R v Carey

Solicitors: Director of Public Prosecutions (Appellant) Legal Aid NSW (Respondent) File Number(s): 2021/00144222 Publication restriction: Statutory prohibition over the names of the victim or anything tending to identify her, pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW). Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: N/A Date of Decision: 15 December 2023 Before: M L Williams SC DCJ File Number(s): 2021/00144222

HEADNOTE [This headnote is not to be read as part of the judgment] On 15 December 2023 the respondent was sentenced in the District Court having been found guilty by a jury of four counts of sexual intercourse with a child between 10 and 16 under authority, and two counts of aggravated indecent assault on the same child. The offences occurred between June 1997 and June 1998 and were committed against a child between the ages of 12 and 13. The victim and her mother had become close friends with the respondent who ran a local business they frequented. He became a kind of father figure to the child, who had not met her biological father. The objective criminality of the offences was grave, involving a significant abuse of trust and manipulation, with two offences occurring in the victim's home while her mother was present. Mr Carey was sentenced to an aggregate sentence of 4 years and 4 months imprisonment, with a non-parole period of 2 years and 6 months. The Director of Public Prosecutions appealed against the aggregate sentence on the ground that the aggregate sentence was manifestly inadequate. The issues before the Court were: (1) Whether the sentence was manifestly inadequate; and (2) If so, whether the Court's "residual" discretion not to intervene should be applied. As to (1) Hamill J (Harrison CJ at CL and N Adams J agreeing) held that the indicative sentences were very lenient and the indicative sentence nominated for the fifth count was manifestly inadequate. When combined with the modest degree of notional accumulation for what were, in most instances, separate and distinct offences, the aggregate sentence and non-parole period were manifestly inadequate and did not reflect the objective gravity of the crime: [54]-[55], [60], [62]. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 applied. FB v R; R v FB [2011] NSWCCA 217, O'Brien v R [2013] NSWCCA 197, R v Malloy [2018] NSWDC 477, Dawkins v R [2018] NSWCCA 278, Carr v R [2020] NSWCCA 214 and R v Hovell [2021] NSWDC 326 considered. As to (2), per N Adams J at [89]-[91] (Harrison CJ at CL agreeing, Hamill J dissenting): The Director had discharged its onus and the Court should re-sentence the respondent. The imminence of the respondent's release date was just one factor and there was a need for guidance to sentencing judges to achieve a higher level of consistency in sentencing for such offences. A number of factors of the offending also led to the conclusion that the Court's intervention was required including the age and vulnerability of the child, the respondent's knowledge of the child's vulnerability, letters the respondent sent to the child including declarations of love, the lack of insight demonstrated by the respondent, and the impact of the offending on the child who was left physically, psychologically and emotionally scarred by the respondent's behaviour. Despite the positive findings made by the sentencing Judge, and the imminence of his release date, the Director had satisfied the Court that the sentence must be increased. While an offender is not to be punished for pleading not guilty, the respondent's conduct demonstrated a lack of insight and remorse. Baker v R [2022] NSWCCA 195; (2022) 302 A Crim R 60 and Baker v R [2022] NSWCCA 195; (2022) 302 A Crim R 60 applied. Per Harrison CJ at CL at [5]: The Court's recognition of the inadequacy of Mr Carey's sentence would carry no weight and would be deprived of meaningful effect in terms of punishment, retribution and deterrence if the residual discretion were exercised: at [5]. Hamill J (dissenting) at [64]-[82]: The imminence of the respondent's release date, the unexplained delay in charging him, his rehabilitation in the 25 years since the offending occurred and the difficulties he faced in custody led to the conclusion that the respondent should not be re-sentenced. The purposes of a prosecution appeal were satisfied by the clear statement that the aggregate sentence was inadequate, the discussion of relevant sentencing provisions and the warning that the nomination of lenient indicative sentences combined with a modest degree of notional accumulation may lead to an aggregate sentence that is manifestly inadequate and unjust. Declining to impose an increased sentence so close to the respondent's release date would not constitute an affront to the administration of justice. CMB v Attorney General of New South Wales (2015) 256 CLR 346; [2015] HCA 9; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 applied.

JUDGMENT

1. HARRISON CJ at CL: I have had the considerable advantage of reading in draft the respective judgments of Hamill J and N Adams J. I am grateful to Hamill J for his detailed and comprehensive recitation of the uncontroversial factual background to this appeal, as well as the particular subjective circumstances of Mr Carey. His Honour's analysis is a forceful and persuasive collocation of reasons both why the Crown appeal should succeed as well as of his Honour's view of why this Court should decline to exercise its residual discretion notwithstanding. I am untroubled by the former. I respectfully disagree with the latter.
2. Because I agree with N Adams J's reasons for why this Court should not exercise the residual discretion, I will state my own reasons for doing so only briefly. They are in effect little more than an endorsement of the matters summarised by her Honour at [90] below.
3. The child who is the victim of Mr Carey's offending was aged between 12 and 13 years at the time. She was presumably still in primary school or no further advanced than her first year of high school. It is accepted that she turned to Mr Carey for support from him as a father figure having regard to the absence of any such support from her own father. That fact was both the framework within which Mr Carey exploited her vulnerability and the reason why it was so reprehensible. Mr Carey's opportunity to commit the offences was a function of that vulnerability. The associated breach of trust is not therefore some theoretical legal construct but a cynical manipulation of circumstances that were already troubling for her. Mr Carey's behaviour was predicated upon misleading and deceiving a child who he knew and understood was looking to him for support.
4. Mr Carey pleaded not guilty, as he was entitled to do. That fact obviously cannot increase the seriousness of his offending. It does, however, suggest that Mr Carey has no insight into his offending which serves to inform his absence of remorse. Mr Carey's description of the victim as "precocious and provocative", as reported to the author of the SAR report, could fairly be described as victim blaming, consistently with the absence of insight or remorse.
5. The Crown bears the onus of satisfying this Court why the residual discretion should not be exercised. I am satisfied that it has done so. I consider that this Court's acceptance of the Crown's submissions and its consequent recognition of the inadequacy of Mr Carey's sentence would carry no weight and would be deprived of meaningful effect in terms of punishment, retribution and deterrence if the residual discretion were exercised.

The charges, facts, maximum penalties and indicative sentences for the individual offences

1. The trial transcript was not before this Court and the facts were derived from a document styled "Facts on Sentence" which was part of the prosecution bundle tendered at the sentencing hearing on 13 December 2023. Putting aside that the respondent continued to deny that the offences occurred at all, there was no dispute as to the facts and Judge Williams recounted them in his judgment or remarks on sentence.
2. The victim was born in October 1984 and was aged between 12 and 13 during the period of offending. The respondent was born in 1962 and was in his mid-thirties when he committed the offences. The victim's mother attended a local sporting academy which was owned and operated by the respondent. Over time she and the victim became close personal friends of the respondent and he, on his own admission, became a kind of father figure to the young girl. The victim had not met her biological father and the respondent acknowledged at the trial that she was vulnerable.

The six charges for which the respondent was sentenced

1. The first count on the indictment was an offence of sexual intercourse with a child aged between 10 and 16 while the victim was under the respondent's authority. While the respondent was supervising the child at his sporting academy, and she was sitting on his lap, the offender turned her face towards him and kissed her. She said this was "sloppy" and "disgusting". He then fondled the child's vagina, rubbed her clitoris and tried to put his finger in her vagina. He told her "this is what dads do and this is how I show you that I love you." The respondent's finger went a "little way" into the victim's vagina, and she said that it was "really painful". She asked him to stop but he kept trying to put it in until the pain was too much for the child and the respondent finally stopped. This offence carried a maximum penalty of 10 years imprisonment. [2] For the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"), the sentencing Judge set an indicative sentence of two years and six months.
2. The second and third counts occurred when the victim and her mother stayed at the respondent's residence which was part of the sporting academy. Mr Carey, the victim and her mother were lying on a mattress with the respondent in the middle "effectively spooning" the child. He used his finger "to circle" her clitoris and inserted the finger into her vagina (count two). The child said this was a lot rougher than the first time and that he used his hands to spread her legs. He gave her a "sloppy" kiss and his tongue went into her mouth. He grabbed her hand and made her stroke his erect penis, holding her hand while this happened (count three). The maximum penalty for the second count was 10 years, [3] and for the third count (charged as aggravated indecent assault) was 7 years. [4] Judge Williams nominated indicative sentences of 2 years and 6 months for count two and 20 months for count three.
3. The fourth count was committed in Mr Carey's Mitsubishi van which he purchased in November 1996. The victim was sitting on the respondent's lap in the car while he allowed her to drive. The respondent began to kiss the victim and put his hands down her pants. He started to fondle her vagina and clitoris roughly, put his finger in and out of her vagina, and was grinding against her. He told the victim repeatedly that she was a "good girl", said "this is how fathers show affection", and told her to "spread your legs like froggy" which was a nickname he gave to her. This count was charged under s 66C(2) and carried a maximum penalty of 10 years imprisonment. An indicative sentence of 2 years and 6 months was nominated.

Uncharged acts

1. Evidence was led at the trial of a number of other acts committed by the respondent on the victim. This showed that the six counts were not isolated incidents.
2. Count four was not a unique occasion of sexualised conduct in the van. Similar conduct occurred on a number of other occasions and the victim said that being allowed to drive the van afterwards felt "almost like a reward" for enduring the respondent's conduct. There was another incident where the victim sat on the respondent's lap while he had an erection and was made to demonstrate various horse-riding movements such as trotting and cantering. On another occasion, the victim and the respondent were naked in the bath together and the respondent made the victim stroke his penis until he ejaculated.
3. The respondent also wrote various letters to the victim which included protestations of love such as "I love you desperately", "All that I know is that I love you like crazy", "I'll always love you like my own daughter", "I love you intensely", "I love you eternally", "Love you 4 ever" and "God I miss you! My favourite froggy!" He also made sexually explicit comments like "How are they hangen" (referring to the victim's breasts) and "Got a recka" and "Here comes a reckie" (alluding to his erect penis). He also referred to kissing the victim, writing "Wow what a kisser" and "I guess a little kiss and cuddle from time to time won't hurt as long as it's low key and no one else gets upset." These things were written to a child of around 12 years of age.

Disclosure and arrest

1. In June 1998 the victim's mother stopped attending the respondent's academy and contact between the victim and the respondent came to an end. Around 20 years later, in April 2019, the victim reported the matter to police, and there was an investigation into the offences. There was a significant and unexplained delay, and the respondent was arrested in March 2022 and has been in gaol since 25 March 2022.

The sentencing Judge's assessment of the objective gravity of the offence

1. The sentencing Judge accepted a submission that none of the offences were "above the midrange of objective seriousness" because they were of relatively short duration, did not involve threats of violence or gratuitous cruelty, and did not result in substantial injury to the victim. However, his Honour found the two indecent assault offences (counts three and seven) to be serious examples as they involved skin to skin contact. Further the sentencing Judge held that these two offences "involved an abuse of a position of trust or authority" and that this was an aggravating factor. The fact that counts five and seven occurred in the victim's home "where she was entitled to feel safe" was held to be an aggravating factor. Other relevant factors identified by the sentencing Judge included the "extent to which the offender is seen to have exploited the youth of the victim", and the "significant age difference between the two."

The impact on the victim of the respondent's contact

1. The victim made a statement in which she set out the devastating impact that Mr Carey's conduct has had on her life. She said, even after 28 years, the trauma of the abuse still haunted her and affected her relationships. She described the distance between her and her mother when she was a child and her feeling that "finally someone cared about me" when the respondent started paying her attention. She now realises that she was "groomed" and appreciates the breach of trust and abusive nature of the respondent's actions.
2. She said she was left "physically, psychologically and emotionally scarred." She felt isolated and alone and had nobody to whom to turn. "The abuse stole [her] childhood innocence" and she spent many years unable to settle during which she would "self-sabotage" close relationships because she was afraid she would be hurt or abandoned. Her judgment of men was affected, and she found herself attracted to abusive partners. She had trust issues and problems with intimacy. Even at the time of the trial, her current relationship was impacted by these problems.
3. Her current career has led her to a greater understanding of the extent to which the abuse impacted on her psychological development and she is now in a position to help others who have had similar experiences.
4. The "initial elation of the guilty verdict" proved to be transient, and she still wonders how she will navigate the years ahead. However, now that her voice has been heard she will continue to rebuild herself by putting these things behind her.
5. It is a brave and moving statement of the impact of these terrible and abusive crimes.

The respondent's personal circumstances and mitigating circumstances

1. The respondent was 61 years old when he stood for sentence and has no criminal history apart from the present offences. Significantly, there is no evidence of the respondent offending against any other children in the 25 years since he committed these offences.
2. A sentencing assessment report ("SAR") noted there were no indications of historical anti-social behaviour, that Mr Carey has five children of his current relationship and seven other children from previous relationships. He was undergoing relationship counselling with his previous partner. The author of the report noted the respondent was assessed to have a "below average risk of sexual [re-offending]" and that he had a "medium/low risk of re-offending". However, there are some quite concerning aspects of the SAR. For example, apart from his continued denial of the offences, the respondent described the victim's behaviour as "precocious and provocative", a troubling form of what might be termed "victim blaming". Any remorse the respondent exhibited was limited to the effect the charges have had on him. The author said he "displays very little insight" into how the offending impacted on the victim or her family.
3. On the other hand, the respondent presented with positive references which Judge Williams described in his remarks on sentence: "22 There are two references provided by counsel on behalf of the offender, one from his partner [redacted], who says that they have been in a relationship since 2014. She says he has treated her and their five children with nothing but respect and kindness. He was known in the town as a good bloke, and a decent man who loved his family and was always there to lend a hand to everyone. Obviously, his extradition to New South Wales to face these charges has negatively affected her and her children greatly. She describes him as the best dad she has ever known and that their boys are growing up without a father. 23 There is a further reference from a Year 2 teacher named [redacted] who has known the offender since he enrolled his boys at her school in 2020, and she has taught three of his children. She is aware of the allegations that have been made against him, and says that type of behaviour does not reflect his character and the person that he is. She said he was devoted to his children's learning and supporting them."

The submissions on appeal

1. No specific legal error was identified in Judge Williams' careful judgment on sentence. His Honour set out the relevant principles and applicable legislation and had regard to all the factual circumstances relevant to the sentence. No factual finding was impugned. There was no dispute between the parties as to the applicable legal principles and the task of this Court when dealing with a prosecution appeal and a ground of alleged manifest inadequacy. Those principles are well established and I will return to them when addressing the single ground of appeal.

The Director's submissions

1. The Director did not explicitly challenge the sentencing Judge's finding that none of the offences were above the putative mid-range of objective seriousness but submitted that this was "not a determinative factor" and noted the imprecision of such terminology. There was some criticism of the sentencing Judge making the assessment by reference to features of the offence that did not exist, rather than by reference to the features that were present: cf SB v R [2022] NSWCCA 164 at [70]. It was submitted (correctly) that the lack of physical injury was not of great significance given the expected (and in this case, established) psychological injury that such offending causes. Similarly, the lack of force was of little significance given that the victim was a child who was groomed and manipulated over a period of time.
2. The substance of the Director's challenge to the aggregate sentence was that the indicative sentences nominated for the individual offences were "disconnected from the objective gravity of the offending" and that this in turn led to a manifestly inadequate aggregate sentence. The sentence failed to reflect the serious aspects of the offending including the special vulnerability of the child who had no contact with her natural father, the abuse of the respondent's position of trust as a father figure, and the prolonged period over which the offending occurred.
3. It was submitted that the sexual intercourse offences (counts one, two, four and five) carried a maximum penalty of 10 years and were serious examples of offences of their kind. The indicative sentences of 2 years and 6 months and 2 years and 3 months did not capture the character of the offending. The sentence for count five was plainly unjust given the aggravating feature of that offence; it was committed in the home of the victim and the sexual activity occurred over an extended period while the victim's mother was present under the doona cover.
4. It was submitted that, in any event, the aggregate sentence was manifestly inadequate with the Director noting that the total sentence was only 1 year, 10 months longer than the indicative sentences for the first count. This suggested a latent error in the extent of notional accumulation within the aggregate sentence.
5. Further, it was submitted that the aggregate non-parole period was inadequate and did not reflect the criminality involved in the offending. It was submitted "if a head sentence is towards the lower end of the range (as the head sentence imposed by the sentencing judge was), it will be difficult to sustain a NPP that is very significantly less than the statutory proportion." Here the non-parole period was 58% of the total sentence and the Director submitted that the basis of the finding of special circumstances did not justify such an adjustment, particularly in light of the lenient head sentence.

The respondent's submissions

1. The respondent relied on the generally positive factual findings made by the sentencing Judge and in particular his lack of any criminal convictions before the offences and in the 25 odd years since which led to a finding that he had rehabilitated and was unlikely to re-offend. He emphasised the burdensome nature of his incarceration including his mental illness, age and the strictures of the COVID-19 regime as a result of which he had been locked down in his cell for 173 days during the period of remand and up to the date of sentence. Judge Williams accepted the history of childhood trauma and sexual abuse. These findings "called for leniency in sentence."
2. The respondent called attention to the fact that the sentencing Judge paid proper regard to the maximum penalty applicable at the time. He observed that the finding that none of the offences were above mid-range was not challenged and, in respect of the sexual intercourse offences, appropriate given the nature of the intercourse alleged. He acknowledged that there is no rigid hierarchy in that respect but submitted the fact that the sexual intercourse was digital "was very relevant to the assessment of the objective seriousness".
3. The respondent drew attention to "the difficult task of fixing a sentence for offences committed about 25 years earlier" and referred to the complications arising in the application of s 25AA of the Sentencing Act.
4. In all the circumstances, he submitted the indicative sentences were lenient but were "open" on the basis of the favourable findings made by the sentencing Judge. Based on well-established authority, he said that questions of (notional) accumulation and concurrence are matters firmly within a sentencing judge's wide discretion. Accordingly, the aggregate sentence was not plainly unjust or unreasonable.

Sections 21B, 25AA and comparable cases

1. In 2018, s 25AA was introduced into the Sentencing Act. It required a sentencing judge to sentence an offender in accordance with the sentencing patterns and practices which prevailed at the time of sentencing. This amendment overcame the majority judgments in R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 ("R v MJR") which required a sentencer to approach the sentencing exercise based on sentencing patterns which existed at the time of the offence. The difficulties with the earlier approach were considered in the powerful dissenting judgment of Mason P in R v MJR: see also the discussion in MC v R [2017] NSWCCA 316; (2017) 271 A Crim R 83 at [22]-[52].
2. The relevant amendments made in 2018 are now found in s 21B of the Sentencing Act which was introduced in 2022: 21B SENTENCING PATTERNS AND PRACTICES (1) A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing. (2) However, the standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing. (3) Despite subsection (1), a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if-- (a) the offence is not a child sexual offence, and (b) the offender establishes that there are exceptional circumstances. (4) When varying or substituting a sentence, a court must vary or substitute the sentence in accordance with the sentencing patterns and practices at the time of the original sentencing. (5) This section does not affect section 19. (6) In this section-- "child sexual offence" has the same meaning as in section 25AA.
3. Following the 2022 amendments, s 25AA now provides: 25AA SENTENCING FOR CHILD SEXUAL OFFENCES … (3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts). … (5) In this section-- "child sexual offence" means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years-- (a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900, (b) an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act, (c) an offence of attempting to commit any offence referred to in paragraph (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c).

Resolution of the ground of appeal: is the sentence manifestly inadequate?

1. The comparable cases suggest that the concession made by counsel for the respondent - that the aggregate sentence was lenient - is a sound one. However, a survey of those cases does not, of itself, establish that the sentence is manifestly inadequate.
2. As the respondent submitted, there is no single correct sentence and the law vests in the sentencing judge, not this Court, the responsibility of instinctively synthesising the many relevant facts and circumstances to determine an appropriate sentence which reflects the objective gravity of the offending and an offender's individual personal circumstances. In the absence of an identifiable and patent error, an appellate court will not intervene based on "latent" error unless the sentence imposed is manifestly unreasonable, or plainly unjust or wrong. An appellate court cannot intervene on this ground merely because its members might individually have imposed a more - or less - severe sentence. The foregoing is a barely adequate summary of statements of principle made by the High Court in several well-known authorities on the subject. [5]
3. The prosecution is generally expected to be, and is, restrained in bringing appeals against the inadequacy of sentence. Generally, it brings such appeals in cases where some point of principle arises or where the sentence is so manifestly inadequate that it constitutes an affront to justice. The Director submitted that the present case fell into the latter category but also presented an opportunity for the Court to consider the proper application of ss 21B and 25AA in sentencing for offences of some antiquity. I think the latter consideration, which raises a difficult and interesting question of sentencing practice and principle, amply justifies the bringing of this prosecution appeal.
4. In addressing the questions presented by the sentencing judgment and outcome in this case, it is necessary for the Court to apply the same kind of instinctive synthesis as is required by the sentencing judge but to do so while paying deference to the role of a sentencing judge in the criminal justice system. Ultimately, it is a question of judgement: a sentence is either manifestly inadequate (or excessive) or it is not. [6]
5. This is not a case that it easy to resolve. The offending was grave but there is force in the respondent's submissions and the sentencing Judge's findings as to the objective seriousness of the individual offences which is not challenged. Further, the absence of any criminal history before or after the offending is an important factor entitled to significant weight. The findings concerning rehabilitation and the unlikelihood of future offending were both open to Judge Williams and, on my independent assessment, correct. There were valid reasons for the imposition of a lenient sentence. Against that, the offending represented an egregious breach of trust of a vulnerable, young victim and the respondent's conspicuous lack of insight into the harm he has done to the victim is startling.

The outcome of the appeal: should the Court exercise the "residual discretion" to dismiss the prosecution appeal despite the established error?

1. In CMB v Attorney General of New South Wales (2015) 256 CLR 346; [2015] HCA 9 French CJ said: "33 Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as 'residual' ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised. 34 Accordingly, as Heydon JA succinctly put it in R v Hernando: 'if [the Court of Criminal Appeal] is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.' The Court of Criminal Appeal, in this case and in R v Smith, was wrong to depart from that statement of the law. 35 The second of the two hurdles to which Heydon JA referred in R v Hernando has a statutory foundation and a systemic significance. Before s 5D of the Criminal Appeal Act was amended to add reference to the DPP, Barwick CJ said in Griffiths v The Queen: 'On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.' With the clarification that the reference to 'matter of principle' by Barwick CJ 'must be understood as encompassing what is necessary to avoid ... manifest inadequacy or inconsistency in sentencing standards', his Honour's explanation of the nature of an appeal under s 5D has since been said to represent 'general and authoritative guidance to the Courts of Criminal Appeal of this country.' It expresses the 'limiting purpose' of an appeal under s 5D, and in so doing provides 'a framework within which to assess the significance of factors relevant to the exercise of the discretion.'"

Reconsideration of, and further reasons for, the application of the residual discretion

1. Since circulating the first draft of this judgment, I have had the benefit of reading Justice N Adams' thoughtful analysis of the application of the residual discretion to the circumstances of Mr Carey's case. Her Honour's judgment, and the mere fact that her Honour reached a difference conclusion, caused me to consider the issue again. Having done so, I remain of the view that the Court should exercise the discretion not to intervene, that is it should not increase the respondent's sentence at this stage.
2. The first thing to note is that her Honour and I have reached quite similar conclusions as to appropriate sentence: see my judgment at [70] and her Honour's proposed sentence at [98]. The only difference of substance between us is whether the residual discretion should, or should not, be invoked.
3. It is accepted that the Director did nothing in this case to cause the sentencing proceedings to miscarry and her appeal was notified and instituted quite promptly, particularly considering the Christmas break. However, that is a neutral factor in the consideration of the application of the residual discretion. If the Director's representative at first instance had led the District Court into error, or if there was an extensive delay bringing the appeal, those would be powerful reasons for not exercising the discretion in favour of increasing the respondent's sentence at this stage: see, for example, R v Khoury [2018] NSWCCA 223 at [56]-[58].
4. However, the converse does not follow. In an appeal under s 5D, the onus remains on, and must be discharged by, the prosecuting authority before this Court will intervene to increase a sentence imposed on an offender. There are many examples in this Court of the discretion not to intervene being exercised without finding fault on the part of the prosecuting authority. A rudimentary search of Caselaw NSW throws up scores, if not hundreds, of cases on the subject decided since the introduction of s 68A in 2009 and the High Court's judgment in Green and Quinn in 2011. However, the value of recourse to decisions in other cases decided by this Court is limited. The exercise of the so-called "residual discretion" is a prime example of an issue that must be determined by reference to the individual facts and circumstances of the case. The principles have been explained by the High Court; the decisions of intermediate appellate courts in most instances do no more than provide examples of the application of those principles.

Orders

1. For those reasons, I would make the following order: 1. Prosecution appeal dismissed.
2. N ADAMS J: I have had the significant advantage of having read the judgment of Hamill J in draft. I agree with his Honour's conclusion at [63] that the sentence is manifestly inadequate in the sense that it is "unreasonable or plainly unjust" such that this Court "may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance": House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40.
3. Turning to the next question of whether, despite error being established, this Court should nonetheless exercise its residual discretion and dismiss the appeal, I have arrived at a different conclusion to Hamill J. His Honour has set out all the relevant considerations militating both for and against exercising the residual discretion. I have nothing I wish to add to those factors; his Honour has identified them all. The decision whether to exercise the residual discretion is one on which, by its very nature, judicial minds may differ. Ultimately, the factors which weighed most heavily in his Honour's decision to exercise the residual discretion and dismiss the appeal are the imminence of the respondent's release date and the fact that the increase in length of the sentence his Honour would propose, although far from "tinkering", was still not sufficiently substantial to justify the intervention of this Court.
4. Hamill J has summarised the contents of the respondent's affidavit addressing matters relevant to the exercise of the residual discretion and re-sentence at [68] and I have carefully considered that material. The respondent's non-parole period of 2 years and 6 months will expire on 24 September 2024. Clearly, after the respondent was sentenced on 15 December 2023, until he was informed that the Crown would appeal, he would have comfortably assumed that he had just over nine more months to serve. He has been on notice since early January 2024 that his sentence may be increased and no doubt the uncertainty has caused him anxiety.
5. It was common ground that there was no delay on the part of the Director in bringing on this appeal; rather, the imminence of the respondent's release from custody flows from the fact that when he was arrested on 25 March 2022 he remained in custody on remand until the date of sentence on 15 December 2023, being the last day of the 2023 law term. His sentence was backdated to the date of his arrest which means that he was only required to serve an additional 9 months and 13 days imprisonment from that date. The notice of appeal was filed on 9 January 2024 and the appeal was given a hearing date of 17 May 2024 on 21 March 2024. The fact that the respondent's release date is only four months away is the product of the manifestly inadequate (backdated) aggregate sentence imposed by the sentencing Judge. The question for consideration is the extent to which that fact militates against judicial intervention to correct the error.

Endnotes

1. The sentencing Judge made an error in the remarks on sentence, referring to the expiration of the non-parole period as being 24 August 2024. The non-parole period will expire on 24 September 2024, and this is reflected in the orders on Justice Link.
2. Crimes Act 1900 (NSW), s 66C(2).
3. Crimes Act 1900 (NSW), s 66C(2).
4. Crimes Act 1900 (NSW), s 61M(1).
5. See, for example, Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55; and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
6. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).

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