R v AA

Court of Criminal Appeal (NSW)|2017-04-03|Before: Leeming JA, Hulme J, Beech-Jones J

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Respondent) File Number(s): 2015/382689 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 29 December 2016 Before: Ellis DCJ File Number(s): 2015/382689

Judgment

LEEMING JA: I agree with Beech-Jones J.
R A HULME J: I agree with Beech-Jones J.
BEECH-JONES J: This judgment concerns a Crown appeal against a sentence imposed by his Honour Judge Ellis DCJ on the Respondent for the commission of a number of serious sexual assaults on his two nieces when they were between the ages of five and eight years old. At the time of the commission of some of the offences the Respondent was a juvenile. Accordingly, neither the Respondent nor the victims can be identified (Crimes Act 1900, s 578A; Children (Criminal Proceedings) Act 1987, s 15A). To that end, the Respondent will be referred to as "AA" and his victims as "BB" and "CC". They are not their initials.
On 9 December 2016, AA was sentenced in the District Court for five offences to which he had pleaded guilty. The first offence was aggravated indecent assault on a person under the age of ten years contrary to former s 61M(2) of the Crimes Act. It was committed upon BB between 7 July 2008 and 21 December 2008. AA was fifteen years old and BB was five years old when the offence was committed. The maximum penalty for the offence was 10 years imprisonment. As AA was under eighteen years of age when the offence was committed, there was no applicable standard non‑parole period. For this offence, AA was sentenced to a term of imprisonment of 14 months with a non‑parole period of 8 months commencing 31 December 2015.
The second offence also involved a contravention of former s 61M(2) of the Crimes Act. It was committed between 1 January 2009 and 7 July 2009 when BB was still five years old and AA was either fifteen or sixteen years old. For this offence, AA was sentenced to another term of imprisonment of 14 months with a non‑parole period of 8 months. This sentence commenced on 31 March 2016.
The third offence was having sexual intercourse with a person under the age of ten years, namely CC, contrary to former s 66A(1) of the Crimes Act. It was committed between 1 January 2010 and 15 November 2011 when AA was between sixteen years and ten months and eighteen years and eight months old. CC was aged either five or six years old. The maximum penalty for this offence was imprisonment for 25 years. For adult offenders there was a standard non‑parole period of 15 years for this offence. AA was sentenced to a term of imprisonment of 4 years with a non‑parole period of 2 years and 3 months. This sentence commenced on 30 June 2016.
The fourth offence was another contravention of former s 66A(1) committed against CC. The offence was committed between 1 January 2012 and 31 December 2012 when CC was either seven or eight years old and AA was either eighteen or nineteen years old. For this offence AA was sentenced to a term of imprisonment of 4 years and 9 months with a non‑parole period of 2 years and 9 months. This sentence commenced on 30 August 2016.
The fifth offence was also a contravention of former s 66A(1) committed against CC. The offence was committed between 15 November 2012 and 25 November 2012 when CC was eight years old and AA was nineteen years old. For this offence, AA was sentenced to a term of imprisonment of 5 years and 2 months with a non‑parole period of 2 years and 7 months. This sentence is due to commence on 31 May 2017.
When being sentenced for the third offence, AA requested the Court take into account, on a "Form 1", two offences under former s 61M(2) of the Crimes Act committed against CC between 1 January 2010 and 15 November 2010 (Crimes (Sentencing Procedure) Act 1999, s 32(1) (the "Sentencing Act")). When being sentenced for the fourth offence, AA requested the Court take into account another offence under former s 66A(1) of the Crimes Act committed against CC between 1 January 2012 and 31 December 2012 (the "Form 1 offences").
The total sentence imposed on AA was imprisonment for 6 years and 7 months commencing 31 December 2015 and expiring on 30 July 2022. He received a combined non‑parole period of 4 years expiring on 30 December 2019.
The Crown now appeals the sentence pursuant to s 5D of the Criminal Appeal Act 1912. It accepts that to succeed on the appeal it must first establish the existence of an error of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 at 505 ("House"); secondly, identify the sentencing principle that is said to be engaged by the errors (R v DH; R v AH [2014] NSWCCA 326 at [19]); and thirdly demonstrate that "the total sentence imposed - even if erroneously reached by the sentencing judge - was manifestly inadequate in the circumstances of this case" (R v Janceski [2005] NSWCCA 288 at [25] per Hunt AJA with whom Spigelman CJ at [1] and Howie J at [41] agreed) ("Janceski"). Even if those matters are established, the Crown must "negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised" (R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at [12] per Heydon JA cited in CMB v Attorney General for the State of NSW [2015] HCA 9; 256 CLR 346 at [34] per French CJ and Gageler J and [56] per Kiefel, Bell and Keane JJ; "CMB"). Before those matters are addressed it is necessary to outline the facts of the offending and summarise the sentencing judgment.

The Offences

Placed before the sentencing judge was an agreed statement of facts. What follows is a summary of those facts.
AA is the paternal uncle of BB and CC. BB and CC are cousins. At the time of the offences AA lived with his parents. From time to time BB and CC visited AA's home to be looked after by AA's mother who is the grandmother of BB and CC.
On an occasion between 7 July 2008 and 21 December 2008, BB was visiting AA's home to be looked after by her grandmother. As noted, BB was then five years old and AA was fifteen years old. While BB was seated on a lounge with AA watching television, AA placed "his hand on her vagina over the top of her clothing". AA's conduct constituted the first offence noted at [4] above.
Sometime between 1 January 2009 and 7 July 2009, BB was in AA's bedroom sitting on his chest while he was lying on the bed. According to the agreed facts, AA "touched her vagina on top of her underwear and moved his finger on her vagina". BB tried to stop him by moving away. AA's conduct constituted the second offence noted in [5] above. The agreed facts stated that "[t]hese were not the only occasions that [AA] touched [BB] on the vagina".
The agreed facts also record that between 1 January 2010 and 15 November 2010 AA engaged in two indecent assaults upon CC similar to those he committed against BB. They were committed while AA and CC were sitting on a lounge watching television. These two indecent assaults constitute the first two Form 1 offences noted in [9].
As noted, the third offence was committed between 1 January 2010 and 15 November 2011. CC was sleeping in the lounge room at AA's home. AA approached CC while she was asleep. AA gave her some "Nutella" on a spoon. The agreed facts record that AA "removed her pants, spread her legs open and licked her vagina" and that CC told him to stop but he continued. The facts record that CC "described [AA] as licking 'inside' her vagina which made her cry because it hurt". As noted, at the time of this offence CC was six years old and AA was "16, 17 or 18" years old. This conduct constituted the third offence noted above. The facts record that this "was not the only occasion that [AA] performed cunnilingus on [CC]".
Sometime between 1 January 2012 and 31 December 2012, CC was in AA's bedroom with the door closed. AA told her to get into bed with him. He pulled his pants down and told CC to "suck his penis saying 'it's like a lollipop'". AA "guided" CC's head onto his penis with his hand and she performed "fellatio on him". As noted, at this time CC was seven or eight years of age and AA was eighteen or nineteen years of age. This conduct constituted the fourth offence. The facts record that this "was not the only occasion that [AA] had caused [CC] to perform fellatio on him".
Immediately after this offence was committed, AA told CC to take off her clothes. CC was lying on his bed. AA pushed her legs open and licked her vagina. CC told him to stop because it hurt. AA continued saying "if you want something, you have to like it". This conduct constituted the third of the Form 1 offences noted in [9].
The fifth offence was committed between 15 November 2012 and 25 November 2012 when CC was in AA's bedroom with her brother. The police facts record that, while her brother was "fixing something, AA and CC were watching television on AA's bed. They were covered by a blanket. AA removed CC's underpants and pulled his own pants down. According to the police facts, AA "pushed his penis into her vagina". CC told AA to stop but he said "No, you'll like it". According to the facts CC "squeezed her legs together but [AA] pushed his penis through her legs and into her vagina". CC felt pain. At some point AA said "Didn't that feel good" and CC responded "No, I hated it".

The Investigation

In light of the grounds of appeal, it is necessary to describe how AA's crimes were discovered. This was also covered by the agreed facts.
On Friday 16 October 2015, being approximately three years after the commission of the fifth offence, CC disclosed to a worker at an after school care centre that she was concerned for her cousins because "one of her uncles had touched them". She also stated that "[a] man has touched me as well" and said it was her uncle. The worker reported the disclosure to her manager. The following Monday, 19 October 2015, the after school centre reported the disclosure to the "Children's Services helpline".
On 23 October 2015, CC's and BB's parents were notified of the allegations. When asked about the allegations by her parents, BB confirmed that she had been "touched … on the vagina". On the same day, AA's mother was advised of the allegations. She spoke to AA on the telephone. He denied the allegations. However, in a later telephone call he asked his mother to come home to speak to him. When she returned home, AA said to her "well my Dad molested me when I went to his house ...". It seems that AA's parents had separated when he was young. AA's mother asked him what he did to the girls. AA replied "I can't say, you may as well put me in jail with my Dad".
On the evening of 23 October 2015, AA attended a police station. According to the agreed facts he stated that "I was sexually assaulted by my father. I have done things to my nieces like my Dad did to me". AA was then arrested and interviewed. According the agreed facts, AA "made admissions to indecently assaulting the two complainants". He was released. BB and CC were interviewed in November 2015 and December 2015 respectively. AA was rearrested on 31 December 2015 and interviewed again. He has remained in custody since that date. According to the police facts, during that interview he admitted to touching the vagina of both BB and CC "on four or five occasions", performing cunnilingus on CC "several times" and having her "perform fellatio on him several times". He also "admitted to placing his penis between [CC's] legs against her vagina but denied penetration".

The Sentencing Judgment

In the sentencing judgment, his Honour noted that there was an agreed statement of facts and briefly referred to the salient details of the offences. His Honour also noted the maximum penalty and applicable standard non‑parole periods. I note the following nine points about the sentencing judgment.
First, his Honour determined that AA would receive a discount in the "range of 20-25%" for his pleas of guilty.
Second, his Honour considered the sentencing regime that would have been applicable had AA been prosecuted as a juvenile shortly after he committed the first three offences. Thus his Honour concluded that, with the first two offences, AA "would have been dealt with in the Children's Court and would not have been committed" to the District Court, and if sentenced to imprisonment, "it would have been served in Juvenile Justice detention". With the third offence, his Honour accepted that it was a "serious children's indictable offence" (as defined in s 3 of the Children (Criminal Proceedings) Act such that if AA had been prosecuted when he was under 21 years of age then he would have to have been dealt with "according to law" (Children (Criminal Proceedings) Act, ss 16 and 17). However, his Honour observed that, if he was under the age of eighteen at the time of sentencing, the Court "would have imposed a control order". (The Crown contends this is incorrect). His Honour further observed that if AA was over 18 at the time of sentencing then the Court could have directed that he serve some part of the sentence as a "juvenile offender" until he attained the age of 21 (Children (Criminal Proceedings) Act; s 19(1)). His Honour stated: "I mention all of those factors as they are matters that I will take into account in the same way as I would take into account a different sentencing regime in other cases of for instance, historical sexual abuse."
Third, his Honour appears to have concluded that AA was entitled to a discount in addition to his plea. His Honour noted the chronology of events outlined at [21] to [24] and stated: "Having regard to the fact that [AA] came forward and made full admissions prior to the complaints, he is, in my view, entitled to an unspecified further 'Ellis type' discount." (emphasis added)
At a later point during the delivery of ex tempore reasons for judgment, his Honour inquired of the legal representatives whether any corrections were required. The Crown's representative submitted that "full admissions" were not made on the first occasion that AA attended the police and were also not made when AA was interviewed on 31 December 2015. His Honour stated that he had only "meant to indicate that [AA had come] forward to admit that he had sexually abused the [children] … and then subsequently entered an interview after that at some stage". His Honour did not qualify the earlier observation that an "unspecified further discount" was being applied.
Fourth, his Honour made various findings concerning the circumstances of the offending that bore upon a determination of its objective seriousness. His Honour noted that, with the exception of the fifth offence, the offences were "reasonably spontaneous" in that "often other people [were] present within the house". His Honour noted that "[e]ach offence was of short duration". His Honour noted that the third offence involved an inducement. His Honour noted the respective ages of AA and the victims. His Honour noted the three year delay between the commission of the fifth offence and the offences being discovered. His Honour concluded that AA had "voluntarily ceased his conduct some time in 2012". His Honour also cited the decision in Jonson v R [2016] NSWCCA 286 and referred to the fact of the offences having been committed in a "home" as an aggravating factor even though "[the offending] took place in the home of the offender while the victims were visiting". No issue as to the correctness of that approach is raised on this appeal.
Later in the sentencing judgment, his Honour characterised the objective seriousness of the offences. His Honour described each of the first two offences as "toward the lower end of the range" as they involved "touching on the outside of [BB's] clothing". His Honour stated that they would be at the "lowest end of the range" other than allowing for her age. In relation to the other three offences, his Honour stated: "Having regard to the young age of the complainant, that is, [CC] was six for count 3, seven or eight for count 4, and eight for count 5, but that the offender was either 16, 17, 18 or 19 years of age during the course of those offences, that each offence was of relatively short duration, and apparently of a spontaneous nature, the offending, in my view, is below the mid level. … I can indicate that his youth is a large factor in my assessment of the criminality and of what the total effective sentence should be to reflect that criminality." (emphasis added)
Fifth, his Honour addressed AA's personal circumstances. His Honour noted, and appeared to have accepted, AA's statement that he had been sexually abused by his father. His father was due to be sentenced on "unrelated child sexual assault offences". His Honour also noted that AA had no criminal history. By the time of sentencing, AA was 23 and his offending occurred from when he was aged 15 to aged 19. His Honour noted that a psychologist's report was tendered at the sentencing hearing which referred to the impact on AA of his father's conduct. It also stated that AA was socially dysfunctional and that as a teenager he suffered from Attention Deficit Hyperactivity Disorder ("ADHD") as well as "anger issues and impulsivity".
Sixth, his Honour accepted that AA was remorseful. His Honour considered this was demonstrated by AA's cessation of offending three years before his actions were discovered and by his attendance at the police station on the evening of 23 October 2015. His Honour noted that he had expressed remorse to the psychologist whose report was tendered at the sentencing hearing. The report referred to AA "express[ing] regret for his offending behaviour and describ[ing] feeling guilty and ashamed of his crimes".
Seventh, his Honour felt unable to make a positive finding concerning AA's prospects of rehabilitation. His Honour noted that AA "has been assessed as having a medium risk of reoffending without treatment" but that he was "amenable to treatment while in custody". His Honour noted that AA's youth when he ceased offending was a "positive factor" but added that the Court "would have to be prescient in order to finally determine what his prospects of rehabilitation are".
Eighth, his Honour made a finding of "special circumstances" for the purposes of s 44(2) of the Sentencing Act. His Honour identified five matters as supporting that finding, namely: AA's youth; his "mental health issues" as referred to in the psychologist's report; the necessity to assist in his "reintegration back into the community" given that AA was serving his first period in custody, the lengthy sentence of imprisonment and the effect of partial accumulation of the sentences.
Ninth his Honour stated that he had taken into account the victim impact statements from BB and CC. In their statements they described their distress as a result of the offences. BB described the difficulties she had at school and how since the offending she had become "closed off" from her family and friends, including her cousins. She also described the breakdown in family relationships that followed from the discovery of the offences, which has been upsetting for her.

Grounds 1 and 2: Ellis Discount and Failure to Apply s 23(4)(b) of the Crimes (Sentencing Procedure) Act

Ground 1 of the appeal contends that the sentencing judge erred in "applying an Ellis discount". Ground 2 contends that the sentencing judge erred "by failing to state the penalty that would otherwise have been imposed pursuant to s 23(4)(b) of the Sentencing Act. These grounds can be dealt with together.
As noted in the sentencing judgment, his Honour stated that AA would receive an unspecified "further Ellis type discount". The reference to "Ellis" is to R v Ellis (1986) 6 NSWLR 603 ("Ellis") which includes the following statement by Street CJ at 604: "This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given. When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." (emphasis added)
This passage adverts to the leniency that is proffered to an offender on the account of a plea of guilty and the possibility that a "further element of leniency" may be afforded in circumstances where the plea of guilty "is the result of a voluntary disclosure of guilt" such as in the circumstance "[w]here it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence". This additional measure of leniency is often referred to as an "Ellis discount".
The above statement from Ellis is accommodated by two provisions of the Sentencing Act. First, s 21A(3)(i) provides that remorse shown by an offender is a mitigating factor and can be considered by a sentencing judge as part of the "instinctive synthesis". If an offender discloses unknown offences to the police, that can be powerful evidence of their offender's remorse. No separate discount should be given on account of remorse (R v Robert Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [32] per Howie J; "Borkowski").
Second, s 23 of the Sentencing Act provides: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
Sub-sections 23(4) to (6) were inserted with effect from 14 March 2011 by the Crimes (Sentencing Procedure) Amendment Act 2010.
In CMB at [72], Kiefel, Bell and Keane JJ held that disclosure by an offender to law enforcement authorities of otherwise unknown guilt involves the provision of assistance to law enforcement authorities within the meaning of s 23(1) and is thereby "subject to the stricture of s 23(3)". French CJ and Gageler J adopted the same construction (at [41]). In such cases, sentencing judges are also required to comply with s 23(4) and specify the level of the discount proffered (see Panetta v R [2016] NSWCCA 85 at [34] per Adams J with whom Ward JA at [1] and Bellew J at [60] agreed in this respect). The combination of CMB and the introduction of s 23(4) to (6) rendered a change in the position previously adopted in this Court which was to the effect that the level of discount afforded on the basis of the disclosure of previously unknown offending did not need to be stated (see Borkowski at [32]).
Beyond this, there is conflicting authority as to whether a sentencing judge's failure to comply with s 23(4) necessarily results in an error of the kind referred to in House (see s 23(6) and s 101A; and compare Panetta at [34] to [37] with R v Robinson [2014] NSWCCA 12 at [42] per Basten JA ("Robinson)" and Avery v R [2015] NSWCCA 50 at [68]). Section 23(6) provides that the failure to comply with s 23(4) does not "invalidate the sentence". However, s 101A provides that a "failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence". These provisions operate as a form of privative clause. Their combined effect is to negate any contention that a sentence imposed by a sentencing court that is not a superior court of record is affected by jurisdictional error by reason of a failure to comply with s 23(4). Instead, complaints about such failures fall to be considered as part of the appellate process.
The end result is that, if sentencing judges are considering imposing a lesser sentence on account of the conduct of an offender in disclosing previously unknown offences, then they must consider the factors in s 23(2) in determining whether to proffer the discount (Williamson v R [2015] NSWCCA 250 at [68]) and, if so, its level. They also must ensure that the penalty imposed is not disproportionate (s 23(3)) and they must specify the level of discount in accordance with s 23(4). Irrespective of whether s 23 is engaged, sentencing judges may also consider whether the offender's actions demonstrate remorse.
In relation to Ground 1, the Crown contended that the sentencing judge "erred by failing to properly consider the factors in s 23(2)" of the Sentencing Act. The Crown submits that, had his Honour done so, then there would not have been applied an "unspecified further Ellis discount". Ground 2 contends that the sentencing judge erred in failing to specify the level of discount. The submissions on behalf of AA contend that his Honour did not afford any "specific type of discount" but instead treated his attendance at the police station as "confirmation of the respondent's remorse". Otherwise, it was submitted on behalf of AA that the Court should not intervene merely because of a failure to comply with s 23(4) (citing Robinson at [42]).
In this case there are reasons to doubt whether the form of "assistance" that AA provided on the evening of 23 October 2015 would fall within the passage from Ellis set out above. By the time AA attended the police station, the process for reporting BB and CC's complaints to the police was already in train. Nevertheless, his actions in attending the police station in advance of the police being notified of the complaints, and in admitting some of the abuse, does fall within s 23(1).
Accordingly, the real debate between the parties was whether the sentencing judge afforded a "discount", albeit "unspecified", on account of AA's "assistance" or only considered his assistance as demonstrating his remorse. I consider that the sentencing judge adopted the former approach. The sentencing judge stated that he would give a "further discount" being a reference to a discount beyond that which was allowed for the utilitarian value of AA's plea. When the Crown corrected his Honour's initial finding that AA made full admissions on 23 October 2015, his Honour had the opportunity to clarify the statement that a further discount was being given but his Honour did not. In a separate part of the judgment his Honour expressly referred to AA's actions in approaching the police as "confirmation of remorse" (see [33]).
It follows from this conclusion that Ground 1 of the Crown's appeal must be upheld. His Honour allowed a discount on account of AA's assistance but in doing so failed to address the factors in s 23(2). In view of that conclusion it is not necessary to address the issue raised by Ground 2 as to whether error was established by the further failure of the sentencing judge to specify the level of discount in accordance with s 23(4).
Further, it is appropriate to determine afresh whether, having regard to the factors in s 23(2), any discount was warranted, as that may be relevant to an assessment of whether the sentence imposed was manifestly inadequate. In considering those factors it is to be recalled that when AA attended the police station the child protection authorities were already investigating BB's and CC's complaints. Further, AA did not initially confess to all his sexual acts with BB and CC. Instead, he only admitted to those acts that his family accused him of engaging in. In those circumstances, it was not established that what he provided on the evening of 23 October 2015 was ultimately of significance or especially timely in that the police would have been notified and would have ultimately interviewed BB and CC in any event (s 23(2)(b); s 23(2)(d)). The information he provided was not complete (s 23(2)(c)). AA did not obtain any other benefit from the assistance he provided (s 23(2)(f)). AA's provision of assistance did not result in him suffering harsher custodial conditions (s 23(2)(g)) or injury to himself or his family (s 23(2)(h)). The assistance AA provided concerns the offence for which he is being sentenced (s 23(2)(i)). Bearing in mind that AA only attended the police station after he was notified of the complaints, when they were about to be reported anyway, and that his admissions were incomplete, I do not consider that the imposition of a lesser penalty on account of his assistance is warranted.
Accordingly, I would uphold Ground 1 of the appeal. Ground 2 of the appeal does not arise.

Ground 3: The objective seriousness of Counts 3, 4 and 5

Ground 3 of the appeal contends that the "sentencing judge erred in his Honour's assessment of the objective seriousness of Counts 3, 4 and 5".
In the passage extracted in [31] above the sentencing judge assessed the objective seriousness of the third, fourth and fifth offences as "below the mid level". The Crown accepted that this assessment is an evaluative one and is only reviewable for House error (Mulato v R [2006] NSWCCA 282) at [46]). Nevertheless, the Crown contended that his Honour took into account irrelevant considerations in assessing the objective seriousness of these offences, namely, AA's age and the duration of the offending.
In relation to the age of AA, the Crown referred to the statement in Muldrock v R [2011] HCA 39; 244 CLR 120 at [27] ("Muldrock") to the effect that, at least when considering offences to which a standard non‑parole period applies, the "objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders". Instead, the objective seriousness is "to be determined wholly by reference to the nature of the offending" ([id]). Muldrock also distinguished between an assessment of the "objective seriousness" of an offence and an assessment of the offender's "moral culpability" for the offence (see Muldrock at [54]). An assessment of the latter can, and should, take into account matters personal to an offender such as his or her impaired intellectual functioning (see McLaren v R [2012] NSWCCA 284 at [29] per McCallum J, McClellan CJ at CL and Bellew J agreeing ("McLaren"); Elturk v R [2014] NSWCCA 61 at [33] to [34] per Beazley P). An assessment of moral culpability can also extend to an offender's relative youth (see KT v R [2008] NSWCCA 51 at [22] to [25] per McClellan CJ at CL) although there are limits to its mitigating effect (JH v R [2017] NSWCCA 22 at [128]).
In the passage set out at [31] above the sentencing judge expressly referred to AA's youth as bearing on an assessment of his "criminality". Considered in context, the reference to his "criminality" was a reference to his moral culpability. It follows that that aspect of his Honour's reasons was not affected by error. However, in the earlier part of that extract his Honour expressly referred to AA's age in the context of a determination of the objective seriousness of the offending (the "offender was either 16, 17, 18 or 19"). Nevertheless, in the context of a sexual offence some aspects of an offender's personal circumstances may bear upon the "nature of the offending" (Muldrock at [27]). For example, the age difference between a sexual offender and their perpetrator can affect an assessment of the objective seriousness of the offending. Additionally, the age of the perpetrator can be relevant to an explanation of the context in which the offending occurred. In the present case, AA was in his late teens when he committed the offences. He had not assumed responsibility for the care of BB and CC. It is likely, or at least possible, that BB and CC could distinguish between him and an adult. This does not deny or even mitigate the seriousness of his conduct and its terrible effect on the victims. However, at least in the present case, I do not accept that the sentencing judge erred in referring to the age of AA and his victims in assessing the objective seriousness of his conduct.
Otherwise, I do not accept that his Honour erred in referring to the "relatively short duration" of the offending in assessing the objective seriousness of the third, fourth and fifth offences. The Crown contended that the agreed facts did not "suggest any particular time period relating to these counts" so as to enable his Honour to draw a conclusion about these offences. However, the description of the events and the context in which they occurred, namely while the children were in the care of AA's mother, enabled his Honour to make the finding that was made. While the short duration of a sexual assault "would not ordinarily be considered as a factor which reduces the objective seriousness" of such an offence (R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]), it was open to His Honour to have some regard to it (see Russell v R [2010] NSWCCA 248 at [61]).
This ground of appeal was ultimately directed to his Honour's finding as to the objective seriousness of the third, fourth and fifth offences. At first instance, the Crown submitted that the third offences fell "within the mid-range for offences of this nature" and the fourth offence fell "in the middle of the range for such offences". His Honour found that they both were "below the mid-level". The distinction between the Crown's submission and his Honour's finding for both offences is barely material. In any event, I do not accept that his Honour erred in this respect.
The position is not the same with the fifth offence. This offence involved the penile penetration of an 8 year old girl in circumstances that caused her pain and in which she protested. I do not accept that it was open to his Honour to characterise the offence as "below the mid level". To the contrary, I consider that it was above the middle of the range of objective seriousness. Further, given that AA was nineteen when the offence was committed his moral culpability was heightened compared to the other offences.
I uphold Ground 3 in relation to the fifth offence but reject it in relation to the third and fourth offences.

Ground 4: Punishment under the Children (Criminal Proceedings) Act 1987

Ground 4 of the appeal contends that the sentencing judge erred "by taking into account irrelevant considerations concerning the possible outcome had the respondent's offending been detected earlier and by mistaking the effect of the [Children (Criminal Proceedings) Act]".
This ground of the appeal refers to that part of the sentencing judgment noted at [27]. The Crown contends that his Honour erred in having regard to the sentencing options that were open under the Children (Criminal Proceedings) Act had AA been prosecuted as a juvenile shortly after he committed the first three offences. It also contends that his Honour erred in concluding that AA could have received a "control order" under s 33(1) of the Children (Criminal Proceedings) Act for the third offence. The Crown contends that, as the third offence was a "[serious] children's indictable offence it had to be dealt with according to law" (Children (Criminal Proceedings) Act; s 17). The result is that, if AA had been prosecuted as a juvenile, he would have been dealt with in accordance with the Sentencing Act which would have precluded the imposition of a control order (see R v KBM [2004] NSWCCA 123 at [20]).
Counsel for AA, Mr Fernandez, submitted that, in addressing this issue, the sentencing judge was merely referring to submissions made before him on this topic. He submitted that his Honour was only "describing the complicated sentencing task before him, and the way the different sentencing regimes for children and adults operated". He submitted that the sentencing judge was referring "by analogy, to another circumstance where sentencing is complicated in this way, [namely] sentencing for historical sexual abuse".
A review of the transcript of the sentence hearing reveals that it was the sentencing judge who first introduced the topic of the sentencing regime that would have been applicable for the first three offences had AA been prosecuted immediately after he committed them. Consistent with the statement set out at [31] above, his Honour asked whether he should "take into account that had [AA] been charged [for the first and second offence] while he was still under 18 ... [the matter] … would have stayed in the Children's Court ...". Counsel for AA embraced the proposition. The Crown's representative did not expressly reject it.
I do not accept that the sentencing judge merely referred to the provisions of the Children (Criminal Proceedings) Act as part of a recitation of the submissions made during the sentencing hearing. Instead, his Honour had regard to that legislation as a matter in mitigation of sentence. His Honour stated he would consider the regime for sentencing children "in the same way as I would take into account a different sentencing regime in other cases of, for instance, historical sexual abuse". This is clearly a reference to the arguably analogous proposition that in sentencing for offences involving historical sexual abuse it is proper for a sentencing court to take into account the sentencing practice prevailing as at the date of commission of the offence charged when sentencing practice has moved adversely to an offence since that time (R v MJR [2002] NSWCCA 129; 54 NSWLR 368 at [31] per Spigelman CJ, at [71] per Grove J and at [105] per Sully J).
Neither of the parties referred to any previous decisions of this Court that have addressed whether a sentencing court, in dealing with an adult offender for an offence committed while they were a juvenile, can have regard to the sentencing regime available for juveniles had they been prosecuted earlier. However, this issue has been addressed by this Court. In TC v R [2016] NSWCCA 3, this Court found error in circumstances where a fifty‑five‑year‑old offender was sentenced for an offence he committed when he was seventeen years old. The judge at first instance was found to have erred in failing to specifically address the statutory regime for the sentencing of children prevailing at the time the offence was committed (at [42] to [48] per Gleeson JA with whom Rothman and Bellew JJ agreed, at [88] to [89]). Similarly, in SHR v R [2014] NSWCCA 94, Fullerton J accepted that an offender who was thirty nine years old but had committed serious sexual assaults when he was 16 years of age had the capacity to "ask what might have happened had he been arrested and dealt with expeditiously after the offending" (at [50]; Basten JA and Davies J agreeing). However, it was of no assistance to the offender in that case as his offences were "serious children's indictable offences" that had to be dealt with according to law and not in accordance with the Children (Criminal Proceedings) Act (at [50] per Fullerton J).
It follows that so much of Ground 4 as makes complaint in relation to the sentencing judge's approach to the relevance of the Children (Criminal Proceedings) Act to the sentencing of AA for the first two offences, must be rejected. His Honour was entitled to adopt the approach that he did in relation to those two offences.
However, his Honour erred in his approach to the third offence in this respect. Given that it was, and is, a "serious children's indictable offence" it had to be dealt with according to law and that could not have included the imposition of a control order.
I would reject so much of Ground 5 as concerns the first two offences. I would uphold Ground 5 in relation to the third offence.

Ground 5: AA's youth

Ground 5 of the appeal contends that the "sentencing judge erred by taking into account [AA's] youth when finding special circumstances".
The matters relied on by the sentencing judge in finding special circumstances are set out at [35]. The Crown's written submissions noted that the sentencing judge took into account AA's youth when having regard to the Children (Criminal Proceedings) Act, in observing that considerations of general deterrence do not have the same force for a young offender as they do for an older adult, in finding that AA's conduct ceased when he was 19 and in determining both the objective seriousness of the offences and his "criminality". I have already addressed complaints about the first and last of these matters.
The Crown contended that, having considered AA's youth in those various respects, his Honour erred by further taking into account his youth in finding special circumstances. The Crown submitted that was an impermissible form of double counting in that matters taken into account in reducing the head sentence should not be used to reduce the non‑parole period. The Crown referred to R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [47] ("Simpson") and R v Fidow [2004] NSWCCA 172 at [18] per Spigelman CJ ("Fidow").
The relevant passage from Fidow is as follows (at [18]): "'Double counting' for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur".
The reference to "Simpson at [47]" in this passage appears to be a mistake in that [47] of Simpson does not address this topic. It may have been intended to be a reference to Simpson at [67] in which Spigelman CJ stated: "Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence."
This passage informs what is meant by the reference to double counting for "matters already taken into account in reducing the head sentence" in the above extract from Fidow. A sentencing judge may be found not to have engaged in "double counting" if the analysis of the relevance of a particular circumstance to the non‑parole period "travels beyond" the analysis of its relevance to the head sentence. Thus, for example, matters which are purely subjective to the offender, such as their ill health or the effect of their plea of guilty, do not warrant a reduction in the head sentence and a further reduction in the non‑parole period (see Bell v R; Jelisavac v R [2009] NSWCCA 206 - medical condition; and Trindall v R [2013] NSWCCA 229 at [17] - plea of guilty). For such factors the analysis of their relevance to the head sentence and the non‑parole period is usually the same.
However, in this case I do not accept that there was any relevant form of double counting. The analysis of the relevance of AA's youth to the head sentence was different to the analysis of its relevance to the non‑parole period. With the former, AA's youth was considered by the sentencing judge as part of the determination of his moral culpability and the objective seriousness of the offence. It was also considered when the sentencing judge had regard to the relevant sentencing regime for juveniles in determining the appropriate sentence for the first two offences (and erroneously in sentencing for the third offence). Thus, in the determination of the head sentence AA's youth was not considered by the sentencing judge to be some generally mitigating circumstance. It was considered in that way as part of the determination of special circumstances, but only because, when considered with other factors, it bore upon the assessment that a longer period of supervision was required as part of AA's rehabilitation. His Honour did not err in this respect.
Before the sentencing judge, the Crown accepted that the combination of AA's need for treatment, his age and the fact that it would be his first time in custody "could allow the Court to make a finding of special circumstances in this case". This is arguably inconsistent with this ground of appeal although, as I have explained, the substance of the complaint was the reliance by the sentencing judge on AA's youth in determining the head sentence and finding special circumstances. In any event, for the reasons set out above, I would reject Ground 5.

Ground 6: Accumulation

Ground 6 of the appeal contends that the "sentencing judge failed to sufficiently accumulate the sentences". The Crown's submissions accepted that the sentencing judge had regard to Pearce v The Queen [1998] HCA 57; 194 CLR 610 but submitted that the accumulation between the sentences did not "adequately reflect the totality of the criminality".
The sentence for the second offence was partially accumulated on the first offence by three months and the sentence for the third offence was partially accumulated on the second offence by three months. The sentence for the fourth offence was partially accumulated on the sentence for the third offence by two months and the sentence for the fifth offence was accumulated on the fourth sentence by a further nine months.
A determination by a sentencing judge that sentences should or should not be accumulated is discretionary (R v Wilson [2005] NSWCCA 219 at [37]). The Crown's complaint that, even though his Honour accumulated sentences and referred to the appropriate principles, the sentences are not "sufficiently" accumulated, does not raise a complaint of an error of the kind referred to in House. However, I will treat the Crown's complaint as if it asserted that the sentencing judge's determination was "unreasonable or plainly unjust" such that this Court could "infer that in some way there has been a failure properly to exercise the discretion" to accumulate sentences or make them run concurrently (House at p 505). Even treating the complaint in that way, I do not consider that it is established. While the accumulation of a period of two months for the fourth offence was lenient I am not persuaded that it or the other periods of accumulation reveal that the sentencing judge's discretion was exercised "unreasonably".
I would reject Ground 6.

Ground 7: Individual sentences are each manifestly inadequate

Ground 7 of the appeal contends that the "terms and non-parole periods of the individual sentences are each manifestly inadequate and 'plainly unjust'".
The Crown's submissions referred to the seriousness with which sentencing Courts regard offences committed against children (R v CJP [2004] NSWCCA 188 at [21]) and the necessity to ensure that "sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished" (R v Fisher (1989) 40 A Crim R 442 at 445). They also noted that the agreed facts concerning the first four offences record that each act was not the only occasion that the respective offence occurred. Such a statement has been held as "appropriate to be taken into account for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence" but is not "to be taken into account as a circumstance of aggravation" (R v JCW [2000] NSWCCA 209; 112 A Crim R 466 at [68] per Spigelman CJ). Further, as each of the third and fourth offences was accompanied by offences on a Form 1, the sentencing for those offences was required to be undertaken in a manner consistent with what Bathurst CJ stated in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [22] to [23].
The Crown's submissions did not specifically address the sentence imposed for the first two offences. At the time they were committed, AA was fifteen or sixteen years old. There was no standard non‑parole period for those offences. When they were committed AA had no prior convictions and a strong subjective case, especially given his father's conduct towards him. AA admitted these offences on the evening of 23 October 2015. He later pleaded guilty. In those circumstances a combined sentence of 17 months imprisonment with a total non‑parole period of 11 months for the first two offences was certainly not manifestly inadequate.
The position is less clear with the third, fourth and fifth offences. As part of the assessment of the adequacy of the sentences for the fourth and fifth offences, the Crown provided a table identifying some sentences imposed or considered by this Court for offences against former s 66A(1) or (2) committed by offenders aged between eighteen and twenty-five years. I will not describe all of those decisions. Instead, a consideration of some of them will suffice.
In R v Ronald King [2009] NSWCCA 117 ("King") this Court allowed a Crown appeal against a 2 year suspended sentence imposed on a 23 year old male who broke into a home and digitally penetrated a four-year-old girl and also indecently assaulted her. This Court concluded that the offending was "only slightly below [the] mid range in seriousness" (at [48]). The offender had a long criminal record but it did not include any sexual offences (at [17]). This Court imposed a non‑parole period of 4 years and 6 months with a balance of term of 2 years and 6 months. The Court described this as a "sentence of significantly less severity than should have been imposed" by the sentencing judge (at [71]). King was decided prior to the enactment of s 68A of the Crimes (Appeal and Review) Act 2001. Accordingly, the sentence imposed by this Court in King reflected the principle that following a successful Crown appeal this Court will impose a sentence that is either at the bottom of the applicable range (see R v Jurisic (1998) 45 NSWLR 209 at 232 per Spigelman CJ) or towards the bottom of that range (Dinsdale v The Queen [2000] HCA 54; 202 CR 321 at [62]). After the enactment of s 68A the position is that, if this Court intervenes, it will impose the penalty that is appropriate (R v JW [2010] NSWCCA 49; 77 NSWLR 7).
In AAT v R [2011] NSWCCA 17 ("AAT"), this Court allowed an appeal against a sentence imposed for three offences against former s 66A and two child pornography offences. One of the offences against former s 66A had a charge of aggravated indecent assault included on a Form 1 (at [3]). The offender was twenty-two years of age and the victim was his eight‑year‑old half-brother (at [6]). The three offences under former s 66A involved the offender and the victim performing oral sex on each other (at [14]). One of the child pornography offences concerned photos of the victim that had been taken by the offender (at [13]). The offender had no prior convictions and a history of depression (at [17]). He had pleaded guilty and proffered assistance that involved nominating others who had committed child sex tourism and child pornography offences (at [29]). This Court concluded that the assistance and his plea were not such as would "warrant a discount in excess of 50%". In resentencing the offender, this Court imposed non‑parole periods of 4 years 3 months, 3 years 3 months and 3 years 3 months for the three offences under s 66A respectively. The overall sentence imposed was a non‑parole period of 5 years and 6 months and a balance of term of 2 years.
In Jones v R [2012] NSWCCA 262 ("Jones"), the offender was convicted following a trial of two offences under former s 66A(1) and indecently assaulting the victim. The offender was twenty years of age and attended at a home of a friend where the six year old victim was staying with his family. The offender stated that he was taking the victim to a shop but instead drove him to a secluded spot. The first offence under former s 66A was constituted by the offender sucking the victim's penis. The second offence was committed when the offender anally penetrated the victim (at [7]). The indecent assault was committed the next day when the offender played with the complaint's penis. An appeal to this Court against conviction was dismissed but an appeal against sentence was allowed. The offender was resentenced to a non‑parole period of 3 years imprisonment in respect of the first offence under former s 66A(1) and 8 years imprisonment in respect of the second offence.
AA's offending was similar to, but less than, the criminality of the offenders in AAT and Jones. AAT's use of the victim for child pornography arguably makes his total criminality the worst of these examples. Like AAT and King but unlike Jones, AA pleaded guilty to the charges against him. Unlike King, AA is not eligible to receive a discount for assistance.
Overall, a consideration of these sentences and the other sentences referred to by the Crown confirms that the sentences imposed on AA for the third, fourth and fifth offences were undoubtedly very lenient, especially when the sentences are corrected for the errors that have been identified. However, I am not persuaded that, considered either individually or in their totality, the sentences for those offences or any of the offences were manifestly inadequate.
I would reject Ground 7.

Disposition

Even allowing for the errors made by the sentencing judge, I am not persuaded that the sentences imposed, considered individually or in their totality, were "manifestly inadequate in the circumstances of this case" (Janceski at [25]).
I propose that the appeal be dismissed.

Amendments 17 August 2017 - [6] - Typographical error corrected in relation to non-parole period for third offence. 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: 17 August 2017

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