Maxwell v R

Court of Criminal Appeal (NSW)|2020-04-20|Before: Johnson J, Adamson J, Bellew J, Ms J

The Applicant's Subjective Circumstances

The Applicant was born in July 1973. He was 31 to 33 years old at the start of the nine-year period over which he committed the index offences and was 45 years old at the time of sentence.
The Applicant has a record of prior convictions dating from 1990 including convictions for common assault in 1994 (two counts), 1996 and 1999. In 2008, he received suspended sentences for offences of common assault (two counts), stalk/intimidate and contravene prohibition/restriction in an apprehended domestic violence order.
In 2009, he was sentenced for a further count of common assault (domestic violence). The suspended sentence imposed for that offence was called up in 2010 and a sentence of periodic detention was imposed.
Offence 3 (see [22] above) was committed whilst the Applicant was subject to conditional liberty in 2008 in the form of either bail or a suspended sentence for a domestic violence offence committed against the victim's mother.
The Applicant was sentenced to a term of imprisonment for common assault (domestic violence) in 2016. He served six days of that sentence before it was varied on appeal to a suspended sentence.
The sentencing Judge for the present offences found that the prior convictions of the Applicant denied him leniency.
The Applicant did not give evidence at the sentencing hearing.
A letter dated 11 July 2019 from the Applicant's father was tendered in the defence case.
Tendered in the defence case on sentence was a report dated 8 July 2019 of Dr Andrew Ellis, forensic psychiatrist. Dr Ellis gave brief oral evidence at the sentencing hearing, to which reference will be made below.
The Applicant was born in New Zealand and came to Australia with his family as a young child in 1974. He attended school until the age of 15. The Applicant told Dr Ellis that he was a below-average student and required special schooling for learning difficulties. He completed his schooling at a private school where he had no significant disciplinary problems. After leaving school, the Applicant worked as an apprentice chef for three years. He did not complete the apprenticeship, but is a Grade 2 cook and has been employed in that role.
The Applicant has a long history of drug and alcohol abuse. He began drinking alcohol at age 17 and reported that, from the age of 19, he would drink at least six beers a day and "as many bourbons as I could drink". He estimated that he experienced blackouts two-to-three times a week.
The Applicant began smoking cannabis at age 16 and used heroin from age 20, including daily intravenous use from age 22. He last used heroin 15 years ago (in about 2004). The Applicant reported having used "Ice" (crystal methylamphetamine) and "speed" (methylamphetamine) from age 17 and that he used it initially once a year. His use increased to a few times a year and in the year before his arrest, he was using half a gram a fortnight.
The Applicant told Dr Ellis that he had attended drug or alcohol rehabilitation on three or four occasions, but had always walked out before finishing the program.
The Applicant told Dr Ellis that he had a problem with his mood since he was 19 years old. At that age, the Applicant reported having been drugged and raped by two males. He told Dr Ellis that he saw a psychologist for three years in relation to the incident and that, as a result of it, he hates being surrounded by men.
Dr Ellis opined that the Applicant presented with a substance abuse disorder that was in remission within a controlled environment. He noted that the Applicant described mood and anxiety symptoms following the sexual assault. Dr Ellis observed that the most likely diagnosis was that of post-traumatic stress disorder and noted that some of the Applicant's mood symptoms may have been exacerbated by heavy substance abuse.
Dr Ellis reported that, given the persistence of the offending behaviour, it is likely that the Applicant would meet the criteria for a paedophilia disorder, limited to incest and attraction to females. He noted that the Applicant had denied any sexual arousal, fantasy urge or behaviour with children other than his daughter.
Dr Ellis said in evidence during the sentence proceedings that there was no way for him to tell if those denials were true in the absence of external evidence to the contrary. Dr Ellis gave evidence that if the Applicant only offended against his daughter, then he is at a lower risk of reoffending than people who have offended against males and people who have offended against females who were not their biological relatives.
Dr Ellis stated that in his opinion, sexual arousal was the primary motive for the Applicant's offending. He confirmed that aspect of his opinion in oral evidence, but said he thought there were "probably some other motives" including that the Applicant was seeking a replacement relationship. He noted that threats and psychological coercion (telling the child he would get into trouble if the child tells) were used by the Applicant for some of the offences.
Dr Ellis gave evidence that the Applicant did not minimise his behaviour in that he did not disagree with the contents of the facts sheet or minimise the detrimental effects that his behaviour would have had on his daughter. He stated that the Applicant displayed limited insight into the motivations for his offending behaviour later adding, in cross-examination, that this was not surprising given that he had not received targeted psychological treatment for sexual offending following the offences.
Dr Ellis recommended that the Applicant undergo substance abuse rehabilitation and stated that it was likely that the Applicant would benefit from cognitive behavioural programs aimed at sexual offending and domestic violence, as well as anti-androgen medication to reduce his sex drive once he was released into the community.

Victim Impact Statement

A powerful victim impact statement was tendered by the Crown at the sentencing hearing. At the time of the sentencing hearing in July 2019, the victim was 19 years old.
In this statement, the victim recounted the impact upon her of the protracted period of sexual offending against her by her father over a period of nearly 10 years when she was aged between five and 14 years. She stated that the Applicant had told her that his pattern of sexual abuse upon his young daughter was normal.
The victim recounted the serious adverse consequences upon her health and mental wellbeing as she moved into her teenage years being fearful of what would happen to her (by way of sexual abuse) and her mother (by way of physical abuse) at the hands of the Applicant.
The victim recounted the adverse effects of the Applicant's offences upon her education and in other ways affecting all aspects of her life.
Fortunately, the victim has found support through her religious beliefs. However, it is clear from the victim impact statement that there are lifelong adverse consequences for this young woman.
The victim impact statement provides graphic and tangible support for the serious harm resulting to victims of child sex offences. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, this Court said at [110]: "This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]."
The adverse effects referred to in R v Gavel are especially severe and deep seated in a case such as this where a young girl was sexually abused by her own father for almost a decade: Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [57].

The Sole Ground of Appeal - Error in Application of a Non-Existent Standard Non-Parole Period for the Aggravated Sexual Intercourse Offence (Offence 12)

Ms Paingakulam, counsel for the Applicant, submitted that error had been demonstrated in this case by his Honour's reference to a standard non-parole period with respect to Offence 12 which, at the relevant time of offending, did not have a standard non-parole period attaching to it.
Counsel for the Applicant relied as well upon the similar error affecting Offence 16 (see [11] above). Whilst noting the error raised by the Crown concerning Offence 3 (see [12] above), which it was submitted was less clear cut, Ms Paingakulam accepted that the correct standard non-parole period would, in any event, need to be considered on resentence for Offence 3.
As noted earlier, the Crown acknowledged that error had been demonstrated by the sentencing Judge's reliance upon non-existent standard non-parole periods.
In Potts v R [2017] NSWCCA 10, this Court said at [40]: "…, in other cases in which a sentencing judge has erroneously referred to a standard non-parole period that, in truth, did not apply, this Court has adopted a cautious approach by accepting that error has been established, and moving to re-sentence: see BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 (erroneous reference to standard non-parole period when sentencing a juvenile offender); and McGrath v R (2010) 199 A Crim R 527; [2010] NSWCCA 48 (erroneous reference to standard non-parole period that had been introduced after the date of the commission of the offences)."
I am satisfied that error has been demonstrated in this case. By having regard to non-existent or erroneous standard non-parole periods with respect to three of the 17 offences, his Honour has had regard to an irrelevant consideration so as to constitute error in accordance with the principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. A standard non-parole period is a legislative guidepost which a sentencing court is required to take into account on sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].
It is regrettable that the Crown Sentence Summary was erroneous in two respects (concerning Offences 12 and 16). In addition, his Honour misstated the relevant standard non-parole period for Offence 3 which was described accurately in the Crown Sentence Summary.
A consequence of these errors is that the Court should move to exercise its independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed: s.6(3) Criminal Appeal Act 1912; Kentwell v The Queen at [43].

Resentencing the Applicant

In exercising its function under s.6(3) Criminal Appeal Act 1912, the Court should take into account all relevant matters, including any evidence of the Applicant's progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11]. Additional Evidence
On resentencing, reliance is placed upon the affidavit of the Applicant affirmed 8 April 2020. In this affidavit, the Applicant (who is now 46 years old) recites his custodial history since his arrest on 6 November 2017. He has undertaken work in different capacities in correctional centres.
The Applicant states in the affidavit that he has completed a number of courses which have ceased for the time being because of the COVID-19 pandemic. The Applicant has asked to undertake the EQUIPS Foundation and Aggression courses and is waiting to commence those courses. The Applicant has informed correctional staff that he is prepared to undertake the Custody-Based Intensive Treatment (CUBIT) program and has been told that this program will not be available to him until later in his sentence.
The Applicant states that he has family support from his parents, two brothers and a sister who have visited him from time to time, but that family visits are not allowed for the time being because of the COVID-19 pandemic. The Applicant speaks to his parents by telephone daily and to his siblings less frequently.
The Applicant states that he is experiencing stress and anxiety because of the COVID-19 pandemic and is experiencing more restrictive conditions within the regional correctional centre in which he is presently housed as a result of that state of affairs.
The Applicant does not have any history of disciplinary offences within correctional centres.
The Applicant stated in his affidavit that he understands and admits "that what I have done is wrong" and that he has started to take steps to address his alcohol and drug issues through courses.
The Applicant stated that he is facing deportation to New Zealand at the end of his sentence. He understands that this is a consequence of his offences, but states that deportation to New Zealand "is going to be hard, because I don't have any family over there". He stated that he finds it "very distressing that I will have to leave, but it's something that I will have to deal with". Submissions on Resentencing
Ms Paingakulam accepted that it was open to the Court to revisit the indicative sentences for all offences even though relevant error related to three offences only. This acknowledgement flowed from the fact that the appeal is directed to the aggregate sentence and not the indicative sentences.
It was submitted, however, that the indicative sentence for Offence 12 should be less than that nominated by the sentencing Judge given the direct impact of the standard non-parole period erroneously taken into account for that offence.
Beyond that, it was submitted that the Court should determine that the indicative sentences for other offences would remain as stated by the sentencing Judge.
Counsel for the Applicant submitted that the Court should reduce the notional accumulation as between the various offences having regard to the principles in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]-[29]. Counsel pointed to the fact that a number of the offences occurred as part of a course of conduct on a single day so that significant notional concurrency was appropriate for those offences.
Counsel submitted that the present offences involved a single victim so that the totality principle was to be applied in a context different to a sex offender who has committed offences against several victims: R v Van Ryn [2016] NSWCCA 1; R v Van Ryn (No. 3) [2016] NSWCCA 307.
It was submitted that a finding of special circumstances should be made by reference to the Applicant's likely deportation which serves to make his custodial experience more anxious and onerous.
The Crown submitted that it is appropriate for the Court to assess the indicative sentences to be nominated for each offence in a manner which would warrant higher indicative sentences being specified for the offences. It was submitted that this course was appropriate to emphasise the grave breach of trust involved in a sustained period of conduct by the Applicant towards his own daughter over a period of years.
The Crown submitted that the Applicant's remorse had only manifested itself in the context of his discussions with Dr Ellis in 2019, against the background of earlier denials on his part and minimisation of his offending including an assertion in the recorded conversation in 2017 that what had occurred was, in some way, consensual.
The Crown submitted that any stress arising from the prospect of deportation did not constitute, either on its own or in conjunction with any other factors, an adequate basis for a finding of special circumstances.
The Crown submitted that the number of offences committed over a lengthy period of time against the Applicant's daughter was such that application of the totality principle ought lead to a substantial term of imprisonment so that the Court would conclude that no lesser aggregate sentence was warranted in the circumstances of the case so that the appeal should be dismissed. Decision
The error established in this case relates to three of the 17 offences which were the subject of an aggregate sentence of imprisonment. The only operative sentence imposed by his Honour was the aggregate sentence. In accordance with the statutory scheme, his Honour was required to indicate sentences for the purpose of understanding the components of the aggregate sentence in general terms. However, the indicative sentences have no practical operation at all: Vaughan v R [2020] NSWCCA 3 at [90].
The indicative sentences are not themselves amenable to appeal, although they may be a guide as to whether error is established in the aggregate sentence: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at 40.
In the present case, express error is demonstrated with respect to three of the indicative sentences in a manner which leads to a conclusion that error is established in the aggregate sentence.
The approach to be adopted by this Court, in exercising its function under s.6(3) Criminal Appeal Act 1912, has been considered in a number of decisions. In RO v R [2019] NSWCCA 183, Beech-Jones J (Bathurst CJ agreeing; N Adams J agreeing in additional reasons) considered the authorities and said at [87]-[89]: "87 Consistent with this, it is common in this Court in cases where s 6(3) is invoked to dismiss an appeal against sentence not to specify the more severe sentence that was warranted in law (see for example Porter v R [2019] NSWCCA 117 at [92] (R A Hulme J); Stavropoulos v R [2018] NSWCCA 12 at [31] (Hoeben CJ at CL); Nye v R [2018] NSWCCA 244 at [83] (Button J); Gilmour v R [2018] NSWCCA 295 at [82] (Johnson J); Clinton v R [2018] NSWCCA 66 at [53]‑[55] (Schmidt J)). 88 However, in Turnbull at [57] to [63], Simpson AJA applied s 6(3) by specifying the sentences that her Honour would have imposed if exercising the sentencing discretion afresh, which were higher than those imposed by the sentencing judge, before dismissing the appeal. Her Honour did not refer to Gal or explain why it was necessary to specify the sentence that would have been imposed. 89 The end result is that the approach of this Court to re‑sentencing is to be undertaken in a manner consistent with what is stated in Turnbull above (at [81]), ie, by putting aside the sentence imposed at first instance. In undertaking that exercise, if the Court concludes that a greater sentence is warranted then it is not obliged to specify what the sentence was but may instead simply dismiss the appeal (Gal; O'Grady) although it may decide to specify the sentence that was warranted (Turnbull). For my part, in light of the observations in Gal, I consider that the Court should only take the latter course if some particular circumstance warrants it. One possible such circumstance appears to follow from the emphasised statement in the above passage from Kentwell, namely where the Court is considering the application of s 6(3) to an aggregate sentence. That passage appears to contemplate that, at least in some cases, the Court may need to identify the particular indicative sentence that is warranted for each offence prior to the Court forming a conclusion about whether an aggregate sentence that it considers is warranted in law is more (or less) severe than the aggregate sentence the subject of the appeal."
In accordance with what was said in RO v R at [89], in a case such as the present one, the Court: 1. should put aside the sentence imposed at first instance; 2. should identify the particular indicative sentences which are warranted for each of the offences; 3. should then form a conclusion about whether the aggregate sentence that is warranted in law is more (or less) severe than the aggregate sentence which is the subject of the appeal; 4. need not announce the aggregate sentence if the aggregate sentence which is warranted in law is more severe - the Court can state that a less severe aggregate sentence is not warranted in law and then proceed to dismiss the appeal; 5. should, only if the Court determines that a less severe aggregate sentence is warranted in law, proceed to state the new aggregate sentence and then resentence the Applicant accordingly.
The Court should state the indicative sentences to be nominated for all 17 offences as part of the process of determining whether a lesser aggregate sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912. This course is particularly appropriate in the present case as the Crown contends that higher indicative sentences should be nominated than those stated in the District Court.
The sentencing Judge in this case found that each of the offences, with the possible exception of Offence 17, was a very serious example of its kind. Those conclusions were not challenged in this Court. It was open to his Honour to so conclude. In this Court, the Crown argued that these findings called for the nomination of longer indicative sentences.
The sentencing Judge pointed to the following features which I adopt for the purpose of resentencing: 1. Each offence involved abuse and violation of "the most fundamental position of trust" as the Applicant was the victim's biological father. His Honour expressly noted the need for caution in giving undue weight to abuse of a position of trust where the fact that the victim was under the authority of the Applicant was an element of the offence as it was in six offences (Counts 8, 9, 10, 11, 12 and 13) - however, it was not an element of the 11 offences under s.61M(2) Crimes Act 1900, so that the aggravating factor in s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 had full operation for those offences without any risk of double counting. 2. The victim was in most instances well below the maximum age applicable to the offence. His Honour noted (correctly) that "the younger the child the more serious the offence": BT v R [2010] NSWCCA 267 at [22]. 3. The indecent assaults were often constituted by skin-to-skin contact and forced touching of the Applicant's penis which elevated their objective gravity: R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 at [31]; Corby v R [2010] NSWCCA 146 at [71]. 4. In a number of incidents, the touching continued until the Applicant ejaculated. 5. There was a significant age difference (27 years) between the Applicant and the victim, a further factor which elevated the objective gravity of the offences: Corby v R at [77]. 6. The offences were not isolated. They formed a pattern of sexual abuse over a period of years such that the abuse became so normalised that it was difficult for the victim to specify the dates of all the abuse. 7. The offending occurred in the victim's home including when she was sleeping or showering and, on one occasion, despite the victim trying to lock the Applicant out of the room. The sentencing Judge noted, however, that care should be taken not to double count the statutory aggravating factor under s.21A(2)(eb) Crimes (Sentencing Procedure) Act 1999 in light of the filial relationship between the Applicant and victim. 8. A number of the offences involved persistent abuse by the Applicant notwithstanding the clearly demonstrated resistance and unwillingness of the victim. 9. Some of the offending involved threats by the Applicant in the instruction to his young daughter not to disclose what he had done to anyone. 10. The victim was vulnerable, as a child who was subject to repeated sexual abuse by a parent.
Other findings made by the sentencing Judge remain applicable on resentencing in this Court. In particular: 1. Offence 3 was committed whilst the Applicant was on conditional liberty and that is an aggravating factor to be taken into account on sentence for that offence: s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999. 2. The emotional harm suffered by the victim was substantial and precisely the kind reasonably expected to result from offending of this nature (see [75]-[76] above). 3. The Applicant's record of prior convictions denied him leniency. 4. The Applicant pleaded guilty in the Local Court. Accordingly, a discount of 25% for the Applicant's pleas of guilty should be applied to each indicative sentence: JM v R at 39; PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 at [71]ff. 5. As was conceded by the Applicant, both specific and general deterrence are major considerations in this sentencing exercise. 6. There appears to be a link between the Applicant's consumption of drugs and alcohol and the offending, but this was not a mitigating factor: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999. 7. The Applicant's prospects of rehabilitation for sexual offending are linked in part to his rehabilitation for drugs and alcohol. 8. The Applicant demonstrated belated remorse to Dr Ellis in June 2019 - this remains the appropriate finding with the Applicant's affidavit dated 8 April 2020 not adding to this analysis.
In considering issues of accumulation, concurrency and totality for the purpose of notional accumulation in arriving at an aggregate sentence, it is necessary to bear in mind that these were multiple offences committed against the Applicant's young daughter over a period of nearly 10 years. The fact that there was similar offending on occasions should not lead to an artificial or unjust assessment of notional concurrency.
The fact that the offences were committed against a single victim permits this case to be contrasted with cases of offences committed against several victims, such as R v Van Ryn. However, this was a grave and protracted course of criminal conduct on the part of the Applicant involving predatory sexual exploitation of his own daughter from the time she was about five years old until the time she was about 14 years old. Each of these offences constituted a frightening and traumatising experience for the victim from a time when she was a very young girl until her teenage years. The commission of one offence of this type is grave enough for a young victim, let alone the destructive effect of multiple offending such as this upon the victim's childhood years.
I have taken into account that some offences were committed as part of a related series of criminal acts on the same day. However, the offences were spaced out over a period of years. The harm done to the victim was substantial and magnified by the repeated criminal conduct of the Applicant which left her in a state of constant anxiety and confusion because of abuse directed at her by her own father who should have been her carer, and not a predator exploiting her vulnerability.
The totality principle requires the Court, where there is a series of offences, to review the total sentence and consider whether the aggregate is a just and appropriate measure of the total criminality involved. It has been said that the Court should "take a last look at the total just to see whether it looks wrong" with this involving consideration of the totality of the criminal behaviour and a check as to whether the proposed sentence is appropriate for all the offences. In this context, it has been said that the totality principle serves to ensure that an offender is not subjected to a "crushing sentence": ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [70]-[71]. In ZA v R, Fullerton J and I said at [84]: "As this Court said in R v MAK; R v MSK at 165 [17]-[18], in cases of multiple offending, the particular offender may warrant what is a very substantial sentence which, in the view of some, might be capable of being characterised as a crushing sentence. However, the ultimate sentence to be imposed should bear reasonable proportionality to the objective gravity of the offences for which the Applicant was to be sentenced."
As in ZA v R, the offences in the present case were committed by the Applicant against his own young daughter over an extended period of time. Sexual abuse by a father against his own young daughter involves an abuse of trust of the highest order: ZA v R at [104].
In sentencing in a case such as this, there is a need to maintain public confidence in the administration of justice when sentencing for multiple offences: R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [18]; R v Van Ryn at [229]. That principle has application as well in a case of multiple sexual offences committed against an offender's young daughter over an extended period of time.
The sentencing Judge did not make an individual finding of objective seriousness concerning each offence. As noted above (at [108]), his Honour said that, with the possible exception of Offence 17, each was a very serious example of offences of that kind. No complaint was made in this Court concerning that approach.
The maximum penalty and standard non-parole period for offences are legislative guideposts to be considered on sentence: Muldrock v The Queen at [27]. The relatively close proximity between the maximum penalty and standard non-parole period for Offences 3, 4, 5, 6, 7, 10, 14, 15 and 17 has been regarded as unusual, but it remains the responsibility of the Court to give proper attention to these (and all other) standard non-parole periods: Corby v R at [71].
I accept the Crown submission that findings concerning the seriousness of the offences were not reflected in the indicative sentences nominated by the sentencing Judge.
It is appropriate to make findings concerning the objective seriousness of each offence. Having regard to the description of each offence set out earlier in this judgment and the factors referred to at [109]-[110] which bear upon objective seriousness of the offences, I am satisfied that: 1. Offences 2, 3, 4, 7, 8, 10, 11, 12, 13, 15 and 16 fall at about the mid-range of objective seriousness; 2. Offences 1, 5, 6, 9, 14 and 17 fall below the mid-range of objective seriousness.
Having regard to aspects which bear upon the nomination of indicative sentences for each individual offence and, after taking into account the 25% discount for the Applicant's guilty pleas (with some rounding), I record the following indicative sentences for the Applicant's offences: Count Offence Maximum Penalty and SNPP Indicative Sentence 1 Between 20 April 2005 and 2 July 2007 (Victim 4-6 years old): 10 years' imprisonment (Sequence 9) Indecent assault person aged under 10 years SNPP: five years Imprisonment for one year and six months with a non-parole period of one year and one month Section 61M(2) Crimes Act 1900 2 Between 2 July 2007 and 8 August 2009 (Victim 6-8 years old) 10 years imprisonment' (Sequences 10 and 11) Indecent assault person aged under 10 years SNPP: five years Imprisonment for two years and three months with a non-parole period of one year and eight months Section 61M(2) Crimes Act 1900 3 Between 1 January 2008 and 31 December 2008 (Victim 7-8 years old) 10 years' imprisonment (Sequence 22) Indecent assault person aged under 10 years SNPP: eight years Imprisonment for two years and nine months with a non-parole period of two years Section 61M(2) Crimes Act 1900 4 Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) 10 years' imprisonment (Sequence 14) Indecent assault person aged under 16 years SNPP: eight years Imprisonment for two years and six months with a non-parole period of one year and 10 months Section 61M(2) Crimes Act 1900 5 Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) 10 years' imprisonment (Sequence 15) Indecent assault person aged under 16 years SNPP: eight years Imprisonment for two years with a non-parole period of one year and six months Section 61M(2) Crimes Act 1900 6 Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) 10 years' imprisonment (Sequence 16) Indecent assault person aged under 16 years SNPP: eight years Imprisonment for two years and three months with a non-parole period of one year and eight months Section 61 M(2) Crimes Act 1900 7 Between 8 August 2009 and 31 December 2013 (Victim 8-13 years old) 10 years' imprisonment (Sequence 17) Indecent assault person aged under 16 years SNPP: eight years Imprisonment for two years and six months with a non-parole period of one year and 10 months Section 61M(2) Crimes Act 1900 8 Between 26 January 2013 and 27 January 2013 2015 (Victim 12 years old) Five years' imprisonment (Sequence 7) Aggravated act of indecency with person aged under 16 years (under authority) No SNPP Imprisonment for two years Section 61O(1) Crimes Act 1900 9 Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Five years' imprisonment (Sequence 2) Aggravated act of indecency with person aged under 16 years (under authority) No SNPP Imprisonment for one year and six months Section 61O(1) Crimes Act 1900 10 Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Seven years' imprisonment (Sequence 3) Aggravated indecent assault (under authority) SNPP: five years Imprisonment for two years with a non-parole period of one year and six months Section 61M(1) Crimes Act 1900 11 Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Five years' imprisonment (Sequence 4) Aggravated act of indecency with person aged under 16 years (under authority) No SNPP Imprisonment for two years Section 61O(1) Crimes Act 1900 12 Between 1 March 2015 and 31 May 2015 (Victim 14 years old) 12 years' imprisonment (Sequence 8) Aggravated sexual intercourse with person above 14 years and under 16 years (under authority) No SNPP Imprisonment for four years and six months Section 66C(4) Crimes Act 1900 13 Between 1 March 2015 and 31 May 2015 (Victim 14 years old) Five years' imprisonment (Sequence 6) Aggravated act of indecency with person aged under 16 years (under authority) No SNPP Imprisonment for two years Section 61O(1) Crimes Act 1900 14 Between 1 January 2012 and 31 December 2012 (Victim approximately 12 years old) 10 years' imprisonment (Sequence 18) Indecent assault person aged under 16 years SNPP: eight years Imprisonment for two years and six months with a non-parole period of one year and 10 months Section 61M(2) Crimes Act 1900 15 Between 1 January 2011 and 31 December 2013 (Victim 10-13 years old) 10 years' imprisonment (Sequence 19) Indecent assault person aged under 16 years SNPP: eight years Imprisonment for two years and six months with a non-parole period of one year and 10 months Section 61M(2) Crimes Act 1900 16 Between 1 January 2011 and 31 December 2013 (Victim 10-13 years old) 10 years imprisonment (Sequence 24) Attempt indecent assault person aged under 16 years No SNPP Imprisonment for two years and six months Section 61M(2) Crimes Act 1900 17 Between 1 January 2011 and 31 December 2013 (Victim 10-13 years old) 10 years' imprisonment (Sequence 21) Indecent assault person aged under 16 years SNPP: eight years Imprisonment for two years with a non-parole period of one year and six months Section 61M(2) Crimes Act 1900

It will be observed that the indicative sentence nominated for many of the offences is higher than those selected by the sentencing Judge (see [5] above). In selecting the indicative sentences, I have taken into account all matters to be considered at that stage of the sentencing process: JM v R 39-(4), (7).
I have considered submissions made on the question of special circumstances. I do not regard the prospect of the Applicant's deportation to New Zealand as being a factor assisting him on the question of special circumstances. The prospect of deportation is irrelevant to the structuring of a sentence and it is an error to use deportation to determine any aspect of a sentence: R v Pham [2005] NSWCCA 94 at [13]-[14]; He v R [2016] NSWCCA 220 at [23]. It is impermissible to consider the fact of deportation in determining the length of the non-parole period for an offender who is likely to be deported: R v Mirzaee [2004] NSWCCA 315 at [20]-[21]; R v Pham at [13]; He v R at [25]-[26], although an offender who is likely to be deported should not be denied a finding of special circumstances if the person would otherwise qualify for such a finding.
I do not consider that the Court should reduce the sentence that would otherwise be imposed on the Applicant, or structure the sentence differently, because he is anxious about the prospect of deportation: R v Qin [2008] NSWCCA 189 at [38], [40].
Nor am I persuaded that any anxiety experienced by the Applicant because of the prospect of deportation supports a finding of special circumstances.
With respect to the Applicant's concern about the COVID-19 pandemic, I note that he is 46 years old and is housed at a regional correctional centre. There are some restrictions upon visits and the availability of courses as a result of the COVID-19 pandemic. However, it would be speculative to conclude that these restrictions will be in place for any more than a temporary period.
If the Applicant is released on parole at the conclusion of the non-parole period and is not deported, there will be ample time by way of conditional liberty in the community to aid rehabilitative measures.
Having considered the various matters raised by the Applicant individually and cumulatively, I am not persuaded that a finding of special circumstances should be made in this case.
I return to the question posed by s.6(3) Criminal Appeal Act 1912 in light of the approach stated in R v RO (see [105]-[106] above).
The aggregate sentence imposed by the sentencing Judge comprised imprisonment for 14 years with a non-parole period of 10 years and six months. His Honour declined to make a finding of special circumstances.
Having considered all objective and subjective factors relevant to sentence in this case and applicable sentencing principles, I am satisfied that no lesser head sentence of imprisonment than one of 14 years should be passed in this case.
The non-parole period which forms part of the aggregate sentence should reflect the minimum period which the Applicant should serve in custody having regard to all factors relevant to the imposition of sentence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [57], [65].
I am satisfied that a non-parole period of no less than 10 years and six months remains appropriate in this case as the minimum custodial term which the Applicant should serve for his offences.
Having undertaken the exercise of independent sentencing discretion required by law, I express the conclusion for the purpose of s.6(3) Criminal Appeal Act 1912 that no lesser sentence is warranted in law in this case than the aggregate sentence imposed upon the Applicant at the Sydney District Court on 2 August 2019.
Given that conclusion, it is not necessary to state the aggregate sentence which was appropriate in this case (see [106] above).

A Concluding Observation

Before concluding this judgment, there is a further issue which is appropriate to be raised.
The sentencing Judge in this case delivered what he described as sentencing "remarks" on 2 August 2019. Different terms are used by different Judges and Magistrates to describe a sentencing decision, including "remarks on sentence", "sentencing remarks", "sentencing reasons" or "sentencing judgment".
The function being exercised by a Court when passing sentence is well known. In R v Hamieh [2010] NSWCCA 189, the Court (Beazley JA, Kirby J and myself) said at [29]-[30]: 29 … The principal purpose of remarks on sentence is to provide an oral explanation to the offender, the victim(s) and persons in Court at the time when sentence is being passed: R v Bottin [2005] NSWCCA 254 at [12]; Curtis v R [2007] NSWCCA 11 at [30]-[31]; R v Hersi [2010] NSWCCA 57 at [7]. 30 Remarks on sentence serve other purposes as well, including informing the community and an appellate court of the reason for imposition of the sentence: R v Duffy [1999] NSWCCA 321 at [11]; R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 at 394-395 [42]-[44]; R v JCE [2000] NSWCCA 498; 120 A Crim R 18 at 21 [19]; Thomas v R [2006] NSWCCA 313 at [16]."
The use of the term "remarks" in this context has been called into question recently by Basten JA in You v R [2020] NSWCCA 71, where his Honour said at [21]: "It is possible that the practice of referring to a judgment on sentence (that phrase being used by the judge in this case) by the depreciatory phrase 'remarks on sentence', may tend to equate those 'remarks' with remarks made in the course of the hearing. The phrase 'remarks on sentence' is, in any event, an inaccurate description of the judicial function being exercised in delivering a judgment. It might be better if that terminology were abandoned, despite long standing usage and the habits of a generation."
I do not agree with Basten JA's view on this issue.
The terms "sentencing remarks" or "remarks on sentence" are well understood by those engaged in the criminal courts. Judges who are called upon to sentence offenders are well aware of the grave and important function being undertaken where oral reasons are delivered in the presence of a range of persons including the offender, the offender's family, the victim, the victim's family (including the family of a deceased victim), investigating police officers, members of the public and the media. The oral explanation contained in sentencing remarks fulfils the purposes referred to in R v Hamieh at [29]-[30] (at [138] above).
With respect, it is wrong to suggest that the term "remarks on sentence" is a "depreciatory phrase" which is outdated and should be abandoned. The possible confusion raised by Basten JA between "remarks on sentence" and "remarks" made in the course of a sentencing hearing has not been suggested in other decisions.
It is notable that the term "sentencing remarks" is used regularly at the present time by the Judiciary of England and Wales, in the Crown Court and the Central Criminal Court, when sentencing offenders: cf Chin-Charles v R; Cullen v R [2020] 1 Cr App R (S) 6; [2019] EWCA Crim 1140. It is not an outdated or confusing term in that jurisdiction.
Further, and importantly, the term "remarks" has been used by the New South Wales Parliament in enacting the Courts Legislation Amendment (Broadcasting Judgments) Act 2014. That Act amended the Supreme Court Act 1970 and the District Court Act 1973 to provide for a presumption in favour of the recording and broadcast of "judgment remarks" in the Supreme Court and the District Court. Section 127 Supreme Court Act 1970 and s.178 District Court Act 1973 each define "judgment remarks" in the following way: "judgment remarks of the Court means: (a) in relation to a criminal trial - the delivery of the verdict, and any remarks made by the Court when sentencing the accused person, that are delivered or made in open court, and (b) in relation to any other proceedings - any remarks made by the Court in open court when announcing the judgment determining the proceedings."
In the course of the second reading speech concerning the Courts Legislation Amendment (Broadcasting Judgments) Act 2014, the Attorney General, Mr Hazzard, said (Legislative Assembly, 18 June 2014, Hansard, page 29,766) (emphasis added): "While proceedings are generally heard in open court and the public are able to attend in person, with more than 170,000 criminal matters dealt with by our courts each year, the great majority of people rely upon electronic media for information about court cases. New South Wales courts have allowed sentencing remarks to be broadcast previously, with four high-profile sentences filmed since 2009 and three documentaries made inside New South Wales courts since 2004. However, there are currently no guidelines promoting consistency in deciding whether to allow cameras into the courts. This bill seeks to bring greater transparency and consistency to the process."
Later in the second reading speech, the Attorney General said: "The Government's policy at this time is that broadcasting should be limited to verdicts, sentencing remarks and civil judgments."
Far from being ripe for abandonment, the term sentencing "remarks" has contemporary legislative status in statutes designed to further serve the purpose of informing the community about sentencing in the manner referred to in R v Hamieh at [30] (see [138] above).

Orders

I propose the following orders: 1. leave to appeal against sentence granted; 2. appeal dismissed.
ADAMSON J: I agree with the orders proposed by Johnson J for the reasons given by his Honour.
BELLEW J: I agree with Johnson J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2020

Ground of Appeal

The sole ground of appeal relied upon by the Applicant is that the sentencing Judge erred in applying a non-existent standard non-parole period to the aggravated sexual intercourse offence (Offence 12).
It was common ground before this Court that the sentencing Judge attributed a standard non-parole period of five years for Offence 12 in circumstances where there was not a standard non-parole period for that class of offence in the period March-May 2015 (when the offence occurred). A standard non-parole period was not introduced for an offence under s.66C(4) Crimes Act 1900 until the Crimes Legislation Amendment (Child Sexual Offences) Act 2015 came into force on 29 June 2015, setting a standard non-parole period of five years for offences under that provision.
This Court was told that the sentencing Judge had been misinformed on that aspect by information contained in the Crown Sentence Summary used in the District Court.
The Crown written submissions in this Court identified two further errors with respect to standard non-parole periods referred to by the sentencing Judge.
Firstly, the Crown noted that a standard non-parole period did not operate with respect to Offence 16, an offence of attempted indecent assault on a person aged under 16 years contrary to s.61M(2) Crimes Act 1900. Contrary to the assertion contained in the Crown Sentence Summary, the standard non-parole period did not apply to attempts to commit substantive offences which carry standard non-parole periods so that there was no standard non-parole period for Offence 16: DAC v R [2006] NSWCCA 265 at [9]-[10].
Secondly, the Crown noted that the sentencing Judge had stated incorrectly the standard non-parole period for Offence 3, an offence of indecent assault on a child under 10 years of age contrary to s.61M(2) Crimes Act 1900. The sentencing Judge stated that the maximum penalty for s.61M(2) offences was 10 years' imprisonment with a standard non-parole period of five years. This was accurate with respect to Offences 1 and 2, being earlier s.61M(2) offences committed by the Applicant. However, the Crown noted that, by the time Offence 3 was committed, although the maximum penalty remained 10 years' imprisonment, the standard non-parole period had been increased to eight years by the Crimes (Sentencing Procedure) Amendment Act 2007, which commenced on 1 January 2008. The Crown Sentence Summary had stated accurately the standard non-parole period for Offence 3, but it appears that his Honour overlooked this aspect.
As a consequence of these errors, the Crown conceded that error had been demonstrated. Whilst it remains a matter for the Court, the Crown accepted that the Court should move to exercise its independent sentencing discretion for the purpose of determining whether a lesser aggregate sentence should be imposed under s.6(3) Criminal Appeal Act 1912: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

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Cases Cited (50)