R v BH

Court of Criminal Appeal (NSW)|2023-10-30|Before: Davies J, Cavanagh J, Sweeney J

Nil Date of Decision: 30 June 2023 Before: Flannery SC DCJ File Number(s): 2021/157911

Judgment

DAVIES J: The respondent was convicted by a jury of one count of indecent assault on a person under the age of 16 years, and 13 counts of sexual intercourse with a child under the age of ten years. The offence of indecent assault on a person under the age of 16 years is contrary to s 61M(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years' imprisonment and there is a standard non-parole period of 8 years.
The offence of sexual intercourse with a child under the age of ten years is contrary to s 66A(1) of the Crimes Act. The maximum penalty is life imprisonment and there is a standard non-parole period of 15 years.
On 30 June 2023 Judge Flannery SC in the District Court sentenced the respondent to an aggregate sentence of 14 years' imprisonment commencing 17 February 2023 and expiring 16 February 2037 with a non-parole period of 9 years expiring 16 February 2032. I will provide the details of the indicative sentences when summarising the facts of each offence.
The Director of Public Prosecutions (NSW) now appeals from the sentence imposed on the ground that the aggregate sentence was manifestly inadequate.

The offending

The respondent is the biological father of the complainant. The offences spanned the period from 27 August 2015 to 29 May 2017. The complainant was born early in May 2009 and was, therefore, aged between six and eight years when the offending took place. The respondent was aged 37 to 38 at the time.
The respondent and his wife, the complainant's mother, separated in August 2015. The respondent went to live with his mother. The complainant and her brother would spend time with the respondent at their grandmother's house.
Count 1 occurred when the complainant was six years and ten months old. The respondent pulled her into a room, telling her grandmother that they were going to do some homework. She did her homework. The respondent started to touch her thigh, then her inner thigh, and he went up to her crotch. This was the offence of indecent assault. The sentencing judge found that this matter was below the mid-range of objective seriousness. The indicative sentence was imprisonment for 2 years with a non-parole period of 1 year 3 months.
Following that, he put his finger into her genital area and said, "Be quiet don't say anything." That constituted count 2. The incident concluded when the complainant's grandmother knocked on the door. The sentencing judge found that this was below the mid-range of objective seriousness. The indicative sentence was imprisonment for 6 years 6 months with a non-parole period of 4 years 2 months.
Count 3 occurred when the complainant was still six years old. She and her brother were at the grandmother's house. She was on the top bunk and the respondent was on the bottom bunk. The respondent said, "Come down and sit next to me," and she did. He then removed her shorts and underwear and put two fingers into her genitals and said, "Keep this a secret and don't make noises." The sentencing judge found this was below the mid-range of objective seriousness. The indicative sentence was imprisonment for 6 years 6 months with a non-parole period of 4 years 2 months.
Count 4 occurred when the complainant was seven years and five months old. The respondent, his new partner Vanessa, and the two children went to Vanessa's barn house. On the last day they were there, when the complainant was playing with another child out the back, the respondent called her, and she went into a room. He said he wanted to help her with her homework, and he then locked the door. She said that she did not need help. He grabbed her by the wrist and shoved her into the bedroom. He removed her clothes and put his fingers into her genital area. The sentencing judge found that this offence was in the mid-range of objective seriousness. The indicative sentence was imprisonment for 6 years 6 months with a non-parole period of 4 years 2 months.
The respondent then started to undress himself and he put his penis into her mouth. The complainant felt something warm down her throat. The respondent left the room, and the complainant had a shower. That constituted count 5. The sentencing judge found that this offence was above the mid-range of objective seriousness. The indicative sentence was imprisonment for 7 years 6 months with a non-parole period of 4 years 9 months.
When the complainant was aged between seven years five months and seven years 11 months, the respondent, at his mother's house, grabbed the back of the complainant's head and forced his penis into her mouth. That constituted count 6. The sentencing judge found that this offence was in the mid-range of objective seriousness. The indicative sentence was imprisonment for 7 years with a non-parole of 4 years 6 months.
Count 7 involved an incident at the grandmother's house before the complainant turned eight. The complainant was playing with her brother out the back of the house. The respondent came out and asked if she needed help with her homework. She said, "No." He said, "I want to read to you," and then grabbed her wrist. He pulled her up the stairs, undressed her, and sat her on the bed. He told her to lie down, which she did. He then put his tongue and mouth on the inside and outside of her genitals. The sentencing judge found this offence to be in the mid-range of objective seriousness. The indicative sentence was imprisonment for 7 years with a non-parole of 4 years 6 months.
Following that, he inserted his finger into her genital area. That latter act constituted count 8. The sentencing judge found that this offence was in the mid-range of objective seriousness. The indicative sentence was imprisonment for 7 years with a non-parole of 4 years 6 months.
When the complainant was nearly eight and at her grandmother's house, her brother fell over. The respondent assisted him, as did his grandmother. The respondent then took the complainant to the bedroom, took off his clothes, locked the door, and said, "Can you strip?" He pinned her down and forcefully took off her clothes and engaged in penile-vaginal intercourse with her. That constituted count 9. The sentencing judge found that this offence was above the mid-range of objective seriousness. The indicative sentence was 8 years with a non-parole period of 4 years 11 months.
The respondent then turned the complainant around. He put his penis into her mouth and ejaculated into her mouth. That constituted count 10. The sentencing judge found that this offence was in the mid-range of objective seriousness. The indicative sentence was 7 years 6 months with a non-parole period of 4 years 9 months.
Count 11 occurred on an occasion when the complainant was aged nearly eight. She was with the respondent in the car, going to get McDonalds for the whole family. The respondent parked on the side of the road, undressed her, and inserted his fingers in her genitalia. The sentencing judge found that this offence was below the mid-range of objective seriousness. The indicative sentence was 6 years 6 months with a non-parole period of 4 years 2 months.
The respondent then put his tongue and mouth in her genitals. That constituted count 12. The sentencing judge found that this offence was in the mid-range of objective seriousness. The indicative sentence was 7 years with a non-parole period of 4 years 6 months.
Count 13 occurred between 2 May and 29 May 2017, when the complainant was about to turn eight or had just turned eight. The family were celebrating her birthday and her brother's birthday at the grandmother's house. Just after 8pm and before dessert, the respondent pulled the complainant into his bedroom, locked the doors, undressed, and told her to undress. She did so. She was on her hands and knees and the respondent was behind her. He then engaged in penile-vaginal intercourse with her. The sentencing judge found that this offence was above the mid-range of objective seriousness. The indicative sentence was 8 years with a non-parole period of 4 years 11 months.
The respondent then grabbed the back of the complainant's head and forced her head onto his penis. That constituted count 14. The sentencing judge found that this offence was in the mid-range of objective seriousness. The indicative sentence was 7 years with a non-parole period of 4 years 6 months.
The following is a table, prepared by the Crown, containing a summary of the offending: Count Offence Time Particulars Objective seriousness Maximum penalty Indicative sentence Incident 1 (victim aged 6) 1 Aggravated indecent assault (victim under 16 years) 27/8/15 - 6/5/16 Touching thigh and crotch while victim did homework (victim's home) Below mid-range 10 years 2 years s 61M(2) Crimes Act 1900 Victim aged 6 years, 10 months SNPP: 8 years NPP: 1 year 3 months 2 Sexual intercourse, child under 10 27/8/15 - 6/5/16 Digital penetration while victim did homework (victim's home) Below mid-range Life imprisonment 6 years 6 months S 66A Crimes Act 1900 Victim aged 6 years, 10 months SNPP: 15 years NPP: 4 years 2 months Incident 2 (victim aged under 7) 3 Sexual intercourse, child under 10 27/8/15 - 6/5/16 Digital penetration while in victim's bedroom (victim's home) Below mid-range Life imprisonment 6 years 6 months s 66A Crimes Act 1900 Victim aged under 7 years SNPP: 15 years NPP: 4 years 2 months Incident 3 (victim aged 7) 4 Sexual intercourse, child under 10 5/5/16 - 6/5/17 Digital penetration while in bedroom of barn house Mid-range Life imprisonment 6 years 6 months s 66A Crimes Act 1900 Victim aged 7 years, 5 months SNPP: 15 years NPP: 4 years 2 months 5 Sexual intercourse, child under 10 5/5/16 - 6/5/17 Forced fellatio with ejaculation in victim's mouth while in barn house Above mid-range Life imprisonment 7 years 6 months s 66A Crimes Act 1900 Victim aged 7 years, 5 months SNPP: 15 years NPP: 4 years 9 months Incident 4 (victim aged 7) 6 Sexual intercourse, child under 10 5/5/16 - 6/5/17 Forced fellatio (victim's home) Mid-range Life imprisonment 7 years s 66A Crimes Act 1900 Victim aged between 7 years, 5 months and 7 years, 11 months SNPP: 15 years NPP: 4 years 6 months Incident 5 (victim aged under 8) 7 Sexual intercourse, child under 10 5/5/16 - 6/5/17 Cunnilingus in victim's bedroom (victim's home) Mid-range Life imprisonment 7 years s 66A Crimes Act 1900 Victim aged under 8 years SNPP: 15 years NPP: 4 years 6 months 8 Sexual intercourse, child under 10 5/5/16 - 6/5/17 Digital penetration while in victim's bedroom (victim's home) Mid-range Life imprisonment 7 years s 66A Crimes Act 1900 Victim aged under 8 years SNPP: 15 years NPP: 4 years 6 months Incident 6 (victim aged under 8) 9 Sexual intercourse, child under 10 5/5/16 - 6/5/17 Penile-vaginal penetration with pain and bleeding in victim's bedroom (victim's home) Above mid-range Life imprisonment 8 years s 66A Crimes Act 1900 Victim aged under 8 years SNPP: 15 years NPP: 4 years 11 months 10 Sexual intercourse, child under 10 5/5/16 - 6/5/17 Forced fellatio with ejaculation in victim's bedroom (victim's home) Mid-range Life imprisonment 7 years 6 months s 66A Crimes Act 1900 Victim aged under 8 years SNPP: 15 years NPP: 4 years 9 months Incident 7 (victim aged under 8) 11 Sexual intercourse, child under 10 5/5/16 - 6/5/17 Digital penetration in family car by side of the road Below mid-range Life imprisonment 6 years 6 months s 66A Crimes Act 1900 Victim aged under 8 years SNPP: 15 years NPP: 4 years 2 months 12 Sexual intercourse, child under 10 5/5/16 - 6/5/17 Cunnilingus in family car by side of road Mid-range Life imprisonment 7 years s 66A Crimes Act 1900 Victim aged under 8 years SNPP: 15 years NPP: 4 years 6 months Incident 8 (victim aged at or just under 8) 13 Sexual intercourse, child under 10 2/5/17 - 29/5/17 Penile-vaginal penetration with pain and bleeding in respondent's bedroom (victim's home) Above mid-range Life imprisonment 8 years s 66A Crimes Act 1900 Victim aged at or just under 8 years SNPP: 15 years NPP: 4 years 11 months 14 Sexual intercourse, child under 10 2/5/17 - 29/5/17 Forced fellatio in respondent's bedroom (victim's home) Mid-range Life imprisonment 7 years s 66A Crimes Act 1900 Victim aged at or just under 8 years SNPP: 15 years NPP: 4 years 6 months

Subjective matters

The respondent's evidence in relation to his subjective matters consisted of a report from the psychologist, Jason Borkowski and 13 character references. The respondent did not give evidence at the sentence proceedings. A summary of the respondent's background, derived from Mr Borkowski's report, follows.
The respondent was born in Brisbane but moved to Victoria in his early childhood. His parents separated when he was three years of age, and thereafter he lived initially with his mother and his maternal grandparents. In his mid-childhood his mother formed a new relationship and then he was raised by his mother and his stepfather with whom he had a good relationship. He was close to his mother. He only had intermittent contact with his biological father when he was growing up. He had a close relationship with one younger biological sister.
The respondent purchased a home with his then fiancé in about 2000 and they then lived together until they separated in August 2015. He and his wife had two children, a son and the daughter who is the complainant. He and his wife separated in August 2015 and the problems that followed from that, particularly in relation to parenting the children, led to a breakdown in his relationship with the children.
The respondent subsequently formed a relationship with his current partner, Vanessa, and they maintained a close relationship up to the time he saw Mr Borkowski. His new partner has two children of her own, aged 16 and 14 at the time of the assessment, and the respondent has a good relationship with them.
The respondent left school during Year 11 and commenced an apprenticeship as a fitter and machinist, but was unable to continue with that apprenticeship when his family moved back from Victoria to Queensland. After a short period he moved to Port Macquarie in NSW.
He ultimately secured employment at Kempsey Hospital as a hospital assistant and worked there for approximately 15 years. Subsequently he worked at Port Macquarie Base hospital until he moved to Queensland with his current partner in 2018. He then became the full-time carer for his partner and her son who has autism.
The respondent told Mr Borkowski that he was first diagnosed with depression in his early twenties by his general practitioner. He was also confronted with a significant traumatic event when he worked as a wardsman at Kempsey Hospital, when a hospital patient physically assaulted a nurse and murdered another patient. The respondent was one of the first responders to the incident. The symptoms described by the respondent led Mr Borkowski to diagnosing him with Post Traumatic Stress Disorder ("PTSD"). Mr Borkowski also diagnosed the respondent with Major Depressive Disorder with an additional co-occurring Adjustment Disorder.
The respondent told Mr Borkowski that he experienced suicidal ideation after being charged with the offending, and he planned to attempt to commit suicide twice in 2022. On both occasions his partner intervened and he was admitted to hospital. He had psychological treatment for some 18 months.
Mr Borkowski assessed the respondent on the Static-99R instrument, and the respondent's score of 0 equates to a below average risk. Mr Borkowski noted a large number of protective matters against the respondent's risk of further offending.
All of the referees, who are both friends and family of the respondent, speak very highly of him.
The respondent continues to deny the offending, saying that none of the offences occurred. He said that he held no malice towards anyone in regard to being charged, but expressed disappointment and disbelief at having been accused and found guilty of the offending.

Remarks on Sentence (ROS)

I have made reference already to the findings of objective seriousness of each of the offences. The sentencing judge found that the offending (except counts 11 and 12) was aggravated by being committed in a home where the complainant was entitled to feel safe. Her Honour noted that the complainant was aged between six and eight at the time of the offending and noted, as this Court has said, that the sexual abuse by a father of his own young daughter constitutes a breach of trust of the highest order: ZA v R [2017] NSWCCA 132.
The sentencing judge noted that the respondent had no criminal record and was entitled to some leniency, as it was not the absence of criminal history that gave him access to the complainant. However, because the offending constituted a course of repeated sexual offending against a young child, that leniency was not as great as it might otherwise would be.
The sentencing judge found that although the respondent continued to deny the offending, he had good prospects of rehabilitation and was unlikely to reoffend. The sentencing judge noted that there was no evidence that the respondent's mental health issues contributed to the offending in a material way.
The sentencing judge noted that by reason of the respondent's mental health issues, a custodial sentence would weigh more heavily on him than on others. For that reason, for the reason of his age, his lack of prior criminal history, his good prospects of rehabilitation and the unlikelihood of reoffending, her Honour found special circumstances.
The sentencing judge said that the community regards the sexual molestation of children with abhorrence, and for that reason general deterrence was of great significance in sentencing such offenders, particularly where the offender was in a position of trust to the victim, as was the case in the present matter.
After sentencing the respondent, the sentencing judge recommended that the respondent be observed and monitored in prison, and that a copy of Mr Borkowski's report be sent to Justice Health.

Submissions

The Crown submitted that the primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. The Crown accepted that it was required to demonstrate error of the type described in House v The King (1936) 55 CLR 499; [1936] HCA 40.
The Crown submitted that the present appeal was brought for the sole purpose of engaging the discretion of this Court to intervene and set aside the sentence imposed upon the respondent because it was "plainly unjust", being so far below the range of sentences that could justly be imposed, and was therefore likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders who commit and are involved in some of the most serious offences.
The Crown put forward two matters in support of the manifest inadequacy of the sentence. First, the Crown submitted that the indicative sentences, particularly those in respect of the offences "at the mid-range" and "above the mid-range", are inadequate, in that there was a disconnect between the objective seriousness, the statutory guideposts, and the sentences indicated. That disconnect was not explained by reference to any other factor, including the subjective case.
Secondly, the Crown submitted that the aggregate sentence imposed is inadequate in that it fails to reflect both the strong need for general deterrence and the totality of the criminality involved due to excessive concurrence of the indicative sentences.
In relation to the indicative sentences, the Crown submitted that the offences which were found to be at the mid-range (counts 4, 6, 7, 8, 10, 12 and 14) involved digital penetration, fellatio, and cunnilingus. Given that they were at the mid-range after a trial, the statutory guidepost of the standard non-parole period (15 years) took on greater significance in determining the indicative sentences. Yet, the indicative sentences for these counts ranged between 6 years 6 months and 7 years, except for count 10 which was 7 years 6 months.
The offences assessed as above the mid-range (counts 5, 9 and 13) involved either penile-vaginal intercourse or forced fellatio with ejaculation. Each involved the use of force. The indicative sentences for these counts were between 7 years 6 months and 8 years. The Crown submitted that the disconnect for these offences was not just between the statutory guideposts and the assessment of objective seriousness, but also with the indicative sentences for the offences "at the mid-range". The indicative sentences for these most serious counts were either the same as the indicative sentence for count 10, or exceeded the indicative sentences at the mid-range by just 6 to 12 months.
The Crown drew attention to three comparable cases where similar offending to the offending in the present matter occurred. The Crown submitted that the adjusted indicative sentences in those cases is a strong indication of the manifest inadequacy of the indicative sentences imposed in the present case. Those cases were Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 (a case which also undertook a survey of comparable cases), Facer (A Pseudonym) v The Queen [2019] NSWCCA 180; (2019) 279 A Crim R 156 and Bravo v R [2015] NSWCCA 302.
In relation to the matter of the aggregate sentence the Crown submitted that the respondent was to be sentenced for 13 offences which attracted a maximum penalty of life imprisonment, together with an offence with a maximum penalty of 10 years. Further, the standard non-parole period took on great significance as a guidepost in each of the matters where all but four of the offences were assessed as at or above the mid-range of objective seriousness.
The Crown submitted that the respondent's subjective case was not without merit but was somewhat unremarkable. The Crown pointed to the significance of general deterrence for offences such as the present offending.
The Crown submitted that the fact that 14 offences occurred across 8 separate incidents had particular salience on the question of totality and the ability of the aggregate sentence to reflect the extent of the offending.
The Crown pointed to the fact that the sum of the indicative sentences, being 94 years, was to be contrasted with the aggregate sentence of 14 years. Further, the aggregate sentence of 14 years exceeded the highest indicative sentence by only 6 years and the aggregate non-parole period of 9 years exceeded the highest indicative non-parole period of 4 years 11 months by only 4 years and 1 month. The Crown submitted that the aggregate sentence failed to reflect the totality of the offending.
The Crown submitted that the Court would not exercise the residual discretion to decline to interfere with the sentence because the inadequacy was so marked that it amounts to an affront to the administration of justice, which risks undermining public confidence in the criminal justice system. The Crown submitted that there was no unreasonable delay in the institution of the appeal or in notifying and serving the respondent. The Crown submitted that it did not contribute to the manifest inadequacy. In particular, the Crown sought to provide appropriate guidance to the sentencing judge including citing the recent decision of TH which was comparable. The current non-parole period does not expire until 16 February 2032, and there is no evidence that the respondent's prospects of rehabilitation will be negatively affected by re-sentencing by this Court.
The Crown further sought to engage the discretion of this Court to provide further governance and guidance to sentencing courts to ensure that sentences for multiple and sustained offending against child victims adequately reflect the criminality of the offender, the totality of the offending, and the need for general deterrence.
The respondent conceded that the aggregate sentence imposed was lenient, even "extraordinarily lenient", but submitted that the sentence was not manifestly inadequate. However, the respondent submitted that if the Court found that the aggregate sentence was manifestly inadequate, the Court would exercise its residual discretion and decline to alter the sentence.
The respondent submitted that the variance between the indicative sentences and the standard non-parole period does not in itself establish manifest inadequacy. The respondent submitted that one needs to bear in mind that the appeal is against the aggregate sentence and not the individual indicative sentences.
The respondent submitted that the standard non-parole period is a legislative guidepost and is one of a number of factors that must be considered including the assessment of the objective seriousness, the moral culpability of the offender and subjective factors.
The respondent disputed the Crown's assertion that the respondent's subjective case was somewhat unremarkable. The respondent pointed to his entitlement to some leniency on account of his having no criminal record, that he was in gainful employment until he moved to Queensland to be a full-time carer, that he was diagnosed with depression and PTSD, that he experienced suicidal ideation after being charged and attempted suicide twice, that he had good prospects of rehabilitation and was unlikely to re-offend, and that his mental health issues meant a custodial sentence would weigh more heavily upon him. The respondent submitted that the subjective case would place significant downward pressure on the sentence.
The respondent made reference to what was said in a plurality judgment in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [59], that appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate is not justified simply because the result arrived at in the court below is markedly different from other sentences that have been imposed in other cases. In that way, the Crown's reference to comparable cases does not necessarily indicate that the aggregate sentence falls outside of the range.
In relation to the residual discretion, the respondent submitted that the purpose of Crown appeals is a limiting purpose to establish sentencing principles and achieve consistency in sentencing, with reference being made to what was said in R v Reeves [2014] NSWCCA 154 at [14]-15]; Griffiths v The Queen (1977) 137 CLR 293 at [53] and R v Borkowski [2009] NSWCCA 102 at [70].
The respondent submitted that his diagnosis of depression and PTSD, his suicidal ideations resulting in two suicide attempts, and the sentencing judge's request at the conclusion of her ROS that the respondent be observed and monitored in custody because of his mental health, all justify the exercise of the residual discretion. The respondent submitted further that the sentencing judge had found special circumstances, in part because she found that he had good prospects of rehabilitation. The respondent submitted that increasing the non-parole period would adversely affect his prospects of rehabilitation.

Determination

In my opinion, the aggregate sentence imposed by the sentencing judge is manifestly inadequate because, not only are the indicative sentences themselves manifestly inadequate, but also the aggregate sentence does not properly reflect the totality of the criminality as a result of the excessive concurrence of the indicative sentences.

Indicative sentences

The sentencing judge determined that counts 4, 6, 7, 8, 10, 12 and 14 were at the mid-range of objective seriousness. These offences involved digital penetration (counts 4 and 8), fellatio (counts 6, 10 and 14, including to ejaculation in count 10), and cunnilingus (counts 7 and 12). The indicative sentences for these counts were either 6 years 6 months to 7 years 6 months.
Where an offence is found to be in the middle of the range of objective seriousness, the standard non-parole period may have greater significance: Filippou v R [2013] NSWCCA 92 at [116]; Sinkovich v R [2014] NSWCCA 97 at [34]. Further, the respondent was convicted after trial.
It may be accepted that the standard non-parole period is not the starting point in sentencing for mid-range offences after conviction: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31], and the requirement in s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not to be understood as suggesting, relevantly, the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period (Muldrock at [29]). However, the High Court made clear in Muldrock at [30] that a full statement of reasons for the specification of non-parole periods either higher or lower than the standard assists appellate review and in that way promotes consistency in sentencing for Div 1A offences (those with a standard non-parole period), and may also increase public awareness of the sentencing process.
There was little in the respondent's background to suggest anything which would reduce the moral culpability for his offending and, indeed, the sentencing judge accepted that there was no evidence that his mental health contributed to the offending in a material way. Compared with many offenders in child sex matters that come before the courts, there was nothing in the respondent's background which could provide any explanation for his offending such as, for example, childhood abuse or early exposure to drugs and/or alcohol, which might give rise to considerations identified in Bugmy v The Queen (2013) 249 CLR 571. The sentencing judge noted a number of favourable aspects in his subjective circumstances, which have been identified in the submissions made on his behalf (see at [55] above).
It cannot, however, be discerned from the sentencing judge's ROS the basis for the indicative sentences. Further, at the time the sentencing judge sentenced the respondent, this Court's decision in TH had given clear guidance of an appropriate range for indicative sentences for precisely the type of offending that occurred in the present case. The Crown drew attention to TH in its written submissions to the sentencing judge.
In TH, the offender pleaded guilty (relevantly): first, to one count of sexual intercourse with a child under the age of 10 years (contrary to s 66A of the Crimes Act) where the maximum penalty was life imprisonment and the standard non-parole period was 15 years, and the sentencing judge provided for an indicative sentence of 4 years 6 months having found the offence just under the mid-range of objective seriousness; secondly, to a count of aggravated sexual intercourse with a child above 10 years and under the age of 14 years (contrary to s 66C(2) of the Crimes Act) where the maximum penalty was 20 years' imprisonment with a standard non-parole period of 9 years, and the sentencing judge indicated a sentence of 4 years with the offence being assessed as just under the mid-range of objective seriousness; and, thirdly, to a further offence of aggravated sexual intercourse with a child above 10 years and under 14 years where a sentence of 6 years was indicated for an offence that fell within the mid-range of objective seriousness. The second and third offences each had on a Form 1 a further offence contrary to s 66C(2).
The offender had a strong subjective case. He was an Indigenous man who had been raised by his grandfather and mother although he believed for a period of time that his grandfather was his father. He had been sexually abused when he was aged 9 years. He suffered from a major depressive disorder and PTSD and there was a nexus between his childhood trauma, the development of mental health conditions associated with alcohol and drug addictions and his offending.
He was sentenced to an aggregate sentence of 7 years 6 months with a non-parole period of 4 years 6 months. This Court held that the sentence was manifestly inadequate, and imposed an aggregate sentence of 12 years with a non-parole period of 8 years. The undiscounted indicative sentences for the 3 counts mentioned were 9 years 3 months, 8 years 6 months, and 10 years 6 months.
In reaching the view that both the aggregate and the indicative sentences were manifestly inadequate, the Court referred to a number of cases being TO v R [2017] NSWCCA 12; (2017) 265 A Crim R 191, RH v R [2019] NSWCCA 64, Facer, Merkel v R [2019] NSWCCA 212 and R v DN [2023] NSWCCA 39. The indicative sentences imposed by the sentencing judge in TH were well out of line with the indicative sentences in those cases. The Chief Judge at Common Law, Beech-Jones J (as his Honour then was) said (Garling and Yehia JJ agreeing): [56] As noted, a complaint about the manifest inadequacy of an aggregate sentence can commence with a consideration of the indicative sentences. I regard it as clear beyond argument that the indicative sentences for each of counts 1−3 were far below any conception of the proper range of sentences for such offending. This conclusion is only reinforced by considering the individual or indicative sentences enunciated by this Court in the cases noted above (at [37]−[48]). Thus, in this case the undiscounted indicative sentence for the s 66A offence was 6 years, which can be compared to the undiscounted sentences of 12 years in TO, between 8 and 16 years in Facer and 14 years in Merkel. In this case, the undiscounted sentence for the two s 66C(2) offences were 5 years and 4 months (count 2) and 8 years (count 3), which can be compared to the undiscounted sentences of 9 years and 12 years in RH and 12 years and 16 years in Facer. [57] Even allowing for the differences noted above at [49], the inadequacy of the indicative sentences for the s 66C(2) offences in this case is reinforced by a comparison with the undiscounted sentences for the s 61J(1) offences imposed or indicated in RH and DN, being 15 years and 9 years in RH and 11 years and 10 years and 6 months in DN. The respondent's subjective case had some strength, especially having regard to the sentencing judge's finding about the effect of trauma (noted above at [32]). However, any residual doubt about the manifest inadequacy of the indicative sentences in that regard is removed by the fact that associated with counts 1−3 was a very serious Form 1 offence. It is difficult to see how, if at all, those offences are in any way reflected in the indicative sentences for those counts. [58] As stated, the ultimate issue is whether the aggregate sentence is manifestly inadequate. That said, in this case, it almost inevitably follows from the manifestly inadequate nature of the indicative sentences on counts 1−3 that the aggregate sentence is also manifestly inadequate. However, even if it was concluded that the indicative sentences were not manifestly inadequate, then the aggregate sentence still did not "reflect… the total criminality involved" (JM at [40]). Although commencement and end dates for indicative sentences are not specified, the "potentials for accumulation" can still be examined (R v Brown [2012] NSWCCA 199 at [35]). In this case, the indicative non-parole period for count 3 was only 11 months less than the total non-parole period. This is so even though a sentence for count 3 alone could never fully embrace the total criminality of the sexual assault committed in November 2019 and where any sentence for the offence under s 66A(2) committed three years earlier would inevitably be cumulated, to at least a material extent, upon any portion of the sentences that reflect the respondent's culpability for counts 2 and 3.
As noted earlier, Beech-Jones CJ at CL surveyed some of the recent cases dealing with similar offending to that in TH and, indeed, the present case. That survey was designed to examine the indicative sentences which this Court considered appropriate for offences against ss 66A and 66C of the Crimes Act. Some of the offending in those cases was concerned with offences against s 61J of the Crimes Act, being aggravated sexual intercourse without consent where one of the circumstances of aggravation was that the complainant was under the age of 16 years. The maximum penalty for that offence was 20 years' imprisonment and there was a 10 year standard non-parole period. It is not necessary to set out that portion of the judgment (pars [38]-[49]). It is sufficient to note that the complainants in all the cases were aged between nine and 14 years, that the offenders were parents, step-parents or grandparents of the complainants and that the offending involved the same types of sexual intercourse as occurred in the present case. In TO, RH and Bravo the sentences were imposed after conviction at trial. In Facer and DN there were pleas of guilty.
In all of those cases the undiscounted indicative sentences (or in the case of TO actual sentences for the individual offences) ranged between 8 years and 16 years. It was that range of indicative sentences which resulted in the indicative sentences provided for in TH.
As Beech-Jones CJ at CL concluded his survey of the cases, his Honour said this at [50]: At the risk of stating the obvious, the utility of considering these cases is not to contrast and compare the aggregate sentences imposed with the aggregate sentence imposed on the respondent in this case. Given that each aggregate sentence relates to [a] range of different offences, such a comparison has little or no utility other than revealing the application of the totality principle in different cases (Sharma v R [2022] NSWCCA 190 at [4]−[6] and [8]). Instead, the relevant comparators are the indicative, or individual, sentences for particular offences. In this respect, these cases speak in unison about the very significant custodial sentences that are imposed or indicated for offences under ss 66A and 66C(2) (or s 61J(1)), especially those that involve penile penetration.
In DR v R [2022] NSWCCA 151, indicative sentences of 11 years 4 months each for three counts of sexual intercourse with a child under the age of 10 years in circumstances of aggravation were not disturbed on appeal to this Court.
All of those cases, including TH, show without any doubt, that the indicative sentences in the present case for the offences at the mid-range are manifestly inadequate as being well outside the range of appropriate sentences for the offences themselves and the nature of the offending. A consideration of the indicative sentences identified by the majority in R v RJ [2023] NSWCCA 273, involving a father and a biological daughter aged between 12 and 15 years, also demonstrates that the indicative sentences in the present case are well outside the range of appropriate sentences for the offences charged.
The sentencing judge determined that counts 5, 9 and 13 were above the mid-range. These involved fellatio to ejaculation (count 5) and penile-vaginal intercourse (counts 9 and 13). No explanation was given for determining that count 10, which also involved fellatio to ejaculation, was not also above the mid-range.
It follows, from what has been said above in relation to an appropriate range of indicative sentences for mid-range offences, that the indicative sentences for counts 5, 9 and 13 are also well outside the range of appropriate sentences for those offences.

The aggregate sentence

As Beech-Jones CJ at CL pointed out in Sharma v R [2022] NSWCCA 190 at [6] and again in TH at [50], there is not much utility in trying to compare aggregate sentences in cases because the offences for which an aggregate sentence is being imposed will generally not be identical. There may be times when this can be done, as in Facer, but an examination of the cases to which I have already referred and others suggests that there would be little benefit in trying to compare the aggregate sentence in the present case with the aggregate sentences in those cases.
However, for a variety of reasons, the aggregate sentence in the present case is manifestly inadequate.
First, as has been seen, the indicative sentences for the s 66A offences are themselves manifestly inadequate.
Secondly, even with the indicative sentences provided by the sentencing judge, the level of accumulation of the indicative sentences is itself manifestly inadequate. The offending in the present case involved eight separate incidents, all of which involved sexual intercourse in one form or another with only three of those offences of sexual intercourse being assessed at being below the mid-range. Ordinarily, it would not be helpful to make a comparison between the sum total of the indicative sentences and the aggregate sentence imposed, but in extreme cases (of which the present is one) where the indicative sentences total 94 years and the indicative non-parole periods total almost 60 years, the difference with an aggregate sentence of 14 years and a non-parole period of 9 years is stark.
Thirdly, what is even more apparent is that where the aggregate head sentence for all of the offending is itself less than the standard non-parole period for 1 of the 13 counts of sexual intercourse with a child under the age of 10 years, the aggregate sentence is an affront to the administration of justice.
The problems with the notional accumulation can be seen as the Crown noted in her submissions. Two of the counts carried indicative sentences of 8 years, and yet the aggregate sentence was only 6 years more than one of those sentences. In the same way, the aggregate non-parole period was only 4 years and 1 month more than the highest non-parole indicative sentence for 1 count.

Residual discretion

In my opinion, the Court should not exercise its residual discretion to decline to interfere with the sentence. As was made clear in Borkowski at [70] and followed in Reeves at [14], the purpose of a Crown appeal is to achieve consistency in sentencing and the establishment of sentencing principles.
It would not be appropriate for this Court to decline to interfere with the sentence, when that sentence is significantly inconsistent with recent authority, including authority that was cited to the sentencing judge. To permit the existing sentence to stand would be likely to undermine public confidence in the criminal justice system by reason of the disparity that the sentence bears to the sentences in the recent cases to which I have referred. None of the considerations such as delay on the part of the Crown or a failure on the part of the Crown to provide proper assistance to the sentencing judge has any application in the present matter.
In my opinion, the sentence imposed was manifestly inadequate.

Resentence

I would adopt the sentencing judge's assessment of the objective seriousness of the offences with the exception of count 10. Count 10 involved the respondent inserting his penis into the victim's mouth and ejaculating into her mouth. In that respect, it does not differ from the circumstances of count 5. I would assess it as being above the mid-range.
Although there were five counts of digital penetration, two of those (counts 4 and 8) involved a measure of force when the complainant resisted or attempted to resist. In that regard, they should appropriately be seen as mid-range offences. Similarly, as noted above, counts 5 and 10 of the counts involving fellatio resulted in the applicant ejaculating into the mouth of the complainant.
I have noted the matters concerning the respondent's upbringing and background as set out in Mr Borkowski's report. I note the diagnosis of major depressive disorder, PTSD with an additional co-occurring adjustment disorder, although the last of those had its onset in the context of the respondent's arrest and charging. Nevertheless, those are matters which will make custody more onerous for the respondent. There is no connection between the respondent's mental health conditions and the offending, and there is nothing otherwise to reduce his moral culpability.
I agree with the sentencing judge that the respondent has good prospects of rehabilitation and is unlikely to reoffend. He continues to deny his guilt for the offending and does not, thereby, demonstrate any remorse for that offending.
The respondent's prior good character, attested to in the references put forward on his behalf, and his lack of offending entitle him to a measure of leniency, but that leniency is limited because the offending extended over almost a two year period.
I would make a finding of special circumstances by reason of this being the respondent's first time in custody, hardship because of his mental health conditions and the hardship to the respondent's partner and her children. I do not accept, however, that the non-parole period should not be increased because that would be detrimental to the respondent's prospects of rehabilitation, as the respondent submitted. Much of the rehabilitation will need to be undertaken through the courses offered whilst the respondent is in custody. Thereafter there will be adequate time for him to have his rehabilitation and reintegration into society whilst he is on parole.
The offending was of a very high order. It involved various types of sexual intercourse by the respondent with his biological daughter, then aged six to eight, over almost a two year period. The courts can take judicial notice of the effects of the sexual abuse of young children, and it is frequently lifelong. In the present case the victim impact statement sets out precisely how it has affected the complainant to the present time.
In my opinion, an aggregate sentence of 18 years' imprisonment with a non-parole period of 12 years should be imposed. The indicative sentences should be as follows: Count 1: 2 years with a non-parole period of 1 year and 3 months. Counts 2, 3 and 11: 8 years with a non-parole period of 5 years. Counts 4, 7, 8 and 12: 9 years with a non-parole period of 6 years. Counts 6 and 14: 10 years with a non-parole period of 6 years 6 months. Counts 5 and 10: 10 years 6 months with a non-parole period of 7 years. Counts 9 and 13: 11 years with a non-parole period of 7 years. .

Conclusion

I propose the following orders: 1. Appeal allowed. 2. Quash the sentence imposed in the District Court on 30 June 2023. 3. In lieu, sentence the respondent to an aggregate sentence of 18 years' imprisonment commencing 17 February 2023 and expiring 16 February 2041 with a non-parole period of 12 years expiring 16 February 2035. 4. The respondent is first eligible for parole on 16 February 2035.
CAVANAGH J: I have had the advantage of reviewing the judgment of Davies J. I agree with the orders his Honour proposes for the reasons set out in his Honour's judgment.
SWEENEY J: I agree with the orders proposed by Davies J and with his Honour's reasons.

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: 27 November 2023

Crimes Act 1900(NSW)ss 61J, 61M, 66A, 66C

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