MRM v R

Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 Jones v The Queen [2010] HCA 45, (2010) 242 CLR 520 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40 LJ v The Queen [2010] NSWCA 289 Martin v R [2013] NSWCCA 24 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nguyen v R [2007] NSWCCA 14 Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 Power v The Queen [1974] HCA 36; (1974) 131 CLR 623 R v AJP [2004] MSWCCA 434; (2004) 150 A Crim R 575 R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 R v BA [2014] NSWCCA 148 R v Borkowski [2009] NSWCCA 102; (2009)195 A Crim R 1 R v DAJ [2102] NSWCCA 143 R v Ellis (1986) 6 NSWLR 603 R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 R v Newman [2004] NSWCCA 113 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Russell (unreported, NSWCCA, 21 June 1996). R v Scott [2005] NSWCCA 152 R v Scott [2003] NSWCCA 286 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v J B Loiterton [2005] NSWSC 905 R v I R Hall [No 2] [2005] NSWSC 890 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Sivell v R [2009] NSWCCA 286 Tunivono v R [2013] NSWCCA 176 Windle v R [2011] NSWCCA 277 Category: Principal judgment Parties: MRM (Applicant) Regina (Respondent) Representation: Counsel: W Hunt/A Bonnor (Applicant) S Dowling SC (Respondent)

Solicitors: S E O'Connor - Legal Aid NSW (Applicant) J Pheils - Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/319274 Publication restriction: Non-publication of any information or material that may lead to the identification of the complainants (Children (Criminal Proceedings) Act 1987 (NSW), s 15A) Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Law Date of Decision: 27 November 2013 Before: Conlon SC DCJ File Number(s): 2011/319274

Judgment

1. MEAGHER JA: What follows assumes a familiarity with the reasons for judgment of Simpson J and Schmidt J, which I have had the benefit of reading in draft.
2. I agree with their Honours that the appeal on ground 1 should be dismissed. My reasons for doing so accord with those of Simpson J.
3. I agree for the reasons given by Simpson J that ground 2 has been made out. Whilst the sentencing judge recited MRM's disclosure of the offences charged in counts 7 and 8, his remarks on sentence do not indicate (either by reference to the principles in R v Ellis (1986) 6 NSWLR 603 or otherwise) that he took the fact of that disclosure into account when exercising the sentencing discretion. Nor is it apparent from the resulting sentence that the sentencing judge took that disclosure into account. The concurrent sentences imposed for the offences charged in those counts were the same as those imposed for the fairly similar offences charged in counts 5 and 6, and in counts 2 and 3. That being the position this Court is justified in proceeding on the basis that the fact of the voluntary disclosure of these offences was not taken into account such that an error of sentencing principle occurred. The sentences imposed for those two offences should be set aside and the reduced sentences proposed by Simpson J should be imposed.
4. In relation to ground 3 (that the "sentence is manifestly excessive") the applicant submits that the individual sentences were excessive and that the sentencing judge then erred in applying principles of totality and proportionality in arriving at the effective aggregate sentence of 20 years imprisonment with a non-parole period of 15 years. Accepting that in relation to each of the individual sentences imposed there can be no single correct sentence, the applicant must demonstrate that one or more of those sentences was "unreasonable or plainly unjust" or that the aggregate sentence did not reflect the principles of totality and proportionality.
5. I agree with Simpson J and Schmidt J that none of the sentences imposed for these offences, taken individually, was outside the range legitimately available, and for that reason manifestly excessive.
6. It is next necessary to look at the overall sentence of imprisonment of 20 years with a non-parole period of 15 years. That sentence is the result of successive accumulations of sentences relating to criminal acts upon AC, JC and AM. I agree with Simpson J that notwithstanding the seriousness of this offending the overall sentence, with a non-parole period of 15 years, is manifestly excessive and that the applicant should be resentenced in accordance with the table of sentences attached to her Honour's reasons. That table takes account of the reduced sentences for the offences which are the subject of counts 7 and 8.

Ground 1: the pleas of guilty

1. This ground is confined to the sentences imposed in respect of Counts 3, 5, 6, 7, 8, 9 and 10.
2. Section 22(1) of the Sentencing Procedure Act provides: "22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed."
3. Section 22 goes on to provide that, where a court does not reduce the sentence under s 22(1), it must indicate to the offender, and make a record of, its reasons for not doing so. By sub-s (4) failure to comply with that sub-section does not invalidate any sentence imposed by the court. In R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 a five judge Bench of this Court promulgated a guideline in respect of sentence reductions following pleas of guilty. The Court found that "the utilitarian value" of a plea of guilty to the criminal justice system should generally be assessed in the range of 10-25 per cent and allowed by way of reduction. It went on to hold that the primary consideration in the determination of the level of reduction is the timing of the plea.
4. The complaint under this ground is that the reduction of 15 per cent in respect of Counts 3 and 5-10 is inadequate.
5. In his Remarks on Sentence, the sentencing judge said: "In the present matter on 12 March 2012 [sic - it was agreed that this should be 2013] at his arraignment the offender entered guilty pleas to counts 2, 3, 5, 6 and 8 in respect of [AC] and to counts 9 and 10 in respect of [JC]. He pleaded guilty to counts 1 and 4 and not guilty to the counts in respect of [AM] (now count 11 and the matter on the form 1 schedule) however pleas of guilty were entered on the day of trial (9 September 2013). The Crown were advised that that was to be the outcome on the Friday before. Accordingly the utilitarian benefit in respect of counts 2, 3 and count 5 through to 10 will be reflected by a discount of about 15% and in respect of counts 1, 4 and 11 by a discount of about 10%."
6. It is apparent from the opening sentence of these remarks that the sentencing judge treated the pleas to the offences the subject of this ground as having been entered at arraignment on 12 March 2013. (That appears to be the case in respect of Count 2.) As I understand it, the applicant's contention is that he had indicated much earlier, in the Local Court, that he would plead guilty to those counts. That is not contested on behalf of the Crown.

The relevant history

1. Affidavit evidence filed on behalf of both the applicant and the Crown establish that the following was the course of events.
2. The applicant appeared in the Local Court on 6 June 2012. The initiating process that brought him before the Local Court was not in evidence in this Court. A fact sheet presented to the Court was annexed to an affidavit filed by the Crown. It identifies 19 counts. Three counts were withdrawn. Agreement was reached that seven other counts would be listed on a Form 1 to be dealt with by the process provided by Pt 3 Div 3 of the Sentencing Procedure Act. (In the end, only one offence was dealt with by that process.) All of this shows that there was a process of negotiation concerning the various offences alleged, and the applicant's responses to them.
3. Of the remaining nine counts, the applicant entered pleas of guilty to six, and pleas of not guilty to three. Of the counts to which he pleaded not guilty, one was subsequently withdrawn; one was a charge finally identified on the Form 1; and one was the charge that ultimately became Count 11 on the final indictment (to which the applicant entered a plea of guilty on the day fixed for trial, 9 September 2013).
4. The matters were listed in the District Court on at least four occasions in June and August 2012. There is no evidence as to what took place on those occasions. In late October or early November 2012 (there is a conflict in the evidence as to the date) the applicant appeared in the District Court. He indicated that he did not adhere to the pleas of guilty he had previously entered.
5. Thereafter, the matters were mentioned in the District Court on a number of occasions. There is no evidence as to the purpose of the listings, or what took place. There is nothing in the evidence to suggest that the applicant had changed the position he had adopted in October/November 2012.
6. On 12 March 2013 the applicant was arraigned on an indictment that contained 14 counts. He entered pleas of guilty to eight counts, pleas of not guilty to six. One of those to which he pleaded not guilty was the offence that became the Form 1 offence; two were withdrawn; three became Counts 1, 4 and 11 on the final indictment.
7. The final indictment was presented on 9 September 2013. It contained 11 counts; one offence (to which reference has been made) was placed on a Form 1 to be taken into account. The applicant entered pleas of guilty to Counts 2, 3, 5, 6, 7, 8, 9 and 10.

Ground 2: credit for voluntary disclosure

1. This ground concerns Counts 7 and 8, which involved offences about which AC had given no information to police, and which the applicant voluntarily disclosed. Both were offences of mutual fellatio. It is well established that such disclosure entitles an offender to some reduction in the sentence that would otherwise be imposed: R v Ellis (1986) 6 NSWLR 603. The complaint is that the applicant's voluntary disclosure was not taken into account.
2. Count 7 related to an offence committed when AC was 11 or 12 years of age (that is, 2006 or 2007). Count 8 related to an offence committed "just after Christmas 2010", when AC was 15 years of age. In respect of each of these offences, the sentence imposed was of imprisonment for 7 years, with a non-parole period of 5 years.
3. Sentences of imprisonment for 7 years with non-parole periods of 5 years were imposed on the applicant in respect of six of the counts, that is, all except two of those counts concerning AC. The two exceptions were Count 1 (fellatio committed when AC was six years of age), in respect of which a head sentence of 7 years and 6 months, with a non-parole period of 5 years, was imposed and Count 4 (of anal penetration) in respect of which a sentence of 12 years, with a non-parole period of 7 years, was imposed. The offences the subject of Counts 7 and 8 were not more serious than the other offences in respect of which the same sentence was imposed. Indeed, so far as the Agreed Facts disclosed, they were identical with the offences the subject of Counts 2 and 3. That, alone, in my opinion, compels the conclusion that no leniency was allowed to the applicant in recognition of his voluntary disclosure of these offences.
4. On behalf of the Crown it was submitted that: "… it is not clear that his Honour did not afford an Ellis discount." However, the submission went on to note that: "His Honour referred to the disclosure in the Remarks on Sentence …" This reference was merely a reference to the Agreed Facts that had been put before the sentencing judge, which noted that the applicant gave details of these two offences when interviewed by police. Nowhere in the Remarks on Sentence is there to be found any reference to the principles stated in Ellis.
5. The Crown referred also to the decision of this Court in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1, in which it was noted that it is not ordinarily appropriate to identify a specific reduction allowed on Ellis principles. I have no difficulty with that proposition, but it is irrelevant in the present circumstances. The question is whether the disclosure was taken into account in mitigation of sentence. In my opinion, the identical length of sentences imposed in respect of those two offences with the sentences imposed in respect of four other offences of a similar kind demonstrates conclusively that it was not. That is reinforced by the absence of any reference in the Remarks to Ellis principles, or, indeed, of any reference to the fact that these offences came to light as a result of information provided by the applicant (other than a bare reference to the applicant's interview in the recital of the facts).

Ground 3: manifest excess?

1. To succeed on this ground of appeal, the applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Dinsdale v The Queen [2000] HCA 54; 202 CLR 321.
2. Complaint is made, not only of the overall sentence, but also of the individual sentences.
3. It is necessary to consider each sentence individually.

Count 1

1. The offence the subject of Count 1 was, chronologically, the first, and was committed when AC was six years of age. The applicant got AC out of bed, pulled down his pants, forced him to a kneeling position, and required him to perform fellatio on the applicant. The maximum sentence applicable is imprisonment for 20 years. The sentence imposed was imprisonment for 7 years and 6 months with a non-parole period of 5 years.
2. Given the very young age of AC, I am unable to conclude that this sentence was outside the range legitimately available.

Counts 2, 3 and 4

1. The offences the subject of Counts 2 to 4 were part of a single episode, committed when AC was 15 years or 16 years of age. They involved the applicant fellating AC to ejaculation (Count 2), requiring AC to fellate the applicant to ejaculation (Count 3) and anally penetrating AC (Count 4). The statutory maximum penalty is imprisonment for 20 years, the standard non-parole period 10 years.
2. In respect of Counts 2 and 3, identical sentences of imprisonment for 7 years with non-parole periods of 5 years were imposed. Since there was built into these sentences a Thomson; Houlton reduction of 15 per cent, the starting point was a head sentence of just over 8 years, with a non-parole period of just under 6 years. Again, I am unable to see that these sentences exceeded a legitimate exercise of sentencing discretion.
3. The sentence imposed in respect of Count 4 (imprisonment for 12 years with a non-parole period of 7 years) has caused me more difficulty. The seriousness of the offence should not and must not be underestimated. With some hesitation I have come to the view that, although severe, the sentence is not outside the range legitimately available.

Counts 5 and 6

1. The offences the subject of Counts 5 and 6 were, again, of mutual fellatio, and the sentences were of the same length (subject to the same reduction, and therefore having the starting point of 8 years with non-parole periods of 6 years). The offences are in the same category as the offences the subject of Counts 2 and 3, and, in my opinion, were not manifestly excessive.

Counts 7 and 8

1. The offences were of the same character as the offences the subject of Counts 2, 3, 5 and 6, and were met with the same sentences. As with the offences the subjects of Counts 2, 3, 5 and 6, these sentences were not manifestly excessive, although they were affected by the error identified above, failing to take into account the applicant's voluntary disclosure. In my opinion, for that reason, these sentences should be set aside, and the applicant re-sentenced.
2. The allowance made on Ellis principles should be modest. I propose that the sentences imposed be reduced by 6 months off both the head sentences and the non-parole periods.

Count 9

1. The offence the subject of Count 9 was an offence against s 73(1), of sexual intercourse with JC when she was 16 years of age, and under the special care of the applicant. The maximum sentence applicable is imprisonment for 8 years. A sentence of 3 years was imposed. The starting point was 3 years and 6 months. That was not manifestly excessive.

Count 10

1. This offence was an offence against s 73(2), committed when JC was 17 years of age. The maximum penalty is imprisonment for 4 years; the applicant was sentenced to imprisonment for 2 years. The starting point was 2 years and 4 months. I do not consider this sentence to be manifestly excessive.

Count 11

1. The offence the subject of Count 11 was indecent assault of the applicant's daughter, AM, subject to a maximum penalty of imprisonment for 10 years, and a standard non-parole period of 8 years. In sentencing for this offence, the sentencing judge took into account a similar offence identified on the Form 1. The sentence imposed was imprisonment for 5 years and 6 months, with a non-parole period of 3 years. That was not manifestly excessive.
2. I am satisfied, however, that the overall sentence of imprisonment for 20 years with a non-parole period of 15 years is manifestly excessive. The overall sentence resulted from successive accumulations. In most cases, the accumulations were of 1 year upon the previously imposed sentence. However, the sentences imposed for Counts 2 and 3 were accumulated by 2 years upon the sentence imposed in respect of Counts 5 and 6 (which were to be served concurrently). (The sentences for Counts 2 and 3 were also specified to be served entirely concurrently with one another.) What I consider to be a manifestly excessive overall sentence results from these accumulations, and can be corrected by reducing some of the accumulation.
3. The overall non-parole period resulting from the proposed re-sentencing includes a modest reduction on the s 44(2) proportions. The special circumstance that justifies that reduction is the accumulation of sentences.
4. I propose the following orders: (1) Leave to appeal against sentence granted; (2) Appeal allowed, sentences imposed in respect of Counts 7 and 8 set aside; (3) In lieu thereof, the applicant be sentenced as follows: (a) On Count 10: confirm the sentence of imprisonment for a fixed term of 2 years commencing on 6 October 2011 and expiring on 5 October 2013; (b) On Count 9: confirm the sentence of imprisonment for a fixed term of 3 years but order that it commence on 6 April 2012 and expire on 5 April 2015; (c) On Court 11: confirm the sentence of imprisonment for 5 years and 6 months but order that it commence on 6 April 2013 and expire on 5 October 2018, with a non-parole period of 3 years to expire on 5 April 2016; (d) On Count 1: confirm the sentence of imprisonment for 7 years and 6 months but order that it commence on 6 January 2014 and expire on 5 July 2021, with a non-parole period of 5 years to expire on 5 January 2019; (e) On Counts 7 and 8: quash the sentences and impose sentences of imprisonment for 6 years and 6 months to commence on 6 October 2014 and expire on 5 April 2021, with non-parole periods of 4 years and 6 months to expire on 5 April 2019; (f) On Counts 5 and 6: confirm the sentences of imprisonment for 7 years but order that it commence on 6 October 2015 and expire on 5 October 2022, with a non-parole period of 5 years to expire on 5 October 2020; (g) On Count 3: confirm the sentence of imprisonment for 7 years but order that it commence on 6 April 2016 and expire on 5 April 2023, with a non-parole period of 5 years to expire on 5 April 2021; (h) On Count 2: confirm the sentence of imprisonment for 7 years but order that it commence on 6 April 2016 and expire on 5 April 2023, with a non-parole period of 5 years to expire on 5 April 2021; (i) On Count 4: confirm the sentence of imprisonment for 12 years but order that it commence on 6 October 2016 and expire on 5 October 2028, with a non-parole period of 7 years to expire on 5 October 2023. The total effective sentence is imprisonment made up of a non-parole period of 12 years with a balance of term of 5 years. The first date on which the applicant will be eligible for release on parole is 5 October 2023. TABLE: MRM v R Count Head sentence Non-parole period Commencement date Non-parole period expiry Head sentence expiry 10 2 years - 6 October 2011 5 October 2013 9 3 years - 6 April 2012 5 April 2015 11 5 years and 6 months 3 years 6 April 2013 5 April 2016 5 October 2018 1 7 years and 6 months 5 years 6 January 2014 5 January 2019 5 July 2021 7} 6 years and 6 months 4 years and 6 months 6 October 2014 5 April 2019 5 April 2021 8} 5} 7 years 5 years 6 October 2015 5 October 2020 5 October 2022 6} 3 7 years 5 years 6 April 2016 5 April 2021 5 April 2023 2 7 years 5 years 6 April 2016 5 April 2021 5 April 2023 4 12 years 7 years 6 October 2016 5 October 2023 5 October 2028

Overall sentence: imprisonment for 17 years with a non-parole period of 12 years

1. SCHMIDT J: On 27 November 2013, MRM was sentenced to an effective head sentence of 20 years, with a non-parole period of 15 years, for 11 counts of sexually assaulting his two stepchildren and natural daughter, to which he had entered pleas of guilty and for which he received a discount on sentence of 10% in some cases and 15% in others. His offences were committed over the course of some 9 - 10 years and were ongoing, when he was confronted by police.
2. The individual sentences imposed on MRM were: Count 10: Sexual intercourse with person aged above 17 and under 18 years (under special care) s 73(2) Crimes Act 1900 with a maximum term imprisonment for 4 years. Sentence - A fixed term of 2 years to date from 6.10.11. Count 9: Sexual intercourse with person aged above 16 and under 17 years (under special care) s 73(1) Crimes Act 1900 with a maximum term imprisonment for 8 years. Sentence - Fixed term of 3 years to date from 6.10.12 and expire 5.10.15. Count 11: Aggravated indecent assault person under 16 (under authority) s 61M(2) Crimes Act 1900 with a maximum term imprisonment 10 years, standard non-parole period of 8 years. Sentence - Non parole period of 3 years to date (taking into account Form 1 from 6.10.13 and expire 5.10.16 with an additional term of 2 years and 6 months to expire 5.4.19. Count 1: Sexual intercourse with child under the age of 10 years s 66A Crimes Act 1900 with a maximum term of imprisonment for 20 years. No standard non-parole period applies - offence committed prior to 1.2.03) Sentence - Non parole period of 5 years to date from 6.10.14 and expire 5.10.19 with an additional term of 2 years and 6 months to expire 5.4.22. Counts 7 & 8: Aggravated sexual intercourse with a person above the age of 10 years and under age of 14 years, namely 11 years (under authority) s 66C(2) Crimes Act 1900 with a maximum term of imprisonment for 20 years and aggravated sexual intercourse without consent (under authority) s 61J(1) Crimes Act 1900 with a maximum term of imprisonment 20 years and standard non-parole period of 10 years. Sentence - Non parole period of 5 years to date from 6.10.15 and expire 5.10.20 with an additional term of 2 years to expire on 5.10.22. Counts 5 & 6: Aggravated sexual intercourse without consent (under authority) s 61J(1) Crimes Act 1900 with a maximum term of imprisonment 20 years and standard non-parole period of 10 years Sentence - Non parole period of 5 years to date from 6.10.16 and expire 5.10.21 with an additional term of 2 years to expire on 5.10.23. Counts 2 & 3: Aggravated sexual intercourse without consent (under authority) s 61J(1) Crimes Act 1900 with a maximum term of imprisonment 20 years and standard non-parole period of 10 years Sentence - Non parole period of 5 years to date from 6.10.18 and expire 5.10.23 with an additional term of 2 years to expire on 5.10.25. Count 4: Aggravated sexual intercourse without consent (under authority) s 61J(1) Crimes Act 1900 with a maximum term of imprisonment 20 years and standard non-parole period of 10 years Sentence - Non parole period of 7 years to date from 6.10.19 and expire 5.10.26 with an additional term of 5 years to expire 5.10.31.

The facts

1. The facts were agreed. MRM commenced a relationship with the mother of his stepchildren, AC and JC, in 1999. They later had a child, AM.

Counts 1, 2, 3, 4, 5, 6, 7 and 8 - AC

1. MRM's offences against AC first came to light in February 2011, when he was aged 16 years, when his mother found a suicide note which AC had written. He first made a complaint to police in April 2011 and was interviewed on 26 May 2011 and 17 August 2011. He then informed police that MRM's offending against him had commenced when he was aged 6 years and was ongoing. When confronted by police, MRM confirmed parts of his account.
2. AC was able only to particularise the occasions which became the subject of counts 1 to 6. Counts 7 and 8 related to an occasion MRM identified.
3. Count 1 related to an occasion in March 2001, when AC was aged 6 years and MRM got him out of bed, pushed him into a kneeling position, made him suck MRM's penis until he pulled his penis out and ejaculated into a tissue. He then told AC to return to bed.
4. Counts 2, 3 and 4 occurred about a week before counts 5 and 6, when AC was aged between 15 and 16, when MRM came to his bedroom, woke him, pulled his pants down and fellated him until he ejaculated into MRM's mouth (count 2). MRM then made AC kneel and fellated him, to the point where he ejaculated into a tissue (count 3). MRM then bent AC over and penetrated his anus with his penis for 5 - 10 minutes (count 4). He then told AC to go back to sleep.
5. Counts 5 and 6 occurred late at night between 1 March and 10 April 2011, when AC was in the lounge room playing on his PlayStation. MRM sat down next to AC and made him fellate him, by grabbing his head and forcing AC's mouth onto his penis, while he moved his penis back and forth in AC's mouth until he removed his penis and ejaculated into a tissue (count 5). He then forced AC to lay on the ground and fellated AC until he ejaculated into MRM's mouth (count 6). He then told AC to go to bed.
6. MRM was interviewed by police on 6 October 2011. He admitted sexually assaulting AC, but claimed that he had not begun, until AC was aged 11 or 12. He then said that he would perform oral sex on AC and AC would do the same to him, about once a month.
7. Count 7 related to an occasion when AC was aged 11 or 12 years, which MRM revealed had occurred in the radio shack. He said that was when the oral sex had just started and AC had stuck his penis in MRM's mouth and vice versa.
8. Count 8 related to the last occasion that MRM said an assault had occurred, after Christmas 2010, when AC was aged 15 years. He said AC was playing on his PlayStation, they had oral sex, sucking each other's penises, MRM ejaculating into a tissue and AC ejaculating into his mouth.

Counts 9 and 10 - JC

1. JC first complained to a neighbour in September 2011, who contacted police. She revealed that she had a sexual relationship with MRM, in which they had regular penile/vaginal sex 2 to 3 times a week, which had commenced when she was aged 16 years and had increased to 4 to 5 times a week, when aged 17. She had come to see MRM as a romantic figure and no longer a father figure.
2. MRM told police that they had had an intimate relationship since JC was 16; that they were like boyfriend and girlfriend; that they had engaged in sex from one to four times a week; and that she had written him notes since she was 12 or 13 years old. They sometimes had unprotected sex, but he claimed that he did not ejaculate inside her
3. Count 9 occurred when JC was aged 16 and she and MRM had sex in her mother's bed.
4. Count 10 occurred when JC was aged 17 and she and MRM had sex in her bed.

Count 11 and the Form 1 offence - AM

1. Count 11 - AM disclosed to police in October 2011, when she was aged 11, that MRM had indecently assaulted her when she was 10 or 11, when he came into her bedroom, where she was doing her homework and grabbed her hand, took her into the lounge room, removed his pants and forced her hand onto his penis and moved it up and down his penis, until she managed to pull it away and run away from him
2. The Form 1 offence occurred while AM was in bed and MRM came in, took off her pyjama top and touched and squeezed both of her naked breasts.
3. On arrest in October 2011, MRM denied ever indecently assaulting AM.

Ground 1 - the discounts

1. MRM entered pleas to counts 1, 4 and 11 in the District Court, for which he received a 10% discount, about which no complaint was made on appeal. There was also no complaint about the discount of about 15% given for the plea to count 2.
2. MRM also received a discount of about 15% for counts 3, 5, 6, 7, 8, 9 and 10, having indicated an intention to plead guilty to those counts in the Local Court. This is the subject of ground one. It was MRM's case that the discount for counts 3, 5, 6, 7, 8, 9 and 10 had been calculated on an erroneous basis.
3. The course which these matters took before the final pleas were entered at trial in the District Court was somewhat protracted.
4. In June 2012, in the Local Court the applicant entered pleas of guilty to some of the 19 counts with which he had been charged and some counts were then withdrawn. The charges to which pleas were entered were listed for sentence in the District Court in June. That hearing was adjourned to August and was then adjourned again.
5. On 19 October, in the District Court, MRM did not adhere to the pleas he had indicated in the Local Court. The matter was listed again on 9 November and 11 December and then adjourned for arraignment on 5 February 2013. It was then stood over several further times and listed again for arraignment on 12 March 2013, when pleas to certain offences were indicated and the other counts were listed for trial in September, with separate trial applications indicated.
6. On 9 September, MRM entered pleas of guilty to a fresh indictment and all matters were listed for sentence. They were heard on 15 November and judgment was given on 27 November 2013.
7. MRM's case on appeal was that in these circumstances, Conlon DCJ had erred in giving him a discount of about 15% for counts 3, 5, 6, 7, 8, 9 and 10, he having earlier indicated in the Local Court that he intended to plead guilty.
8. At the sentence hearing it had been submitted for MRM that it was never the case that there was a reversal on all of the indicated pleas in the Local Court, although, as his Honour then observed, ultimately the pleas were not entered until the day of the trial.
9. On appeal, it was argued that MRM had always intended to plead to counts 3, 5, 6, 7, 8, 9 and 10; that had been indicated in the Local Court, and that the matter had progressed as it did, because of the Crown's pursuit of three additional counts. His Honour erred, it was submitted, in taking the view that 12 March 2013 was the relevant date for quantifying the discount for these counts, given the requirements of s 22 of the Crimes (Sentencing Procedure) Act 1999. In the alternative, it was submitted that MRM could not reasonably have been expected to formally enter his pleas earlier than he did.

Ground 2 - voluntary disclosure in relation to counts 7 and 8

1. MRM's case was that the prosecution of counts 7 and 8 involving AC was only possible because of his own disclosures, recorded in the agreed facts at [13] and [14]. He gave details of those offences to police on interview, AC having only been able to particularise the events to which counts 1, 2, 3, 4, 5 and 6 related.
2. In submissions on sentencing, it was argued that although MRM had not admitted committing all of the assaults on AC he complained of, he had made substantial admissions, including in relation to counts 7 and 8, which had not been put to him. He also made full admissions in relation to the counts involving JC. It was relevant that without such admissions, convictions in such cases were frequently difficult to secure.
3. On appeal, Conlon DCJ's error was submitted to have been revealed by the fact that his Honour had referred to the details MRM gave police on interview in relation to counts 7 and 8, but otherwise did not refer to his admissions. In addition to the utilitarian discount for his plea, these voluntary disclosures, which revealed additional criminality not known to police entitled MRM to considerably leniency on sentencing, which he had not received (see R v Ellis (1986) 6 NSWLR 603 at 604 and Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40 at [18]).
4. Here, it was submitted, MRM's known criminality was not so great, that little leniency was warranted in his case. While his offending had been going on for some years, relatively few occasions were capable of being particularised, let alone being established. His disclosures permitted a more representative number of charges being brought. In the result, a marked reduction in the sentences imposed was warranted. No reference was made to this principle in the sentencing remarks and the sentences imposed were commensurate in severity with the sentences imposed for other offences. That revealed the failure to comply with the Ellis principle, which was an error warranting appellate intervention.
5. As discussed in Ellis, it is a part of the policy of the criminal law to encourage guilty persons like MRM to confess their guilt. Such confessions should be reflected by a discount on sentencing, albeit not a separate, quantified discount, like that which flows in relation to the entry of an early plea. What leniency should flow in such a case depends on the particular circumstances. That is a matter of degree, with offenders who disclose entirely unknown offences being entitled to greater leniency, than those whose known criminality is substantial. MRM was afforded such leniency.

Ground 3 - manifest excess

1. To make out this ground MRM must establish that the sentence imposed upon him was "unreasonable or plainly unjust" (see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.)
2. The overall sentence imposed on MRM, after application of the principle of totality, was certainly stern, resulting as it did in an overall sentence of 20 years imprisonment, with an aggregate non-parole period of 15 years. That there was any error in that result, or in the individual sentences imposed upon MRM has not, however, been established.
3. That result properly reflected, the seriousness of the offending for which MRM was sentenced, offending which involved serious, repeated and ongoing breaches of trust in relation to both of his two stepchildren, as well as his natural daughter. In the case of his stepson, that offending had begun from his early years and continued over some ten years.
4. The sentence was, in the result, neither unreasonable nor plainly unjust and so, in my view, this ground of appeal must also fail.
5. MRM's case was that Conlon DCJ's error was the result of both the individual sentences he imposed and the application of the principle of totality to those sentences. This contention was advanced in various ways, beginning by reference to his Honour's observation: "These days the Court regularly hears submissions on behalf of the perpetrator of these types of crimes drawing the Court's attention to factors not apparently present in the commission of the crime, for example no verbal or physical threats, no gratuitous treatment over and above the sexual assaults themselves or that they were not told that nobody would believe them. The ultimate aim of such submissions is to suggest to the Court that the objective seriousness of the offence is either at or below the middle of the range or indeed falling towards the lower end of the range. However the Court is here dealing with forced sexual intercourse in respect of the offender's stepson. In count 1 he was but six years of age and therefore particularly vulnerable. From that point on he was subjected to continual sexual abuse. He was entitled to feel safe and protected within the confines of the family home. The offender occupied a position of trust, that trust was violated in the worst possible way. True it is that forced fellatio of the offender's penis is genuinely not considered by the Courts as the most serious form of intercourse however in Doe v R [2013] NSWCCA 264 Bellew J stated as follows: "The Court of Criminal appeal has previously said that in cases of this kind the type of forced intercourse is not determinative of the objective seriousness of the offence and that the creation of some form of hierarchy in that regard is neither possible nor appropriate (see for example R v AJP [2004] NSWCCA 434; (2004) A Crim R 575 per Simpson J at 24"."

The absence of violence

1. There was no error in his Honour's observations.
2. On sentencing, MRM relied on the absence of violence, or threats of violence, to advance his case. On appeal, he submitted that the use of the word "force" in the agreed facts, when fellatio was described, connoted physical pressure, rather than violence ending in physical injury.
3. The absence of violence and the fact that particular offending could have been worse than it, in fact was, is not a mitigating matter as recently and succinctly observed in R v BA [2014] NSWCCA 148 at [33]: "The use of force would have been an aggravating factor but I do not think its absence could sustain the conclusion that the offending was at the lower end of the range. An aspect of the seriousness of sexual offences committed against young children is that their youth and inexperience deprives them of the capacity to resist or protect themselves. The fact that an adult entrusted with the care of a child is able to prey upon the child's trust and vulnerability to commit sexual offences without resort to the use of force is hardly a mitigating factor. It speaks of a pernicious abuse of trust."

Objective seriousness

1. MRM submitted that his Honour had failed to consider where in the range of conduct covered by the offence provisions in question, his conduct had fallen, with the result that his individual sentences were disproportionate to the criminality involved in his conduct (see Baumer v The Queen [1998] HCA 67; (1998) 166 CLR 51). This submission may also not be accepted.
2. Firstly, a consideration of range is only necessary when an offence to which a standard non-parole period applies is being considered (see Sivell v R [2009] NSWCCA 286 at [32] and Martin v R [2013] NSWCCA 24 at [39]).
3. Where a standard non-parole period does apply, s 54B of the Crimes (Sentencing Procedure) Act provides that the requirement to make a record of reasons for setting a non-parole period, longer or shorter than the standard non-parole period, does not require the court "to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable."
4. The sentences which his Honour imposed do not suggest that he overlooked either applicable standard non-parole periods or that he failed to properly assess the objective seriousness of these individual offences.

The individual sentences

1. In his sentencing remarks, under the heading "objective seriousness", his Honour first dealt with the offences involving AC, beginning with the comments earlier quoted. He then observed that counts 2, 3, 4, 5, 6 and 8 all occurred towards the end of MRM's abuse, when AC had been conditioned to a degree, to his lust. His Honour took the view that count 4, involving as it did anal penetration, was more degrading than the offences involving fellatio. There was no error in that view.
2. His Honour also took account, as he was entitled to do, of the explanation given by AC of the awful effects of MRM's ongoing offending, which began when AC was aged only 6 years and continued until he was aged 16, when confronted by police. His Honour described the appearance of AC reading his statement, which described the impact on his life of MRM's offending, to be that of a broken human being. He concluded that MRM's offending had been serious, as it undoubtedly was.
3. His Honour then dealt with the offences against JC, beginning with her evidence as to when her father/daughter relationship with MRM changed to a sexual relationship involving penile/vaginal sexual intercourse two to three times a week; how she came to see him a romantic way; what MRM told police as to they having a boyfriend/girlfriend relationship and its nature. He then dealt with counts 9 and 10, finding them to have been objectively serious, he having treated her as his permanent sexual partner, in breach of his relationship with her, noting her youth and MRM's abuse of his position as de facto head of their family, in a position of considerable influence over her.
4. These were all relevant considerations, which his Honour considered warranted stern punishment, a view which was supported by the evidence as to the adverse psychological impact of his offending upon JC.
5. His Honour then turned to count 11, the offence against his natural daughter, AM, and the form one offence he was asked to take into account, which took place when she was aged 10 or 11. His Honour also took into account her victim impact statement and correctly took the view that these offences involved gross breaches of trust.
6. MRM did not give evidence. When Conlon DCJ considered a psychologist's report tendered in his case, he approached the history MRM had given with caution, in accordance with R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]. That account described periods when sexual intercourse with his wife ceased, because of her ill health, as well as MRM's feelings of intense frustration, which he did not disclose to her. Nor did he disclose his feelings of anger, at being forced to be the disciplinarian in the family. A cycle of abuse of his stepchildren ensued, which MRM said he tried, but failed to control. He said that he experienced shame and guilt, but was unable to control his arousal. He also said that he felt that his stepchildren had enjoyed his abuse, in JC's case to the point that he formed a boyfriend/girlfriend relationship with her.

Count 1

1. On appeal, to make good the submission in relation to the individual sentences imposed on MRM, comparisons were sought to be drawn in relation to count 1, with the penalties imposed in other cases.
2. I have already referred to the 7 year sentence, with a non-parole period of 5 years imposed for count 1, to which a maximum penalty of 20 years applied. There was no standard non-parole period for this offence, at the time it was committed.
3. Nevertheless, this was plainly a relatively lenient sentence, given the objective seriousness of MRM's sexual assault on his vulnerable, 6 year old stepson, the first of what was, on MRM's own accounts, an ongoing, reprehensible course of conduct, pursued in breach of his position of trust, which was still ongoing when AC was aged 16. His Honour's approach to questions of concurrence and accumulation, only underscores the leniency of the sentence imposed on MRM for this offence, which I have already discussed.
4. As discussed in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [23] - [25], there is no hierarchy of seriousness of the kinds of sexual intercourse contemplated by s 66A. Penile-vaginal penetration, for instance, might be taken to be more serious than enforced fellatio in a particular case, but that does not mean that enforced fellatio necessarily falls below the mid-point of objective seriousness of such offences, now that a standard non-parole period applies to this offence. It follows that his Honour's reference to Doe v R [2013] NSWCCA 248; (2013) 187 A Crim R 328 was not misguided, as was submitted for MRM on appeal. There it was also discussed at [54] that it is erroneous to attempt to rank forms of sexual intercourse in some type of hierarchy. The objective seriousness of the particular offending must be determined in light of the entirety of the facts and circumstances in question.
5. Objectively count 1 was a very serious offence. The reliance sought to be placed on appeal, on the result of the isolated, opportunistic act of fellatio committed on an 8 year old by her uncle, dealt with in R v AJP, where the standard non-parole period applied, does not suggest that the sentence imposed on MRM for this offence was excessive, in all of the relevant circumstances. LJ v The Queen [2010] NSWCCA 289 was also factually distinguishable to this offence, involving as it did a one off offence of fellatio against a 14 year old, involving no breach of trust.

Counts 2, 3, 5 and 6

1. In relation to counts 2, 3, 4, 5, 6, 7 and 8, the submissions advanced in relation to grounds 1 and 2, which I have already dealt with, were relied on. Additionally, it was argued by reference to other decided cases and sentencing statistics, that the sentences imposed were too high.
2. In relation to counts 2, 3, 5 and 6, all offences against AC under s 66J involving fellatio, it was submitted that it was "impossible to conclude that the conduct forming the basis of the s 66J(1) charges was deserving of the sentences imposed …".
3. That submission also cannot be accepted.
4. A sentence of 7 years, with a non-parole period of 5 years was imposed for each offence, but with considerable concurrence, to which I will return. AC was older when these offences occurred, being aged 11 or 12 at the time of count 7 and 15 or 16 at the time of the other offences. As his Honour found, by then he was conditioned to being an object of MRM's lust, which on MRM's own account, had resulted in monthly assaults on AC over many years.
5. These matters were relevant to an assessment of the objective seriousness of each of these offences and his Honour also had to assess MRM's moral culpability for this offending. The maximum penalties for these offences were in each case, 20 years with a standard non-parole period of 10 years. His Honour also had to take into account both these statutory guideposts (see Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120).
6. As discussed in Muldrock at [31], a move upwards in the length of the non-parole period for these offences was the likely outcome of adding the awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence, when the instinctive syntheses discussed in Markarian was undertaken, in respect of each of these offences.
7. On appeal, comparisons were sought to be drawn with various statistics and R v DAJ [2012] NSWCCA 143.
8. Those comparisons were of limited relevance for reasons discussed in Windle v R [2011] NSWCCA 277 at [62] - [68] by reference to Hili v The Queen; Jones v The Queen [2010] HCA 45, (2010) 242 CLR 520.
9. The statistics referred to show that the median head sentence for s 61J(1) offences was between 6 and 7 years, with the range of total sentences, 2 to 18 years and the median non-parole period was 5. In the case of multiple offences the median head sentence was 20 years. Those statistics do not suggest that the sentences imposed on MRM fall outside the relevant range.

Count 4

1. Count 4 involved anal penetration, following upon two other counts involving fellatio. MRM was sentenced to 12 years imprisonment with a 7 year non-parole period for count 4. This was objectively, a much more serious offence than the other s 61J offences. This sentence was made partially concurrent with the non-parole periods imposed for counts 5, 6, 2 and 3, with the result that only 3 years of the non-parole period imposed for count 4, is referable only to this offence.
2. That in CM v R [2008] NSWCCA 195; (2008) 187 A Crim R 197, the offender was sentenced to a total term of 10 years and 6 months and a non-parole period of 6 years and 6 months and does not establish that this sentence was manifestly excessive. To the contrary, it tends to indicate that it was not. There s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) had to be applied, given the offender's age (15 years). That offence involved penile/vaginal sex after the victim was repeatedly struck with a piece of wood. These circumstances bear no relationship to that of this offending and cast no light on the appropriateness of the sentence here imposed.
3. Nor do the statistics that only 6 of 82 other offenders were sentenced to non-parole periods of 7 years or more, establish that this sentence was manifestly excessive.
4. The seriousness of an offence such as this has long been recognised. An offence of this kind is, in any circumstance, of its very nature degrading, but the degrading nature of forced anal intercourse, tends to make such an offence even more degrading (see R v Russell (unreported, NSWCCA, 21 June 1996). There was no error in his Honour reflecting this in the sentence he imposed on MRM. To the contrary, he was obliged to assess where each of these sexual assault offences lay on the spectrum or scale of seriousness of such offending whether determining the sentence imposed for each offence (see Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447). No error in his Honour's conclusion in relation to count 4 has been established.

Counts 9 and 10

1. In relation to counts 9 and 10, on MRM's case there were few sentencing statistics available, too few, indeed, to be of any assistance at all and only two cases, unidentified, which had resulted in s 9 bonds.
2. Conlon DCJ imposed fixed term of 2 years from 6 October 2011 for count 10 and for count 9, a fixed term of 3 years commencing on 6 October 2012 and expiring on 5 October 2015. Again, there was considerable concurrency, for the two offences under s 73(2) and (1) respectively, involving JC (count 11) as well as count 1 the first offence involving JC, which commenced on 6 October 2014.
3. No error has been shown in relation to either of those sentences. They have also not been shown to have been unreasonable or plainly unjust.

Count 11

1. In relation to count 11 involving AM, statistics were relied on to submit that MRM was in the top 15% of 54 cases which had resulted in sentences of imprisonment. He was sentenced to 5 years, 6 months with a non-parole period of 3 years. Neither that statistic, nor that only 2 of 29 other offenders were sentenced to a non-parole period of 3 years and total terms of 4 years and 6 months and 13 to non-parole periods of 18 months, establishes that this sentence was manifestly excessive.

The overall sentence

1. MRM did not cavil with the conclusion reached by Conlon DCJ as to the need for partial accumulation of the sentences imposed upon him, even when his offences occurred on the one occasion, as was the case in relation to counts 2, 3 and 4. He argued however, that if the principles of proportionality and totality had been properly applied, the overall sentence imposed upon him would have been adjusted downwards.
2. His Honour was obliged to ensure that there was a reasonable proportionality between the sentences he imposed and the circumstances of the crimes MRM had committed (see R v Scott [2005] NSWCCA 152 at [15]).
3. When applying the principle of totality, his Honour had to bear in mind that the severity of a sentence is not simply the product of a linear relationship between individual sentences, and that severity may increase at a greater rate, than an increase in the length of a sentence (see R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15] - [18]). A crushing sentence that will induce a feeling of hopelessness and destroy any expectation of a useful life after release, ought not to be imposed on an offender (see MAK at [17]). The impression may not be given, however, that there is some kind of discount for multiple offending.
4. What a just sentence is, must be determined, in a particular case, by reference to the offences committed, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality (see Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104).
5. In a case such as this, of multiple offences and different victims, committed over many years, the final sentences imposed must reflect a just and appropriate measure of the total criminality involved (see Postiglione v R [1997] HCA 26; (1997) 189 CLR 295.)
6. Here the overall sentence imposed was, as I have earlier observed, stern. That it was manifestly excessive, is not apparent, given the seriousness of MRM's long course of offending against his three young victims. The offences to which MRM entered his pleas were not one off, or opportunistic, but representative of a long pursued course of criminal conduct, in breach of his position of trust to three children in his care, at their home, where they ought to have been safe. That offending began when AC was only 6 years old, and ceased when MRM was apprehended by police. He was not being sentenced for that course of conduct, but that the offences occurred in that context, had to be taken into account, in arriving at the sentences imposed upon him.

Orders

1. For these reasons, I would order that leave to appeal be granted but the appeal be dismissed.

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