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Category: Principal judgment

Parties: Peter Fritz Mahoney (Applicant)
Rex (Respondent)

Representation: Counsel:
T Ramrakha (Applicant)
S Coombes (Respondent)
Solicitors:
Legal Aid Commission of New South Wales (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/00063233

Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of any matter which could identify the victim is prohibited.

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Applicant pleaded guilty on indictment to six offences committed over two years against the complainant who was a child aged 11 to 13 years old at the time of the offending and known to him: one count of indecent assault of a person under the age of 16, four counts of aggravated sexual intercourse with a person above the age of 10 and below the age of 14, and one count of common assault. Three further offences were taken into account on a Form 1: one count of indecent assault of a person under the age of 16, and two counts of aggravated incitement to an act of indecency of a person under the age of 16 under the authority of the offender.

On 13 March 2025, the Applicant was sentenced in the District Court to an aggregate sentence of imprisonment of 16 years, with a non-parole period of 10 years. The Sentencing Judge indicated the head sentences his Honour would have imposed for each individual offence (following the application of a 25% discount) and, where applicable, the associated non-parole periods.

The Applicant sought leave to appeal against that sentence on two grounds:

1. The sentencing judge erred in finding that count 2 involved “unprotected sex”.

2. The aggregate sentence is manifestly excessive.

The Court (Sirtes J, Price AJA and Roberts J agreeing) held, granting leave to appeal and dismissing the appeal:

As to Ground 1:

1. Whether a sentencing judge has mistaken the facts will turn on whether the finding was “reasonably open”. If the finding was not reasonably open, the judge will have mistaken the facts. If that error is material, then a House v The King error will be established: [64].

Hancock v R [2025] NSWCCA 213, applied.

House v The King (1936) 55 CLR 499; [1936] HCA 40, referred to.

2. A sentencing judge may not take facts into account in a way that is adverse to the interests of an offender unless those facts have been established beyond reasonable doubt: [65].

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, applied.

R v Storey [1998] 1 VR 359; MacGill v R [2026] NSWCCA 102, cited.

3. It was reasonably open to find that Count 2 involved “unprotected sex” because the reference to “ejaculation” in the Agreed Facts imported that meaning, an unchallenged exchange between the Court and the Crown referred to the offence as involving “unprotected sex”, and there was no reference to the use of a condom or other prophylactic in the description of Count 2 on the material before the Court. The Applicant’s Counsel at the sentencing hearing made no submission to the contrary. The Sentencing Judge was entitled to assume that the issue was not in dispute. Further, because no submission was made before the Sentencing Judge that the intercourse was not unprotected, the Applicant has not demonstrated that a miscarriage of justice or serious injustice has resulted for this Court to intervene: [66]–[67].

Syed v R [2026] NSWCCA 47; Zreika v R [2012] NSWCCA 44; 223 A Crim R 460, cited.

As to Ground 2:

4. The principles which govern the determination of whether an aggregate sentence is manifestly excessive are well-established and were not in dispute: [71]–[74].

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; GD v R [2026] NSWCCA 95; Ellingford v R [2026] NSWCCA 24; Narayan v R [2026] NSWCCA 94; Lee v R [2020] NSWCCA 244, cited.

5. The most substantial indicative sentences were in respect of the s 66C(2) offences. That offence carries a maximum penalty of 20 years’ imprisonment and a standard non-parole period of 9 years. While sentencing is not a mathematical exercise, the maximum penalty and the standard non-parole period properly serve as legislative guideposts to inform the sentencing judge’s discretion. By reference to those guideposts, no components of the indicative sentences were excessive on the findings the Sentencing Judge made: [82].

Merheb v R [2021] NSWCCA 224; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited.

6. There was significant accumulation across the offences. In circumstances where the offences represented discrete episodes of offending over a two-year period, this was an orthodox approach. The question is whether an aggregate sentence of 16 years’ imprisonment manifestly exceeds what was required to reflect the totality of that criminality: [84]–[85].
7. The sentence imposed most certainly lies at the higher end of the range. But it was open to the Sentencing Judge to be satisfied that the totality of the criminality involved was significant. The Sentencing Judge imposed a sentence which the Applicant has not demonstrated was unreasonable or plainly unjust: [86].

JUDGMENT

1. PRICE AJA: I agree with Sirtes J.

2. SIRTES J: The Applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) (the Appeal Act) against the sentence imposed on him by McHugh SC DCJ (the Sentencing Judge) in the District Court at Grafton on 13 March 2025.

3. The Applicant pleaded guilty to six offences charged on an indictment dated 17 June 2024. The table below indicates the offences contrary to the Crimes Act 1900 (NSW) (the Crimes Act) for which the Applicant was sentenced, the maximum penalty and any standard non-parole period (SNPP) associated with the offence, the individual sentences indicated pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), and (where applicable) the non-parole periods indicated pursuant to s 54B(4) of that Act, in each case following the application of a 25% discount:

| Count | Offence | Maximum penalty and SNPP | Indicative sentence | | 1 | Indecent assault of a person under 16 years of age, contrary to s 61M(2) | 10 years 8 years SNPP | 2 years NPP: 1 year, 6 months | | 2 | Aggravated sexual intercourse with a person above the age of 10 years and below the age of 14 years (under authority), contrary to s 66C(2) | 20 years 9 years SNPP | 8 years NPP: 6 years | | 3 | Aggravated sexual intercourse with a person above the age of 10 years and below the age of 14 years (under authority), contrary to s 66C(2) | 20 years 9 years SNPP | 7 years NPP: 5 years, 3 months | | Form 1 attached to Count 3 (H76313735) | | Seq 3: Indecent assault of a person under 16 years of age, contrary to s 61M(2) | 10 years 8 years SNPP | | Seq 10: Incite aggravated indecency where victim is under the age of 16 and under the authority of the offender, contrary to s 61O(1) | 5 years | | Seq 14: Incite aggravated indecency where victim is under the age of 16 and under the authority of the offender, contrary to s 61O(1) | 5 years | | 4 | Aggravated sexual intercourse with a person above the age of 10 years and below the age of 14 years (under authority), contrary to s 66C(2) | 20 years 9 years SNPP | 6 years NPP: 4 years, 6 months | | 5 | Aggravated sexual intercourse with a person above the age of 10 years and below the age of 14 years (under authority), contrary to s 66C(2) | 20 years 9 years SNPP | 8 years, 6 months NPP: 6 years, 4 months, 15 days | | 6 | Common assault, contrary to s 61 | 2 years | 1 year, 1 month, 15 days |

4. The Applicant was sentenced to an aggregate term of imprisonment of 16 years with a non-parole period of 10 years, commencing on 24 February 2023. He is first eligible for release on parole on 23 February 2033.

5. The Applicant seeks leave to appeal on the following two grounds:

6. the Sentencing Judge erred in finding that Count 2 involved “unprotected sex”; and

7. the aggregate sentence is manifestly excessive.

8. The Applicant filed a notice of intention to apply for leave to appeal on 29 April 2025, which was outside the 28-day period prescribed by s 10(1)(a) of the Appeal Act, although his notice of appeal was then filed within 12 months thereafter. The Crown took no point about this. I propose that the time for the Applicant to file his notice of intention to apply for leave to appeal be extended to 29 April 2025, pursuant to s 10(1)(b) of the Appeal Act. Because the proposed appeal is arguable and the Applicant has been sentenced to a lengthy period of imprisonment, I am satisfied that leave to appeal should be granted.

9. Pursuant to s 578A of the Crimes Act and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of any matter which is likely to lead to the identification of the victim, who was a child at the time of the offending, is prohibited. Accordingly, I have simply referred to the victim as the Complainant throughout this judgment.

The offending

8. When taken together, the six counts and the three Form 1 sequences constitute nine discrete criminal acts that occurred on nine separate occasions, which the Sentencing Judge accepted in his remarks on sentence as having occurred “over the course of a number of offences over a course of some time”. Five of the six counts occurred while the Complainant was staying at the Applicant’s house; Count 6 occurred at the Complainant’s home.

9. A signed Statement of Agreed Facts (the Agreed Facts) established the following background which underpins the “under authority” circumstance of aggravation on Counts 2 to 5 and Sequences 10 and 14 (taken into account on a Form 1 in relation to Count 3). I set it out with appropriate anonymisation:

“1. The Offender in this matter is Peter Mahoney. His date of birth is … July 1967.

…

3. The Complainant is the youngest child of [the Complainant’s parents]. She has three older brothers to her parents, “C1” (4 years older than the Complainant) and “C2” and “C3”. She has two older half brothers from her mother’s first marriage, including “A”. A is married to “B”.

4. The Offender was a long-time family friend of the Complainant’s family, having met through [a church] when he was married to his first wife “P”.

5. In about 2012 the Offender commenced a new relationship with DM. She moved into his property at Coutts Crossing. They married on 17 October 2015 and separated on 13 May 2018. DM’s mother died in January 2017 and left her an inheritance.

6. The Complainant’s mother used to send her youngest two children to stay with the Offender so that she could have ‘respite’. There was no involvement by DCJ. C1 in fact lived with the Offender and DM for a long period of time, and even once an adult and DM had left, continued to live with the Offender on and off.

7. The Complainant started to stay on weekends with the Offender and DM from about age 11 or 12 (2015 or 2016) until 2018, ie 2 or 3 years. Her mother puts it as frequently as every 2nd or 3rd weekend. The Offender’s wife, DM and the Complainant’s brother, C1, would also be at the house on most of these occasions.

8. The Complainant at first slept with the Offender and DM, but DM wanted to avoid the Offender’s snoring and started to sleep on her own, or in the lounge. The Complainant was permitted to watch TV with the Offender in his bed and would often spend the whole night in there. Both DM and C1 say this was the case, and both say the bedroom door was locked to outsiders.”

Count 1 – Indecent assault, person under 16 (s 61M(2))

10. Paragraph 17 of the Agreed Facts provided:

“One night, when the Complainant was around 12 or 13 years of age, she and the Offender were laying on his bed. He was scratching her back but then moved his hand to her breast.”

11. The Agreed Facts were sparse. They did not record the duration, or whether the touching involved skin-on-skin contact, and there is no description of what followed.

12. In his Honour’s remarks, the Sentencing Judge considered that Count 1 was significantly below the mid-range as he could not be satisfied beyond reasonable doubt on the evidence that there was skin-on-skin contact.

Count 2 – Aggravated sexual intercourse, child above 10 years but below 14 years (under authority) (s 66C(2))

13. Paragraphs 18 to 20 of the Agreed Facts provided as follows:

“18. On a night shortly after her 13th birthday, the Offender and the Complainant were naked in his bed.

19. The Offender had penile vaginal intercourse with her and ejaculated.

20. This was painful to the Complainant who then walked into the kitchen after the incident and asked DM for some Panadol. DM rang the Complainant’s mother for permission for Panadol. Both women recall this incident.”

14. It is beyond argument that these facts make no explicit reference to the use or non-use of a condom or any other form of contraception or protection. The words “unprotected”, “condom” and “protection” (in the context of sexual intercourse) do not appear anywhere in the Agreed Facts, the indictment, the Form 1, or either party’s written submissions on sentence. Beneath par 26 of its written submissions on sentence, the Crown summarised Count 2 as involving “the offender and victim being naked and the offender engaging in penile vaginal intercourse. … The intercourse involving ejaculation and causing pain to the victim”. Paragraph 11 of the Applicant’s submission on sentence characterised Count 2 as involving “full penile vaginal intercourse to ejaculation with a child aged 13”.

15. During the sentencing hearing there was an exchange between the Court and Ms Biffin, the then Solicitor Advocate who appeared for the Crown, in relation to “unprotected sex”. The transcript of that exchange was the subject of a correcting affidavit from Ms Adrienne Ey, a solicitor in the employ of the Office of the Director of Public Prosecutions, affirmed on 18 August 2026. The corrected exchange occurred in the following terms:

“HIS HONOUR: … And the Crown submissions. The Crown says count 2 involves ejaculation, therefore, there’s a risk of pregnancy. It wasn’t clear on the facts that that occurred during penetration.

BIFFIN: There’s always a risk with unprotected sex. Obviously your Honour doesn’t re, ejaculation isn’t required to have a risk of pregnancy.

HIS HONOUR: You’re quite right, you’re quite right. I understand. Thank you. …”

16. I shall return to the issue of the Sentencing Judge’s finding that the intercourse was unprotected when I address Ground 1 below.

17. His Honour found in relation to Count 2 that the offence was at the mid-range. It was serious, it was unprotected sex and it was shortly after the Complainant’s 13th birthday. She was towards the higher end of that age range for that offence and there was no doubt that it was painful. In making this finding, his Honour rejected the Crown’s submission that the offence was above mid-range and accepted the Applicant’s submission.

Count 3 – Aggravated sexual intercourse, child above 10 years but below 14 years (under authority) (s 66C(2)) – Principal offence for the Form 1

18. Paragraphs 21 and 22 of the Agreed Facts provided as follows:

“21. When the Complainant was about 13 years of age, the Offender’s wife travelled to Sydney for eye surgery, leaving the Offender and the Complainant at home alone.

22. They were in the loungeroom in the evening. The Offender took off his pants and underwear and stood in front of the Complainant. He told her to try it and grabbed her by the back of her head. He put his penis in her mouth for a few seconds and thrust back and forth.”

19. In its written submissions before the Sentencing Judge, the Crown relied upon R v Daley [2010] NSWCCA 223 (Daley) at [48] (Price J, Hodgson JA and Fullerton J agreeing) for the proposition that “the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence”. The Crown submitted the offence was above mid-range. The Applicant submitted that the offence fell at or below the mid-range.

20. The Sentencing Judge found that Count 3 was slightly below the mid-range. Although the act of fellatio was considered to be forceful, it was relatively brief, whereas in some other cases the assault is not brief and a lot more force is used. His Honour noted, by reference to the Form 1 offences, that there was “definitely going to be additions to that” as the Form 1 offences “were serious examples of that offending”.

Count 4 – Aggravated sexual intercourse, child above 10 years but below 14 years (under authority) (s 66C(2))

21. Paragraph 26 of the Agreed Facts stated as follows:

“On an occasion while in the garage at his property, the Offender took the Complainant’s pants and underwear off and performed cunnilingus on her.”

22. The Agreed Facts contained no particulars as to the duration, the Complainant’s precise age at the time or the surrounding circumstances.

23. The Crown contended that the offence was mid-range. The Applicant contended that it fell below mid-range. The Sentencing Judge accepted the Applicant’s submission. It was unclear for how long the Applicant performed cunnilingus on the Complainant. His Honour was also not satisfied beyond reasonable doubt of any other factors that would elevate the offence to one of mid-range seriousness. During the sentencing hearing, the Sentencing Judge remarked “we just don’t know the length. There’s no criticism of anyone, but we don’t know the length or the surrounding circumstances. I can infer some, but it’s really the length”.

Count 5 – Aggravated sexual intercourse, child above 10 years but below 14 years (under authority) (s 66C(2))

24. Paragraph 27 of the Agreed Facts provided that:

“On another occasion when they were alone in his garage the Offender had penile anal intercourse with her as she leant against an object in the garage. This act caused the Complainant pain.”

25. The Crown contended that the offence fell above mid-range whereas the Applicant contended it fell at or below mid-range. The Sentencing Judge found that the offence was in the mid-range. His Honour accepted that caution must be exercised before assuming that one mode of intercourse is more serious than another, noting that the authorities “tell us that the form of it, there’s no hierarchy, but the form of the intercourse itself may be relevant simply because of the age of the child”.

Count 6 – Common assault (s 61)

26. Paragraph 28 of the Agreed Facts provided as follows:

“Before she turned 14 the Complainant stopped attending the Offender’s house. She says there was an occasion when the Offender came to her home, went into her room, grabbed her around the throat and pushed her against the wall, telling her he would kill her. He had once told the Complainant a story about him killing a girl with a shotgun in Melbourne, and getting away with it.”

27. The Crown submitted in writing to the Sentencing Judge that the Complainant was aged between 11 and 13 years at the time of the offence and that the age disparity between the Complainant and the Applicant made this offending more serious. The Crown treated the fact that the offence occurred in the Complainant’s home as an aggravating feature, in circumstances where the Complainant should have been able to feel safe in her bedroom at her home. Despite this, the Crown submitted in oral address that the offence was below mid-range. The Applicant made no positive submission placing Count 6 on a range of objective seriousness.

28. The Sentencing Judge departed upwards from the Crown’s position, finding that this offence was above the mid-range. His Honour, during the hearing, observed:

“See, I have it above the mid-range for that. It’s in her home. He grabbed her around the throat, pushed her against the wall, telling her he would kill her. I mean, it’s more than common assault, and having already told the complainant the story about him killing a girl with a shotgun and getting away with it.”

The Form 1 offences

29. Three offences were taken into account on a Form 1 in sentencing for Count 3, pursuant to s 32 of the Sentencing Act. The Sentencing Judge considered that each of the Form 1 offences was a serious example of the offending.

30. In taking these offences into account in sentencing for Count 3, his Honour applied Attorney General*’*s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518, stating that:

“the Court does so by giving greater weight to two elements that are always material in the sentencing process. The first is the need for personal deterrence and the second is the community’s entitlement to exact retribution for serious offences for which … no [punishment] has in fact been imposed.”

Sequence 3 – Indecent assault, person under 16 (s 61M(2))

31. Paragraph 23 of the Agreed Facts provided as follows:

“On another occasion the Complainant and the Offender were on a couch watching TV and DM was in the same room lying on a mattress on the floor. The Offender put his hand inside the Complainant’s pants and touched her on her vagina, over the top of her underwear. She pushed his hand away. He then grabbed her hand and placed his on his penis, initially over the top of his pants but then inside his underwear onto his penis and moved her hand up and down.”

32. The Crown’s written submissions in the Court below, and his Honour’s recitation of the facts, read the words “placed his on his penis” as “placed it on his penis”, which is plainly the intended sense.

Sequence 10 – Incite aggravated act of indecency, victim under 16 and under authority (s 61O(1))

33. Paragraph 25 of the Agreed Facts recorded the following:

“On another occasion, after sleeping in the same bed for the night, the Offender and the Complainant had a shower together the following morning. The Complainant washed his penis at his request.”

34. The Applicant conceded that this was the most serious offence of the three Form 1 offences and that it would inevitably exert upward pressure on the sentence for Count 3. His Honour found that this offence was “particularly” serious.

Sequence 14 – Incite aggravated act of indecency, victim under 16 and under authority (s 61O(1))

35. Paragraph 24 of the Agreed Facts stated as follows:

“On another occasion, the Offender told the Complainant he wanted to watch her reach orgasm. He placed a towel on the bed and invited her to sit on it. She sat on the towel and urinated.”

Victim impact

36. A victim impact statement was read aloud in Court by the Complainant. She described abusive relationships, suicide attempts, derealisation and dissociation, severe depression, anxiety, fear and complex post-traumatic stress disorder which followed from the Applicant’s offending. She said that the Applicant had “corrupted every good memory I hold from the last 19 years”. The Complainant added “[m]y 19 years I will never get back my childhood ripped out beneath me, a grown woman who didn’t get to be a child”.

37. The Sentencing Judge stated that he was entitled to consider the consequences of all of the conduct of the Applicant such as damage or loss occasioned to the Complainant, but could not consider circumstances of aggravation which would have warranted a conviction for a more serious offence.

38. His Honour observed that the Complainant stated that she was there to seek justice for the horrific and vile actions she endured as a young child, but cautioned that no matter what sentence he imposed, nothing could make up for that.

Aggravating and mitigating factors

39. The Crown identified two aggravating factors under s 21A(2) of the Sentencing Act, and three further matters relevant to the assessment:

40. the offence was committed in the home of the complainant: s 21A(2)(eb). The Sentencing Judge considered this to be an aggravating factor in relation to Count 6;

41. the Offender abused a position of trust: s 21A(2)(k). The Crown accepted that the “under authority” element of Counts 2 to 5 and Sequences 10 and 14 could not itself be taken into account as an aggravating factor in relation to those offences, but submitted that the position of trust aggravated all of the offences. His Honour noted, correctly in my view, that “I am cautious in giving undue weight to a position of trust where abuse of authority is an aggravating factor to avoid double counting, otherwise I give it full weight”;

42. the emotional harm caused by the offence was substantial. His Honour stated that the emotional harm, loss or damage caused by the offences was substantial and he was satisfied that that was certainly the case here, in the context of the purpose in s 3A(g) of recognising the harm done to the complainant of the crime and the community;

43. age disparity and power imbalance. There was approximately a 35-year age disparity which his Honour treated as “quite a large age disparity”, observing that “this was a person who preyed upon a young woman, a child, who was in his home”; and

44. grooming. The Crown submitted that all counts and sequences, except Count 6, occurred in the context of grooming, eg the giving of gifts, and asking the Complainant why she did not love him. The Sentencing Judge made no express finding of aggravation in relation to grooming.

45. The Crown conceded four mitigating factors:

46. the conduct was not part of a planned or organised criminal activity: s 21A(3)(b). His Honour accepted this;

47. the Offender had no record of previous convictions: s 21A(3)(e). The Sentencing Judge accepted that the Offender had no record, but also found that the Offender “was not a person of good character at the time he committed the later offences”;

48. remorse: s 21A(3)(i). The Sentencing Judge accepted remorse, albeit guardedly, observing “I am still taking a guarded approach to the issue of remorse given the denials in the Sentencing Assessment Report” but, on the strength of Exhibit 3 (being an affidavit sworn by the Applicant in which he accepted responsibility for the offending), “I do accept it”; and

49. plea of guilty: s 21A(3)(k). The Sentencing Judge accepted that the Offender had pleaded guilty at the first opportunity and was entitled to a 25% reduction which was given added weight beyond its utilitarian value.

The Applicant’s subjective case

41. The Sentencing Judge made findings in relation to the Applicant’s background and deprivation, education, employment and mental health, moral culpability, the onerousness of his custody, delay, and risk of reoffending. I shall briefly deal with each of these matters.

Background and deprivation

42. The evidence established that the Applicant had both observed and been the subject of domestic violence in the family. He witnessed his father strike his mother. He himself suffered a broken clavicle at his father’s hands and then lied at the hospital to cover for his father, who was a heavy drinker and a “womaniser”. His parents separated when he was 13.

43. Mr Cochrane of Counsel, who appeared for the Applicant at the sentencing hearing, did not wish to make a “powerful submission” about this background on the basis that the Sentencing Judge would see “people who have far more … harrowing childhoods”. His Honour did not consider this to be “a classic Bugmy case” but nevertheless took it into account as part of the overall instinctive synthesis: see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy).

Education, employment and mental health

44. In relation to these matters, the Sentencing Judge noted that the Applicant left school in Year 8 with low results and social difficulties. He never returned to study. He has been on the disability support pension since about 2000, albeit for reasons that were unclear.

45. Mr Patrick Sheehan, forensic psychologist, prepared a report dated 5 August 2024 which stated that the Applicant’s offences “do infer [sic] the possibility of a diagnosis of pedophilic disorder (non-exclusive type, interest in females)”. But Mr Sheehan observed that although the criteria for this disorder were met, there was no broader evidence of a fixed sexual interest in children. Mr Sheehan also found that the Applicant likely met the criteria for Avoidant Personality Disorder.

46. The Sentencing Judge accepted the paedophilic disorder diagnosis with the qualification that “beyond these offences, there is no other indication of a fixed sexual interest in children”, and accepted that the Avoidant Personality Disorder was an indication of personal vulnerability.

47. A neuropsychological assessment of the Applicant was conducted by Ms Nicole Skea, clinical neuropsychologist. Ms Skea prepared a report dated 14 February 2025. The assessment found that the Applicant’s cognitive functioning was robust and he was not intellectually disabled. Nor did he suffer from a cognitive impairment. There was no clear evidence to diagnose bipolar disorder. The report noted that the Applicant was “a vulnerable person and will find it difficult to withstand and adapt to the heightened stress of the incarceration setting”.

Moral culpability

48. As noted above, the Sentencing Judge did not consider the circumstances of the Applicant’s background to constitute a classic Bugmy case.

49. His Honour also noted that the Applicant did not submit that his mental health condition enlivened the application of the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. Nevertheless, and favourably to the Applicant, the Sentencing Judge considered that his “borderline issues”, including “his intelligence and so on, and his avoidant personality disorder, his vulnerability and so on”, made the Applicant an unsuitable vehicle for general deterrence and that a prison sentence might weigh more heavily on him. Even so, his Honour stated that “general deterrence must loom large in this type of offending”.

Onerous custody

50. His Honour took into account the Applicant’s age and health problems, including his mental health problems, in finding that his experience in custody would be more onerous. But his Honour could not conclude that the nature of the Applicant’s offending would produce more onerous conditions of incarceration.

Delay

51. Delay did not loom large as a subjective factor. The Sentencing Judge took it into account in the overall assessment in the instinctive synthesis, rather than as a quantified reduction in the sentence imposed.

Risk of reoffending

52. A Static-99R actuarial assessment of the Applicant placed his risk of reoffending in the “average risk category”. The Sentencing Judge accepted that assessment.

The sentence

53. The Sentencing Judge recited all seven s 3A purposes and took into account s 21B(1), that is, that the Applicant was required to be sentenced in accordance with current sentencing patterns and practices. Pursuant to s 25AA(3), his Honour also considered the trauma of child sexual abuse as understood at the time of sentencing.

54. His Honour had regard to the principle of totality. The Sentencing Judge confirmed that while there would be a level of accumulation, that process must avoid producing a crushing sentence.

55. His Honour indicated shorter non-parole periods for each of the offences to which a standard non-parole period applied. The Sentencing Judge was required to give reasons for so doing: Sentencing Act s 54B(5). His Honour did so by assessing each of those offences at or below the mid-range of objective seriousness and by applying a 25% statutory discount to reflect the Applicant’s early plea of guilty.

56. The Sentencing Judge also found special circumstances because of several factors, including that this was the first time that the Applicant would be held in full-time custody, that incarceration would be harsh given his mental health issues, and that there would be a need to benefit from supervision for some time because he was of some risk. In those circumstances the Sentencing Judge fixed an aggregate non-parole period which was 62.5% of the aggregate head sentence.

57. Although the sentencing court considered Judicial Information Research System (JIRS) statistics, as well as the decision in R v Carey [2024] NSWCCA 90 (which was rejected as a comparable case), the Sentencing Judge found that such statistics were “a blunt instrument”, in conformity with well-established authority.

58. Having regard to all these matters, the Sentencing Judge imposed an aggregate sentence of 16 years’ imprisonment with a non-parole period of 10 years.

59. Arithmetically, the indicative head sentences totalled 32 years, 7 months and 15 days, such that the aggregate head sentence is approximately 49% of the sum of the indicative terms and represents 7 years and 6 months of accumulation above the single highest indicative term (Count 5, being 8 years and 6 months’ imprisonment). In noting these calculations for completeness, I am mindful of the variance in opinion in this Court as to the utility of this approach: see, eg, GG v R [2023] NSWCCA 102 at [90] (N Adams J, Bell CJ and Davies J agreeing); Harden v R [2024] NSWCCA 184 at [6]–[9] (Hamill J), [385] (N Adams J); MT v R [2026] NSWCCA 25 (MT) at [148] (N Adams CJ at CL, Emmett J agreeing), [162] (Hamill J).

60. The aggregate non-parole period of 10 years’ imprisonment is 3 years, 7 months and 15 days longer than the highest indicative non-parole period (Count 5, being 6 years, 4 months and 15 days’ imprisonment).

Ground 1

61. Ground 1 contends that the Sentencing Judge erred in finding that Count 2 involved “unprotected sex”.

62. In the Applicant’s written submissions, this ground was addressed in a single sentence within the manifest excess argument. At par 65 those submissions state:

“Count 2 involved an act of penile vaginal intercourse and ejaculation. The facts do not further describe the act or indicate that the offence involved ‘unprotected sex’ – the finding made by the sentencing judge. They are also silent on duration and whether ejaculation occurred inside or outside of the complainant’s vagina. While there is a reference to the complainant’s experience of pain, the facts do not describe the degree of pain she felt in a meaningful way.”

(Emphasis added.)

63. Mr Ramrakha of Counsel, who appeared for the Applicant in this Court (but not before the Sentencing Judge), expanded on this ground in his oral address. He submitted that there were three possible findings that could have been made in this respect: that the intercourse was protected, unprotected, or that it was not possible to make a finding either way. Mr Ramrakha contended it was “impossible to make a finding that it was unprotected” because “the facts are so sparsely worded that they don’t lend themselves to making that finding”. He accepted that after the Crown submitted orally before the Sentencing Judge that Count 2 involved unprotected sex, the issue was not joined, but contended that nor did the Applicant agree to that characterisation. On the facts before his Honour, the Applicant says that it was not open to find that Count 2 involved unprotected sex beyond reasonable doubt.

Principles

64. In Hancock v R [2025] NSWCCA 213 at [73], this Court (Bell CJ, Ward P, Payne JA, N Adams and Yehia JJ) explained that whether a sentencing judge has mistaken the facts will turn on whether the finding was “reasonably open”. If the finding was not “reasonably open”, the judge will have mistaken the facts. If that error is material, then an error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 will be made out.

65. Moreover, a sentencing judge may not take facts into account in a way that is adverse to the interests of an offender unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at [27], citing R v Storey [1998] 1 VR 359 at 369; see also MacGill v R [2026] NSWCCA 102 at [137] (Payne JA, Rigg and Roberts JJ agreeing).

Consideration

66. I am satisfied that it was reasonably open to the Sentencing Judge to make a finding that the penile vaginal intercourse referred to in par 19 of the Agreed Facts was unprotected. That finding was open, in my view, for three reasons:

67. merely as a matter of textual interpretation, I consider that a fair reading of par 19 imports an intended meaning that ejaculation (without a condom or other prophylactic) took place. Had the reference to “ejaculation” been intended to convey ejaculation into a prophylactic, words to that effect would have been required. It may reasonably be assumed that they would have been included if that comported with the facts;

68. the exchange that occurred between the Crown and the Sentencing Judge (recorded in the corrected transcript set out at [15] above) was premised on the intercourse being unprotected. The Crown’s position was that the risk of pregnancy does not depend upon ejaculation occurring during penetration because the intercourse was unprotected. The absence of protection became, in that exchange, the operative fact rather than whether ejaculation occurred intravaginally or not; and

69. as the Crown submits, there is no reference to a condom at all—neither the presence of one nor its use—in the description of Count 2. I accept that it is reasonably open on those facts to infer that penetration occurred without a condom.

70. The Applicant was represented by Counsel at the sentencing hearing. Following his Honour’s exchange with the Crown that the intercourse described in Count 2 was unprotected, no submission was made by the Applicant that it was not, or that his Honour could not be satisfied on the evidence that the intercourse was unprotected. This was also in circumstances where, at par 11 of his written submissions on sentence, the Applicant submitted that Count 2 “involved full penile vaginal intercourse to ejaculation”. Taking these matters together, the Sentencing Judge was entitled to assume that the issue was not in dispute: Syed v R [2026] NSWCCA 47 at [7] (N Adams CJ at CL). Further, in these circumstances where no submission was made before the Sentencing Judge that the intercourse was not unprotected, the Applicant has not established that a miscarriage of justice or serious injustice has resulted for this Court to intervene: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [79]–[82] (Johnson J, McClellan CJ at CL and Rothman J agreeing).

71. The Sentencing Judge was alive to the constraint on finding facts adverse to an offender explained in Olbrich, as is apparent from his Honour’s self-direction in the same terms as set out at [65] above. Shortly after doing so, his Honour found that Count 2 “was serious, it was unprotected sex”. I am satisfied that the Sentencing Judge found that fact beyond reasonable doubt. On the material before the Court in light of the submissions made by the Crown and the Applicant, his Honour was entitled to so find.

72. Accordingly, I reject Ground 1.

Ground 2

70. The Applicant also challenges the aggregate sentence on the ground that it is manifestly excessive.

Principles

71. The principles which govern the determination of whether an aggregate sentence is manifestly excessive were not in dispute between the parties. Those principles were summarised by R A Hulme J (with whom Bathurst CJ, Leeming JA, and Hamill and N Adams JJ agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this Court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

72. That summary was recently applied by this Court in GD v R [2026] NSWCCA 95 at [76] (McNaughton J, Payne JA and Muston J agreeing). I also respectfully adopt the following observations of Price AJA (with whom N Adams CJ at CL and McGuire J agreed) in Ellingford v R [2026] NSWCCA 24 at [135]:

“It follows that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and applicable sentencing principles: Markarian at [27]. Mere disagreement by appellate judges with the sentence imposed is not enough to render a sentence manifestly excessive, nor is it to the point that this Court may have exercised the sentencing discretion differently: Nair v R [2025] NSWCCA 136 at [70] (Yehia J, Stern JA and Cavanagh J agreeing); R v White [2025] NSWCCA 111 at [26] (Bell CJ, Payne JA and N Adams J agreeing); Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214 at [168] (N Adams J). In TH v R [2025] NSWCCA 121, Bell CJ observed at [5] (by reference to what his Honour had said in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42] (“He v Sun”)):

‘As noted in [He v Sun] at [42(iv)], an applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law” …’”

73. As this Court (McGuire J, Kirk JA and Yehia J agreeing) noted in Narayan v R [2026] NSWCCA 94 at [63]:

“… sentencing is not a mathematical exercise but rather an evaluative and discretionary one. A sentence for each offence is required to be reached by balancing many different and often conflicting features: Markarian at [27].”

74. Furthermore, because the Applicant seeks to challenge the length of an aggregate sentence of imprisonment, it is helpful to refer to the following statement of principle by Beech-Jones J (with whom Payne JA and Fagan J agreed) in Lee v R [2020] NSWCCA 244 at [32] as follows:

“Further, with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at C[L] and Adamson J agreed and cases cited thereat; ‘JM’). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; ‘Beale’). The ‘potentials for accumulation’ of the various notional sentences can be examined to determine whether the ‘aggregate sentence represents a sound exercise of sentencing discretion’ (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The ‘principle’, or even ultimate, ‘focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved’ (JM at [40]).”

Consideration

75. The engine of the Applicant’s argument at pars 63–71 of his written submissions concerns the sparseness of facts as to the duration, degree of pain, circumstances, and the existence or absence of humiliation and violence, being factors addressed in cases such as R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1 at [56] and Daley at [48]. The Applicant submits that breach of trust in a home setting is typically seen in child sex offences and does not distinguish this case.

76. The Applicant also emphasises JIRS statistics which show that, of 101 offenders sentenced for contravening s 66C(2) between 24 September 2018 and 30 June 2025, only 13 received aggregate sentences of 16 years or longer, and only 14 received non-parole periods of 10 years or longer. The Applicant contends that his case “is not within the category of cases where a sentence of 16 years or more has been imposed”. Of course, a complaint of manifest excess cannot be made out merely by “pointing to a statistical range of sentence and arguing that the particular sentence falls at or near the top of that range”: Ahmad v R [2019] NSWCCA 198 at [48] (Wilson J, Basten JA and Wright J agreeing).

77. The schedule annexed to the Applicant’s outline of submissions concerning s 66C(2) offences committed on or after 13 June 2003 contains 29 entries. The Crown disputes the applicability of many of the cases contained in the schedule.

78. The Crown notes that the 9-year SNPP attached to s 66C(2) offences committed on or after 29 June 2015, in circumstances where the Applicant’s offending ran from November 2015 to December 2017. What follows is that Counts 2 to 5 attracted the 9-year SNPP, and s 21B(1) of the Sentencing Act required sentencing according to current patterns and practices. Cases in the schedule such as GAT v R [2007] NSWCCA 208, CS v R [2014] NSWCCA 229; 245 A Crim R 249, DV v R [2017] NSWCCA 276, ME v R [2019] NSWCCA 91 and Facer (a pseudonym) v R [2019] NSWCCA 180; 279 A Crim R 156 were (bar one) decided without that legislative guidepost, and all without s 25AA(1) (which now finds form in s 21B(1)).

79. Several cases in the schedule nevertheless post-dated the introduction of the 9-year SNPP. I have considered those cases. Having done so, the closest analogue to the present is MT, which involved two counts under s 66C(2) as well as other offences, with a 25% reduction on account of a plea. The offender received a 16-year aggregate sentence with an 11-year non-parole period. This Court reduced the sentence on the basis that the combination of high indicative sentences and significant notional accumulation resulted in a manifestly excessive aggregate sentence. The case involved offending against the offender’s two daughters. Nevertheless, there are distinguishing features. The conduct in MT involved digital penetration and cunnilingus whereas, in this case, the Applicant engaged in penile-vaginal, penile-anal and oral intercourse.

80. Another case which I consider relevant as an analogue is R v RJ [2023] NSWCCA 273, a Crown appeal against an aggregate sentence of 12 years’ imprisonment with a non-parole period of 8 years imposed for 19 offences. Those offences (five contrary to s 66C(2), two contrary to s 66C(4), nine indecent assaults on a child under 16 contrary to s 61M(2) and three assaults contrary to s 61) were committed against the offender’s biological daughter (save for one assault against her mother) when she was aged between 12 and 15 years, involving frequent penile-anal intercourse, forced fellatio and violence. There was an absence of remorse and no plea of guilty. This Court increased that aggregate sentence to 16 years’ imprisonment with a non-parole period of 11 years 6 months. The offender was separately sentenced for an offence contrary to s 319 and for a breach of an apprehended domestic violence order, with the effect that the overall sentence after the appeal was 17 years with a non-parole period of 12 years 6 months. The aggregate sentence of 16 years’ imprisonment is the same sentence imposed by the Sentencing Judge in this case, after a 25% discount, for four s 66C(2) counts, one s 61M(2) count and one s 61 count (and three Form 1 offences) against a single complainant.

81. But the schedule of comparables, and specifically the cases outlined above, is not the beginning and end of the enquiry.

82. By far the most substantial indicative sentences were in respect of the s 66C(2) offences, which carry a maximum penalty of 20 years’ imprisonment. A 9-year non-parole period is the SNPP for a mid-range offence, “taking into account only the objective factors affecting the relative seriousness of that offence”, dealt with after trial: Sentencing Act s 54A(2). It must be accepted that sentencing is not a mathematical exercise, such that neither the non-parole period nor the head sentence can be fixed in some specific numerical proportion to the SNPP or the maximum penalty, respectively, based on an assessment of the objective seriousness of that offence: Merheb v R [2021] NSWCCA 224 at [84] (Wright J, Payne JA and Price J agreeing). The SNPP and the maximum penalty properly serve as legislative guideposts to inform the sentencing judge’s discretion: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. The Sentencing Judge found that each of the s 66C(2) offences fell either at or below the mid-range of objective seriousness. While there were subjective factors which operated to mitigate the sentence ultimately imposed, the Applicant’s subjective case could not be described as particularly compelling. In those circumstances, and by reference to the legislative guideposts, no components of the indicative sentences are excessive. If anything, they are moderate.

83. In addition to this, the Sentencing Judge found that the Form 1 offences taken into account in sentencing for Count 3, being an indecent assault and two incitements to aggravated indecency, were all “serious examples” and required greater weight to be given to personal deterrence and retribution.

84. It is obvious that there is significant accumulation across the offences. In circumstances where the offences represented discrete episodes of offending over a two-year period, this was an orthodox approach.

85. The material question is narrower than either party sought to frame it and concerns notional accumulation. Grossing up the aggregate sentence yields a notional head sentence of 21 years and 4 months’ imprisonment, although that figure is only a “rough guide”: Morris v R [2026] NSWCCA 119 at [31] (N Adams CJ at CL, Sirtes J agreeing). The offending was against a single complainant, on nine occasions over two years. Weighing against that are an early plea, an acceptance (albeit guarded) of remorse, no prior criminal record, and childhood deprivation and mental health diagnoses which reduced the weight to be given to general deterrence. The question is whether an aggregate sentence of 16 years’ imprisonment manifestly exceeds what was required to reflect the totality of that criminality.

86. Whilst I consider that the sentence imposed by the Sentencing Judge most certainly lies at the higher end of the range, the authorities make plain that intervention is only warranted if the difference between this sentence and sentences imposed in other cases is such that I conclude that there has been some misapplication of principle. It was open to the Sentencing Judge to be satisfied that the totality of the criminality involved in this case was significant. After a careful consideration of the objective seriousness and the Applicant’s subjective circumstances, the Sentencing Judge imposed a sentence which I am not persuaded the Applicant has demonstrated was unreasonable or plainly unjust.

87. For these reasons, I reject Ground 2.

Orders

88. I propose the following orders:

89. Extend the time for the Applicant to file a notice of intention to apply for leave to appeal to 29 April 2025, pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW).

90. Grant leave to appeal.

91. Dismiss the appeal.

92. ROBERTS J: I agree with Sirtes J.

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