Leslie v R

Judgment 1McCLELLAN CJ at CL: The applicant pleaded guilty to 3 counts concerning sexual intercourse with a child under the age of 10 years. The counts were as follows: Count 1: attempt sexual intercourse with a child under 10 years (penile/vaginal) s 66B Crimes Act 1900: maximum penalty 25 years imprisonment. Count 2: aggravated sexual intercourse with a child under 10 years (digital/vaginal) s 66A(2) of the Crimes Act 1900: maximum penalty life imprisonment; 15 years standard non-parole period. Count 3: aggravated sexual assault with a child under 10 years (fellatio) s 66A(2) of the Crimes Act 1900: maximum penalty life imprisonment; 15 years standard non-parole period. 2The offences occurred on the night of 18 February 2010. The applicant was arrested the following day. He was committed for trial and a trial date was set. However, his initial trial was vacated at the request of the applicant. In the weeks leading up to the second trial the applicant indicated an intention to plead guilty and his pleas were entered on 19 August 2011, some 18 months after his arrest. 3When the applicant was sentenced he asked the sentencing judge to have regard to 2 further offences appearing on a Form 1 when sentencing for count 2. The 2 further offences were: Item 1: aggravated enter premises with intent: s 11(2) Crimes Act 1900: maximum penalty 14 years imprisonment. Item 2: detain for advantage s 86(1)(b) Crimes Act 1900 maximum penalty 14 years imprisonment. 4At the time of committing the offences the applicant was on bail in relation to an offence of assault occasioning actual bodily harm. He had failed to appear on that bail and a warrant had been issued for his arrest. 5The sentencing judge allowed a reduction of 10% for the pleas of guilty. Her Honour was informed that the applicant was already serving a sentence for matters dealt with in the Local Court and had regard to these matters when structuring the sentences for the present offences. 6The applicant was sentenced as follows: Count 1: a term of 17 years imprisonment with a non-parole period of 11 years and 10 months to date from 8 March 2011 (the date of the expiry of the pre-existing sentence) Accordingly the non-parole period is 69% of the total term. Count 3: a term of 19 years and 9 months with a non-parole period of 13 years and 9 months to date from 8 September 2011 (effectively providing for 6 months accumulation on count 1 and a non-parole period of 69% of the total term). Count 2: (having regard to the matters on the Form 1) a term of imprisonment of 22 years and 6 months with a non-parole period of 15 years and 2 months to date from 8 March 2012 (being 6 months accumulation on count 3 with a non parole period of 67% of the total term). 7Accordingly, the overall sentence for the 3 offences is 23 years and 6 months imprisonment with a total non-parole period of 16 years and 2 months, being 68% of the total term. 8When the sentences imposed in the Local Court are considered the overall sentence was imprisonment for a term of 24 years and 7 months with an overall non-parole period of 17 years and 3 months being 70% of the total term. 9There are two grounds of appeal as follows: Ground 1: Her Honour erroneously held that a standard non-parole period of 15 years applied to count 1. Ground 2: the sentences were manifestly excessive. The facts 10An agreed set of facts was tendered to the sentencing judge. 11On Wednesday the 17th of February 2010 the complainant who was 8 years old was at home with her family at Tregear. That evening there were a number of people who stayed the night at the house. The Complainant went to sleep in the lounge room with a friend who was visiting. Her mother was sleeping in the main bedroom with her partner, and other family members were at home. 12At around about midnight the complaint's sister heard a knock on the door. A person she knew by the nick name "Jai boy" or Jai Towney (the applicant) was at the door. He asked her if her mum was home. She told the applicant that her mother was in bed. The applicant then asked whether her brother was home. The complainant's sister told the applicant that he was in the next street with some friends. The applicant then left. Some time after midnight, the complaint's brother came home with other friends. They went to sleep in a bedroom or the lounge. It is unclear whether the house was secure at this point in time. 13Some time during the night the complainant woke up to find the applicant sitting in the lounge room. [First count on the Form 1 - enter dwelling with intent to commit a serious indictable offence - Child Abduction] 14The complainant said to the applicant: "where is my mum." The applicant told the complainant that she might be at "Belinda's" and told her to come with him and take a walk. The complainant says that the applicant dragged her by the shirt from the house. [Second count on the Form 1 - Detain for advantage] 15They went to a nearby house and the applicant approached the door with the complainant. The applicant had hold of her hand at this stage. The applicant then said that Belinda was not there and told the complainant that they would go to the bush and try and find her. 16The applicant then took her to nearby bush land near a roundabout. The applicant then pulled the complainant's pants down and said "are you wet" and tried to lick her. The applicant also said: "If you don't do it I'm going to kill you". 17According to the complainant during the time that she was with the applicant he: Rolled her onto her back with her legs apart near her shoulders. He put his penis on her "rude part vagina". The complainant said that it started to hurt because "it didn't fit in there" and the applicant stopped trying to penetrate her vagina. [Count 1 on the Indictment -Attempted sexual intercourse with a child under the age of 10] The applicant then put his finger in her vagina and moved it around. He had his finger in her vagina for about a minute. She said that it hurt her. He did this according to the complainant because "his rude part would not fit". [Count 2 on the Indictment - Aggravated sexual intercourse with a child under the age of 10] The applicant withdrew his finger from the complainant's vagina and pulled her head down until her mouth was on his penis and he ejaculated in her mouth. The complainant said that the she spat out the "yucky white stuff'. [Count 3 on the Indictment - Aggravated sexual intercourse with a child under the age of 10] 18The applicant then took the complainant back home. She says that he told her not to tell her mum. The complainant ran inside and locked the door. She went back to the couch and went to sleep. 19The complainant woke up in the morning and went to the toilet and blood came out of her vagina. She complained to her mother. Her sister told her mother that she had seen the applicant at their house at around midnight. 20The police were called following which the complainant was taken to Westmead Hospital. She complained of pain to her vagina. Dr Griffiths examined her and found her to have a red and swollen hymen, her hymen had an almost complete transection at both 4 o'clock and 10 o'clock, she had a laceration to the posterior fourchette, [bruising to the labia majora], and blood could still be seen in the complainant's urine. Inside her mouth were petechia on her palate. She had a few irregular scratch marks on her buttocks. These are the injuries that the Crown says constitute actual bodily harm in terms of the aggravation. 21In July 2010 Dr Paul Tait a consultant paediatrician considered the findings. He formed the view that the petechiae found on the complainant's palate (in circumstances where she was not ill) was most likely caused by blunt trauma to the palate and would support an allegation of fellatio. The injuries to the complainant's genitalia also supported the allegation made of digital/vaginal penetration. 22On Friday 19 February 2011 at around 5:30pm the police received information that the applicant was at St Marys, at the home of a relative. When the police arrived at the premises the applicant fled out the back door and jumped a fence. A number of police were called to the scene including an officer with a police dog. The applicant was found hiding under a neighbouring house and arrested. 23The applicant participated in a record of interview, which was recorded. He said that he had been drinking since Monday that week and taking drugs. He told the police that he was drinking on Wednesday night (the night of the offence) in Lethbridge Park but he could not remember where he slept. He told the police that he had been drinking in a park on Wednesday morning with some cousins and friends. He did not remember where he slept on Tuesday night and says that on occasion he blanks out. He admitted he had previously lived in the same street as the complainant but he told police that he did not know the complainant or her family. He claimed that prior to his arrest he had been wearing a black singlet and black tracksuit pants. Witnesses had described him in similar clothes. When the allegations of the complainant were put to him he denied any memory of them and said he only remembered drinking with his mates that night. 24The applicant told the police that he remembered going to St Marys on Thursday the 18th to stay with his cousin's girlfriend and her brother. He admitted to having washed his tracksuit pants. 25According to the applicant he was aware that the police were looking for him for this offence but said that he did not do it and could only remember being with his cousins. He said he would have run off because he knew there were other warrants out for his arrest. 26He told the police: "Well I can't remember much that night so I'm not, not sure if I done it to tell you the truth cause all this stuff's going on and some of the people are making allegations to saying that I know they're saying that I done it and all this sort of stuff. I know this if I done it I can't remember that I've done it but if I've done it then I've done it and I feel sorry for the little girl too". 27He finally admitted to remembering being in Tregear on Wednesday night. He said that he knocked on the door of his cousin's house. The applicant told the police that the next thing he remembered was being on his cousin's trampoline. 28DNA evidence revealed semen found on the complainant's pants and top. The applicant was identified as having the same DNA profile as was found on these items of clothing. The identified profile is expected to occur in fewer than 1 in 10 billion individuals in the general population. The remarks of the sentencing judge 29Although it was submitted to the sentencing judge that the applicant's plea was evidence of his contrition and remorse her Honour did not make that finding. She observed that until the DNA evidence was available the applicant had feigned ignorance of the offence. Some time after the offence had been committed his own child died and her Honour accepted that this tragedy may have caused the applicant to reflect on his previous criminal conduct. The applicant's aunt gave evidence before the sentencing judge and said that the applicant believed that his son's death was a form of punishment for his prior offending. However, the sentencing judge was of the opinion that the applicant's self reflection and feelings of guilt were self focused and did not amount to an acknowledgment of the harm and trauma he had caused the complainant or the sheer depravity of his actions. 30Her Honour was also mindful of the fact that the applicant continued to claim that he had no memory of his offending conduct. Although he had indicated to a psychologist that he would apologise to the complainant he had not done so. Having regard also to the fact that the applicant had not given evidence and accordingly the genuineness of his purported contrition could not be tested. The sentencing judge concluded that the plea was not evidence of remorse. 31The sentencing judge gave detailed consideration to the circumstances of the offences. Her Honour observed that the applicant had removed the complainant from her home after he had convinced her he would help her look for her mother. With physical persuasion accompanied by threats to kill the complainant he took her to a secluded place. He then attempted to force his penis into her vagina but because of her young age the attempted act of intercourse could not be completed. He then digitally penetrated her for about a minute with such force that injury was inflicted. He then inserted his penis into her mouth and after a short while ejaculated. He inserted his penis with such force that the roof of the complainant's mouth was bruised. Her Honour said "he threatened her, her held her forcefully and he used his physical superiority to commit each of the offences. The force was significant, considering the applicant was dealing with an 8 year old child. The use of threats of pressure before and after the offence to ensure the victim's compliance with the demands made, and subsequent silence is a feature of these offences." 32Her Honour concluded that the offences occurred over a time period of less than an hour. The applicant then took the child home and told her she was not to tell anyone what had happened. The sentencing judge concluded that the complainant was so terrified and stunned she did not tell her mother of the events until the physical consequences of the acts became obvious when she went to the toilet and passed blood. 33The sentencing judge referred to the decision of this Court in R v AJP [2004] NSWCCA 434; 150 A Crim R 575 in which the possibility of constructing a hierarchy of seriousness of sexual offences was discussed but rejected. In the present case her Honour concluded that the act of digital penetration which occurred only after the applicant could not force his penis into the child did not lessen the seriousness of the offence. Her Honour said of the act of fellatio that "in circumstances of the use of such force as to bruise the roof of her mouth, and to ejaculate into her mouth is particularly disturbing." Her Honour also said "the attempted act of penile penetration is in the circumstances including the threat and pain inflicted a serious act. Each of these physical acts is above a mid point of objective seriousness." 34Her Honour concluded that there was evidence of some forward planning by the applicant. He attended the home of the complainant on two occasions on the evening of the offences. On the second occasion he had the intention of committing these crimes. Her Honour also concluded that there was evidence of the applicant having made plans to avoid detection. 35Her Honour commented upon the potential of these offences to cause long term harm to the complainant. Her Honour also observed that the physical injuries to the complainant "represent a serious consequence of the aggravated offences." Her Honour concluded that the injuries were combined "with the quite severe psychological trauma." Her Honour observed that there was strong evidence of the complainant's self esteem being significantly compromised and that she required a "substantial period of specialised treatment." 36Her Honour observed that the evidence of the psychologist Anna Robilliard and the applicant's aunt Ms Mathews indicated that he had told them that he could not remember the event. However, her Honour concluded that the applicant had washed his clothes on the following day for which there was no other explanation than that he was attempting to hide evidence. The statements by Ms Robilliard could not be confirmed and her Honour was of the view that there was otherwise no evidence that his actions were in any manner disinhibited by any mental condition or temporary disability. Her Honour concluded that intoxication was not a relevant matter and that there were no issues of mental illness or intellectual disability which were causally related to the commission of the offence. 37Her Honour was of the view that the injuries to the complainant relevantly constituted aggravation for the purposes of the offence (s 66A(3)(a)-(h)). Her Honour said that when considering the objective seriousness of each offence she had otherwise had regard to the applicant's record of previous convictions for serious personal violence offences. Her Honour concluded that the present offences were not an isolated incident of violent behaviour. He has a number of Children's Court entries relating to property crime, including break and enter offences and, as an adult, an offence related to stalk and intimidate. Her Honour identified the fact that the offences were committed while the applicant was on bail in relation to an offence of assault occasioning actual bodily harm. 38Her Honour recorded the submission on behalf of the applicant in which mitigating factors were sought to be identified. It was submitted that the offence was not part of a planned or organised criminal activity. However, her Honour did not accept that it was totally spontaneous. 39In relation to the applicant's prospects of rehabilitation her Honour indicated that Ms Robilliard had observed that his risk of re-offending was "deemed to be high and would only reduce with the reduction and control of his drug and alcohol related behaviour." Ms Robilliard reported that "other anti-social behavioural elements required focussed intervention." Her Honour concluded that having regard to the evidence "any finding that he is either remorseful, or has insight into the causes of his offending and wishes to address those causes, or that he is motivated to reform his life is unable to be made." However her Honour found hope in the fact that the applicant was a young person still capable of personal development. 40The applicant is of Aboriginal heritage and at the time he was sentenced was 22 years of age. He was educated to Higher School certificate level, but received his final education while in juvenile detention. He is literate and has skills which enabled him to obtain employment. However, after a period of full-time employment he left his job and was unemployed for about 12 months prior to this incident. 41The applicant has the support of his aunt, who appears to be close to him. Her Honour observed that the applicant has support from his father and that his mother has visited him in custody. Her Honour found that the applicant's physical health is reported to be good and although his mental health is "under strain" there was no evidence of any significant mental health issues. 42It was submitted to the sentencing judge that because the applicant was arrested in a blaze of publicity after a manhunt her Honour should find that this amounted to extra curial punishment. Her Honour declined to make this finding. 43The Crown submitted to her Honour that the offences represented the worst case for the offences charged. Counsel for the applicant conceded that they were above mid-range. Her Honour found the offences to be significantly above the mid-range of seriousness but not in the worst category. 44Her Honour concluded that specific deterrence, community protection and denunciation of the applicant's conduct were important when sentencing him. However, her Honour was conscious of the fact that the applicant is a young man and there was a need, consistent with the other considerations to be mindful of a possibility of his rehabilitation. 45Her Honour considered the principles discussed by this Court in R v Fernando (1992) 76 A Crim R 58. Her Honour identified the fact that the applicant spent his early years in a small community in Walcha. He lived with his father in Walcha and Tamworth. His early childhood was marred by his father's aggressive behaviour and alcohol abuse. The applicant told Ms Robilliard that as a young person he was the victim of sexual abuse and a lack of maternal support and affection. 46The applicant's drug and alcohol abuse started at about 11 years of age. Her Honour observed that his background was dysfunctional and that he appears to have few skills which would assist him both in personal relationships and living a healthy lifestyle. Her Honour found that it was fortunate that he was able to read and write and that except for his substance abuse issues he was able to function both in "an Aboriginal and European setting." Her Honour concluded that although the applicant has had some difficulties in life the objective features of these offences are such that his subjective circumstances: "cannot outweigh the heinous nature of these offences. While he claims to have no memory of these offences I do not make that finding ... He stated to the psychologist that he does not have issues relating to sexual attraction towards children but was unable to be tested on that. This is an offence of a confronting and terrible sexual nature. It is also however an offence of significant violence, and where the offender sought to impose his physical power over a defenceless young child, who he took from a place of safety to perform acts of sexual violence for his personal gratification. While to some extent, [the applicant's] dysfunctional background may explain some of his other criminal antecedents, it does not assist him a great deal as a factor in mitigation with respect to this offence. ... "However, as in this case, where a court is unable to make positive findings about remorse, prospects of rehabilitation and cannot find with any confidence that there is a small prospect of re-offending, the protection of the community is a strong sentencing consideration." The appeal 47The Crown concedes that her Honour was mistaken when she indicated that count 1 carried a standard non-parole period of 15 years. There is no standard non-parole period for this offence. Her Honour imposed a non-parole period of 11 years and 10 months for the offence which carries a maximum penalty of imprisonment for 25 years. 48In relation to ground 2 it was submitted on behalf of the applicant that the effective sentence was similar to the sentence which would be imposed for an offence of murder. 49It was submitted that the offences all took place on the one night and involved the same complainant. Although there was evidence of injuries to the complainant it was submitted that they were limited, although it was accepted that the extent of psychological injury could not at this stage be fully appreciated. 50The applicant referred to a number of cases that were said to be comparable to his own circumstances. In AJP the offender was charged with one count of sexual intercourse with a child under 10. There was one offence of aggravated indecent assault included on a Form 1. The applicant was the uncle of the complainant, who was babysitting her. He forced the complainant to perform fellatio upon him, and rubbed his penis against her vagina. There was evidence that the complainant suffered psychological damage. 51AJP was 22 years old at the time of the offence. He had no prior convictions. He was sentenced to 3 years imprisonment with a non-parole period of 18 months. On a Crown appeal, this was increased to a sentence of 5 years with a non-parole period of 2½ years. 52In Kite v Regina [2009] NSWCCA 12 the applicant was charged with two counts of sexual intercourse with a child under 10. The applicant had attended a New Year's Eve party held by the complainant's parents. He did not know the complainant before the party. While the complainant was sleeping, the applicant moved her underpants to one side and inserted his tongue into her vagina. He then inserted his finger into her vagina. 53Kite pleaded guilty. He had only a minor criminal record. He was sentenced to a total sentence of 8 years 10 months with a non-parole period of 5 years 6 months. On appeal, this sentence was reduced to an overall sentence of 5 years with a non-parole period of 3 years 6 month. 54In Regina v King [2009] NSWCCA 117 the applicant was charged with one count of sexual intercourse with a child under 10. The applicant asked the judge to take into account three matters on a Form 1, namely, an act of indecency, steal from a dwelling house, and attempt to take a motor vehicle. The complainant was a 4 year old girl who was staying at her grandmother's house. The applicant entered the house at night, apparently intending to steal a car. He entered the complainant's bedroom and removed his pants and underpants. He inserted his finger into the complainant's vagina. The applicant then ejaculated while leaning over the complainant. He then broke into a car but was unable to start it. 55King pleaded guilty. He was 23 years old at the time of the offence. He was of Aboriginal heritage. He had a criminal record mainly for matters of dishonesty. 56The sentencing judge imposed a suspended sentence of 2 years. On a Crown appeal to this Court, the applicant was re-sentenced to 7 years imprisonment with a non-parole period of 4 years 6 months. McClellan CJ at CL (with whom the other judges of this Court agreed) said but for the fact that it was a Crown appeal the appropriate sentence was a period of 9 years imprisonment with a non-parole period of 6 years 9 months (at [70]-[71]). 57In AWKO v Regina [2010] NSWCCA 90 the applicant was charged with one count of sexual intercourse with a child under 10. The applicant was the complainant's daughter. When the complainant's mother was absent, the applicant began kissing the complainant. He then instructed her to undress and inserted his penis into her anus. The complainant told police that she was screaming and crying because it hurt. The applicant ejaculated. 58AWKO pleaded guilty. He was 33 years old. He had no prior criminal convictions and was otherwise of good character. He was sentenced to 8 years, 3 months, and 13 days, with a non-parole period of 4 years, 5 months and 15 days. This Court dismissed his appeal. There was no Crown appeal and no suggestion that the sentence was inadequate. 59Senior counsel for the applicant acknowledged that each of these cases involved offences against s 66A(1) of the Act rather than s 66A(2). Section 66A(1) carries a maximum penalty of 25 years imprisonment. However, it was submitted that the circumstances of aggravation in the present offences involved a limited degree of physical harm. 60Senior counsel submitted that the applicant had been sentenced to a head sentence more than double the most significant head sentence imposed in these cases which was 8 years 3 months and 13 days in the matter of AWKO. It was submitted that the case which most closely resembled the present offences on its facts was that of King where the court, in a Crown appeal, said that the sentence which should have been imposed was 9 years imprisonment with a non parole period of 6 years 9 months. The offender in King was not entitled to be in the premises, was aged in his early 20s, had a criminal record, mainly for dishonesty and pleaded guilty. The head sentence was less than half of the head sentence of any of the individual sentences imposed on the applicant in the present appeal apart from count 1. 61The applicant also referred to the statistics kept by the Judicial Commission in relation to offences under s 66A(2). Between January 2009 and June 2011 there were only 6 cases. The head sentences of the offences ranged between 5 and 14 years. The non-parole periods were all 7 or 8 years in length. 62It was submitted that although her Honour was conscious of the decision in the High Court in Muldrock v The Queen [2011] HCA 39 her Honour may have concluded that because she found the offences to be above the mid point of objective seriousness, she was obliged to impose a non-parole period in excess of the standard non-parole period. 63In response the Crown submitted that it was significant that there was no challenge to the characterisation of the objective seriousness of any of the three offences appearing on the indictment. Defence counsel accepted that the offences fell above the mid range of objective seriousness. Furthermore, the sentencing judge found that each of the items on the Form 1 were serious offences being "precursor offences to the substantive offences." Furthermore, when the offences were committed the applicant was on bail for an offence of personal violence. 64The respondent submitted that there was limited assistance available from comparative cases. It was submitted that the only relevant decision of this Court is JRM v R [2012] NSWCCA 112. It was accepted that decisions in relation to offences contrary to s 66A (now s 66A(1)) of the Act provide some assistance although the maximum penalty is only 25 years imprisonment. 65The respondent referred to the decision of this Court in AJP where Simpson J remarked at [37] in relation to the maximum penalty for the offence "... that is what the legislature has decreed, and it is for this Court to implement the dictates of the legislature." In the Second Reading Speech when the section was introduced it was said that "in recognition of the heinousness of committing such an aggravating offence against a child under the age of 10 the maximum penalty is imprisonment for life." 66The respondent accepted that the sentences which her Honour imposed were substantial. However, it was submitted that when both the maximum penalties and the standard non-parole periods are considered the sentences were just. 67The respondent also identified a number of decisions which it was submitted may be of assistance although that assistance may be limited. 68The decision of JRM concerns sentences imposed pursuant to s 66A(2) of the Act. No violence or threats of violence were involved although there was a breach of trust. The fellatio offences were committed upon the offender's 9 year old son. The offender was of good character and received a 25% discount for early pleas. The sentences on appeal were reduced to a total term of 7 years imprisonment with a non-parole period of 4 years; and a term of 5 years and 4 months with a non-parole period of 4 years. 69In RJA v R [2008] NSWCCA 137 the offender was sentenced after trial for 3 offences contrary to s 66A [maximum 25 years imprisonment] [2 penile penetration with penetration of the labia only and one digital penetration] committed upon his daughter when she was aged 8 and 9. The offender was of previous good character and was found to be unlikely to reoffend. The sentences imposed on appeal were a term of 16 years with a non-parole period of 12 years; a term of 8 years imprisonment with a non-parole period of 6 years and a term of 14 years with a non-parole period of 10 years. The offences covered by the first and third sentences were found to be within the middle level of seriousness. This resulted in an overall sentence of 17 years with a non-parole period of 13 years. 70MLP v R [2006] NSWCCA 271 concerned a sentence after trial for one offence pursuant to s 66A [maximum 25 years imprisonment] of a father offending in an isolated act against his 9 year old daughter. The sexual act was penile penetration resulting in the hymen being torn. The offence clearly involved a breach of trust. There was no finding of remorse. He was not a person of good character. The Court was satisfied the offence fell within the mid range. The sentence on appeal was varied to 16 years with a non-parole period of 11 years. 71The Court in Ingham v R [2011] NSWCCA 88 considered the sentences imposed upon an offender who was convicted after trial of sexually assaulting [s 66A maximum 25 years imprisonment] a 9 year old girl and an 8 year old girl numerous times over the same night in the presence of each other. The offences included penile penetration, digital penetration and cunnilingus. The judge assessed the objective seriousness of the offences finding only the penile penetrations to be above the mid-range. There were in addition some indecent assaults. There was evidence that there had been some sexual assault the previous weekend and the offences were not dealt with as isolated. There was some evidence of planning as condoms were brought. There was a breach of trust as the applicant was a family friend entrusted to babysit. The applicant had an early conviction for sexual assault upon a child. There was no remorse. The Court intervened to adjust sentences influenced by the wrong standard non-parole period. The sentences for the sexual intercourse offences were: Digital x 3 13 years 4 months with 10 years NPP; Cunnilingus x 2 20 years with 15 years NPP; Penile x 2 21 years 4 months with 16 years NPP; Attempt fellatio 12 years with 9 years NPP; Fellatio 20 years with 15 years NPP. 72In a sentence imposed after trial for one offence of digital penetration [s 66A maximum penalty 25 years imprisonment] upon a 5 year old, with objective seriousness moderately below mid range, minor criminal history but no prior sexual offences, and reasonable prospects of rehabilitation this Court by majority, approved a sentence of 12 years with a non-parole period of 9 years: RR v R [2011] NSWCCA 235. 73In AWKO v R [2010] NSWCCA 90 the Court considered the sentence imposed after a plea of guilty for an isolated and spontaneous offence of penile/anal sexual intercourse [s 66A maximum penalty 25 years imprisonment] upon the offender's 6 year old daughter. There was a gross breach of trust. The offence was found to be mid-range. The offender was remorseful, had no criminal history and was found to have good prospects of rehabilitation. The Court did not disturb the sentence of 12 years 8 months and 28 days with a non-parole period of 4 years 5 months and 15 days. 74A sentence of 8 years and 3 months with a non-parole period of 6 years and 2 months was imposed on appeal for one opportunistic offence of fellatio with a 9 year old [s 66A maximum penalty 25 years imprisonment]: Eedens v R [2009] NSWCCA 254. Two other sexual assaults committed on the same afternoon upon a 13 year old and an 8 year old were placed on a Form 1. The offender was aged 71 with prior sexual offences. He was a neighbour and therefore there was some breach of trust. A finding had been made of reasonable prospects of rehabilitation. A 25% reduction was granted for a plea of guilty. The Court found the offence to be significantly below the mid range of objective seriousness. 75Kite v R [2009] NSWCCA 12 concerned sentences imposed after pleas of guilty to an offence of cunnilingus and an offence of digital penetration upon a 6 year old [s 66A maximum penalty 25 years imprisonment] committed on the same occasion. A reduction of 25% flowed from the pleas. The Court accepted that the offender was remorseful and had good prospects of rehabilitation. He had only a limited criminal history. Sentences, partially accumulated, of 7½ years with a non-parole period of 4½ years were imposed. 76In the Crown appeal of R v King [2009] NSWCCA 117 the Court indicated that the appropriate sentence for an offence only slightly below mid range in seriousness after a reduction of 25% for a plea should have been one of 9 years with a non-parole period of 6 years and 9 months [there were 3 offences on a Form 1]. The offender digitally penetrated [s 66A maximum penalty 25 years imprisonment] a 4 year old girl after breaking into her house. The offender was 23 and subject to suspended sentences at the time of offending. 77It is apparent that all but one of the cases to which the parties directed attention (JRM) concerned offences contrary to s 66A of the Act for which the maximum penalty was confined to imprisonment for 25 years. Very few deal with findings as to the seriousness of the offending at the same high level found by the judge. 78JRM is unlikely to be typical of offences contrary to s 66A(2) and I do not consider it to be of assistance in the present case. 79Section 66A(2) which provides the aggravated form of the offence for which the maximum penalty is life imprisonment represents a significant increase in the maximum penalty from that provided for the lesser offence which is a clear indication of the serious view taken by the Parliament of offences of this character. A sentencing court must be mindful of the serious view which the Parliament has taken of the aggravated offence. 80This case raises a number of difficult and complex issues. Although, as the sentencing judge concluded, the offences do not fall within the worst category of offence they were significantly above the mid-range of objective seriousness. So much was recognised by defence counsel. The applicant has not challenged her Honour's finding in that respect. The removal of the child from the safety of the home and subjecting her to forceful physical and sexual acts reflects criminality of a high order and having regard to the penalty provided by the Parliament requires a significant term of imprisonment. 81Any sentence must also recognise that the applicant has not demonstrated remorse or contrition and has uncertain prospects of rehabilitation. He has a significant record, including for offences of violence. The present offences were committed while he was on bail. Her Honour correctly recognised that the sentence must reflect the need to protect the community. That finding was also not challenged by the applicant. 82The sentencing of the applicant is made more difficult by his relative youth. He was 20 years of age at the time of the offences. He has had a troubled upbringing with a dysfunctional family life. He took to abusing alcohol and prohibited substances at an early age. It is plain that he has lacked an appreciation of how to conduct himself within society. 83In this case the potential of the total sentence which her Honour imposed to crush the applicant's expectations of a normal life and destroy any prospect of rehabilitation is troubling. Of course, whether the sentence would result in the applicant completely abandoning any prospects of rehabilitating himself and returning to society as a responsible citizen cannot be known with certainty. However, there is every likelihood that a young person of 22 years of age facing incarceration for at least 17 years will despair and give up hope. If at all possible this prospect should be avoided. 84The sentencing judge acknowledged that at the date he was sentenced the applicant was still a young man. Her Honour identified that there may still be opportunities for him to rehabilitate himself which may be assisted by programs in custody and the opportunity to address his substance abuse. Her Honour concluded that the consequence of the accumulation of sentences provided a special circumstance which justified varying the standard ratio between the non-parole period and the head sentence but did not otherwise find special circumstances. However, she indicated that before he was released to parole the applicant would be assessed to determine his level of engagement with the services and therapy available in custody which might assist him in re-establishing himself upon his release. 85But for the applicant's youth, having regard to the seriousness of these offences and recognising that counts 2 and 3 carry a maximum penalty of life imprisonment with a standard non-parole period of 15 years I would not have concluded that the sentences were excessive. However, the importance of ensuring that so far as was possible the sentences which were imposed were not crushing and provided an opportunity for the applicant to rehabilitate himself persuades me that this Court ought to intervene. Although the applicant must serve a lengthy period of fulltime custody it should be reduced. A finding of special circumstances which her Honour made and which was appropriate will ensure that at the appropriate time the applicant's prospects can be assessed and if appropriate he could be released and supervised for a lengthy period in the community. 86In relation to count one, where her Honour was under the belief that there was a standard non-parole period, I am satisfied that the sentence which her Honour imposed was influenced by that error and for that reason is excessive. A lesser sentence should be imposed although a reduction in that sentence will have little overall impact on the period of imprisonment. 87The orders which in my judgment are appropriate are: