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[2026] NSWCCA 50
Court of Criminal Appeal (NSW)
2026-04-24
Stern JA at [1] Dhanji J at [60] R A Hulme AJ at [61]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: PS v R [2026] NSWCCA 50
Hearing dates: 8 April 2026
Date of orders: 24 April 2026
Decision date: 24 April 2026
Before: Stern JA at [1]
Dhanji J at [60]
R A Hulme AJ at [61]
Decision: (1) Leave under the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to file a notice of appeal against the sentence imposed by Shead SC DCJ on 15 September 2023 out of time is refused; and
(2) Leave to appeal against the sentence imposed by Wilson SC DCJ on 25 March 2025 is refused.
Catchwords: CRIME — appeal against sentence — application for leave to appeal — application for leave to file a notice of appeal out of time — where multiple sentences imposed by two judges — whether sentencing judge erred by characterising charges as “representative” charges — where sentencing judge did not so err — whether sentence manifestly excessive — where sentence imposed was not unreasonable or plainly unjust
Legislation Cited: Crimes Act 1900 (NSW), ss 66DA(a), 66DC(a), 66EB(3)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 25AA(3)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code Act 1995 (Cth), Sch 1, s 474.17
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5(2)(b), 3.5(5)
Cases Cited: AK v R [2016] NSWCA 238
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (NSW) v Presnell (2022) 108 NSWLR 407; [2022] NSWCCA 146
Kelly v R [2018] NSWCCA 44
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v JCW [2000] NSWCCA 209
Wright v R [2019] NSWCCA 134
Category: Principal judgment
Parties: PS (Applicant)
The Crown (Respondent)
Representation: Counsel:
P Segal (Applicant)
E L Curran (Respondent)
Solicitors:
Brock Partners (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2020/107813
2023/321040
Publication restriction: Section 578A of the Crimes Act 1900 (NSW) prevents the publication of any matter which is likely to lead to the identification of the victim. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication of the name or any information identifying any children referred to in the proceedings.
Section 15YR of the Crimes Act 1914 (Cth) prohibits the publication of any matter that identifies or is likely to identify the victim of the offence under the Commonwealth Act.
Decisions under appeal
[This headnote is not to be read as part of the judgment]
On 15 September 2023, the applicant was sentenced by Shead SC DCJ for one offence of intentionally sexually touching a child under the age of 10 years contrary to s 66DA(a), and two offences of intentionally carrying out a sexual act towards a child under 10 years contrary to s 66DC(a) of the Crimes Act 1900 (NSW). The applicant pleaded guilty to these offences. The relevant offending occurred between 1 April 2019 and 29 February 2020, when the applicant was aged 45-46 years and the victim aged 8-9 years. Three offences contrary to s 66DC(a) of the Crimes Act were taken into account on a Form 1. The applicant was sentenced to 6 years 8 months imprisonment with a non-parole period of 4 years and 8 months, commencing on 19 July 2023.
On 20 March 2025, Wilson SC DCJ imposed a second and third sentence on the applicant, one for an offence of grooming a child for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act, and one for using a carriage service to menace, harass or cause offence contrary to s 474.17 of the Criminal Code (Cth). The applicant also pleaded guilty to these offences. That offending occurred between 1 February 2023 and 19 July 2023, at which time a bench warrant was out for the applicant’s arrest for he had failed to appear at a sentencing hearing for the 2019-2020 offending.
The applicant sought leave to appeal against all three sentences and also sought leave to file a notice of appeal out of time in respect of the first sentence. The sole ground of appeal for the second and third sentences was that the commencement dates be reconsidered if appropriate, having regard to the outcome of the appeal against the first sentence, but not so as to render the penalties more severe. That ground of appeal turned solely on the outcome of the appeal against the first sentence.
The primary consideration on the appeal was thus the first sentence, as to which the following were principal issues before the Court:
(i) whether Shead SC DCJ erred in her Honour’s treatment of evidence of what were described as “uncharged acts”; and
(ii) whether the sentence is manifestly excessive.
The Court (Stern JA, Dhanji J and R A Hulme AJ agreeing) held, refusing leave to file a notice of appeal out of time and leave to appeal against the second and third sentences:
As to issue (i)
(1) It is clear from the sentencing judge’s statements of principle and reasoning that her Honour did not treat the conduct that she described as “uncharged acts” as a circumstance of aggravation. Her Honour’s citation of the decision in Wright v R [2019] NSWCCA 134 at [33] underscores this: [36]-[44] (Stern JA); [60] (Dhanji J); [61] (R A Hulme AJ).
(2) There is no foundation for the applicant’s contention that the Court should infer that the sentencing judge relied upon the uncharged acts as aggravating the objective seriousness of the offending. The sentencing judge’s use of the language of “representative charges” should not be taken out of context: [45]-[46] (Stern JA); [60] (Dhanji J); [61] (R A Hulme AJ).
As to issue (ii)
(3) The matters relied upon by the applicant did not lead to a conclusion that the sentence was manifestly excessive: [51] (Stern JA); [60] (Dhanji J); [61] (R A Hulme AJ).
(4) The sentencing judge found that the offending was objectively serious and involved discrete incidents and that the applicant had neither insight into his offending nor had demonstrated remorse. Notwithstanding the mitigating factors taken into account by the sentencing judge, the first sentence was well within the bounds of what was reasonably available: [51] (Stern JA); [60] (Dhanji J); [61] (R A Hulme AJ).
(5) An offence under s 66DC(a) of the Crimes Act may contemplate a range of offending conduct. The objective seriousness of the conduct will turn upon all the circumstances of the offending. It does not turn upon whether the conduct is characterised as “with” the victim, “towards” the victim, or both: [53] (Stern JA); [60] (Dhanji J); [61] (R A Hulme AJ).
Director of Public Prosecutions (NSW) v Presnell (2022) 108 NSWLR 407; [2022] NSWCCA 146, applied.
(6) There was also no error in the sentencing judge’s reliance upon the victim impact statement in finding that the applicant’s actions “have had, and will continue to have, long term effects” on the victim. Whilst part of the victim impact statement refers to the victim’s perception of his mother being regularly intoxicated, it was the applicant’s conduct that was the overarching cause of the victim’s feeling of powerlessness: [54]-[55] (Stern JA); [60] (Dhanji J); [61] (R A Hulme AJ).
STERN JA: The applicant seeks leave to appeal sentences imposed upon him on two separate occasions.
On the first occasion (the first sentence), on 15 September 2023, Shead SC DCJ imposed a sentence of 6 years 8 months imprisonment with a non-parole period of 4 years and 8 months, commencing on 19 July 2023, following the applicant’s guilty plea to one offence of intentionally sexually touching a child under the age of 10 years contrary to s 66DA(a) of the Crimes Act 1900 (NSW) (count one) and two offences of intentionally carrying out a sexual act towards a child under 10 years contrary to s 66DC(a) of the Crimes Act (counts four and seven). This offending occurred between 1 April 2019 and 29 February 2020. At the time of the offending, the child (whom I refer to in this judgment as the victim), was aged 8-9 years and the applicant was aged 45-46 years. The applicant had been in a relationship with the victim’s mother since around October 2018 and had been living with the victim’s mother and the victim since February 2019. Three offences contrary to s 66DC(a) of the Crimes Act, counts five, six and eight, were taken into account on a Form 1.
On the second occasion, on 20 March 2025, Wilson SC DCJ imposed two further sentences (the second and third sentences). The second sentence was one of 3 years imprisonment with a non-parole period of 2 years, commencing on 20 July 2026, following the applicant’s guilty plea to one offence of grooming a child for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act. The third sentence was an order that the applicant be released without security to recognizance by himself for 3 years, on the condition that he be of good behaviour, following the applicant’s guilty plea to one offence of using a carriage service to menace, harass or cause offence contrary to s 474.17 of the Criminal Code (Cth).
The offences the subject of the second and third sentences occurred after the applicant failed to appear at a sentencing hearing for the offences committed in 2019/2020 (at [2] above) and a bench warrant was issued for his arrest. The applicant had moved to the Central Coast and was using a false name to avoid detection and arrest. The grooming and use of a carriage service offending occurred between 1 February 2023 and 19 July 2023. The victim of the grooming offence was aged 13 or 14 years at the time of the offending which occurred whilst the applicant was in a relationship with his foster mother. The victim of the use of a carriage service offence was aged 14 years at the time of the offending. He was a friend of the victim of the grooming offence.
As regards the first sentence, the applicant contends that:
Shead SC DCJ erred in characterising the charges as “representative charges” (ground one).
The sentence is manifestly excessive (ground two).
As regards the second and third sentences, the applicant seeks that the commencement date of his sentences be reconsidered, if appropriate, having regard to the outcome of his application as regards the first sentence, but not so as to render the penalties more severe (ground three). In oral submissions the applicant’s counsel characterised this ground as consequential upon the success of his challenge to the first sentence.
The applicant requires leave to appeal against his sentences under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). He also requires leave to file a notice of appeal against the first sentence out of time under the Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5).
For the reasons set out below, leave to file a notice of appeal out of time against the first sentence and leave to appeal against the second and third sentences should both be refused.
There is no challenge to the factual findings of Shead SC DCJ (whom I will refer to as the sentencing judge). The background to the offending can thus be set out largely by reference to the findings of the primary judge, which to a significant extent were premised upon agreed facts for sentence. Given my conclusion that leave should not be granted to challenge the first sentence, it is unnecessary to give any consideration to the facts or offending upon which the second and third sentences were imposed.
The applicant was born in February 1974. The victim was born in early 2011. The victim’s mother and father separated in or around 2013 and divorced in 2014. In around October 2018, the applicant formed a relationship with the victim’s mother. In February 2019, when the victim was 8 years old, the victim and his mother moved in with the applicant, the applicant’s adult son and another friend.
In around August or September 2019, the applicant and the victim’s mother together purchased and began to operate a children’s indoor play centre and café business. This business ceased to operate in January 2020.
Counts five and six were taken into account on a Form 1 in relation to count seven.
At about 7:00pm in late 2019 or early 2020, the applicant drove the victim to the childcare centre he operated with the victim’s mother. He collected a number of sex toys from the car and carried them into the centre. He took the victim upstairs to a party room where he unpacked a blow-up sex doll and started to blow it up using a pump. After it was inflated, he set it aside.
The applicant then picked up a tube with a replica vagina, put his penis in it, and masturbated using the replica vagina for a few minutes (count five). The offender then took out a dildo and inserted it into his anus for a few seconds. The victim said that the dildo was in a box which said it was “5 inches” (count six). The applicant then penetrated and simulated sexual intercourse with the blow-up doll for about 20 minutes, before masturbating whilst watching a Pornhub video (count seven). The applicant then got dressed, put the sex toys in a plastic bag and left the childcare centre with the victim.
Count eight was taken into account on a Form 1 in relation to count four.
In late 2019 or early 2020, the applicant was at home alone with the victim. The victim saw the applicant get his phone out and moved to see what the applicant was looking at. The applicant searched for pornographic videos on Pornhub and loaded a video. He watched the video with the victim for a short period of time before pulling his pants down. When the victim saw the applicant pull his pants down he got up and went to his room to watch Minecraft videos as “[he] knew it was coming” and that “porn and [the applicant] pulling his pants down does not make good things happen”.
2.1. From before the middle of 2019 the offender would regularly watch pornography in front of the victim. The offender would also talk to the victim about pornography that he watched, saying things like "it's so fucking good."
2.2. The offender also would talk to the victim about masturbation, asking the victim if he wanted to "wank". The victim has seen the offender masturbating and, on occasion, the offender has asked the victim to masturbate him but the victim has always refused.
2.3. At one point in time the offender told the victim "[victim’s name], don't tell anybody or the police might get involved in this." The victim agreed to this.
2.4. The conduct of the offender towards the victim increased in seriousness after about the middle of 2019. The first incident of watching pornography in front of the victim happened in around the second quarter of 2019 with the offender watching pornography on his phone. The type of pornography that the offender would watch was pictures or videos of people engaging in sexual acts, and the victim recalls the offender having watched what he believe[d] to be child pornography in front of him as well, and he believed it was that as the offender would search for pornography that included the search term "teenager'' or a similar word. It was after this, around August or September, that the offender started to masturbate in front of the victim as well, which the victim thinks happened more than five times.
2.5. On another occasion in the middle of 2019 the offender drove the victim to Murray Farm Reserve and while the victim rode his bike around the park the offender masturbated, ejaculating into a cup. The victim did not see this but when he came back the offender pointed the cup out to the victim and said it was his sperm in it. The victim also said that this happened again on another later occasion.
2.6. By the beginning of 2020 the text messages between the offender and the victim show the offender referring to himself having a big cock, asking the victim to wank him, telling the victim to watch porn if he is bored, and regularly asking the victim if he loves him. On 9 January 2020 the victim sent a picture to the offender of a sex toy in the form of a replica vagina.
(Emphasis in original.)
4.1. About a week after the events giving rise to sequence 1 the victim was again in his bedroom. It was the middle of the afternoon and the victim's mother had gone to get things for dinner.
4.2. The victim was in bed watching videos of different video games on YouTube on this occasion. The victim was wearing at-shirt but no pants. The offender approached the victim and reached out and touched the top of his leg.
4.3. The victim jumped up, pulled away his bedsheets and ran out to the living room to wait for his mother to return about 10 minutes later.
9.2 The offender's phone was also subjected to a Cellebrite examination and a number of photographs showing the victim without clothes on were identified. Additionally, the search history of the offender included a number of gay incest searches, both for pornography and erotic stories around this topic, including a large number specifically regarding step-fathers and step-sons having sex. Other items include a question posted on Quora about a 13 year old masturbating while thinking about his step-father and a Reddit post about a 10 year old starting to have sex with their uncle.
The sentencing judge outlined the facts which I have summarised above. Her Honour noted the victim impact statement from the victim’s father and observed that it was evident that the applicant’s actions “have had, and will continue to have, long-term effects” on the victim.
Her Honour then set out the applicant’s relevant subjective circumstances. As regards the applicant’s background, the sentencing judge noted that Dr Lennings, a psychologist who had prepared a report dated 8 November 2021 which was tendered by the applicant on sentence, had noted that, on the applicant’s account, his childhood was dysfunctional and involved significant emotional neglect. The sentencing judge also noted that the applicant’s marriage had broken down, what the applicant told Dr Lennings about a number of psychosocial and psychosexual matters, and Dr Lennings’ opinion that the applicant may have a personality disorder.
The sentencing judge noted both the applicant’s plea of guilty, and his account to Dr Lennings which included statements that: he did not talk about sex with the victim; he had bought sex toys for the victim’s mother, namely a dildo and a fleshlight, but he did not use them or show them to the victim; he did show a blow-up sex doll to the victim but he did not use the doll in the presence of the victim; he had bought the sex doll for the victim’s mother as a joke; and that the allegations against him were fabricated by the victim’s father and grandfather. The sentencing judge also noted that the applicant denied any physical contact with the victim to Community Corrections and said that he had been implicated due to the custody battle between the victim’s parents.
The sentencing judge directed herself as to relevant authority. She directed herself that regard must be had to the age and vulnerability of the victim, the nature of the acts and form and length of the offending, whether there was a lack of opposition, whether the perpetrator was in a position of trust, s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which requires a sentencing judge to have regard to the trauma of sexual abuse on children, and as to the relevance of the Form 1 matters. No complaint is made by the applicant as to her Honour’s analysis of the relevant authority and legislation.
As noted at [38]-[40] below, the sentencing judge also referred to, and directed herself as to, the relevance of uncharged acts.
The sentencing judge identified that aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act were that the offending occurred in the victim’s home and that the applicant abused a position of trust and was in a position of authority.
Under the heading of objective seriousness, the sentencing judge found that the applicant had a sexual interest in the victim, rejecting the applicant’s claims to the contrary. Her Honour found that count one fell just below the mid-range for offences of this nature which are inherently serious. Her findings included that:
For his own perverse pleasure, the [applicant] callously touched [the victim’s] genitals. This would have been traumatic and confusing for the victim. I find beyond reasonable doubt that the touching was motivated by the [applicant’s] desire for sexual gratification and the offending is thereby aggravated.
…the offender did not use mere words, but deliberately exposed his genitals and masturbated in front of the victim, who was so traumatised that he left the room.
…although the victim was sitting in a corner watching videos on his phone, the offender engaged in the acts described towards the victim, deriving sexual gratification from performing sex acts in front of a vulnerable child. The offender callously exposed an innocent child to a sex toy and sex acts that would have been confronting and traumatic for the victim. He thereby robbed the victim of his innocence, all for his own perverted pleasure.
It is axiomatic that this is gravely serious conduct. [The victim] was a small child. The acts of the [applicant] were planned, varied, deliberate, and disgusting.
Her Honour also rejected the applicant’s claim that the victim behaved in a sexualised way as a result of a previous sexual assault by a third party. Her Honour found that the applicant made this claim in order to deflect blame.
The sentencing judge took into account, as mitigating factors, that the applicant did not have any significant record of previous convictions, was a person of good character (noting that this consideration is of less significance in cases of child sexual assault), and was a low risk of reoffending and had pleaded guilty (albeit only one week before the first date of the applicant’s trial). Her Honour added:
I find that the offender has no insight into his offending, nor has he demonstrated remorse to the statutory standard. Given his continued denials concerning the offending conduct and the deflection of blame onto others, I give the remorse demonstrated by the plea of guilty but limited weight.
Her Honour found that some degree of accumulation of sentence was appropriate, but that this was constrained by the principle of totality. As the applicant had spent two days in custody in 2020 and had been bail refused since 21 July 2023, his sentence was backdated to 19 July 2023. Her Honour made a finding of special circumstances based on this being the applicant’s first time in custody, his need for assistance with reintegration given his unstable life and that a longer period of parole would allow for him to obtain appropriate counselling services and because he may not have access to courses in custody.
As already indicated, her Honour imposed an aggregate sentence of 6 years and 8 months with a non-parole period of 4 years and 8 months. The indicative sentences were:
Count one: imprisonment for 6 years and 2 months, with a non-parole period of 4 years and 4 months;
Count four: imprisonment for 3 years and 1 month; and
Count seven: imprisonment for 3 years and 6 months.
The Crown’s written submissions before the sentencing judge referred to the matters set out at [19]-[20] above, under the heading “Uncharged conduct”, and contended that this conduct could not aggravate the sentence to be imposed but was “representative of a broader pattern of offending that deprives [the applicant] of a finding that the offence was an isolated act: Kelly v R [2018] NSWCCA 9”. In response, in his written submissions before the sentencing judge, the applicant conceded that such evidence goes to context but contended that the Crown had “elevated” this conduct in its submissions and that it should not be described as “uncharged acts”. Whilst agreeing that the conduct was inappropriate, he contended that there was “no evidence that the purpose of the conduct was to force the victim to observe the behaviour or to anyway take part”.
As regards the evidence at [21] above, the sentencing judge said in a footnote in her remarks on sentence that she had “been careful not to take this into account, other than as an indication that the offending was not isolated, given that there is no charge for production of child abuse material”.
Under the heading “Uncharged Acts”, her Honour stated at [78]-[79] of her remarks on sentence:
The Agreed Facts refer to other events where the offender engaged in unlawful sexual activity concerning [the victim]. On 13 May 2022, the Crown clarified that I should disregard paragraph 9.1.7 and I do so.
The accepted approach when imposing a sentence in respect of “representative” charges to which pleas of guilty have been entered is:
(1) that the overall history of the conduct from which the representative charge has been selected may be looked at for purposes of understanding the relationship involved;
(2) to exclude any suggestion that the offence charged was of an isolated nature, and
(3) as bearing upon the degree of any leniency the court might be considering in regard to sentencing.
The history should not be used as the basis for sentencing the offender for charges other than those charged or as matter of aggravation of those charge [sic] [citing R v D (unreported, 22/11/96, NSWCCA) (Priestley JA); R v EMC (unreported, 21/11/96), NSWCCA)].
As is clear, consistent with [37] above the sentencing judge is referring here to the conduct set out at [19]-[20], but not that at [21], above.
Later, under the heading “Objective Seriousness”, the sentencing judge said:
I have assessed the uncharged acts in the way set out at [79]; that is, the incidents that have not been particularised do not aggravate the charged offences, but rather deprive the offender of any claim to mitigation and any attendant reduction of an appropriate sentence on the basis that an offence was isolated or out of the blue (see Wright v R [2019] NSWCCA 134 at [33]).
The applicant contends that, in so reasoning the sentencing judge erred because “representative” charges are only to be considered as such with the admission, consent or agreement of the offender, and the applicant never gave such admission, consent or agreement. The applicant relies in this regard upon the judgments of Spigelman CJ and Ireland J in R v JCW [2000] NSWCCA 209 and the judgment of Hidden AJ in Kelly v R [2018] NSWCCA 44. He contends that the evidence of uncharged acts as set out in the agreed facts on sentence went no further than to establish that the incidents of offending were not isolated, but they “were not representative acts to be considered as an aspect for punishment”. He submits that it is apparent from consideration of the remarks on sentence as a whole that, contrary to what the sentencing judge said, she did take the conduct described as “uncharged acts” into account as a circumstance of aggravation. When asked during the hearing to identify some indication in the remarks on sentence that her Honour had so erred, counsel for the applicant pointed to her Honour’s characterisation of count seven as a “serious example of the broad range of conduct captured by s 66DC(a)” and her Honour’s characterisation of the conduct comprising that offending as “gravely serious” and “planned, varied [and] deliberate”. He contended that, in so characterising the offending and the conduct constituting the offence, her Honour should be taken to have relied upon the applicant’s behaviour as a whole, including that disclosed by the uncharged acts. He takes no issue, however, with her Honour’s description of this conduct as “disgusting”.
The applicant’s contention should be rejected.
It is clear from the sentencing judge’s statements of principle and reasoning, extracted at [38]-[39] above that her Honour did not treat the conduct that she described as “uncharged acts” as a circumstance of aggravation. Her Honour clearly stated that that conduct should not be, and was not, used by way of aggravation. Her Honour’s citation of the decision in Wright v R [2019] NSWCCA 134 at [33] underscores this. In the paragraph cited, Ierace J (Bathurst CJ and Price J agreeing) stated that the relevance of a contextual course of conduct was “not to aggravate the offences, but rather, to deprive the offender of any claim to mitigation and attendant reduction of an appropriate sentence”, relying upon R v JCW [2000] NSWCCA 209 at [68] and AK v R [2016] NSWCA 238 at [67]-[73].
It is well established that evidence of uncharged conduct can be relied upon in that way: R v JCW at [52] (Spigelman CJ) and Kelly v R [2018] NSWCCA 44 at [38] (Hidden AJ, Beazley P (as Her Excellency then was) and Garling J agreeing). In oral submissions counsel for the applicant accepted that, if her Honour only took the conduct described as “uncharged acts” into account in this way then there was no error. Indeed, he went so far as to accept that if the sentencing judge had not used the term “representative charges” in her remarks on sentence then “ground one wouldn’t exist”.
Whilst the applicant contends that this Court should infer that the sentencing judge relied upon the uncharged acts as aggravating the objective seriousness of the offending, there is no foundation for that contention. The applicant’s submission in this regard was premised upon an underlying contention that the conduct constituting the offending itself could not, or would not, have been described by her Honour as a serious example, gravely serious, or as planned, varied and deliberate. The contention wholly fails to grapple with the nature and seriousness of the conduct set out in the agreed facts and with her Honour’s finding that that the offending conduct was motivated by the applicant’s desire for sexual gratification and that the victim was isolated and vulnerable. Moreover, her Honour’s description of the conduct as “varied” reflects that it involved penetration and simulation of sexual intercourse with a sex doll for an extended period, masturbation and watching pornography.
In this regard, the sentencing judge’s use of the language of “representative charges” should not be taken out of context. It is crystal clear from her Honour’s analysis and reasoning in relation to the conduct that she described as the “uncharged acts” that she took the evidence at [19]-[20] above into account solely in the manner she described at [38] above.
Ground one should be dismissed.
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:
Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
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.
It is not to the point that this court might have exercised the sentencing discretion differently.
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.
It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
Somewhat inconsistently with the principles set out above, the applicant’s contentions in support of ground two focus in part upon patent, not latent, error. In this regard, he relies upon four matters. First, he contends that the sentencing judge “failed to apply the ‘Bugmy’ principle to which the applicant was entitled”, referring to the judgment of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [42]-[44]. Second, he contends that there is a “qualitative difference” between a sexual act that is committed “with” a victim and one that is committed “towards” a victim, contending that a sexual act committed towards a victim must be at the lower end of the range of conduct contemplated by the legislature. Third, he points to one part of the victim impact statement which references “maternal intoxication” and contends that the “degree of mental harm to the child attributable to the applicant must be ameliorated by the recognition that the applicant was not the only adverse circumstance in the child’s life”. Fourth, he relies upon the alleged error of principle advanced in ground one.
Whilst the matters relied upon by the applicant could contribute to a sentence being manifestly excessive, as is apparent from the principles discussed above, a ground of manifest excess will only succeed where the Court concludes that the sentence is unreasonable or plainly unjust, meaning, here, that it was manifestly too long having regard to the totality of the criminality involved. I would not reach that conclusion. As the sentencing judge found, the offending was objectively serious and involved discrete incidents and the sentencing judge found (and no complaint was made about this finding) that the applicant had neither insight into his offending nor had he demonstrated remorse. In this context, notwithstanding the mitigating factors taken into account by the sentencing judge, her finding that the applicant was at a low risk of reoffending, and the evidence of Dr Lennings as to the applicant’s difficult background, the first sentence was well within the bounds of what was reasonably available.
In any event, none of the complaints advanced by the applicant in support of this ground should be accepted. Under the heading “The Offender’s Subjective Circumstances” the sentencing judge made detailed reference to the applicant’s background as identified in the report of Dr Lennings. I would readily infer from this that she took those matters into account in the instinctive synthesis as well as in support of her finding of special circumstances. Further, whilst the written submissions of the applicant before the sentencing judge relied upon Dr Lenning’s report, no submission was made that his moral culpability was reduced, or that diminished weight should be given to general or specific deterrence, on account of his background. Indeed, neither the applicant’s written nor his oral submissions before the sentencing judge made any reference to the circumstances of his childhood and upbringing.
The applicant’s contention that counts four and seven are necessarily at the lower end of the range of conduct contemplated by the legislature because they were committed towards and not with the victim should be rejected. Section 66DC(a) makes it an offence to carry out a sexual act with or towards a child under the age of 10 years. As is clear from the analysis of Dhanji J (Hamill J agreeing) in Director of Public Prosecutions (NSW) v Presnell (2022) 108 NSWLR 407; [2022] NSWCCA 146 at [86]-[96], the offence under s 66DC(a) may contemplate a range of offending conduct. The objective seriousness of the conduct will turn upon all the circumstances of the offending. It does not turn upon whether the conduct is characterised as “with” the victim, “towards” the victim, or both. Having regard to all of the circumstances, her Honour did not err in her evaluation of the objective seriousness of the offending.
There was also no error in the sentencing judge’s reliance upon the victim impact statement in finding that the applicant’s actions “have had, and will continue to have, long term effects” on the victim. The applicant placed particular reliance in his submissions upon the following part of the victim impact statement:
[The victim] felt powerless whilst these events were happening, since his mother was regularly intoxicated, and he felt that she wouldn't believe him or take action even if he made disclosures to her.
Whilst this sentence refers to the victim’s perception of his mother being regularly intoxicated, it does so by way of explanation of why he felt that he could not seek his mother’s assistance to prevent the ongoing acts of the applicant. That does not alter the fact that it was the applicant’s conduct that was the overarching cause of the victim’s feeling of powerlessness. That this occurred in a context where the victim felt that he could not seek assistance or protection from his mother does not in any sense stand against, or undermine, the sentencing judge’s findings as to the impact of the applicant’s offending on the victim.
Ground two should be dismissed.
The orders I propose are:
Leave under the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to file a notice of appeal against the sentence imposed by Shead SC DCJ on 15 September 2023 out of time is refused; and
Leave to appeal against the sentence imposed by Wilson SC DCJ on 25 March 2025 is refused.
DHANJI J: I agree with Stern JA.
R A HULME AJ: I agree with Stern JA.
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PS
R
[2013] HCA 37
(2013) 249 CLR 571
(2000) 202 CLR 321
(2022) 108 NSWLR 407
(2017) 96 NSWLR 155
(1999) 195 CLR 665
(2001) 207 CLR 584
(2005) 228 CLR 357
(2010) 242 CLR 520