Nicholas v R

Court of Criminal Appeal (NSW)|2024-06-28|Before: Adamson JA, Stern JA, Faulkner J

HEADNOTE The Applicant, Mitchell Nicholas, was found guilty on 16 counts of child sexual abuse offences against KW and TW, the daughters of his partner and a friend of his daughters, EM, following a trial in the District Court of New South Wales. On 17 March 2023 her Honour Hock DCJ (the sentencing judge) sentenced the Applicant to an aggregate sentence of 28 years, with a non-parole period (NPP) of 19 years, commencing on 21 May 2020. The Applicant sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed upon him by the sentencing judge. The principal issues on appeal were: 1. Whether the sentencing judge erred in determining counts 11 and 12 were aggravated because they occurred when the Applicant was subject to conditional liberty; and 2. Whether the sentence was manifestly excessive. The Court held (per Faulkner J): 1. The sentencing judge proceeded on the basis of a concession made by the Applicant from which the Applicant is not now permitted to resile, and in the circumstances there was no error by the sentencing judge; 2. The Applicant has not demonstrated that the sentence is unreasonable or plainly unjust.

JUDGMENT

ADAMSON JA: I agree with Faulkner J.
STERN JA: I agree with Faulkner J.
FAULKNER J: Before the Court is an application under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against the sentence imposed by Hock DCJ (the sentencing judge) on Mitchell Nicholas (the Applicant) following his conviction of 16 sexual offences against three children between 2014 and 2020. The application for leave was heard concurrently with the appeal itself. Leave to appeal ought to be granted. The appeal ought to be dismissed.

Background

Over a number of years the Applicant sexually abused the two daughters of his partner, KW and TW. On the approach taken by the sentencing judge, the abuse was taken to have begun when the daughters were as young as five years old. The abuse occurred in their home and generally occurred when their mother left the daughters in the Applicant's care. On one occasion the Applicant sexually abused a third child, a friend of the daughters who was aged 11 at the time. The friend is referred to as EM.
The Applicant pleaded not guilty to all 16 counts. After a trial lasting 13 days (including 2 days of jury deliberations), on 22 August 2022 the Applicant was found guilty of all 16 counts.
In her Honour's remarks on sentence, the sentencing judge recorded that the evidence during the trial established the following facts: "Count 1: Sexual intercourse with child under 10 years Between 2 August 2016 and 13 November 2017 the offender attended the family home at [KW and TW's then address]. TW was aged five or six at the time. LC left her children in the care of the offender while she completed errands. The offender walked TW to the bathroom. Once inside, he closed and locked the door. He placed the toilet lid down and told her to "Sit there". She did so. The offender stood in front of her and pulled his pants down exposing his penis. He told TW to "Suck it." He placed his hand behind TW's head and pushed her head towards his penis. TW placed her mouth around the offender's penis. The offender pushed her head "forward and back" along his penis. He then removed it from TW's mouth and proceeded to kiss her on the mouth. TW pulled away and told the offender "I have to go to the toilet", and the offender stopped. She flushed the toilet and went to the basin to wash her hands. She unlocked the bathroom door and left. The offender followed her and escorted her into her mother's room. Count 2: Sexual intercourse with child under 10 years While in her mother's room the offender pushed TW onto the bed, he pulled her pants down and started licking her vagina causing TW pain. He kissed her on the mouth. TW pulled her pants up and walked towards the door. As she opened the door her sister, KW, walked past. Count 3: Aggravated indecent assault, child aged under 16 years Between 2 August 2017 and 29 January 2018, the offender again attended the family home at [KW and TW's then address]. TW was still aged five or six. LC left the home to buy dinner, leaving the offender to care for her children. The offender told TW to go to her mother's room. He followed her in, closed and locked the door. He removed his pants, exposing his penis. He laid down on the bed and told TW to hop on and grind his penis. He then said, "Take your clothes off and your undies off." TW said, "No." She removed her pants but left her underwear on. The offender said, "Okay, but still grind me." TW sat on the offender's groin and moved backwards and forwards over his penis. The offender said, "Do it fast." He began to kiss TW placing his tongue inside her mouth and said, "Move your tongue around." When TW said, "Stop" the offender did. Count 4: Sexual intercourse with child under 10 years Between 13 November 2017 and 23 March 2018, the offender again attended the family home at [KW and TW's then address]. TW was aged six at the time. The offender's sister, MB, aged seven, was present. LC left the children in the care of the offender while she went out to run errands. The offender commenced a game of murder in the dark with TW, KW and MB. All the lights in the home were turned off and the blinds were drawn closed. During the game, TW hid in her room. The offender entered the room and lay on the bed. He called TW over to the bed and whispered, "Suck my dick." TW sat on top of the offender and placed her mouth around his penis and sucked it. The offender placed his hand on the back of TW's head, pushing her head further forward. He whispered, "Do you like doing it." TW shook her head from side to side, indicating no. Count 6: Intentionally sexually touch a child under 10 years Between 1 January and 30 September 2019, the offender attended the family home, which was now at [KW and TW's then address]. TW was aged seven or eight at the time. LC left the home with KW leaving the offender to care for TW and the two youngest children. The offender said to TW, "Come in to your mum's room. I want to do something with you." They entered LC's bedroom. The offender closed the door, shut the blinds, turned the lights off and removed his pants and underwear. He lay on the floor and said, "Take your undies and your pants off' and "Hop on me". TW removed her pants and underwear and sat on the offender's groin. He said, "Grind me back and forth." TW moved backwards and forwards, her vagina rubbing against the offender's penis which she described in evidence as "really hard." She said she felt pain in the area of her vagina. Count 5: Sexual intercourse with child under 10 years The offender said, "Since you did something to me, I'm going to do something to you." He placed his penis into TW's vagina and rubbed the shaft of his penis while it was partially inside her vagina, causing her further pain. Count 7: Sexual intercourse with child under 10 years The offender then said, "It doesn't fit. Put your finger inside your vagina." The offender removed his penis and took hold of TW's hand forcing her own fingers into her vagina. TW said, "Stop" but the offender did not do so. Count 9: Sexual intercourse with child under 10 years A short time later, the offender released his hold and placed his pinkie finger inside TW's vagina. TW repeated, "Stop. I don't like it." The offender removed his finger from TW's vagina and stood up. As he did so, that is stood up, TW fell backwards hitting her head on the floor. She put her underwear and her pants back on, left the room and went to the lounge room. The offender followed her and sat on the couch. Count 8: Intentionally sexually touch a child under 10 years The offender instructed TW to take her pants and undies off. She stood still while the offender pulled both items down. He instructed her to "Hop on me." TW sat on the offender who took a hold of her legs and placed them around his waist. He pulled his pants down, exposing his penis. The offender made TW move back and forth, "grinding" his penis against her vagina, which is the act the subject of this count. He then kissed both sides of TW's neck and her lips. He placed his head under her top and kissed her chest, torso and nipples. He said, "I really love doing this with you." He placed his hands on the child's nipples and proceeded to rub and tickle them. When TW said, "Stop" the offender did so, and she resumed watching the TV. Count 10: Intentionally Sexually Touch a child under 10 years Between 9 April and 12 April 2020, the offender attended the family home, which was now at [KW and TW's then address] TW was eight or nine. LC left the home to run errands and the offender was again left at the home to care for the children and his younger sister, MB, who was visiting. TW, KW and MB participated in an Easter egg hunt. During the hunt, MB caught TW cheating and told the offender. He was seated in the lounge room on the couch, and as punishment for cheating, he told TW to sit with him under the blanket on the couch while the egg hunt continued outside. TW sat on the floor directly in front of the couch beside the offender. He leaned forward and kissed her on the lips. He placed a blanket over his legs and took hold of TW's hand, placing it on his penis, over his jeans. He placed his hand on top of TW's hand and repeatedly moved her hand forward and backwards along his penis. Ultimately, he ejaculated. MB yelled out to TW from another area in the house and she immediately got up and ran to MB to continue the egg hunt. The Form 1 matter to be taken into account on this count is a breach of an apprehended domestic violence order, which was in force at the time. …. Count 11: Aggravated indecent assault child aged under 16 years Between 1 January and 31 December 2014, the offender attended the family home, which was at that time in [KW and TW's then address]. KW was aged four or five. The offender, KW and LC were seated on a bed in LC's bedroom watching television. KW asked her mother for a drink and she left the room. The offender kissed KW on the lips and placed his tongue in her mouth. Count 12: Aggravated commit act of indecency with child aged under 10 years He then said, "Lift my underwear up and put your hand under." KW placed her hand inside the offender's underwear and he said, "Rub it." She placed her hand around the offender's penis and rubbed it. The offender said, "I love you" and continued to kiss KW. He stopped when her mother approached the room. Count 13: Aggravated commit act of indecency with child aged under 10 years Between 1 December 2015 and 29 April 2016, LC, TW and KW were residing with the offender's mother, NK, at [NK's address]. KW was aged six or seven at the time. The offender was at his mother's home when his mother and LC left him to care for TW, KW and MB. The offender and KW were in the lounge room watching television. The offender was lying on a separate couch. He said to KW, "Come here, bring the blanket over. It's cold, share the blanket." KW did not move. He walked over and sat on the couch beside her. He got under the blanket with KW and said, "Put your hand down my pants and rub it." KW placed her hand inside the offender's pants and put her hand around the offender's penis and rubbed it up and down. She then stopped and moved away from him. Count 14: Aggravated indecent assault child aged under 16 years Between 2 August 2016 and 23 March 2018, the offender visited the family home at [KW and TW's then address]. KW was aged seven, eight or nine at the time. LC left the home to buy a takeaway dinner, leaving the offender to care for her children. The offender told KW to "Come here." She followed him into her mother's bedroom. The offender closed and locked the bedroom door and sat on the bed next to KW. He tickled her vagina over her clothing and said, "Do you like it?" to which KW replied "No." He placed his hand under KW's clothing and tickled her bare breasts, the act the subject of this count. The offender repeated, "Do you like it?" but KW did not reply. He then kissed her on the lips. The Form 1 matter to be taken into account on this count relates to an occasion between 1 February and 30 September 2019, when the offender kicked KW in the head as she was tying her shoe laces. The offence occurred in the family home. The offender admitted this offence when he was interviewed. Count 15: Aggravated indecent assault child aged under 16 years Between 2 August 2016 and 23 March 2018, the offender again attended the family home, which was still at [KW and TW's then address]. KW was aged seven, eight or nine at the time. Again LC left the offender to care for the children and his sister, MB, who was visiting the home. The offender played "Murder in the Dark" with KW, TW and MB. All the lights were turned off in the house. KW hid in the laundry. The offender followed her into the laundry and said, "There are no other hiding spots." KW told the offender to go, however, he remained and kissed her on the mouth. He then touched KW's breast area, the subject of this count, and kissed her neck. She asked the offender to stop but he continued to kiss her until they were found by another child playing the game. Count 16: Intentionally sexually touch a child under 16 years EM was a close friend of both KW and TW. Between 1 December 2018 and 1 June 2019, towards the end of Year 5, she slept over at their home at [KW and TW's then address]. with her older brother, LM. She was aged 11. At the time the offender was present. She said she was on the couch in the lounge room. The offender was also on the couch watching television and her brother was sleeping on the bean bags. The offender told her to get under the blankets and she asked him, "Why?" He replied, "Just do it" so she moved and got under the blankets with him. The offender asked her to kiss him and she said, "No" and felt uncomfortable. Later he asked her if she had hair under her arms. He then touched her on the shoulder and started tickling her on her other shoulder, and then told her "Not to tell anyone". EM did tell her mother about a month later."
Having regard to the proposed grounds of appeal (set out below), a matter to note from these findings is that for count 11 the date upon which the office was committed is described as "between 1 January and 31 December 2014." The offence in count 12 occurred on the same date as count 11. Other than the date of the count 11 and count 12 offences, there is no dispute in this Court about the facts.
From these findings it can be seen that counts 1 to 10 concerned the first victim, TW. Count 11 to count 15 concerned the second victim, KW. Count 16 concerned the third victim, EM.
For each count for which the Applicant was convicted, the sentencing judge set out the applicable provision of the Crimes Act 1900 (NSW), the maximum statutory sentence which applied at the relevant time, the standard non-parole period (SNPP), the indicative sentence recorded by her Honour together with the indicative non-parole period (NPP).

Offences against TW Ct Sect Max SNPP Indicative Total term Indicative NPP 1 66A(1) Life 15 years 16 years 11 years 2 66A(1) Life 15 years 12 years 8 years 3 61M(2) 10 years 8 years 6 years 4 years 4 66A(1) Life 15 years 16 years 11 years 5 66A(1) Life 15 years 16 years 11 years 6 66DA(a) 16 years 8 years 8 years 5 years 6 months 7 66A(1) Life 15 years 13 years 9 years 8 66DA(a) 16 years 8 years 8 years 5 years 6 months 9 66A(1) Life 15 years 13 years 9 years 10 (+1) 66DA(a) 16 years 8 years 8 years 4 years

Offences against KW Ct Sect Max SNPP Total term NPP 11 61M(2) 10 years 8 years 4 years 2 years 9 months 12 61O(2) 7 years - 4 years - 13 61O(2) 7 years - 4 years - 14 (+1) 61M(2) 10 years 8 years 5 years 3 years 6 months 15 61M(2) 10 years 8 years 3 years 6 months 2 years 6 months

Offence against EM Ct Sect Max SNPP Total term NPP 16 66DB(a) 10 years - 6 months -

For the purpose of sentencing, there were two Form 1 matters, namely: 1. attaching to count 10, the Applicant admitted his guilt in respect of a contravention of an Apprehended Domestic Violence Order (ADVO) under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) for which the maximum relevant penalty was imprisonment for two years; and 2. attaching to count 14, the Applicant admitted his guilt in respect of a common assault under s 61 of the Crimes Act for which the maximum penalty was imprisonment for two years.
The Applicant asked the sentencing judge to take the two Form 1 matters into account and her Honour found it appropriate to do so.

The sentence

The sentencing judge imposed an aggregate sentence for all 16 offences of 28 years imprisonment commencing on 21 May 2020 and expiring on 20 May 2048. The NPP is 19 years which will expire on 20 May 2039.

The sentence hearing

The indictment for the count 11 and count 12 charges was in the following terms: "[count 11] Between 1 January 2014 and 31 December 2014, at Liverpool in the State of New South Wales, [the Applicant] did assault [KW] a person then under the age of 16 years, namely, aged 4 or 5 years and at the time of such assault did commit an act of indecency on the said [KW]. [count 12] Between 1 January 2014 and 31 December 2014, at Liverpool in the State of New South Wales, [the Applicant] did commit an act of indecency with [KW] a person then under the age of 10 years, namely, 4 or 5 years."
As can be seen, the indictment for both counts specified the offending period as beginning on 1 January 2014 and ending on 31 December 2014.
The sentence hearing took place on 12 December 2022 and 3 March 2023. Mr Hogan and Mr Wiggins appeared for the Applicant on both days. The Crown tendered a document entitled "Facts on sentence.". The Applicant agreed that it represented the appropriate factual findings to be made for the purposes of sentencing. In respect of count 11 and count 12, the "Facts on sentence" document stated: "Count 11: Aggravated indecent assault child aged under 16 years (s.61M(2) Crimes Act 1900 (NSW)) 26. Between 1 January 2014 and 31 December 2014, the offender attended the family home [KW and TW's then address]. The victim was aged 4 or 5 years at the time. The offender, [KW] and [KW's mother] were seated on a bed in [KW's mother's] bedroom, watching television. [KW] asked [her mother] for a drink. [KW's mother] left the room. The offender kissed [KW] on the lips and placed his tongue in [KW's] mouth. Count 12: Aggravated Commit act of indecency with child aged under 10 years (s. 61O(2) Crimes Act 1900 (NSW)) 27. The offender said, "Lift my underwear up and put your hand under." [KW] placed her hand inside the offender's underwear. The offender said, "Rub it." [KW] placed her hand around the offender's penis and rubbed it. The offender said, "I love you" and continued to kiss [KW]. The offender stopped when [KW's mother] approached the room."
The findings of fact made by the sentencing judge are set out in [6] above. Her Honour's findings accord with the "Facts on sentence", including the time period during which the count 11 and count 12 offences occurred. The sentencing judge did not make a finding of precisely when those offences occurred during 2014. Neither the Crown nor the Applicant sought such a finding.
The issue about whether the offences were committed when the Applicant was on conditional liberty was not specifically raised during written and oral submissions on sentencing. The Crown did not refer to it as an aggravating factor for any of the offences, including count 11 and count 12.
The evidence before the sentencing judge nonetheless addressed the period in 2014 when the Applicant was on conditional liberty. It included the NSW Police Force District Court Report, which contained the Applicant's criminal record. It recorded that on 17 February 2014, the Applicant was charged with a number of offences, namely, resisting a police officer in execution of duty, two counts of destroying or damaging property worth $2,000 - $5,000, assaulting a police officer in execution of duty without ABH, being a learner not accompanied by driver/police officer/tester, not stopping during a police pursuit, driving recklessly and possessing prohibited drugs. The charges came before the Liverpool Local Court on 1 July 2014 when, amongst other things, the Applicant was placed on conditional release order pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the s 9 bond). At the same time, he was placed on a good behaviour bond pursuant to s 12 (the s 12 bond). There is no dispute this evidence: 1. proved that from 1 January 2014 to 17 February 2014, the Applicant was at liberty, not on conditional liberty; 2. did not address whether the Applicant was on conditional liberty from 17 February 2014 to 1 July 2014; and 3. proved that from 1 July 2014 the Applicant was on conditional liberty.
At the conclusion of the sentence hearing on 3 March 2023, the sentencing judge reserved. The case was listed for sentencing on 17 March 2023, on which occasion Mr Wiggins appeared for the Applicant. Before proceeding to sentence, the sentencing judge made the following statement: "…I just want to place on the record that I have notified the parties that via email that the offender was on conditional liberty for counts 5, 6, 7, 8, 9, 10, 11, 12 and 16 and both the Crown prosecutor and Mr Hogan agreed."
No objection was taken to this statement by counsel for the Applicant. The emails to which the sentencing judge referred were not adduced into evidence.
The sentencing judge then proceeded to sentence.

Reasons of the sentencing judge

After referring to the victim impact statements of TW, KW and EM, the sentencing judge assessed the objective seriousness of the offences.
KW was born in early February 2009, which means she was 4 years old on 1 January 2014 and 5 years old on 31 December 2014. As the sentencing judge observed (and there is no dispute), the younger the child, the more objectively serious the offending. Given the range of dates for some of the offences (not just count 11 and count 12), the sentencing judge took the upper age of the victim into account for the purpose of assessing the objective seriousness of each offence. Her Honour did so "in fairness to the offender." Thus count 11 and count 12 have evidently been considered as offences against a 5 year-old child, not a 4 year-old child. However, at such a young age the materiality of the victim's age should not simply be considered by reference to the distinction between "4" and "5." Count 11 and count 12 were materially more serious each month earlier they are taken to have occurred. There was an advantage to the Applicant to have these offences taken as occurring later in 2014 rather than earlier.
The sentencing judge recorded her Honour's approach as follows: "While age is an element of each of the counts, it is well established that the younger the child, the more serious the offence. As there is uncertainty as to the age of the victim in some counts, in fairness to the offender, I will use the upper age in each case."
The sentencing judge also had regard to the following matters: 1. counts 1 to 15 being aggravated by the gross breach of trust by the Applicant and the fact that he was in a position of authority in relation to TW and KW, effectively being their stepfather; 2. counts 1 to 15 occurred in the victims' home where they were entitled to feel and to be safe; 3. the use of force in some of the counts; 4. the specific sexual act committed in each count; 5. the pain caused to the victim in some of the counts; 6. the emotional distress caused to the victims; 7. for the indecent assault counts, whether there was contact with the genital area and whether there was skin-to-skin contact; 8. the fact that in some instances, the Applicant persisted after being asked to stop; 9. the fact that the offences against TW and KW were not isolated but continued over at least two to three years; and 10. the fact that the Applicant used the children for his own sexual gratification with complete disregard for their physical and emotional well-being.
The sentencing judge did not explicitly indicate "where on a notional scale of objective seriousness each offence fell", other than in relation to count 16 which the sentencing judge described as being at the lower end of the range of seriousness for sexual touching offences. For the other offences, her Honour said that her assessment of objective seriousness was reflected in the indicative sentence she recorded for each offence. The indicative sentences are set out in the table at paragraph [9] above.
At the conclusion of the section on objective seriousness, the sentencing judge also considered that the Applicant was on conditional liberty at the time of some of the offending. Her Honour said: "The offender was on conditional liberty at the time of the offences the subject of Counts 5, 6, 7, 8, 9, 10, 11, 12 and 16, which is a further aggravating factor in respect of those counts."
The sentencing judge then considered the subjective circumstances of the Applicant, observing that he was aged between 19 and 26 at the time of the offending.
The offending history of the Applicant included three occasions when he was before the Children's Court at the age of 15. As an adult, in 2014 the ss 9 and 12 bonds were imposed on the Applicant in the circumstances set out above. In 2018, a 12 month community correction order was imposed on the Applicant for common assault (domestic violence related) and destroy or damage property. In July 2019, an 18 month community correction order was imposed on the Applicant for stalking or intimidating, two counts of destroying or damaging property and common assault (domestic violence related). A condition of that community correction order was that the Applicant engage with a psychologist and psychiatrist for treatment. In November 2019, a community correction order and a concurrent intensive correction order were imposed on the Applicant for two offences of contravening an apprehended violence order, stalk or intimidate and common assault. His intensive correction order was interrupted when the Applicant was arrested on 21 May 2020 for the offences the subject of these proceedings.
Throughout the Applicant's criminal history, the sanctions imposed have focused on the Applicant's rehabilitation. Prior to the sentencing in these proceedings, the Applicant had never been in custody.
Medical evidence tendered for the Applicant during the sentencing proceedings, together with a court ordered psychiatric report, noted that the Applicant had difficulties from a young age. Between four and six years old, he was diagnosed with ADHD. He was prescribed medication for that condition and for behavioural problems. He was subjected to violence by his father and by his stepfather. He was placed in foster care at an early age and "shuffled through various foster care placements". The sentencing judge considered that the Applicant's "difficult and deprived background reduce[d] his moral
culpability to some extent and moderate[d] the weight to be given to general deterrence". However, the sentencing judge considered that protection of the community in general and of young children in particular remained essential.
There was evidence of the Applicant having a history of cannabis use and of pathological gambling. The psychiatric evidence diagnosed the Applicant as having a personality disorder.
None of the psychiatric evidence demonstrated a causal link between the Applicant's mental health problems and the offending. The sentencing judge nonetheless accepted that the Applicant's long-standing mental health difficulties will render his time in prison more onerous.
There was no evidence of remorse for the harm which the offending had caused the three children. The sentencing judge considered that the Applicant's prospects of rehabilitation were "at least guarded at this stage" but that "it is possible that over time and with the appropriate treatment, the situation may improve".
There was some evidence of support in the community and from members of the Applicant's family.
The sentencing judge found special circumstances because the sentence will be the Applicant's first time in custody and because of his significant mental health problems.
Although the Applicant was arrested on 21 May 2020, since which time he has been in custody, the sentencing judge observed that up until 25 August 2020 his incarceration was served pursuant to an intensive correction order previously imposed but which was revoked upon his arrest. In the Applicant's favour, the sentencing judge considered that it was nonetheless appropriate that the sentence to be imposed by her Honour be taken to commence on 21 May 2020.
In formulating the sentence, the sentencing judge took into account the maximum penalty and (where applicable) the SNPP for each of the 16 offences. The sentencing judge considered it appropriate to impose an aggregate sentence for all 16 offences. For the purposes of s 53A(2) of the Crimes (Sentencing Procedure) Act, the sentencing judge recorded the sentence which would have been imposed for each of the 16 offences had separate sentences been imposed, together with the indicative NPP for each such sentence. That record is set out in the table at [9] above.
The sentencing judge stated that the reasons for not imposing the SNPP for the relevant offences included her Honour's assessment of the objective seriousness of each offence, the finding of special circumstances and the Applicant's psychological problems.

Grounds of appeal

Should leave be granted, the Applicant relies on two grounds of appeal: 1. The court erred in determining that counts 11 and 12 were aggravated as a result of the Applicant being subject to conditional liberty. 2. The sentence is manifestly excessive.

Ground 1 - counts 11 and 12 and the Applicant's conditional liberty

Proceedings in the Court of Criminal Appeal

At the hearing of the application for leave to appeal, the Crown read two Affidavits from a solicitor. The first was dated 18 June 2024 and the second was dated 26 June 2024. Documents were annexed to the Affidavits which fell into two categories.
First, there were Local Court documents from 2014 which demonstrate that on 17 February 2014 the Applicant was granted bail in respect of the charges which were laid that day and for which he was convicted on 1 July 2014. These documents were not in evidence before the sentencing judge. The Applicant objected to them being adduced into evidence on the appeal.
Secondly, there were extracts from the transcript of the oral evidence adduced at the trial which addressed the date on which the events the subject of count 11 and count 12 occurred. The extracts addressed KW's recollection about when the events occurred, together with evidence about some objective facts, namely: 1. the events occurred when KW was living at a specified address, to which house she moved at the beginning of 2014 - the sentencing judge's findings of fact included findings that the count 11 and count 12 offences occurred at the specified house, but not the date when KW moved there; 2. the events occurred when KW was at preschool at a specified public school, where she started on 2 February 2014; and 3. KW's mother commenced her relationship with the Applicant on 15 May 2014.
The Applicant did not object to the second category of evidence being adduced on the appeal but pointed out that it was only an extract. The Applicant submitted, correctly, that the Court does not have all the evidence which was adduced during the trial and is not able to make its own finding about the precise date when the count 11 and count 12 offences were committed.
However, the Crown read the evidence on the appeal for a limited purpose. It did not rely on the evidence to prove either that the Applicant was on conditional liberty from 17 February 2014 or that the offences occurred after that date. The Crown relied upon the evidence simply to demonstrate that there was a reasonable basis for the Applicant to make the concession recorded by the sentencing judge. The evidence was adduced in response to a submission by the Applicant that the concession was "wrong" and "should not have been made".

Applicant's submissions

As the appeal was ultimately conducted, the Applicant made three sequential submissions in support of Ground 1: 1. it was not open on the evidence before the sentencing judge to make a finding beyond reasonable doubt that count 11 and count 12 occurred when the Applicant was on conditional liberty; 2. on the appeal, the Crown ought not be permitted to adduce further evidence to prove that count 11 and count 12 occurred when the Applicant was on conditional liberty; and 3. even if the Crown's further evidence is admitted, it does not prove beyond reasonable doubt that count 11 and count 12 occurred when the Applicant was on conditional liberty because it does not exclude the possibility that the offences occurred between 1 January and 17 February which was before the Applicant's conditional liberty commenced.
As for the concession recorded by the sentencing judge, the Applicant accepts that it was made in the terms which the sentencing judge placed on the record. The Applicant nonetheless submitted that the concession: 1. was "wrong", in the sense that the evidence before the sentencing judge did not prove that count 11 and count 12 occurred when the Applicant was on conditional liberty; and 2. "should not have been made", in the sense it was not in the Applicant's interests for the concession to be made because it resulted in the count 11 and count 12 offences being aggravated by an unproved factor.
Although not expressly stated, the Applicant's argument appears to be that by reason of these matters, he ought not now be precluded from resiling from the concession.

Conclusion on Ground 1

It may be accepted that it was not open on the evidence adduced at trial to make a finding that the count 11 and count 12 offences occurred when the Applicant was on conditional liberty. The evidence before the sentencing judge, which is set out above, did not exclude the possibility that the offences occurred before 1 July 2014. The evidence proved that the Applicant was on conditional liberty from 1 July 2014 but not earlier.
However, the sentencing judge was entitled to proceed not just on the basis of findings of fact established by the evidence, but also on the basis of concessions made by the parties, including the Applicant. The whole point of a "concession" is that it relevantly relieves the other party and ultimately the Court of having further to address the conceded matter. The fact that the Applicant made the concession means that the sentencing judge did not make an error by undertaking the sentencing process on the basis that the count 11 and count 12 offences occurred when the Applicant was on conditional liberty: SL v R [2015] NSWCCA 30; (2015) 249 A Crim R 295 at [46] (Davies J, with whom Simpson J agreed).
Nothing submitted by the Applicant permits him now to resile from the concession. The concession was "wrong" in the very narrow sense submitted by the Applicant but that does not mean it "shouldn't have been made.". Whether or not it was in the interests of the Applicant to make the concession cannot be assessed simply by reference to the evidence which had already been adduced before the sentencing judge. Regard might also be had to what further evidence might have been adduced if the concession was not made. The sentencing hearing had concluded on 3 March 2023 after which the issue of conditional liberty evidently arose. The evidence does not reveal precisely how that happened. There is nothing to suggest that the Crown would not have been able to make further submissions or adduce further evidence had the Applicant's concession not been forthcoming. In this case, further submissions and evidence would not only have been relevant to whether the Applicant was on conditional liberty, but also the age of KW when the offences occurred. Any benefit the Applicant might have hoped to gain from a finding that the offences occurred before he was on conditional liberty might well have been outweighed by the potential detriment from a finding that the count 11 and count 12 offences were perpetrated against a 4 year old victim, or a victim who had only just had her fifth birthday.
On appeal, the Applicant expressly eschewed any submission about the competency of counsel who appeared for him at the sentencing hearing and to whom the concession is attributed in the record.
The Applicant has not demonstrated that the concession was anything other than properly made. The Applicant has not demonstrated that there are exceptional circumstances which permit him now to resile from the concession: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81] (Johnson J, with whom McClellan CJ at CL and Rothman J agreed). There was no error by the sentencing judge and Ground 1 ought to be rejected.
It is not necessary to have regard to the further evidence which the Crown seeks to adduce on the appeal to reach that conclusion. In any event, the Court ought to permit the further evidence to be read and have regard to it for the limited purposes for which it is read by the Crown. The Applicant submits that the concession was not in his interests and therefore he ought to be granted the indulgence of resiling from the concession. Fairness requires that the Crown be permitted to adduce evidence to answer that submission: Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [124] (Hoeben CJ at CL, with whom Johnson and Schmidt JJ agreed).
The Applicant submits that his case is to be distinguished from Stocco v R because the Applicant did not make his concession until after the sentencing hearing had concluded, by which time the Crown had made all the submissions and adduced all the evidence it thought appropriate and hence, the Crown had not tailored its case in response to the concession. He submitted that, unlike Stocco v R, the Crown will not be prejudiced in the present case if the Applicant is now permitted to resile.
The distinction is not material. The Applicant's conditional liberty was evidently raised after the conclusion of the sentencing hearing but before the sentence was pronounced. The issue having been raised, there is no dispute that the Crown would have had an opportunity at that point to make further submissions and adduce further evidence. Leave may have been required, but there is nothing to suggest that it would not have been readily granted. As it turned out, the concession was made by the Applicant and there was no need for the Crown to address the matter further. In this respect this case is the same as Stocco v R. Unfairness will result if the Crown were now to be precluded from adducing evidence about what further material it could have put before the sentencing judge if the concession had not been made.
The Crown's evidence shows that the Applicant was on conditional liberty not from 1 July 2014, but from 17 February 2014. The availability of that evidence alone undermines the submission that the concession was not in the Applicant's interests. A finding that the Aapplicant was not on conditional liberty when the count 11 and count 12 offences occurred could only be made if it was accepted that KW was only 4 years old at the time of the offences, or had only just had her fifth birthday in early February 2014. In those circumstances the sentencing judge's approach to taking the age of the child at the end of the date range could not be justified.
The Applicant has not demonstrated a reason why he ought be entitled to resile from the concession in accordance with which he was sentenced. Ground 1 ought to be rejected.

Legal principles

Apart from the issue raised by Ground 1, the Applicant accepts that there was no specific error which vitiates the sentencing judge's exercise of discretion when arriving at the sentence. Absent specific error, Ground 2 depends upon the Applicant demonstrating that the sentence is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at 370-371; [2005] HCA 25 at [25] (Gleeson CJ, Gummow and Callinan JJ).
In Obeid v R (2017) 96 NSWLR 155 at 241-242; [2017] NSWCCA 221 at [443], R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) distilled from the authorities the following five principles to which regard must be had when it is contended that a sentence is manifestly excessive: "[1] Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. [2] Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. [3] It is not to the point that this Court might have exercised the sentencing discretion differently. [4] There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. [5] It is for the applicant to establish that the sentence was unreasonable or plainly unjust."

Applicant's submissions

The Applicant seeks to demonstrate that the sentence was manifestly excessive by identifying six factors which are said to operate to mitigate the sentence, namely: 1. the Applicant's disadvantaged childhood reduced his moral culpability; 2. the significant mental health problems which the Applicant experienced from a young age; 3. at the time of sentence the Applicant had had limited treatment for his mental health problems; 4. the Applicant's age at the time of offending, which was 19 at the time of the first offence and 26 at the time of the last offences; 5. the Applicant was capable of maintaining employment and had ongoing support in the community; and 6. at the time of sentence, the Applicant's prospects of rehabilitation were guarded, and with time and appropriate treatment could improve.
The Applicant also refers to seven other cases (BR v R [2021] NSWCCA 279; Culbert v R [2021] NSWCCA 38; Young (a pseudonym) v R [2021] NSWCCA 163; DR v R [2022] NSWCCA 151; DH v R [2022] NSWCCA 200; SB v R [2022] NSWCCA 164; and R v BH [2023] NSWCCA 278) which he submits have "some comparable features" to his case. The Applicant submits that his sentence is "notably higher" than the sentence imposed in the majority of his selected cases.
The Applicant submits that these matters demonstrate that his sentence is unreasonable or plainly unjust and, hence, manifestly excessive.

Crown's submissions

The Crown submits that the sentence is not manifestly excessive.
By reference to relevant JIRS sentencing statistics, the Crown submits that the indicative terms indicated by the sentencing judge and the aggregate term sit towards, but not at, the top of the range of sentences for offences of the kind committed by the Applicant. It is submitted that consistency between the indicative and aggregate terms tends against a suggestion that there has been some latent error affecting totality.
The Crown emphasises that the offences for which the Applicant has been convicted include six offences of sexual intercourse with a child under 10 years of age for which the maximum sentence is life imprisonment. The six offences spanned three separate incidents. Most of the seven comparative cases put forward by the Applicant were contraventions of s 66A before the maximum sentence was increased to life imprisonment on 29 June 2015. The incremental increases in the maximum sentences for sexual offences against children reveal a clear intention on the part of Parliament. As Simpson AJA said in Ryan v R [2019] NSWCCA 200 at [3]: "Also not to be ignored are the progressive increases in the prescribed maximum penalties for offences of this nature, the most recent to imprisonment for life. There can be no doubt that sentencing judges are enjoined to treat sexual offences against children as among the most serious known to the criminal law."
The Crown also emphasises other features of the Applicant's offending, including the absence of a plea of guilty, the lack of remorse, the lack of insight into his offending and the harm to the children (including the Applicant's view that he is the victim), and the fact that the indicative NPP's recorded by the sentencing judge were generally below the SNPP where applicable.
As the Applicant has been convicted of 16 diverse offences which were perpetrated against three victims who were at different ages when the offences were committed, the Crown submits that a comparison of his aggregate sentence with the aggregate sentence imposed in the seven cases identified by the Applicant at [5962] is of little or no utility: DPP (NSW) v TH [2023] NSWCCA 81 at [50] (Beech-Jones CJ at CL with whom Garling and Yehia JJ agreed).
The Crown nonetheless refers to two cases (Gibbons (Pseudonym) v R [2019] NSWCCA 150 and Franklin v R [2016] NSWCCA 319) which it compares with the Applicant's sentence, as well as the indicative sentences and NPP's recorded by the sentencing judge. The comparison is relied upon by the Crown for its submission that the Applicant's sentence is not manifestly excessive.

Conclusion on Ground 2

For Ground 2 to succeed, the Applicant is required to demonstrate that the aggregate sentence is unreasonable or plainly unjust. Merely emphasising the six matters listed in [5861] above falls well short of making good the contention.
The Applicant experienced disadvantages in his childhood, including ADHD with which he was diagnosed between four and six. He was prescribed medication for ADHD and behavioural problems. He was subjected to violence by his father and his stepfather. He was placed in foster care and was thereafter "shuffled through various foster care placements.". As the sentencing judge observed, these matters reduce the Applicant's moral culpability to some extent.
The Applicant's mental health problems were continuing at the time the offences were committed. They were substantial. However, as noted in the medical evidence, they were not causally connected to the offending. The Applicant nonetheless submits that they are "significant" to the sentencing exercise. The sentencing judge took them into account because they will make the Applicant's time in prison more onerous. The Applicant also relies upon the fact that he had had limited treatment for his mental health problems at the time of sentence, but that does not warrant any different consideration of his mental health problems.
The Applicant's age at the time of offending (between 19 and 26) is relied upon for two reasons. First, there is the possibility that the Applicant had under-developed emotional maturity and mature executive functioning when the offences were committed. This proposition is put forward as a theoretical possibility, but even that possibility is diminished by the fact that most of the offences were committed when the Applicant was 24 or older, including three contraventions of s 66A when he was 25 and two other offences when he was 26. There is nothing to suggest that the Applicant lacked emotional maturity and mature executive functioning when these later offences were committed. The fact that the offending occurred over an extended period of time and continued when the Applicant was 26 suggests that the offences were not committed for want of maturity.
Secondly, the Applicant submits that his age at the time the offences were committed warrants a need for greater emphasis on rehabilitation. Reliance on the prospects for rehabilitation is severely undermined in this case because of the Applicant's lack of remorse and insight.
The Applicant was capable of maintaining employment but that is not a significant feature of the case when taken into account with all the other circumstances. The Applicant's community support consists of his family and a testimonial from a neighbour.
It may be accepted that each of the six matters relied upon by the Applicant is relevant, but even when taken together they are but one part of the whole picture which informs the sentencing exercise. When considered with all other aspects of the case as set out in the remarks on sentence and emphasised in the Crown's submissions, these matters do not render the Applicant's aggregate sentence manifestly excessive.
No different conclusion is warranted by a review of the seven cases with which the Applicant wishes his sentence to be compared. It is true that there are some features of each case which may be compared, albeit at a superficial level, but for each case there are distinguishing features which is inevitable in such a comparative task. The same applies to the two cases referred to by the Crown.
The utility of making such comparisons was addressed in MLP v R [2014] NSWCCA 183 at [40]-[44], by Bellew J (with whom Macfarlan JA and Adamson J agreed), who said: "40 That then brings me to consider the appellant's reliance upon sentencing statistics, along with a series of decisions in other cases of offending contrary to s. 66A, a combination of which was said to demonstrate that the sentence imposed was harsh and unwarranted. Before doing so, it is necessary to refer to a number of statements of principle. 41 Firstly, consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48]-[49]. 42 Secondly, in seeking consistency, other cases may establish a range of sentences which have been imposed. But the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 at [41]. 43 Thirdly, the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were. 44 Consistent with such statements of principle, this Court has emphasised the need to adopt a careful approach when asked to utilise statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another."
To the extent it is possible, comparison between the Applicant's sentences and the sentences imposed in the seven cases selected by the Applicant does not demonstrate that the Applicant's sentence is unreasonable or plainly unjust. Ground 2 ought to be rejected.

Proposed orders

The orders I propose are: 1. Grant leave to appeal. 2. Dismiss the appeal.

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: 07 August 2024

Crimes Act 1900(NSW)ss 61M(2), 61O(2), 66A(1), 66DA(a), 66DB(a)

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