McGovern aka Lanesbury v R

THE FACTS OF THE OFFENDING

1. Based on an agreed statement of facts, [1] the sentencing judge found the facts of the offending to be as follows. [2]

Background

1. The victims of the offending in counts 1 to 4 were two sisters, to whom I shall refer as SHM and SUM. SHM was born in 2005 and SUM was born in 2002. At the time of the offending, they were aged five years and eight years respectively. They lived with their father (AM) and their mother (AN) next door to the applicant, who lived with his mother and sister.
2. On an occasion in 2010, a barbecue was hosted at the residence of SHM and SUM. The applicant was present, and was one of a number of adults who were drinking and socialising in a carport at the front of the residence. At about 9.00pm, SHM and SUM went to their shared bedroom. They got into their respective beds and started to watch a movie. The applicant subsequently excused himself from the barbecue to go to the bathroom. Upon entering the premises, he instead went into the victims' bedroom.

Count 1

1. The applicant got into SHM's bed and told her to move over. He lay on the side of the bed closest to the wall and pulled the blankets up so that he and SHM could not be seen. The applicant then used his hand to touch SHM on the outside of her vagina, underneath her clothes. He rubbed his hand up and down, such that there was skin-to-skin contact but no penetration.

Count 2

1. At the same time, the applicant placed one of SHM's hands on his penis, underneath his clothes. Again, there was skin-to-skin contact. SHM removed her hand whereupon the applicant held her hand and placed it back on his penis. SHM said "stop", before removing her hand a second time.

Count 3

1. The applicant got out of SHM's bed and walked over and got into SUM's bed, pushing her across to make room for himself. The applicant pulled up the blankets up so that he and SUM could not be seen. He then used his hand to rub the outside of SUM's vagina, underneath her clothes. There was skin-to-skin contact but no penetration.

Count 4

1. The applicant then removed his hand and held SUM's hand on his penis, underneath his clothing. Again, there was skin-to-skin contact.
2. The applicant then moved SUM's hand from his penis and pulled up his shorts, before getting out of her bed and leaving the bedroom. He then went into the bathroom before re-joining the adults at the front of the residence. He was in the bedroom for approximately 10 to 15 minutes. The offending was reported by SHM and SUM to their mother approximately eight years later.
3. Whilst mindful of the fact that the applicant was to be sentenced only on the specific charges set out above, the sentencing judge made reference to, and incorporated in her reasons, what was referred to in the agreed facts as "tendency evidence" and which was in the following terms: Tendency Evidence 17. On 10 March 2016, the [applicant] was admitted overnight to the Mater Mental Health Service. The [applicant] reported in his assessment with attending staff: a. Suicidal ideation; b. A history of two-month relationship with his 13 year old neighbour, later identified to be (SUM); c. That the relationship was discovered by (SUM's) parents; d. He and (SUM) "agreed to hold off the relationship until she is of age"; e. The [applicant] denied having sexual intercourse with (SUM) but disclosed kissing and hugging her, or "kissing and stuff"; f. The [applicant] described having "long-standing fantasies about underage girls" [aged] 10 - 13. I think under 10 are pretty but wouldn't touch"; and g. "Touching" his sister (DM) when she was "11 or maybe a bit younger". 18. At around the same time as the [applicant's] hospital admission in March 2016, the [applicant] posted a status on Facebook, which read: To all my family friends and loved ones. I have tried so hard not to become the man I am today. But after years and years of holding it in and trying to control myself. It's just so fucking uncontrollably hard to fight these urges that I've been having. since I've been 11 - 12 years old I have had a really ruff [sic] Trott, I have been molested, abused, it was all well and good for it to happen to me. But now for the last few years I've been fighting these urges Of doing things to people that has happened to me. Urges that I'm having trouble controlling now. I have managed to keep it under lock and key for some time now but it is now to [sic] much to handle. On top of that I have managed to have feelings for someone of an age that I never thought possible. I don't know if that's because of my history and what I've been thru [sic]. But I think it is now time time [sic] to say goodbye to all my demons, and put my mind to ease. Isaak, I love you with all my heart and will check in on you from time to time if I can. Mum, thank you for being there for me I love you so much. To the rest of my family and loved ones I love you all so much. I hope that you can move past this and remember that I tried to become a good man I wanted to be, instead of the man I was pushed to be. But my past just keeps catching up on me. I can't take the mind games that my head is playing on me. It is time to say goodbye before I do to someone that has been done to me. I'M SORRY TO ALL THAT I HAVE HURT AND THAT HAVE HURT ME

Counts 5 and 6

1. Following his arrest in respect of counts 1 to 4, the applicant was released on conditional bail. An apprehended violence order was made in favour of SUM and SHM which prohibited the applicant from going within 200m of their premises.
2. Between 9:44pm on 7 March 2019 and 12:11am the next morning, the applicant was at a licensed premises drinking alcohol and playing poker machines. AM was at home with AN and their children, all of them having gone to bed between 11.00pm and 12:00am.
3. In the early hours of 8 March 2019 the applicant sent two messages to a friend stating: I need help. I'm struggling.
4. Between about 1:30am and 1:40am that morning, the applicant entered AM's premises by cutting a hole in a fly screen and gaining access through a window. Having entered the premises, the applicant opened the door of AM's bedroom and turned the light on. AM woke up and saw the applicant next to his bed. The applicant was wearing a black hooded jumper and yellow rubber gloves, and was holding a large kitchen knife which was approximately 30cm long. AM asked the applicant what he was doing. The applicant did not respond. He then stabbed AM to the shoulder and chin area.
5. The applicant walked out of AM's bedroom and down the hallway. He ran down the street with the hood of his jumper pulled up to cover his face, with the drawstring to the hood pulled tight. He then went to a friend's house and said: I'm just really stressed out. I don't think I can cope.
6. The applicant spoke to his friend about the charges which had been brought against him, saying that he "needed someone to talk to". There was no discussion as to what had occurred earlier that evening, the applicant stating: I had a few dramas at the pub before I came here.
7. The applicant was subsequently spoken to by police, placed under arrest, and cautioned. At that time he denied the allegations, telling police that he had been at a club the previous evening, that he had remained there until about 11:30pm, and that he had then gone "to a mate's house".
8. AM was taken to hospital following the incident where he presented with the following injuries: [3] 1. haemorrhagic shock secondary to blood loss for multiple lacerations (the medical records noting that AM had lost 3 litres of blood prior to his arrival at hospital); 2. a laceration of the right anterior shoulder with ongoing bleeding from a lacerated cephalic vein (the medical records noting that one of the wounds was approximately 10cm deep); 3. a laceration of the right anterior chest wall, superior to the right clavicle; 4. a fracture of the right clavicle; 5. a 6cm laceration to the left cheek/chin; 6. a 1.5cm laceration to the right chin; and 7. a laceration to the lower throat in the midline.
9. AM was discharged from hospital on 11 March 2019. Although at that time his prognosis was considered to be good, [4] other evidence before the sentencing judge tended to suggest that such prognosis may have been somewhat optimistic. Dr Melissa Collogan, AM's General Practitioner, [5] confirmed that AM had reported that he was continuing to experience ongoing pain in his right shoulder, which he had sought to numb by excessive drinking. He also complained of a reduced range of movement and difficulties working, and reported that he was experiencing nightmares as a result of the incident. Dr Collogan prescribed analgesia and anti-inflammatory medication, and reported: [6] It is likely that [AM] will continue to experience pain and restricted range of movement in the right shoulder, as well as an affected mental state following the assault (in the form of nightmares) for some time (years/months). It is unclear at this stage whether he will be permanently disabled by the injuries, and this will continue to be assessed on an ongoing basis.

Counts 1 to 4

1. Leaving aside the finding which is the subject of ground one, the sentencing judge addressed the objective seriousness of counts 1 to 4 as follows: [7] [25] …. [T]his offending is serious. What was perpetrated on the victims were unwanted, selfish and cruel acts of violence against the rights of his victims and there will be undoubtedly lasting effects. [26] In respect of both victims, the offending involved direct touching by the [applicant] to the victims' genitals and his requirement that they touch his genitals. That touching was not fleeting. [27] Both sets of offences were committed in the presence of the other child. Given that the offending against each sister took place in succession, I have no doubt that either must have had some sense of what was being attempted by the [applicant] against the other sister. The fact that the offending was underneath the covers and not in direct view means that they did not directly observe what was happening to the other sister; which I accept, but nonetheless each matter is aggravated, albeit to a lesser extent than if they had observed it precisely. That aggravation also takes into account the brazen nature of the offending in the presence of others and with the knowledge that both were present in the room. [28] The offences were committed in the home of the victims and indeed in their bedroom where they were positioned lying down and in bed. It adds a further level of vulnerability and the offending took place where the victims' had the right to feel safe and secure. …. [30] Each victim was very young and hence very vulnerable. They were considerably younger than the 16 years being the outer limit to the charge. They were, as I have said, aged five and eight respectively. [31] I regard the offending in each case to be comfortably above the mid-range for offences of this kind.

Counts 5 and 6

1. In respect of the objective seriousness of counts 5 and 6, her Honour said: [8] [32] … These are very serious and violent offences which have led to lasting effects on the victim and his family. [33] The offences were to some extent planned. The [applicant] only some hours beforehand was at licensed premises drinking and playing poker machines, however, he armed himself with a knife prior to going to the premises with intent. He was wearing a hooded jumper and was gloved. To some extent, that is taken into account in the elements of the offences and I regard the planning to be only slightly more than would ordinarily be expected in offences of this kind. [34] The offences, again, were committed in the home of the victim where he had a right to feel safe and secure. Indeed, it took place in the early hours of the morning and, up until the time the [applicant] was next to the bed of the victim, he had been lying in his bed asleep. The victim had been unaware of the [applicant's] presence until the [applicant] turned the light on in the bedroom. I am mindful that to some extent [count 6] accounts for the breaking of the dwelling. [35] The offences involved the use of a knife. This is a significant matter. Waking and seeing the [applicant] with a 30 centimetre long kitchen knife in his hands must have been a terrifying event. The victim was in a prone position and, as such, not in a situation where he could properly defend himself. The use of the knife increased the likelihood of very serious injury occurring, which it did. Indeed it carried with it, given the use of the large knife and the wrestling with the victim, a greater risk of death, where the victim suffered multiple stab wounds, one of which I have said was 10 centimetres deep, some to the face and neck, and in circumstances where the victim lost 3 litres of blood for which he required a transfusion. I am mindful, however, that [count 5] already contemplates an intention to cause grievous bodily harm and that [count 6] already contemplates the infliction of that harm. [36] The offending occurred in the presence of the victim's children and his partner where the victim had been screaming and yelling such that it woke his wife and the daughters and in circumstances where they were already the victims of the earlier assault upon them by the [applicant]. They saw the [applicant] still hooded and wearing now bloodstained gloves and still with the knife in his possession. Indeed, the victim's partner saw the [applicant] standing over the top of the victim whilst he was screaming. I have no doubt that it would have been absolutely terrifying. It is remarkable that the victim's partner had the presence of mind to try and remove the children from the area as best she could to try and avoid them experiencing what was occurring. [37] The fact that having been exposed for offending against the daughters, the [applicant] would break into their home and viciously assault their father is abhorrent. It is also extremely cruel. It carries, in my view, a very high level of criminality. [38] These offences were committed while the [applicant] was on conditional liberty and indeed he was on condition [sic] bail in respect of the very serious [counts 1 to 4]. He also breached two AVOs. The offending against the father of the victims in this matter is a most serious breach of his obligations whilst on bail and, whilst it does not elevate the subjective [sic] seriousness, it does increase the [applicant's] moral culpability for his offending and it makes the protection of the community an important consideration. [39] I find the offending to be substantially above the mid-range. I am mindful not to double-count the offending in respect of [count 5] and [count 6].

THE APPLICANT'S SUBJECTIVE CASE

1. A report of Dr Richard Furst of 15 March 2020 was tendered in the applicant's case on sentence, [9] in which Dr Furst assessed the applicant in the context of the offending in counts 1 to 4. I draw the following summary from that report.
2. The applicant was born in December 1982 and is currently 38 years of age. He left school part way through Year 10, following a period of emotional difficulty and a related decline in his academic performance. [10] His emotional problems began when he was sexually abused around the age of 11 or 12, a fact which he did not disclose to his family and friends. His memories and thoughts about that abuse had become more prominent in his teenage years, to the point where he told Dr Furst that he was "kicking himself" for having allowed it to occur. [11]
3. The applicant began using cannabis when he was 13 or 14 years of age, which Dr Furst viewed as a (maladaptive) means of coping with his childhood sexual abuse. The applicant smoked approximately 1g of cannabis per day in his teens, and continued to do so until he was around 27 years of age. He regularly drank to excess from his late teens until he reached his 30s. He also had issues with gambling and excessive loss of money between his late teens and his late 20s. [12]
4. As set out in the agreed facts, the applicant presented to hospital in March 2016 following a suicide attempt which occurred when, having consumed excessive alcohol, he sat in his car and lit a fire. He got out of the car when his jacket caught on fire, shortly after which the car exploded. He reported feeling depressed at the time and was prescribed anti-depressant medication following his admission to hospital. The clinical notes of that admission [13] were tendered before the sentencing judge and generally confirmed what the applicant had reported to Dr Furst.
5. The applicant told Dr Furst that he was unable to remember the offending in counts 1 to 4, or his thought processes at the time, but thought that he had been intoxicated. He said that he felt guilty about his conduct, and about being sexually attracted to SUM. He cited that attraction, along with the fact that SUM had, he asserted, wanted to be in a relationship with him, as the reason for his attempted suicide. The applicant denied having any other sexual urges, or any sexual attraction towards children. [14]
6. Dr Furst noted that the applicant had been prescribed two forms of anti-depressant medication, but had continued to struggle with low mood and insomnia in custody. He noted that the applicant's family were supportive of him, and that the applicant intended to live with his mother or his grandmother on his release. That support was confirmed in a testimonial provided by the applicant's mother to the sentencing judge. [15]
7. On the basis of the results of testing administered to the applicant, Dr Furst concluded that he was placed towards the lower third of the spectrum of risk when compared to other adult male sex offenders, and was thus in a low risk category in terms of re-offending. [16] In terms of the applicant's rehabilitation, Dr Furst identified a necessity to: [17] 1. manage his alcohol abuse and emotional deficits; 2. explore the reasons for his offending; 3. explore the longer term emotional impact of his childhood trauma; and 4. implement measures to limit his access to potential victims when released from custody.
8. Dr Furst expressed the view that the applicant recognised the issues which arose from his offending. [18] When asked about the impact of the sexual abuse upon the applicant, and upon his offending, Dr Furst said: [19] The most significant event/trauma describe [sic] by [the applicant], from a developmental and psychiatric perspective was apparently sexual victimisation when he was about 10 - 11 years of age. His childhood sexual abuse was compounded by emotional neglect from his father, his father's absence and physical abuse from his father. The impact of his abuse has also been compounded by [the applicant] keeping a secret until his suicide attempt in March 2016. Childhood sexual abuse and other forms of sexual assault are strongly correlated with mental disorder, including, but not limited to, depression, anxiety, post-traumatic stress disorder, alcohol abuse, substance use disorders, substance abuse, eating disorders, low self-esteem, deliberate self-harm and personality disorders, especially borderline personality disorder. Childhood sexual abuse is also more common in those from disturbed and disrupted families and in those who also reported physical and emotional abuse.
9. Dr Furst diagnosed the applicant as suffering from a Recurrent Major Depressive Disorder. [20] He recommended that the applicant remain under the care of a psychiatrist and a mental health nurse, and that he continue to take the anti-depressant medication which had been prescribed for him. He expressed the view that when eventually released into the community, the applicant should engage in follow-up consultations with his General Practitioner with a view to continuing treatment with anti-depressant medication and associated therapy. [21] He identified a need for long term psychotherapy to address the applicant's childhood sexual abuse and his deviant sexual thoughts, and to encourage more adaptive coping skills.
10. Dr Furst provided a second report of 6 May 2020 following a request to assess the applicant in the context of the offending in counts 5 and 6. [22] As to that offending, the applicant told Dr Furst that he had been "going through a lot of stress" at the time, that he "had a lot going on in his head", that he felt as though his "whole life was falling apart around him", and that he was "losing his life". [23] He said that he had been upset with AM at the time because AM had been "yelling out abuse at [his] mother" and had "put words into the girls' mouths … [and] he was causing a lot of dramas". [24] He also said that he felt "bad" for committing the offences and that "everything [had] got the better of [him]". [25]
11. Although the applicant described the offending in counts 5 and 6 as a "snap" and a "brain freeze", Dr Furst noted that he had worn gloves and a hooded jumper, and was in possession of a knife when entering the premises. This, in Dr Furst's view, indicated that the applicant's conduct was targeted, and involved some degree of premeditation. [26]
12. Dr Furst concluded that the applicant continued to meet the criteria for a Recurrent Major Depressive Disorder, as well as an Alcohol Abuse Disorder. He said: [27] [The applicant] is prone to emotional instability, depression and excessive drinking, largely as a consequence of his childhood sexual abuse victimization [sic] and an unstable personality structure. He felt his life was 'falling apart' and/or was 'over' at the time in question. He was harbouring angry feelings and feelings of resentment towards [AM] at the time in question, believing he had somehow 'put words in the mouth' of the child victims [the applicant] sexually abused several years prior. Although this may assist in understanding and/or helping to explain his actions, his emotional disturbance and feelings of anger and resentment towards the victim is clearly no excuse for an attack on [AM] in the same family home of the victims of his earlier sexual offending.
13. Dr Furst generally confirmed his earlier recommendations regarding the applicant's future treatment. [28]

THE APPLICANT'S CRIMINAL HISTORY

1. The only entry on the applicant's criminal history arose out of an offence on 5 March 2009 for driving whilst his license was suspended. When he appeared at the Belmont Local Court on 11 June 2009, he was sentenced to a bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) for a period of 12 months. This is of significance in light of ground one.

THE FINDINGS OF THE SENTENCING JUDGE

1. In terms of the utilitarian value of the applicant's pleas of guilty, the sentencing judge allowed a discount of 5% in respect of counts 1 to 4, in circumstances where those pleas were entered at a late stage, and a discount of 25% in respect of counts 5 and 6, in circumstances where those pleas had been entered in the Local Court. [29]
2. Her Honour summarised the reports of Dr Furst and concluded that the applicant had significant mental health issues. Her Honour expressly stated that she took those issues into account. [30]
3. In assessing the applicant's prospects of rehabilitation, her Honour said: [31] [47] The [applicant's] prospects of rehabilitation are guarded. He denies any current sexual interest in children. That was not the case in 2016 when he admitted his interests that were recorded in the hospital notes. I am mindful that the offending against those children took place 10 years ago and that he has not offended against children since, however, it is clear that this issue is not resolved and that Dr Furst sees the need for treatment in that respect. That said, the [applicant] appears to have little insight into his offending at that time and his offending against the victims' father shows a remarkable lack of control regarding that matter. [48] His background of abuse is an issue which renders his susceptibility to further offending more likely. He will certainly need intensive treatment over an extended period on release. Given the length of the sentence that I am to impose, that will be a significant period of time.
4. In terms of the applicant's reported sexual abuse as a child, her Honour said: [32] [49] The fact that the childhood abuse renders him morally less culpable must weigh against the risk that it adds to his likely offending in the future. In my view, his explanation for his offending overall was cursory and shows little insight. It obviously affects his likelihood of re-offending in the future if he does not fully come to terms with his actions and the consequences of them.
5. Having noted that the applicant's pleas of guilty were some evidence of remorse, her Honour said: [33] [50] …He did not give evidence and his lack of remorse for the offending against the two then children is obvious from the attack on their father in their presence, a matter which showed absolutely no regard for them. I do not find him to be particularly remorseful.
6. In addressing considerations of totality, her Honour acknowledged that the offending in counts 1 to 4 had been driven by the same motive and had occurred at same time. However, her Honour was expressly mindful of the importance of recognising the separate harm done to each of SHM and SUM, and concluded that this should be reflected by partially accumulating the sentences. [34] Her Honour went on to say: [35] [54] I regard the offences much later in attacking the victim's [sic] father as a wholly separate event. The level of accumulation will reflect that finding. I am also mindful to impose an [sic] sentence overall that reflects the [applicant's] criminality and does not impose a crushing sentence but one that is appropriate to the offending overall. It is appropriate to impose a largely concurrent sentence for each of the latter offences and the breaches of the AVO.
7. Her Honour concluded that it was necessary for any sentence to personally deter the applicant from offending in the future. [36] In terms of general deterrence, her Honour said: [37] [55] So far as general deterrence is concerned, if it is to have any effect at all there have to be meaningful penalties. The kind of violence that the [applicant] perpetrated against the father was extreme and would have been extremely damaging to all involved. His offending against the daughters was an insidious act of callous disregard for their rights when they were children, which will also have undoubtedly ongoing effect. The community does not tolerate this kind of conduct and anyone planning the same needs to be on notice that significant penalties will be imposed.
8. Her Honour concluded that in the absence of evidence from the applicant, it was difficult to assess how the restrictions brought about by the current pandemic would affect his conditions of custody. Whilst accepting that it was an issue, her Honour concluded that it should only have a marginal effect on any sentence to be imposed. [38] Finally, her Honour made a finding of special circumstances given the nature and extent of the supervision that the applicant would require upon his release in order to address his mental health issues. [39]
9. Her Honour then imposed the sentences previously set out.

Ground 1 - The sentencing judge erred in finding that the applicant was on conditional liberty during the commission of [counts 1 to 4] and in her finding that that was an aggravating feature

THE PERIOD OF THE OFFENDING IN COUNTS 1 TO 4

1. Section 21A(2)(j) of the Sentencing Act provides that offending is aggravated if it is committed while the offender was on conditional liberty in relation to an offence or an alleged offence.
2. In the present case, between 11 June 2009 and 10 June 2010, the applicant was on conditional liberty pursuant to the bond imposed for the driving offence. The indictment presented against the applicant pleaded that the offending in each of counts 1 to 4 occurred between 1 January 2010 and 31 December 2010. The statement of agreed facts made reference to each of these offences having occurred between 6 May 2010 and 31 December 2010. [40] However, irrespective of which of these periods was adopted, if the Crown sought to assert that the applicant's offending in counts 1 to 4 was aggravated by the fact that he was subject to the bond at the time, it was incumbent upon the Crown to prove, beyond reasonable doubt, that such offending occurred at some time between 1 January 2010 and 10 June 2010. [41]

THE PROCEEDINGS ON SENTENCE

1. The Crown who appeared on sentence (who was not the Crown before this Court) provided a document referred to as a "sentence summary" to the sentencing judge which included the following: [42] Offence committed whilst on Bail/Bond/Parole The [applicant] was subject to a section 10 Bond from 11 June 2009 to 10 June 2010 for the offence of drive whilst licence suspended.
2. Clearly, the Crown's position on sentence was that the offending in counts 1 to 4 was aggravated by the fact that the applicant was on conditional liberty at the time. The matter was not further canvassed by the Crown before her Honour, be it in written or oral submissions.
3. Written submissions were provided to the sentencing judge by counsel for the applicant (who was not counsel before this Court). Those submissions stated the following: [43] [The applicant] was not subject to conditional liberty of any kind at the time of the commission of [counts 1 to 4] (my emphasis).
4. However, by specific reference to s 21A(2)(j) of the Sentencing Act, the submissions then stated: [44] [The applicant] was subject to conditional liberty in the form of the s 10 bond for the offence of drive while suspended. [The applicant] consents pursuant to section 108(1)(c) Crimes (Administration of Sentences) Act 1999 to the District Court dealing with that breach. It is respectfully submitted that given the nature of the penalties to be imposed in both matters, that it would be appropriate to have regard to this conditional liberty as an aggravating factor to a very limited extent, and take no action with respect to the bond (my emphasis in each case).
5. Notwithstanding the fact that these two submissions were diametrically opposed, nothing further was said to the sentencing judge by counsel for the applicant as to whether the offending was aggravated.

THE REASONS OF THE SENTENCING JUDGE

1. In addressing the objective seriousness of counts 1 to 4, her Honour said: [45] The offences were committed while the [applicant] was on conditional liberty and whilst no action was taken in respect to the bond, the fact that the offending took place in the breach of the faith placed in the [applicant] to be at liberty, is an aggravating feature (emphasis added in each case).
2. That finding was in accordance with the position taken by the Crown in its sentence summary.

PROCEEDINGS FOLLOWING SENTENCE

1. Immediately after sentence had been passed, the following exchange took place between the sentencing judge and the Crown: [46] CROWN: Your Honour, the only matter I would raise, and I should've done this at the sentence hearing, there were some discussions between myself and my learned friend in relation to whether or not [counts 1 to 4] were in fact a breach of the existing bond, the s 10 bond for the driving offence. The time frame for [counts 1 to 4] was partly during the currency of that bond, but also partly after the expiration and the Crown couldn't say precisely when the offending occurred within that period. So we didn't - - HER HONOUR: That tells me you can't prove breach. CROWN: Yes, your Honour, and I should've raised that with your Honour. I'd discussed it with my learned friend. The papers did indicate that it was a breach but in fact it couldn't be established that it was actually a breach of the s 10 bond for the driving offences as far as [counts 1 to 4]. HER HONOUR: Given the other much more serious matters, it would have had almost no bearing on my result. It is obviously a matter that I took into account but so far as the numbers are concerned, it would've had almost no bearing… (emphasis added in each case).
2. When asked whether he wished to be heard on the issue, counsel for the applicant responded: No, and no doubt your Honour refers to the nature of the matter. It was a driving offence. It would be difficult to see how it would've affected your Honour's consideration.

Submissions of the applicant

1. Counsel for the applicant accepted that the written submissions provided to the sentencing judge included an express concession that the applicant was on conditional liberty at the time of the offending in counts 1 to 4. However, counsel submitted that in the circumstances of this case, the applicant should be permitted to resile from that concession for two primary reasons.
2. Firstly, it was submitted that the concession had been made "in a confused manner" having regard to the completely contrary submission which preceded it. It was pointed out that this situation was allowed to pass without comment, and importantly without any attempt being made to clarify it.
3. Secondly, it was submitted that there had been a miscarriage of justice, arising from the fact that her Honour had erroneously taken into account that the applicant was on conditional liberty at the time of the offending in counts 1 to 4, in circumstances where the Crown had conceded, albeit belatedly, that it could not establish that this was ever the case. It was submitted that such miscarriage was not rectified by the fact that counsel for the applicant had made no substantive submission in relation to the matter when he was given an opportunity to be heard following the matter being raised by the Crown.

Submissions of the Crown

1. The Crown submitted that notwithstanding the Crown's ultimate acceptance that it was not able to establish that the applicant was on conditional liberty at the time of the offending, there was nothing about the circumstances of the case which permitted the applicant to resile from the concession made before the sentencing judge. Whilst acknowledging that some confusion had arisen as a consequence of the contradictory submissions made on behalf of the applicant, the Crown submitted that no miscarriage of justice had arisen. In this regard, the Crown relied on the fact that counsel for the applicant had been given the opportunity to address the sentencing judge in relation to the matter, and had effectively declined to do so.
2. The Crown submitted that in all of these circumstances, although an error on the part of the sentencing judge had been identified, that error had been "dealt with" by counsel for the applicant's correct acceptance of the fact that the error was not material to the sentence imposed.

CONSIDERATION

1. It is evident from what the Crown said to her Honour following sentence that there had been discussions between the parties, in the course of the sentence proceedings, about whether the offending in counts 1 to 4 was aggravated by a breach of conditional liberty. Regrettably, the sentence hearing was allowed to proceed in the absence of that issue being resolved, and a clear position being put to the sentencing judge.
2. Notwithstanding the absence of such resolution, the Crown's position in the sentence summary was that the offending was aggravated. Having stated that position, the Crown said nothing further about the issue. There was obvious confusion about the applicant's position, given the entirely contradictory submissions made in writing. That confusion was also left entirely unresolved.
3. It is obvious that the Crown realised, at some time prior to the applicant being sentenced, that its position on this issue before the sentencing judge was an error. Rather than bring the matter to her Honour's attention immediately, the Crown left it until after the applicant was sentenced to do so. By that time, the sentencing judge had found that the offending was aggravated, based upon the Crown's (erroneous) position at the time of sentence. Had the matter been brought to her Honour's attention prior to that time, this ground of appeal would, in all likelihood, not have arisen.
4. The primary submission of the Crown before this Court was that the applicant was bound by the concession which had been made by counsel appearing before her Honour. I am mindful of this Court's reluctance entertain submissions which seek to resile from concessions made at first instance, and of the necessity, before such a course can be permitted, for exceptional circumstances to be made out which establish a miscarriage of justice. [47]
5. However, I am satisfied that a miscarriage of justice has been established. Putting it simply, and leaving aside the fact that the concession which was made by counsel for the applicant was shrouded in confusion, the sentencing judge found that the offending was aggravated by a circumstance which the Crown ultimately conceded it could not prove. The finding of the sentencing judge was an error, albeit one into which her Honour was led by the manner in which the proceedings were conducted.
6. It is no answer for the Crown to point to her Honour's observation that her finding "would have had almost no bearing" on the sentence she imposed. Such a statement does nothing other than make it clear that the finding had some bearing. I am fortified in that view by her Honour's subsequent statement that her finding was "obviously a matter that [she] took into account".
7. I am also not persuaded that the error that I have identified was corrected by anything said (or not said) in the exchange between the sentencing judge and counsel for the applicant when he was given the opportunity to be heard. Contrary to the Crown's submission before this Court, that did not "deal" with the error. On the contrary, it highlighted it.
8. This Court has said on a number of occasions that there is a fundamental obligation upon counsel appearing in sentence proceedings to assist the sentencing judge. [48] Significantly, such observations were recently repeated in the context of sentence proceedings before a Judge of the District Court in which incorrect information as to the maximum penalty for the offending had been included in a sentence summary provided by the Crown. [49]
9. In my view, that obligation was not met in the present case. The failure of both parties to properly assist the sentencing judge in the conduct of the sentence proceedings has given rise to the error, and the resulting miscarriage of justice, which I have identified. That failure was compounded by the fact that although the Crown's error was apparent before the applicant was sentenced, it was inexplicably not drawn to her Honour's attention until after sentence had been passed.
10. Judges in the District Court are burdened with busy lists. In circumstances where errors of the kind identified in this case are becoming increasingly common, it is appropriate to reiterate the fact that there is a fundamental obligation on counsel to provide the assistance which sentencing judges are entitled to expect. Any further comment on the undesirability of sentence proceedings being conducted in the manner in which they were conducted in the present case would be superfluous.
11. For the reasons expressed, this ground is made out.

RE-SENTENCE

1. In light of the conclusion that I have reached in respect of ground one, the Court must re-sentence the applicant. In those circumstances, it is both unnecessary and inappropriate to consider ground two, which asserted that the sentence imposed was manifestly excessive. However, I have taken into account the written submissions made by the parties in relation to that ground on the question of re-sentence.
2. The written submissions filed on behalf of the applicant placed extensive reliance upon sentencing statistics, and pointed out that the indicative sentences in the present case fell towards the top of the ranges established by those statistics. The limitations placed on statistical material of that kind are well known. [50] Moreover, the fact that a particular sentence may fall towards the higher end (or even at the top) of a statistical range is, of itself, of limited assistance in determining whether some other sentence is warranted. [51] At the risk of stating the obvious, an appropriate sentence is to be determined having regard to all of the circumstances of the case, including the objective circumstances of the offending, and the subjective circumstances of the offender.
3. As to the former, and obviously leaving aside the finding which is the subject of ground one, counsel for the applicant took no issue before this Court in relation to the findings made by the sentencing judge as to the objective seriousness of the offending and in those circumstances, I adopt those findings for the purposes of re-sentence. As to the latter, counsel submitted that the applicant's affidavit which was read on the question of re-sentence provided a basis for this Court to reach conclusions as to the applicant's remorse and his prospects of rehabilitation which were more favourable than those reached by the sentencing judge.
4. In his affidavit, the applicant stated that he has been abstinent from all illicit drugs and alcohol since entering custody. [52] He has also commenced to undertake rehabilitative programs and has completed a Certificate III in Business through TAFE. [53] He expressed a hope that the completion of such courses will assist with his reintegration into the community on his release. [54]
5. The applicant is presently employed as a sweeper, and was previously employed in the laundry. [55] He made reference to the support which has been provided by his family since being taken into custody. [56] He continues to be prescribed anti-depressant medication and although he has sought treatment from a psychologist, he has only been able to secure appointments on three occasions. [57] He expressed "deep regret" for his actions, and specifically expressed his regret for the fact that all of the victims of his offending would have to continue to live with the trauma of his offending. [58]
6. In light of the matters set out in his affidavit, I am satisfied that the applicant is using his time in custody productively. That said, his prospects of rehabilitation remain dependent, in large measure, upon his willingness to address the numerous underlying mental health issues identified by Dr Furst in his two reports. In these circumstances, I am guarded about those prospects, although I am satisfied that he has shown some remorse for his offending. His mental health issues, which I have taken into account, justify a finding of special circumstances as I am satisfied that a longer period on parole would assist in his ongoing rehabilitation.
7. Whilst I accept that the offending in counts 1 to 4 might be viewed as opportunistic, the fact remains that it was perpetrated on two young girls who were obviously vulnerable. The offending in counts 5 and 6, far from being opportunistic, was clearly planned. The applicant came armed to the premises with a knife and went to some lengths to attempt to disguise his identity by wearing a hoodie and gloves. That offending was aggravated by the fact that it was committed in AM's home, in circumstances where the applicant was on bail, and subject to an Apprehended Violence Order. Further, the injuries sustained by AM were serious, and the medical evidence to which I have referred makes it clear that he continues to suffer from a number of ongoing sequelae. All of these matters, in my view, give rise to the need for any sentence to reflect not only personal and general deterrence, but a need to protect the community.
8. Taking all of the circumstances into account, and in the fresh exercise of sentencing discretion, I have come to the view that no lesser sentence is warranted.

ORDERS

1. For the reasons outlined, I propose the following orders: 1. Leave to appeal against sentence is granted. 2. The appeal is dismissed.

Endnotes

1. AB 31 - 34; 57- 62.
2. AB 9 - 16.
3. Agreed facts at [34]; AB 60.
4. Agreed facts at [35] - [36]; AB 60.
5. AB 70 - 71.
6. AB 70.
7. ROS [25] - [31]; AB 16 - 17.
8. ROS [32] - [39]; AB 17 - 20.
9. Exhibit D4; AB 78 - 87.
10. AB 10.
11. AB 80.
12. AB 80.
13. AB 110 - 117.
14. AB 81.
15. Exhibit D7; AB 194 - 195.
16. AB 84.
17. AB 85.
18. AB 85.
19. AB 85.
20. AB 86.
21. AB 87.
22. Exhibit D5; AB 89 - 93.
23. AB 91.
24. AB 91.
25. AB 92.
26. AB 92.
27. AB 92.
28. AB 93.
29. ROS [41]; AB 20.
30. ROS [46]; AB 21.
31. ROS [47]; AB 21.
32. ROS [49]; AB 21-22
33. ROS [50]; AB 22.
34. ROS [53]; AB 22.
35. ROS [54]; AB 22 - 23.
36. ROS [56]; AB 23.
37. ROS [55]; AB 23.
38. ROS [61] - [62]; AB 24.
39. ROS [66]; AB 25.
40. At [6]; AB 31.
41. The Queen v Olbrich (1999) 199 CLR 270 at 281; [1999] HCA 54 at [25]-[27].
42. AB 28.
43. At [12]; AB 216.
44. At [14] (c); AB 218.
45. At [29]; AB 17.
46. Annexure A to the affidavit of Jennifer Ramsay of 28 June 2021.
47. Zreika v R [2012] NSWCCA 44 at [81]; (2012) 223 A Crim R 460.
48. See for example Macallister (a pseudonym) v R [2020] NSWCCA 306 at [63].
49. See the observations of N Adams J (with whom I agreed) in Haines v R [2021] NSWCCA 149 at [67].
50. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]; MLP v R [2014] NSWCCA 183 at [42].
51. See Rajendran v R [2014] NSWCCA 113 at [87].
52. At [3].
53. At [4] - [6].
54. At [9].
55. At [10].
56. At [11] - [13].
57. At [14] - [15].
58. At [16] - [17]. 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: 04 August 2021