Harrison CJ, Campbell J, Sweeney J, Beech-Jones CJ, Ward P
Catchwords
[2001] HCA 67
Kentwell v The Queen (2013) 252 CLR 601
[2014] HCA 37
MK v R [2024] NSWCCA 127
MK v R
RB v R (2023) 112 NSWLR 96
[2023] NSWCCA 180
Xerri v The King [2024] HCA 5
Source
Original judgment source is linked above.
Catchwords
[2001] HCA 67
Kentwell v The Queen (2013) 252 CLR 601[2014] HCA 37
MK v R [2024] NSWCCA 127
MK v RRB v R (2023) 112 NSWLR 96[2023] NSWCCA 180
Xerri v The King [2024] HCA 5
Judgment (10 paragraphs)
[1]
Publication of the name of the complainant and/or any other witness who was a juvenile at the time of the offending prohibited pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 21 October 2022
Before: King SC DCJ
File Number(s): 2020/00086001
[2]
JUDGMENT
HARRISON CJ AT CL: I agree with the reasons of Sweeney J and with the orders she proposes. I also agree with the additional remarks of Campbell J.
CAMPBELL J: I have had the great advantage of considering the judgment of Sweeney J in draft. I agree with her Honour's judgment and with the orders she proposes.
I wish to expressly associate myself with her Honour's observation (at [37]) that it is preferable for the prosecution as a matter of practice and procedure to particularise the unlawful sexual acts relied upon as evidencing the unlawful sexual relationship in the indictment. As her Honour emphasises, it is now well appreciated that the survivors of child sexual abuse may not be able to provide the detailed particulars that would be necessary if the unlawful sexual acts were charged as separate offences. The current s 66EA was enacted to replace the former provision as a response to the Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report, (August 2017). Of this report Beech-Jones CJ at CL (as his Honour then was) in MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180 at [39] (Ward P, Price, Wilson and Lonergan JJ agreeing) said:
"In or about June 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse published its 'Criminal Justice Report' (the Royal Commission Report). Chapter 11 of the Royal Commission Report addressed 'Particulars and persistent child sexual abuse offences'. The introduction to ch 11 noted that 'it is often difficult for victims or survivors to give adequate or accurate details of the offending against them' for various reasons, including that 'young children may not have a good understanding of dates, times and locations or an ability to describe how different events relate to each other across time', 'delay in reporting may cause memories to fade' and 'the abuse may have occurred repeatedly and in similar circumstances, so the victim or survivor is unable to describe specific or distinct occasions of abuse'."
In Xerri v The King [2024] HCA 5; 98 ALJR 461, Gordon, Steward and Gleeson JJ referred to the Royal Commission's recommendation at 66 [11.8], which is in the following terms (at [52]):
"We are satisfied that, without undermining a fair trial for the accused, there must be offences in each jurisdiction that allow prosecutions - and convictions where the evidence warrants convictions - that:
• do not require particularisation in a manner inconsistent with the ways in which complainants remember the child sexual abuse they suffered;
• allow for the effect of charging and successful prosecution of repeated but largely indistinguishable occasions of child sexual abuse." (My emphasis.)
This recommendation encapsulates the mischief which Parliament sought to remedy by the enactment of the current s 66EA (see Xerri at [51]).
What follows is borne of my concern that to avoid "undermining a fair trial for the accused", the prosecution should provide the best particulars available of the unlawful sexual acts relied upon as evidence of the current s 66EA offence, having regard to the limitations identified by the Royal Commission as picked up by the Attorney-General in the Second Reading Speech to the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW): New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018, at 5.
As Sweeney J's analysis shows, the two unlawful sexual acts necessary for proof of an unlawful sexual relationship are not elements of the offence and need not be particularised as would be necessary if charged as separate offences: see s 66EA(4) Crimes Act 1900 (NSW). At the same time a fair opportunity to defend a criminal charge involves awareness not only of the legal elements of the particular offence, but also of how the prosecution proposes to prove its case. Needless to say, this basic consideration applies to a charge carrying a maximum penalty of life imprisonment on conviction. I wish to make clear that I have not lost sight of the fact that the current s 66EA is quite different in content from the former s 66EA offence which it replaces, as Sweeney J explains by reference to Xerri v The King. I fully appreciate that the former s 66EA(5)(a) required specification of the separate offences which were elements of the offence: ARS v R [2011] NSWCCA 266 at [33] per Bathurst CJ (James and Johnson JJ agreeing). The current offence is different.
Generally, the evidence to be relied upon is not required to be particularised. Usually, compliance with the provisions of Pt 2 Div 3 Criminal Procedure Act 1986 (NSW) (and s 15A Director Public Prosecutions Act 1986 (NSW)) and the provision of the usual Crown case statement, which summarises the evidence on which the Crown rely, including the evidence of the unlawful sexual acts to be left to the jury for their consideration under s 66EA(5), filed and served with the charge certificate under s 67 Criminal Procedure Act will go a long way toward informing the accused fully of the case against him or her. However, while, as a matter of law, the Crown is not required to plead the particulars of any unlawful sexual act relied on as evidence of the s 66EA charge (s 66EA(4)(a)), there are good reasons why each unlawful sexual act which the prosecution intends to prove should be stated as clearly as the circumstances of the particular case will permit. The first reason is one of fundamental procedural fairness. The accused is entitled to know the case that will be made against him, or her. This may not be achieved if the accused and his or her legal advisors are required to sift through the material served in an attempt to make their own assessment of what might, or might not, be relied upon as constituting the relevant underlying unlawful sexual acts.
Secondly, ss 66EA(9) and (10) stipulate legal consequences for the purpose of res judicata following a verdict of conviction or acquittal of a s 66EA offence in respect of one (or other) of the unlawful sexual acts that are "alleged to constitute the unlawful sexual relationship" (my emphasis). This extends to another unlawful sexual act that was not relied upon at the trial to prove the unlawful sexual relationship which resulted in the conviction or acquittal, but which is "alleged to have occurred … during the period over which the unlawful sexual relationship was alleged to have existed" (my emphasis). By its text, the legislation contemplates that the unlawful sexual acts relied upon will be expressly alleged.
Finally, s 66EA(13) provides that where "the jury is not satisfied that the offence is proven but is satisfied that [the accused] has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act" (my emphasis). Doubtless, quite apart from s 66EA(13), an unlawful sexual act relied upon to prove a s 66EA offence is an included offence capable of supporting an alternative verdict. That this is made clear by s 66EA(13) emphasises the need for the unlawful sexual acts relied on as evidence in the trial to be clearly expressed, even if not legally required to be "particularised". It goes without saying that for the purpose of s 66EA(13), to convict for "that unlawful sexual act" the jury would need to be unanimously satisfied of its elements beyond reasonable doubt.
I repeat, I agree with Sweeney J, that the usual practice adopted by the Crown avoids the potential for fundamental unfairness. There may be reasons why in an appropriate case a different approach may be desirable in which event the accused should be provided with a notice stating each instance of unlawful sexual act relied upon as evidence of the s 66EA offence, or at least the best details available.
My attention has been drawn to the recent decision of MK v R [2024] NSWCCA 127 (Mitchelmore JA, Sweeney and Huggett JJ) where a ground of appeal impugned the sentencing judge's fact finding because he proceeded to determine the facts of the offending on the basis of the estimate of the frequency of the unlawful sexual acts relied upon to prove the offence given in evidence by each of three victims. It is clear from the judgment of Sweeney J (with whom Mitchelmore JA and Huggett J agreed) that notwithstanding the inability of the child complainants to specify the occasion of each individual unlawful sexual act relied upon to make good the current s 66EA offence in each case, the sentencing judge was not in error proceeding as he did. From her Honour's judgment, it is clear that the nature of the various unlawful acts relied upon was able to be, and had been, particularised in a general way in each case (at [20]-[22]). The accused accordingly received the best particulars available of the unlawful sexual acts relied upon during the period specified in each case in accordance with s 66EA(4)(b). It may be said that MK v R presents as an example of the type of case the Royal Commission had in mind at Chapter 11, 66 [11.8].
SWEENEY J: Mark Bernard Nolan, the applicant, seeks leave to appeal against the sentence imposed upon him by Judge King SC in the District Court on 21 October 2022. He requires an extension of time to file his Notice of Appeal, for reasons sufficiently explained by his solicitor. As the Crown concedes error in respect of one of the proposed grounds of appeal, it is appropriate to grant the extension.
[3]
Procedural history
The accused stood trial before Judge King SC without a jury. The indictment contained in count 1 a charge that the applicant:
"Between the first day of February 1999 and the 28th day of February 2002, at Bourke in the State of New South Wales and elsewhere within the Commonwealth of Australia, did maintain an unlawful sexual relationship with AW, then a child under the age of 16 years, namely, five, six seven or eight years of age, in which the accused engaged in the following two or more unlawful sexual acts:
1. The accused rubbing around AW's vagina.
2. The accused engaging in penile-vaginal intercourse with AW.
3. The accused engaging in cunnilingus with AW.
4. The accused making AW fellate him."
Although a suppression order in respect of the applicant's name was lifted after the trial, I will not refer to the complainant by name because she was a child at the time of the relevant acts.
The indictment contained three further counts charged in the alternative to count 1. They referred to the alleged acts at Bourke, being two acts of sexual intercourse with the complainant when she was under 10, and one act of indecent assault of the complainant when she was under 10, all alleged as occurring on the same occasion,
Judge King SC found the applicant guilty of count 1 on the indictment, in a judgment delivered on 14 July 2022. It was therefore unnecessary for his Honour to return verdicts in respect of the three alternative counts on the indictment.
In his verdict judgment his Honour stated that he found beyond reasonable doubt that the three specific acts alleged to have occurred at Bourke did occur, and he also found beyond reasonable doubt that on another occasion the applicant had caused the complainant to fellate him, that action occurring outside of New South Wales but in Australia.
His Honour also stated that he had no doubt that the applicant "did on other occasions sexually misconduct himself against the complainant in circumstances where neither the place nor occasion or particular form of sexual misconduct can be precisely identified."
The sentence hearing occurred on 30 September 2002. The Crown Prosecutor and the applicant's counsel who had appeared for him in the trial both appeared in the sentence proceedings. In written submissions for the sentence proceedings the Crown stated that in Bourke, the applicant had penile-vaginal intercourse with the victim, performed oral sex on her and digitally penetrated her vagina. The Crown stated that each of those acts was an offence of having sexual intercourse with a child under 10, which had at the relevant time a maximum penalty of 20 years imprisonment. This was incorrect because the third act particularised, and of which the victim gave evidence in the trial, was an indecent assault of touching the outside of the child's vagina. At the relevant time this offence had a maximum penalty of 10 years imprisonment. Therefore the information provided to his Honour in respect of that sexual act was incorrect. Counsel appearing for the applicant in the sentence proceedings did not correct the mistake.
In his remarks on sentence, although his Honour stated initially that the act alleged on the indictment and in the Crown case was the applicant rubbing his fingers around the victim's vagina, as an indecent assault, in recounting the facts his Honour stated that the three sexual acts in Bourke were licking the victim's vagina, penile-vaginal intercourse, and digital penetration of the victim's vagina. Later in the remarks on sentence, his Honour again recounted that the acts in Bourke were penile-vaginal intercourse, oral sex, and digital penetration of the victim's vagina. His Honour also stated that he was required by s 66EA(8) of the Crimes Act to have regard to the maximum penalties for the individual acts committed by the offender during the unlawful sexual relationship.
On 21 October 2022 his Honour sentenced the applicant to 18 years imprisonment with a non-parole period of 13 years. The non-parole period was reduced by six months from the statutory ratio to reflect that the applicant's time in custody had been more difficult because of Covid. Taking into account pre-sentence custody, the sentence commenced on 10 July 2022.
[4]
Grounds of appeal
The applicant seeks to rely on four grounds of appeal:
"1. In assessing the seriousness of the offending behaviour his Honour erred in finding that the offence under count 4 on the indictment was an offence of having sexual intercourse with a child under 10, pursuant to 66A Crimes Act.
2. His Honour erred in finding that there was an element of grooming in the offending.
3. His Honour erred in failing to properly identify those facts that he found established to assess the objective seriousness of the offending behaviour.
4. The sentence of imprisonment imposed on the applicant is manifestly excessive."
[5]
Ground 1
The Crown accepted that it would be open to this Court to conclude that the sentencing judge mistook the facts about the incident at Bourke by proceeding on the basis that that incident involved digital penetration of the child's vagina rather than an aggravated indecent assault, and that the error affected the exercise of the judge's sentencing discretion.
As I have recounted above at [19], his Honour mistook the third act at Bourke as digital penetration of the victim's vagina, with a maximum penalty of 20 years imprisonment, instead of an indecent assault by rubbing his fingers on the outside of the child's vagina, with a maximum penalty of 10 years imprisonment. Therefore ground 1 is established. As the court will have to resentence the applicant in consequence of that error in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 it is unnecessary to deal with the remaining grounds of appeal. The matters raised in support of those grounds will be dealt with by the court in the resentencing exercise.
[6]
Factual basis of sentencing
His Honour stated the facts he had found as the basis of sentencing the applicant were as follows:
"I found beyond reasonable doubt that the three specific acts alleged to have occurred at Bourke did occur, and, further, that the accused also caused the complainant, on another occasion, after they had picked up the Jayco caravan in Perth, to fellate him. That was, accordingly, sufficient to warrant a conviction in respect of the primary count.
It is, in re-reading my judgment, perhaps a little unclear as to what I otherwise found, but I did find, other than the Bourke offences, that he had caused the complainant to suck his penis or perform fellatio on him during the bus trip, and that in the Jayco pop-up caravan, later acquired in Perth, the complainant had awoken to the accused performing cunnilingus on her followed by an indecent assault in rubbing his fingers around her genitalia, followed by penile/vaginal intercourse."
During the appeal hearing counsel for the applicant submitted that the last finding of fact was not open to his Honour, that his Honour could only sentence the applicant for the two incidents that were particularised in count 1 of the indictment, being the three sexual acts on the one occasion in Bourke, and the applicant making the victim fellate him on the bus in which the family travelled around Australia. This was not raised as a ground of appeal, but was only raised in the written submissions for the applicant in respect of his Honour's assessment of the objective seriousness of the offence. The Crown submitted that it was properly open to his Honour to take into account the three separate incidents the subject of evidence in the trial.
During the hearing of the appeal, the Crown made available the transcript of the trial. It discloses that in the Crown's opening address, the Crown referred to the occasion at Bourke of the two acts of sexual intercourse and the indecent assault of the child, the occasion on which the applicant made the complainant suck his penis in the family's bus, and another incident after they left Bourke when the applicant slept in the family's pop-up caravan with the complainant and one of her brothers, and during the night licked her vagina, used his fingers around her vagina and had penile-vaginal intercourse with her, and in the morning continued to touch her vagina while telling a story to her brother who was in bed at the other end of the caravan. The Crown also said it was the Crown case that there were other incidents.
In his Honour's verdict judgment his Honour noted that he had to be satisfied beyond reasonable doubt that the applicant committed two or more unlawful sexual acts with or towards the complainant during the period identified in the indictment. His Honour noted that the Crown case was that the unlawful sexual acts were any one or more of the three alleged offences occurring at Bourke on the one occasion and any one or more of the following alleged offences, being at an unknown location on the Australian mainland during the bus trip, causing the complainant to suck his penis and, at an unknown location on the Australian mainland during the trip, in a pop-up caravan, the complainant awoke to the applicant performing cunnilingus on her, followed by an indecent assault by using his fingers to rub around her genitalia, followed by penile-vaginal intercourse. There is no record of trial counsel for the applicant, who appeared to conscientiously represent the applicant's interests during the trial, taking issue with his Honour's statement to that effect.
The Crown's written submissions in the sentence proceedings referred to the same three events. Counsel for the applicant did not take any issue with that statement of facts during the sentence hearing, including when the Crown referred in oral submissions to the acts set out in his written submissions.
His Honour having stated those facts in his remarks on sentence, the legal representative then appearing for the applicant did not, after his Honour pronounced sentence, raise any issue with that third incident being included in the facts his Honour had relied on.
It is unclear why the sexual acts of which the complainant gave evidence, which occurred when the applicant and she were sleeping in the caravan, were not particularised in the indictment. It is clear that the applicant was on notice during the trial of that incident.
Section 66EA relevantly provides:
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty - Imprisonment for life.
(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3) It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales.
(4) In proceedings for an offence under this section, the prosecution -
(a) is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and
(b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(5) In order for the accused to be convicted of an offence under this section -
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and
(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and
(c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
In Xerri v The King, the High Court considered the construction of the new s 66EA.
Gageler CJ and Jagot J stated:
"[16]… The new s 66EA(1) requires an adult to maintain an unlawful sexual relationship with a child, meaning maintain a relationship with the child in which the adult engages in two or more unlawful sexual acts with or towards a child over any period.
[17] … The new s 66EA(5)(a) and (c) respectively provide that while the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. That is, provided that each member of the jury is satisfied that the accused maintained a relationship in which the accused engaged in two or more unlawful sexual acts with or towards a child over any period, the members do not need to agree that the same two or more unlawful sexual acts occurred.
…
[20] … The new s 66EA(4)(a) provides that the Crown 'is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence'.
…
[33] … the new s 66EA contains its own provision about sentencing… That provision is s 66EA(8) which provides that a 'court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed'."
Gordon, Steward and Gleeson JJ referred to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse that there be offences which do not require particularisation in a manner inconsistent with the ways in which complainants remember child sexual abuse and allow for the prosecution of repeated but largely indistinguishable occasions of child sexual abuse, and the Royal Commission's proposal of an offence of persistent child sexual abuse whereby:
"The actus reus of the offence would be maintenance of an 'unlawful sexual relationship' in which an adult had engaged in two or more unlawful sexual acts; there would be no obligation to give the usual particulars of any given unlawful sexual acts; the trier of fact would only need to be satisfied about the general nature or character of the unlawful sexual acts…": [54].
Their Honours said at [56]:
"In contrast to former s 66EA, under the current s 66EA(4) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, but is required to give particulars of the period of time over which the unlawful sexual relationship existed."
and
"[57] In order now to convict:
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed;
(b) the jury is not required be satisfied of the particulars of any unlawful sexual act that it would otherwise have to be satisfied of if the act were charged as a separate offence; and
(c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
At [60] their Honours said:
"The primary differences between the current and former s 66EA may be seen as follows:
(a) the actus reus of former s 66EA was the committing of three or more sexual offences during any period; the actus reus of the current offence is the maintenance of an unlawful sexual relationship in which an adult engages in two or more unlawful sexual acts.
…
(c) the content of the particulars of the offending which the Crown must provide is different. The Crown no longer needs to describe the nature of the separate offences alleged to have been committed;
(d) what the jury needs to be satisfied about in order to convict is also different. Whereas under former s 66EA the jury needed to be satisfied that a sexual offence had occurred on at least three different occasions on separate days (and to be satisfied about the material facts of those occasions, but not the specific dates of when they occurred), now the jury must be satisfied that an unlawful sexual relationship existed in which an adult has engaged in two or more unlawful sexual acts (without the need to be satisfied about the particulars of each act at the standard required had each act had been charged separately)";
(e)… Now the jury is not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship."
Having regard to the terms of s 66EA(4) and (5), that the prosecution is not required to allege, and the jury need not be satisfied of, the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and as the provision has been construed by the High Court in Xerri v The King, it was open to his Honour to find for the purpose of sentencing, and take into account for the purpose of sentencing, the act in the caravan during the night, of which evidence was given, although that act was not particularised in the indictment. That is also consistent with the statement of Gleeson CJ, Gummow and Hayne JJ in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 that the decision as to guilt of an offence is for the jury and the decision as to relevant facts for sentence is for the sentencing judge: [5]-[6]. However, it would be preferable, in the interests of fairness and transparency, for the Crown to particularise in the indictment, to the extent able, the particular acts relied on. That appears to be a practice usually adopted by the Crown. It would avoid issues of unfairness and uncertainty arising in sentences.
[7]
Remarks on sentence - other matters taken into account
In his remarks on sentence, the sentencing judge also took into account the following matters.
The maximum penalty for the offence contrary to s 66EA is life imprisonment. There is no standard non-parole period. His Honour was required by s 66EA(8) to have regard to the maximum penalties for the individual acts.
The offender was the victim's biological father. There was a 36 years and five months age difference between them. The offending occurred from February 1999, when the victim was aged five, until February 2002, when she was aged eight.
Having referred to the individual acts, his Honour noted that s 66EA offences can encompass a wide variety of sexual offences: "The nature of the sexual acts inflicted on the victim in this case is of the most serious type, especially considering her age".
His Honour took into account that at the time of the offending the victim was under the authority of the applicant because he was her biological father; he was also in a position of trust and the evidence disclosed that he had treated the victim in a way that made her feel, in her word, "special".
His Honour found that the applicant:
"intentionally developed a relationship with the victim to facilitate his offending. The unlawful sexual relationship involved a high degree of emotional manipulation that prevented the victim from disclosing the offending to her mother or anyone else. Such emotional manipulation is relevant to the objective seriousness of the offending and also demonstrates that there was an element of planning. The individual acts were not spontaneous or unplanned, although it cannot be said how far in advance of the acts the planning occurred."
His Honour said the significant age difference between the victim and applicant was also relevant to the objective seriousness of the offending. His Honour said "The manipulation of a young person by someone so much older than them is a significant aggravating factor."
His Honour took into account that each of the assaults was committed in what was at the time the victim's home. His Honour took into account the Victim Impact Statement from the victim and the adverse impact on her of the applicant's conduct.
His Honour noted that considering the applicant's age (of 65 at the time of sentence) and the fact that he would be serving a sentence for some time, the need for the sentence to reflect specific deterrence was reduced, although not eliminated. His Honour referred to the need for the sentence to reflect general deterrence, denunciation and protection of the community.
His Honour noted that the applicant had no insight into his offending or remorse. His Honour stated that the applicant was unlikely to reoffend given the passage of time, the time to be spent serving the term of imprisonment to be imposed, and in the absence of any future relationship involving young children.
His Honour noted that other than "irrelevant traffic matters", the applicant had no criminal history.
His Honour noted the contents of psychiatric reports, a psychological report, and a Sentencing Assessment Report. He noted that the applicant had not had contact with his two sons since the allegations were initially made in about 2006. He noted the applicant's health issues including sarcoidosis of his lungs, restless legs and tachycardia. He noted the applicant's work history.
He assessed the offence as "a very serious example… of offending contrary to s 66EA(1)". I note that in the sentence proceedings counsel for the applicant said "Your Honour would have to sentence on the basis that this is offending with a very high degree of objective seriousness" (30 September 2022, T7).
[8]
Consideration
Having considered the complainant's evidence, there was a sufficient and proper basis for his Honour to find that there was emotional manipulation of the victim by her father during the course of the unlawful sexual relationship, in that he convinced her, at her young age of five to eight years, that she was special to him and that his abuse of her was an element of his special affection for her. When she was older, she realised that was wrong. His Honour did not err in that finding.
His Honour identified all of the matters he took into account in assessing the objective seriousness of the offence, although he did not co-locate his reference to those matters and his finding that the offence was very serious.
Having regard to the factors his Honour so took into consideration, being the time period of the unlawful sexual relationship, the child's age during that time period, relative to the age range for the offence of under 16, that the offender was the victim's father, their age differential at the time of the offending, the nature and number of the unlawful sexual acts, including multiple acts of sexual intercourse and indecent assaults of touching the child's unclothed vagina, that the acts were not isolated in the period of the offending, and that the offending occurred in the child's home, I would maintain that assessment of objective seriousness in resentencing the applicant.
[9]
Resentence
I have taken into account the contents of the affidavits of the applicant and his solicitor Mr Bellingham, especially as to the applicant's health issues and his employment and courses being undertaken in custody. Although there was no recent evidence about the effects of Covid on the applicant's conditions in custody, it is only fair in resentencing him to maintain some reduction from the statutory ratio of the non-parole period to take into account as special circumstances previous Covid-related hardship, as the sentencing judge did.
Taking into account the maximum penalty for the offence for sentence, the maximum penalties for the constituent unlawful sexual acts, the facts and circumstances of the offending, the objective seriousness of the offence, and the applicant's subjective circumstances, I propose a sentence of 16 years imprisonment, with a non-parole period of 11 years and 8 months, to date from 10 July 2022.
I would propose the following orders:
1. Extend the time for the filing of a notice to appeal.
2. Grant leave to appeal.
3. Allow the appeal.
4. Quash the aggregate sentence imposed in the District Court. In lieu thereof, sentence the applicant to 16 years imprisonment, with a non-parole period of 11 years 8 months, commencing on 10 July 2022, the non-parole period expiring on 9 March 2034.
[10]
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Decision last updated: 29 July 2024