KM v R [2023] NSWCCA 10 | Case summary

The complainant, “Cheryl”, was aged nine at the time of the commission of the offence in count one, and aged 10 at the time of the commission of the offences in counts two and three. [REDACTED].
Cheryl was born in November 2008. The applicant was born in April 1982. He is therefore about 26 years and 6 months older than she is. At the time of the offending, he was between 35 and 37 years of age.
Cheryl gave evidence that the applicant had been sexually touching her about every two weeks since she was five years of age. At that stage, the applicant would have been aged about 31.
Count one occurred after Christmas Day 2017, when Cheryl travelled to a holiday home belonging to her grandparents on the South Coast of New South Wales. She was with her siblings, grandparents, and aunts.
Maureen and the applicant arrived on Boxing Day 2017, and departed on 4 January 2018. They shared a bedroom in the holiday home while there.
Late one evening between Christmas Day and 4 January 2018, Cheryl could not sleep and went into the lounge room. She sat next to the applicant, who was watching television. He put his hand down Cheryl’s pants, and digitally penetrated her genitalia. This action made her feel very uncomfortable.
The second count occurred at least a year later, between 1 January 2019 and 13 October 2019. Cheryl was 10 years of age. She walked into the lounge room of the family home in a suburb of Sydney, and sat down next to the applicant. He put his hand down her pants, and digitally penetrated her genitalia.
Count three occurred between 16 September 2019 and 13 October 2019. Again, Cheryl was 10 years of age. She entered the garage of the same premises, and sat down next to the applicant. He put his hands down her pants, and digitally penetrated her genitalia for 30 to 40 seconds. She felt frightened and uncomfortable.
Before October 2019, Cheryl told no one about what the applicant was doing because she was afraid. She was also afraid that something bad could happen to the applicant.
On 28 October 2019, Cheryl was present at a school lesson directed towards protecting children from child sexual assault. Having had inappropriate touching explained to her, Cheryl became upset, and was crying. She disclosed to a teacher that someone in her household had been touching her in that way.
The following day, Cheryl told Maureen that the applicant had been touching her inappropriately since the family had lived in an earlier home. At that stage, she complained of the applicant placing his hands on her genital area over her clothes. Maureen confronted the applicant in the presence of Cheryl. He denied the offences; on the other hand, he also apologised.
Cheryl was interviewed by police on 30 October 2019 and 2 February 2020, and the applicant was arrested on 25 February 2020. He was refused bail continuously from that time until the imposition of sentence.
The learned sentencing judge approached the offences on the basis that they were not isolated acts; having said that, his Honour made it clear that the applicant was to be sentenced only for those offences of which he had been convicted.
In a victim impact statement Cheryl, by then 12 years of age, spoke of having felt sad and frightened after the sexual assaults commenced. She was too frightened to speak up, and thought that “something bad” would happen to her if she did. She had not informed Maureen because the child believed that her mother would not believe her, and would either turn against her or would “hate” her for revealing what was occurring.
Cheryl spoke of things having improved with the removal of the applicant from the family home. On the other hand, she expressed her belief that it would take her a long time, if ever, to recover from what had been done to her. She also stated that she would never forgive the applicant for what he had done.

As I have said, the convictions were entered after trial. At the time of the imposition of sentence, the applicant firmly maintained his innocence. Self-evidently, there could be neither utilitarian discount nor reflection of remorse. As well as that, the absence of acceptance of responsibility played a role in a cautious assessment by the sentencing judge of the prospects of rehabilitation.
As at the imposition of sentence, the applicant was 39 years of age. Born in a Sydney suburb, he had no significant physical medical history. His father had been violent and physically abusive, and his parents separated when he was 11 years old. As a child he was suspended from school frequently, and often truanted.
The applicant commenced to use cannabis at the age of 17 in social settings, although it escalated eventually into daily use. He had experimented with other drugs, including stimulants, but denied that they had been problematic for him, and claimed that at the age of 23 he abstained from them for a period of four years. Since then, he had used drugs intermittently, with extended periods of abstinence.
He had worked for a time with his father [REDACTED]. By the time of his arrest, the applicant was not working, although at one stage he had operated his own business as a roof tiler.
The applicant had intersected with the criminal justice system in New South Wales and South Australia over an extended period. He had been sentenced to imprisonment twice in the former jurisdiction. Many years ago, he had committed a violent breaking, entering and stealing. Although the applicant had been convicted of a number of offences in the latter jurisdiction, including common assault in a domestic setting, he had received only non-custodial punishments. He had never been convicted previously in any jurisdiction of a sexual offence against a child or adult.
There was quite a deal of psychiatric evidence tendered in the proceedings on sentence. The applicant informed a forensic psychiatrist that he had previously been diagnosed with bipolar disorder, attention deficit hyperactivity disorder, borderline personality disorder, post-traumatic stress disorder, anxiety disorder, major depression, and panic attacks. He spoke of having been admitted to a psychiatric unit at the age of 18 years.
Ultimately, the opinion of a forensic psychiatrist qualified by the defence was that symptoms possibly to be ascribed to mania or bipolar disorder were “most likely due to his excessive drug use rather than a manifestation of an enduring mental illness”. The forensic psychiatrist was also reticent about ascribing any aspects to a diagnosis of borderline personality disorder.
The approach of the sentencing judge was that no “mental health issue” of the applicant caused or contributed to his sexual offending against Cheryl.
In accordance with his denial of guilt, the applicant disavowed any sexual attraction to children. Having said that, he was prepared to explore treatment programs for sex offenders, and to seek to address problems regarding his mental health.
In the continuing absence of remorse or acceptance of responsibility, the assessment of the sentencing judge about prospects of rehabilitation was that they “must be very guarded”.
As I have said, the ultimate sentence imposed was an aggregate head sentence of imprisonment for 14 years with a non-parole period of 10 years 6 months.
Turning now to the grounds of appeal, it is convenient to deal with them a little out of order.

The background to this ground is as follows. At the sentencing hearing, the Crown had submitted in writing that count one “falls below the mid-range of objective seriousness”. The Crown had also submitted that the objective seriousness of count two and count three was “at the mid-range of objective seriousness”.
Defence counsel submitted orally that count one “falls to a reasonable degree below the mid-range”. As for count two and count three, the defence submission was “that they fall below mid-range”.
The finding made in the remarks on sentence about the objective seriousness of count one was “that it was below the midrange of objective seriousness, but not significantly below it”.
Finally, as for the objective seriousness of count two and count three, the finding in the remarks on sentence was “I accept that they fall below the midrange in each case, although only just”.
Once the ground was clarified by amendment at the start of the hearing, the following oral submissions were made in this Court.
As for the objective seriousness of count one, it was accepted that the familial relationship [REDACTED] between the applicant and Cheryl was an important part of the assessment of objective seriousness. It was also accepted that, because there was no element of the offence in count one reflective of that relationship, taking it into account in that way would not constitute double counting. Even so, I understood the submission to be that the aspect of the relationship between the applicant and the child should not be overemphasised in reflecting upon objective seriousness.
In a similar vein, it was accepted that the fact that Cheryl was at the lowest end of the age range captured by the offence-creating provision for counts two and three could play a role in assessment of objective seriousness. Nevertheless, it was said that there had been “an imbalance” in the assessment of the objective seriousness of those two counts.
The ultimate submission as I understood it was that it was an error of the sentencing judge, when reflecting on all objective features of the three counts, not to accept more completely the submission made by defence counsel at first instance.
Turning to my concise determination of this ground, it is well established that the assessment of objective seriousness of an offence is an evaluative judgment to be undertaken by the sentencing judge, and is something that is amenable to appeal only with significant difficulty: see, as one case among many, Mulato v R [2006] NSWCCA 282 at [37]. That is a powerful factor standing in the way of the success of this ground.
As can be seen from their positions adopted at first instance, the Crown and defence counsel were in almost complete agreement about the objective seriousness of count one, and the sentencing judge agreed with them. The only point of distinction was the extent to which the objective seriousness of count one fell below the mid-range. That fine point of distinction should not be parsed further.
Thirdly, as for counts two and three, in truth the judge resolved the dispute between the Crown and defence counsel in favour of the applicant. Again, the shade of differentiation within the acceptance by the sentencing judge of the proposition of defence counsel should not be taken further.
Fourthly, considering the disparity in age between the applicant and Cheryl, the domestic role that he played towards her, and the effects of the offending upon her, in my opinion the assessment of the objective gravity of count one was well open to the evaluative judgment of the sentencing judge.
The same may be said about the evaluation of the objective gravity of counts two and three, especially since, at age 10, Cheryl occupied the lowest end of the spectrum of ages within the offence-creating provision.
For those reasons, I would not uphold this ground. The evaluations made about objective seriousness were well-founded.
Finally and overarchingly, the terms of the debate at first instance and in this Court summarised above – whereby a continuous spectrum of objective seriousness, moving from utmost triviality at one end to utmost gravity at the other, is sought to be divided into discrete and contested segments – demonstrates the limitations of such an exercise.
The well-known legislative and judicial history is that such an approach arose as a result of the commencement of the statutory regime of standard non-parole periods in 2003. The approach is founded upon the prescriptive analysis of the implementation of that regime undertaken by this Court in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131. But it was subsequently rendered unnecessary by the decision of the High Court of Australia in Muldrock v The Queen (2011) 224 CLR 120; [2011] HCA 39, almost a decade ago.
In my opinion, it certainly remains incumbent upon sentencing judges to provide a concise and clear assessment of the objective seriousness of offences for which they are imposing sentence, and the evidence upon which that assessment is based, as an essential component of open justice and instinctive synthesis. But such an assessment should be in terms readily understood by laypersons such as the offender, loved ones of the offender, loved ones of any victim, and members of the community generally. I respectfully think that such assessments should be founded on easily understood English adjectives such as “inconsequential”, “trivial”, “significant”, “serious”, “grave”, “in the worst class of case”, and so forth. Fine distinctions based on artificial segmentation of a spectrum are in my respectful opinion unnecessary; apt to confuse members of the public, lawyers and judicial officers; and liable to give rise to appeal grounds that do not advance the interests of justice.
Based upon all of that analysis, I would not uphold ground one.

It was not asserted by either party in this Court that the applicant is a serious offender, as defined, on any basis. It follows that the longest period during which he can be supervised on parole is indeed three years.
The written submissions on behalf of the applicant in support of this ground asserted that “[h]is [H]onour’s consideration did not directly address those matters appropriately raised by Counsel for the offender on his sentence proceedings. Indeed, the comment by him evinces a general categorization of special circumstances and not an individual consideration to the instant case”.
In oral submissions, it was accepted that there had been consideration of the factors relied upon for special circumstances when the sentencing judge discussed the subjective features of the matter. But it was said that the prescriptive approach ultimately taken to the issue showed that those factors were not taken into account at that separate stage (AT 5.40 ff).
It was also said that, whilst the question of the available period of supervision on parole was able to be considered, it could not be determinative or prohibitive about an extended period of supervision.
The concluding submission was that what appeared in the remarks on sentence about this topic was “a blanket statement being made in a general sense”, rather than the necessary engagement with the submissions that defence counsel made in the plea in mitigation (AT 8.01 ff).
Turning to my determination of this ground, in my respectful opinion, if the words of the sentencing judge were read literally and out of context, they would constitute an erroneously inflexible approach to this question. I say that for the following reasons.
As decisions of this Court show, the unavailability of supervision on parole after the passage of three years is a significant factor in determining whether special circumstances have been demonstrated, whereby the parole period should be extended in order to advance the rehabilitation of an offender: see AM v The Queen (2012) 225 A Crim R 481; [2012] NSWCCA 203; Collier v R [2012] NSWCCA 213; Jinnette v R [2012] NSWCCA 217; MD v R [2015] NSWCCA 37; and Sefian v R [2018] NSWCCA 194.
It cannot be, however, the determinative or only factor. If that were the case, special circumstances could never be found with regard to an offender who receives a head sentence of more than 12 years (with the result that the parole period is prima facie more than 3 years), and who is not a serious offender (including as a result of not being subject to a total non-parole period of at least 12 years).
In other words, as a practical matter, there would be a small group of offenders with regard to whom special circumstances could never be found: those who receive a non-parole period greater than 9 years, but less than 12 years. I do not consider that that is the law of sentencing in New South Wales, whether as a matter of theory or practice.
Even so, I do not accept that, read in context, that counter-intuitive, indeed irrational outcome is what the sentencing judge was conveying. Rather, I think that the better reading, bearing in mind all of the objective and subjective findings made by the sentencing judge that I have summarised above, is that special circumstances had not been established, including because of the limitation on the period of supervision discussed above. I hold that view for the following reasons.
It is to be recalled that the sentencing judge had found that no emotional or mental condition suffered by the applicant had been criminogenic of the child sexual assaults. Although the applicant had expressed a readiness to engage in treatment, he was not remorseful, did not accept any sexual attraction to children, and his prospects of rehabilitation were assessed very guardedly. The applicant had been incarcerated before. The parole period pursuant to the statutory ratio was substantial: 3 years 6 months. Inevitably, release on conditional liberty was many years in the future, and the position then could not be predicted comfortably in 2021.
Seen in that context, I do not accept that, when the sentencing judge used the word “as” to introduce the reasoning underpinning the failure to find special circumstances in the portion of the remarks on sentence extracted above, he was intending to convey that the limitation upon supervision was the only basis upon which special circumstances had not been found. Rather, read in the context of the remarks on sentence as a whole, I consider that the sentencing judge was conveying that the limitation was a significant factor, but not the solitary one. Such an approach was not erroneous, and the refusal to find special circumstances in this case was open to his Honour.
On that analysis, I would not uphold ground three.

This ground was understood at the hearing in this Court as putting forward the orthodox proposition that the aggregate sentence is manifestly excessive.
The approach in written submissions for the applicant was simply to state that proposition, and then provide sentencing statistics from the Judicial Commission of NSW, along with a table of cases from the website of the NSW Public Defenders for broadly similar offending.
The approach in written submissions of the Crown was to reject the proposition on a number of bases, and to provide a table in response that sought to distinguish some if not all of the cases relied upon by the applicant.
At the hearing, it was submitted for the applicant that the materials relied upon provided a broad context regarding similar offending committed in the past. It was said that the indicative sentences were, at the least, “at the higher end of the range of penalties” imposed for offences of that kind. The thesis was that those indicative sentences had inevitably “fed into” the aggregate sentence that was the focus of the ground.
It was also said that it would not have been useful to limit the statistics and comparable cases to the particular form of sexual penetration that occurred here.
Even accepting that count one carried a maximum penalty of life imprisonment, thereby demonstrating the seriousness with which Parliament approaches penetrative sexual assaults upon children under the age of ten, it was said that, bearing in mind all of the objective and subjective features, the aggregate sentence imposed was simply erroneously severe.
The Crown submitted orally that it was not easy to find a range of truly comparable cases. It was said that the best guide to resolution of the ground is the maximum penalties and the standard non-parole periods pertaining to the three offences. [REDACTED] in practice the applicant fulfilled the role of father towards Cheryl. The submission was also that sentencing for child sexual assault – as a result of alterations to maximum penalties by Parliament, the statutory command that historical sentencing patterns be disregarded, and the evolving approach of this Court – is very different in 2022 from how it was in 1992 or even 2002.
The final submission for the Crown was that neither the indicative sentences provided nor the aggregate sentence imposed demonstrate any error.
Turning to my determination of this ground, the following factors are significant.
Count one carries a maximum penalty of life imprisonment. Counts two and three each carry a maximum penalty of imprisonment for 20 years. Those statutory choices, combined with the standard non-parole periods recounted by me at the beginning of this judgment, demonstrate the approach of Parliament to penetrative child sexual assault.
This Court has said more than once that there is no hierarchy with regard to forms of sexual intercourse, whereby, for example, digital penetration is to be thought of as less serious than penile penetration: R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [23]-[25]; R v Hibberd (2009) 194 A Crim R 1; [2009] NSWCCA 20 at [21], [56].
The aggregate sentence pertained to three offences committed on separate occasions. Two of these offences were separated by a significant period. However, those incidents were not to be taken as isolated.
The victim had undoubtedly suffered psychological consequences during and after the commission of the offences.
The sentence was imposed after the complainant endured a trial; self-evidently, there could be no utilitarian discount; the applicant was unremorseful; and the latter finding fed into the guarded assessment of his prospects of rehabilitation.
The emotional, psychological, and psychiatric conditions from which the applicant was accepted to have suffered were found not to have played a role in the commission of the offences. That finding was not impugned in this Court.
Although the applicant had never been convicted of a sexual offence before, he had certainly been convicted of offences against the person, had been convicted of at least one offence of significant violence, and had been sentenced to imprisonment before.
It is undoubtedly true that, for at least the reasons relied upon by the Crown, sentencing patterns for child sexual assault have changed markedly over the past decades, in favour of longer periods of incarceration.
Approaching the statistics and the summaries of cases upon which the applicant relied as providing a broad context, I accept that the three indicative sentences provided and the aggregate sentence actually imposed are stern. Even so, I am not affirmatively satisfied that they are so severe as to fall outside the legitimate sentencing discretion available to his Honour.
For those reasons, I would not uphold ground two.

KM v R [2023] NSWCCA 10 | Case summary | Zoe

KM v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

As to ground one

As to ground three

As to ground two

JUDGMEnt

Introduction

Objective features

Subjective features

Proposed orders

Amendments

05 June 2025

Parties

Legislation Cited (8)

Cases Cited (2)

Cited By (1)