript of the sentence hearing before Turnbull SC DCJ held on 5 August 2021. As counsel who appeared for the applicant at the sentence hearing on that date sensibly recognised in the exchange with the sentencing judge, a factual feature of an offence can be treated by a sentencing court as heightening the overall criminality of a crime without constituting, or being treated as, either proof of an element of a more serious offence that carries a greater penalty, or a feature of statutory aggravation as contemplated by s 21A(2) of the CSPA.
4. The sentencing judge well understood the difference between an offence of sexual intercourse with a child between 10 and 14 years contrary to (the then) s 66C(1) of the Crimes Act, for which sentence was imposed, and one contrary to s 66C(2), the aggravated form of the basic offence containing an additional element, which was not charged against the applicant. Section 66C(2) as it was at the material time required proof of an additional element, being the existence of a "circumstance of aggravation", as defined by s 66C(5). One of the available circumstances of aggravation listed in s 66C(5) was that the victim was "under the authority" of the applicant. It is clear from the exchange set out by Davies J at [32], and from the remarks of the sentencing judge that, whilst his Honour was conscious of the fact that the applicant was "looking after" the "kids playing in a swimming pool", he was alive to the need for caution in approaching that factual feature, so that it was not treated as a feature that made out the more serious form of the offence pursuant to s 66C(2), or as establishing the feature of statutory aggravation provided by s 61A(2)(k) of the Crimes (Sentencing Procedure) Act, that "the offender abused a position of trust or authority in relation to the victim".
5. The same conclusion must apply with respect to the offence contrary to s 61N of the Crimes Act, for which sentence was imposed by his Honour. The sentencing judge was aware of the difference between the offence of committing an act of indecency towards a person under 16 years contrary to s 61N, and the more serious aggravated form of the basic offence contrary to s 61O, which contained an additional element provided by s 61O(3)(b) of "under the authority of the alleged offender", and which was not before the court.
6. His Honour's reference in his remarks on sentence to "the position of authority" of which the applicant complains is clearly distinguishable from a conclusion that either the aggravating feature for the purposes of s 66C(2) and s 61O of the Crimes Act, or the feature of statutory aggravation pursuant to s 21A(2)(k) of the CSPA, had been made out. The qualification that such a position was present "at least in the expectations of the complainants" establishes as much, but it is equally clear from the judgment read as a whole, in the context of the cases placed before the sentencing court by the Crown and applicant.
7. Prior to the commencement of the CSPA in December 1999 it was usual for criminal lawyers and judges to refer when assessing the objective gravity of an offence to factual features, such as a position of authority, as "aggravating" the criminality of an offence. That language is still used from time to time, in that way, despite having been described on occasion by this Court as "infelicitous": RD v R [2013] NSWCCA 306 at [37]. It cannot and should not be assumed to necessarily refer to a finding by a sentencing court that would constitute a breach of the De Simoni Rule. The judgment of a sentencing court must always be read as a whole, and in the context of the way the respective cases were placed before the court. It is not helpful to isolate a word, phrase, or part of a judgment and seize upon it as indicative of error.
8. Like Davies J I am not persuaded that the error of which the applicant complains has been made out, and I agree with the orders proposed by his Honour.

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