R v DN

Court of Criminal Appeal (NSW)|2023-01-31|Before: Gleeson JA, Fagan J, Dhanji J

Solicitors: Office of the Director of Public Prosecutions (NSW) (Appellant) Ross Hill & Associates (Respondent) File Number(s): 2020/333117 Publication restriction: Yes. Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of any information that identifies the victim, who was a child when the offences to which the proceedings relate were committed, or is likely to lead to the identification of the victim is prohibited. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 11 August 2022 Before: Coleman SC DCJ File Number(s): 2020/333117

Judgment

GLEESON JA: This is a Crown appeal against the asserted manifest inadequacy of an aggregate sentence imposed upon the respondent in the District Court on 11 August 2022 for sexual offences. The respondent pleaded guilty to two counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW). These offences were committed between 6 and 17 July 2020 against a young girl aged 14 years. The respondent resided with the victim's mother, and the victim lived in the same household.
For each of the s 61J offences the maximum penalty is 20 years imprisonment, and a standard non-parole period of 10 years applies. Pursuant to Part 3, Division 3, of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), the sentencing judge took into account the respondent's acknowledged guilt in relation to two further offences on a Form 1 that were committed against the victim at the same time as the first offence in July 2020. The further offences were aggravated sexual intercourse without consent contrary to s 61J(1), and intentionally sexually touching a child aged between the age of 10 and 16 years contrary to s 66DB(a) of the Crimes Act, an offence which carries a maximum penalty of 10 years imprisonment.
In accordance with s 53A of the Sentencing Act, his Honour Judge Coleman SC nominated indicative sentences for the two principal s 61J offences, after applying the 5 per cent discount for the respondent's late guilty pleas: see [34] below. His Honour imposed an aggregate sentence of 7 years and 6 months with a non-parole period of 5 years. The sentence was backdated to commence from 23 November 2020. The first date the respondent is eligible for release to parole is 22 November 2025.
For the following reasons, the aggregate sentence is manifestly inadequate, and the Court should not exercise its discretion to decline to intervene. The Crown appeal should be allowed and the sentence imposed by the District Court should be set aside. In lieu, I propose that the respondent be sentenced to an aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years. The indicative sentences that I would nominate in accordance with s 53A of the Sentencing Act are recorded below.

Facts

The facts of the offending were agreed in a statement of facts.
In February 2017, when she was aged 11 years, the victim and her mother moved in with the respondent. Some other family members also lived with them for certain periods. The respondent engaged in disinhibited and sexualised conduct towards the victim, commencing when she was 11 years. This included going into the victim's bedroom at night, cuddling her and pulling down her pants; going into the bathroom when the victim was showering or having a bath and staring at her when she was naked; grabbing the victim's buttocks and kissing her neck on occasions; and making overtly sexualised comments towards her about her. Unsurprisingly, the young girl was scared of the respondent.
Over time, some family members observed the respondent's conduct. When his behaviour was queried or challenged by some family members, the respondent was dismissive of their concerns.

Count 4 and the Form 1 offences (previously Counts 2 and 6)

The offending the subject of count 4 and the two offences (listed on the Form 1) occurred in July 2020, about a week before a family camping trip. The victim was then 14 years of age.
The victim was half asleep in her bed when the respondent came into her bedroom and locked the door. (She did not realise it was locked until after the offence when the respondent left the room.) He put a hand over the victim's mouth and pulled her over onto her back. He put his other hand on her shoulder so she could not move. He removed the victim's trackpants and underpants and inserted his finger into her vagina (on Form 1, previously count 2). When the victim started crying, the respondent said, "If you tell anyone, god help you". He continued to hold his hand over the victim's mouth, laid on top of her, and inserted his penis into her vagina and moved it in and out aggressively (count 4). The victim tried to push one of the respondent's arms away, but he pushed down harder. He removed his penis and ejaculated into a hand towel. During intercourse, the respondent kissed the victim's neck (on Form 1, previously count 6). Afterwards, the victim cried herself to sleep.
The following day, the respondent acted normally. The victim was scared and did not know what to do. She began locking her bedroom door.

Count 7

A short time after the camping trip, when the victim went into her bedroom one night at about 7:30 pm. The respondent was already there. He grabbed her shoulders hard, pushed her backwards onto the bed and put his hand over her mouth. He removed the victim's underpants and inserted his penis in and out of the victim's vagina (count 7). The victim tried to free herself by moving her body, but the respondent pressed his arms across her chest, and she was unable to get away. He continued to hold his hand over the victim's mouth, and he was aggressive and rough towards her. The respondent ejaculated inside the victim's vagina. When the respondent was leaving the room, he mumbled something like, "If you tell anyone I'm going to". The victim went to the toilet and initially thought she had her period but then realised that the liquid was not blood but was from the respondent ejaculating inside her.
The victim disclosed the offending in September 2020 and the respondent was arrested on 12 November 2020.
The respondent pleaded guilty on 2 February 2022, on the third day of his trial after a jury had been empanelled and tendency evidence had been admitted.

The respondent's subjective case

The respondent did not give evidence at the sentencing hearing. He relied on a report of Dr Paul Pusey, clinical and forensic psychologist, a bundle of medical notes, an undated document written by the respondent titled "XXX X XXXXX Life story" and a letter written by the respondent titled with the victim's name.
The respondent was aged 39 years at the time of the offending and 41 years at the time of sentence. He had been diagnosed with ADHD as a child. He reported to Dr Pusey being beaten by his father when he was 15 years old. He looked after both of his parents prior to their deaths and received a carers' pension at the time.
The respondent had five children from his marriage of 25 years to his first wife; he talked to some of them but not all of them regularly. He had three grandchildren he had never met.
The respondent had previously been diagnosed with post-traumatic stress disorder, arising from his time with the State Emergency Service, which he reported had impacted upon his socialising and his ability to engage with other people. Hospital and medical records confirmed he was treated and medicated for depression and PTSD in 2010. He reported being prescribed Venlafaxine, an antidepressant drug while in custody, which he had been taking for the past ten years.
The respondent was unemployed at the time of the offending and living on his inheritance from his parents. His last paid employment was in 2016.
The respondent had a limited criminal history. He had prior convictions for common assault and destroy or damage property (both domestic violence-related) in 2010 for which he was sentenced to a bond, and an offence of intimidating a police officer in 2018 for which he received a conditional release order.
The respondent reported a history of drug use. He told the psychologist that he had used cannabis on a daily basis since the breakdown of his marriage in 2016. He reported that prior to moving towns in 2016, he had used alcohol problematically, that his alcohol use "got bad" for three months after the death of his father, and that other than this he had no issues with alcohol consumption. He reported that he had abstained from drug and alcohol since entering custody.
The respondent told the psychologist that he took MDMA (ecstasy) on one occasion which caused him to "black out" and he could not remember much for a two-week period during which the offending occurred. In his letter to the victim, the respondent again referred to taking MDMA, asserting "… Deep down I am sorry and wish i never took the MDMA …".
In cross-examination, Dr Pusey accepted that he was not able to express an opinion on the veracity of the respondent's claim regarding MDMA use and its connection to the offending. Dr Pusey also resiled from the opinion originally expressed in his report (at par [56]) that a diagnosis of substance use disorder would be appropriate to explain the nexus between the respondent's experience of psychiatric pathology and the offending. Dr Pusey confirmed that he did not diagnose the respondent as having a major depressive disorder at the time of the offending, as it was very difficult to make a retrospective diagnosis.

Remarks on sentence

The sentencing judge accurately recounted the facts of the offences and referred to the victim impact statement, noting that the victim had passed away in a car accident prior to the sentencing hearing. He referred to the subjective circumstances, particularly as outlined in Dr Pusey's report. The following further matters should be noted.
First, addressing the seriousness of the offending, his Honour made the following findings and observations: 1. the offences did not occur in isolation, but rather they were a culmination of sexualised behaviour towards the victim; 2. neither incident was an opportunistic act that occurred without any preceding sexualised behaviour; 3. both counts 4 and 7 involved forceful, rough and aggressive sexual behaviour and each were "violent sexual acts by the offender on the victim when she was in her own bed in her home"; 4. the offending the subject of count 7 involved some degree of premeditation given the respondent was waiting for the victim when she entered her bedroom and given his immediate actions when she did so. This offending could be described as predatory, and as a serious, violent sexual assault by a man in authority over a child in her own bedroom. 5. in respect of both counts 4 and 7, the respondent put his hand over the victim's mouth during the assaults and made veiled or actual threats to prevent her disclosing his conduct. He used force to silence the victim and prevent her from voicing objections and seeking help and such conduct elevated the fear the victim must have experienced during the offences; and 6. the respondent was in a position of trust and exerted his authority over the victim as the partner of the victim's mother.
His Honour went on to categorise the offending in count 4 as "within the mid-range" and in count 7 as "at least at the mid-range". For the Form 1 offences, his Honour categorised the s 61J offence (digital penetration) as "below the mid-range" although it is a significant and serious offence, and the sexual touching offence (kissing) as "at the low end of the range".
Second, when sentencing for count 4, taking into account the Form 1 offences, his Honour observed that there was a need to give greater weight to the need for specific deterrence and retribution for that offence: see Attorney-General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42] (Spigelman CJ).
Third, his Honour noted that the respondent did not rely on his mental health as being substantially causally related to the commission of the offences and found that the respondent's mental health conditions did not impact upon his moral culpability. Rather, this was a matter relevant to his subjective circumstances and his prospects of rehabilitation.
Fourth, his Honour rejected the respondent's report to the psychologist that he had taken MDMA prior to the offending, which had caused him to effectively blackout for the whole period of the offending, such that he could not remember his conduct. His Honour found that this was inherently improbable and there was no evidence before the Court on which to find that this had occurred.
Fifth, addressing the issue of remorse, his Honour observed that the respondent's letter to the victim apportioned blame for his conduct to the taking of drugs, and that the respondent did not in terms express remorse to the psychologist with respect to the effect that his heinous conduct had on the victim, it was more about the impact upon himself. Nonetheless, his Honour concluded that "[t]here is some remorse expressed by the offender but not much".
Sixth, his Honour found that the respondent's prospects of rehabilitation were guarded.
Seventh, his Honour observed that the respondent's conduct had resulted in significant harm done to the victim as described in her victim impact statement.
Eighth, his Honour referred to the principle of totality, the need "to consider the principles governing accumulation and concurrency" and the need to avoid a crushing sentence, and correctly stated that there was a need to ensure that the ultimate sentence imposed was appropriate for the totality of the offending and to the respondent's personal circumstances.
Ninth, his Honour made a "modest" finding of special circumstances based on hardship in custody from the Covid-19 pandemic, it was the respondent's first custodial sentence, and a period on parole and supervision would aid in the treatment of his mental health condition and thus his rehabilitation. This finding was reflected in a downwards adjustment of the non-parole period as 66 per cent of the aggregate sentence.
Tenth, in accordance with s 53A of the Sentencing Act, his Honour nominated indicative sentences for the two principal s 61J offences, after applying the 5 per cent discount for the respondent's late guilty pleas. It is convenient to summarise in tabular form the principal offences, the maximum penalty and standard non-parole period, and the indicative sentence and indicative non-parole period (post the 5 per cent discount) and the starting point (pre-discount). Count Offence Max. penalty Starting point (before 5% discount) Indicative sentences (after 5% discount) 4 Aggravated sexual intercourse without consent (victim under 16) (penile - vaginal) 20 years 4 years, 11 months 4 years, 8 months S 61J(1) Crimes Act SNPP 10 years NPP 3 years 7 Aggravated sexual intercourse without consent (victim under 16) (penile - vaginal) 20 years 6 years, 8 months 6 years, 4 months S 61J(1) Crimes Act SNPP 10 years NPP 4 years

The principles governing Crown appeals

The principles relevant to a Crown appeal have been stated on many occasions: R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42 at [70] (Wood CJ at CL, Meagher JA and Bell JA agreeing). 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: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1].
This power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing: R v Wall at [70] citing, among others, Everett v The Queen (1994) 181 CLR 295 at 299; [1994] HCA 49. See also R v Barker [2016] NSWCCA 193 at [53]-[55] (Hoeben CJ at CL, Bathurst CJ and Price J agreeing); R v Darwich [2018] NSWCCA 46 at [10] (White JA agreeing). However, this Court cannot merely substitute its opinion as to the appropriate sentence for that of a sentencing judge, and may only interfere where error, either latent or patent, is demonstrated.
Even if error is established, this Court may decline to intervene and resentence in the exercise of its residual discretion. It is for the Crown to satisfy the Court that the residual discretion to decline to intervene and resentence the respondent should not be exercised: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33].

Was the sentence imposed manifestly inadequate?

The Crown relies upon manifest inadequacy of the aggregate sentence. The principles upon which the Court is to determine such an appeal are summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
Appellate intervention on the ground of manifest inadequacy is a conclusion that "does not admit of lengthy exposition": Hili v The Queen (2010) 242 CLR 520; [2010] HCA 49 at [59]. What reveals manifest inadequacy of sentence is consideration of all the matters that are relevant to the fixing of the sentence: Hili at [60]. In this case, the chief considerations which point to manifest inadequacy of the aggregate sentence of 7 years, 6 months with a non-parole period of 5 years are as follows.
First, although his Honour stated that general and specific deterrence are prominent in sentencing offenders for sexual offences committed against children, the sentence imposed does not adequately meet the strong need for general deterrence in relation to sexual offences committed against young teenaged girls by persons in a position of trust or authority. As the Court said in JJ v R [2020] NSWCCA 165 at [25] (Hoeben CJ at CL, Fagan and Cavanagh JJ): The prevalence of aggravated sexual intercourse without consent by step-fathers against girls in their early teens requires that the consideration of general deterrence must be influential in fixing an appropriate sentence in such a case. …
Second, having found that the offences resulted in significant harm to the victim, the sentence imposed does not adequately reflect the need to recognise that such harm is one of the dominant sentencing purposes for offences of this kind: R v PC [2022] NSWCCA 59 at [53] (Fagan J, Davies and Bellew JJ agreeing).
Third, the legislature has conveyed the degree of seriousness of the offence of aggravated sexual assault by fixing a maximum term of imprisonment of 20 years and a standard non-parole period of 10 years: Crimes Act, s 61J(1), Sentencing Act, s 54A, item 8 of the Table. Although the appeal is against the aggregate sentence and the indicative sentences are not themselves amenable to appeal, they may be a guide as to whether there is error in the aggregate sentence: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] (R A Hulme J, Hoeben CJ at CL and Adamson J agreeing). Here, the indicative sentences are so low as to suggest a basis for error in the aggregate sentence.
The following features of the offending rendered it serious examples of aggravated sexual assault: 1. the assaults in counts 4 and 7 involved penile-vaginal penetration; 2. the forceful nature of the assaults, which the sentencing judge described as violent sexual acts; 3. the relatively young age of the victim, 14 years, being two years below the threshold for the s 61J offence; 4. the offending was did not occur in isolation, it was the culmination of a course of sexualised behaviour by the respondent; 5. although the victim manifested her lack of consent by trying to physically resist, the respondent was not deterred and persisted in the offending for his own sexual gratification; 6. threats were used by the respondent to secure the victim's silence; 7. the degree of premeditation in count 7; 8. the heightened degradation of the victim in count 7 by the respondent ejaculating inside her vagina, and creating a risk of pregnancy; 9. the offending occurred in the victim's home; and 10. the offending involved a breach of trust as the respondent was the victim's de facto stepfather.
Further, the indicative sentence for count 4 taking into account the Form 1 offences does not adequately reflect the strong need for greater weight for retribution given the circumstances of the offending in count 4.
When the gravity of the offending is weighed against the respondent's subjective features summarised at [15]-[22] above, the indicative sentences fail to have proper regard to these legislative guideposts: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

Assistance from comparable cases

The Crown sought to support its claim of manifest inadequacy by reference to five cases. None had been referred to by the Crown to the sentencing hearing. By reference to some of the cases which the Crown had referred to at the sentencing hearing, the respondent sought to refute the claim of manifest inadequacy. The parties' detailed submissions in relation to these cases are referred to in the Appendix to these reasons.
Care must be taken in using what has been done in other cases: Hili at [53]. Differences in the facts and circumstances affects the utility of the comparative exercise. Further, as stated in Hili, the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought to, sentence" and past sentences "stand as a yardstick against which to examine a proposed sentence": Hili at [54] citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305] (Simpson J); Moodie v R [2020] NSWCCA 160 at [80]-[89] (Bell P).
The cases identified by the Crown and the respondent involved both sentences after trial and following a guilty plea. Some sentences were for single s 61J offences; others involved aggregate sentences for multiple offences which included s 61J offences. The assistance to be obtained from the latter needs to be viewed in the context that the indicative sentences are not imposed and are not amenable to appeal. There is some force in the respondent's submission that cases involving guilty pleas are of greater assistance as the arithmetic comparison of sentences after a trial is impacted by a myriad of factors including the higher significance of the standard non-parole period in post-trial sentencing, remorse, risk assessments and findings of rehabilitation.
Addressing the cases identified by the Crown: 1. for the three cases involving a guilty verdicts after trial, the sentences or indicative sentences for the s 61J offence ranged from an indicative sentence of 9 years with a non-parole period of 6 years 6 months (Wright v R [2019] NSWCCA 134), a sentence of 10 years with a non-parole period of 6 years (FB v R [2011] NSWCCA 217), to a sentence of 12 years imprisonment with a non-parole period of 9 years for a s 61J offence (JJ v R); 2. for the two cases after a discount for a guilty plea, the sentences for the s 61J offences ranged from an aggregate sentence of 8 years 11 months with a non-parole period of 5 years 9 months for three s 61J offences as part of a single episode relating to digital penetration, cunnilingus and penile-vaginal intercourse (Aloniu v R [2017] NSWCCA 74) to a sentence of 8 years 6 months with a non-parole period of 6 years for the s 61J offence relating to penile-vaginal intercourse, with an additional offence on a Form 1 of attempted aggravated sexual assault (attempted fellatio) (Enriquez v R [2012] NSWCCA 60); and 3. in Aloniu, without the discount of 6 per cent, the starting point for the indicative sentence for the s 61J offence relating to penile-vaginal intercourse (there being two other s 61J offences) for comparison with this case was 7 years 5 months with a non-parole period of 5 years. In Enriquez, without the discount of 15 per cent, the starting point for the s 61J offence for the purpose of comparison with this case was 10 years with a non-parole period of 7 years.
Turning to the cases cited by the respondent: 1. for the three cases which involved guilty verdicts after trial, the sentence or indicative sentence for the s 61J offence ranged from a sentence of 9 years 3 months with a non-parole period of 5 years and 3 months (R v DP [2019] NSWCCA 55), an aggregate sentence of 9 years 6 months with a non-parole period of 6 years 2 months for multiple offending which included a s 61J offence, but the indicative sentence for this offence was not stated on appeal (TP v R [2018] NSWCCA 140), to a separate sentence of 10 years with a non-parole period of 6 years for a s 61J offence (Fisher v R [2008] NSWCCA 129); 2. for the two aggregate sentences involving discounts for guilty pleas, the indicative sentence for the s 61J offence ranged from 6 years 3 months with a non-parole period of 4 years 4 months (after a 10 per cent discount) (R v BG [2019] NSWDC 396), to indicative sentences for two s 61J offences, respectively, 5 years 4 months and 4 years 6 months (after the 10 percent discount) (DH v R [2019] NSWCCA 128); and 3. in BG, the starting point for the indicative sentence before the 10 per cent discount for comparison with the present case was 6 years 11 months with a non-parole period of 4 years 9 months. In DH, the starting point for the indicative sentences before the 10 per cent discount for comparison with the present case was 6 years and 5 years.
Of the cases referred to by the Crown, JJ v R represents a high point and is distinguishable from the present case because it involved a greater degree of violence by the offender and some measure of vengeance being taken out by the offender against his estranged partner by forcing himself on the 14-year-old victim.
The cases which provide the closest comparators are Enriquez and Aloniu. Both involved guilty pleas, like the present case. Wright and FB are also of some assistance, although they involve guilty verdicts after trial. Significantly, the indicative sentences and the aggregate sentence in the present case were markedly lower than the sentences in these four cases, although the comparison with Aloniu requires further explanation.
While the respondent's indicative sentence for count 7 relating to penile-vaginal intercourse of 6 years 8 months after a very similar discount to that in Aloniu (here, 5 per cent as opposed to 6 per cent in Aloniu) is not markedly different from the indicative sentence in Aloniu relating to penile-vaginal intercourse of 7 years, the later indicative sentence is markedly different from the respondent's indicative sentence for count 4. While there were three offences in Aloniu they were part of a single episode (involving digital penetration, cunnilingus and penile-vaginal intercourse). Here, there were two counts (and a Form 1) and the two separate episodes of offending made this more serious as did the matters referred to in the summary of Aloniu in the Appendix.
Counsel for the respondent accepted that the sentences in the five cases referred to at [50] above have factual differences to the present case but submitted that these cases support a range in relation to the s 61J offences in this matter that pivots around 6 to 8 years. The cases referred to by the respondent do not support this submission or are otherwise of limited assistance.
Fisher involved two separate episodes of offending against different victims who were twins aged 13 years. One episode of offending involved two s 61J offences (digital penetration and penile-vaginal intercourse). The sentence imposed for this offending was a total term of imprisonment of 10 years with a non-parole period of 6 years, as part of the overall effective term of 11 years with a non-parole period of 7 years. This sentence was not disturbed on appeal.
DP is of very limited assistance because of the paucity of facts of the offending beyond that the victim aged 11 years subsequently conceived a child and gave birth, which plainly was very serious offending.
DH is distinguishable. It involved a successful offender appeal, where on re-sentence by this Court the starting point before discount for the indicative sentences for two s 61J offences was 6 and 5 years respectively. Notable differences to the present case include that the offending was not violent, and the offender had a stronger subjective case given his unreserved remorse and apology and health conditions.
BG is of limited assistance as sentences of the D istrict Court carry less weight than sentences that have been reviewed by an intermediate appellate court: DPP v De La Rosa at [144] (Basten JA) cited with approval in Moodie v R at Appendix at [12].
TP is also of limited assistance as no indicative sentences were provided in the reasons on appeal, as to what had occurred at the sentencing hearing.
One further case, which the Crown referred to at the sentencing hearing, should be mentioned. R v GWM [2012] NSWCCA 240 is of some assistance as it has some similarities to the present case as detailed in the Appendix to these reasons. Although the victim aged 11 years was younger than the present case, after a 25 per cent discount, this Court imposed a head sentence of 7 years 6 months with a non-parole period of 4 years 10 months taking into account a finding of special circumstances. The starting point before the 25 per cent discount was 10 years.

Conclusion

Accepting the wide discretion afforded to the sentencing judge, I am of the view that the aggregate sentence imposed was manifestly inadequate. This conclusion is founded on the combination of the gravity of the offending weighed against the respondent's subjective case, and the indicative sentences are so low as to suggest a basis for error in the aggregate sentence for the reasons referred to at [42]-[44] above. The manifestly inadequate indicative sentences, in turn, contributed to a manifestly inadequate aggregate sentence which failed to reflect the totality of the respondent's criminality, given there were two discrete offences involving serious sexual assaults committed a week or two apart.
My conclusion is reinforced by a consideration of the cases to which the parties referred as comparative cases, recognising the notable differences and similarities between those cases and the present case, and the lack of assistance from some of the cases referred to by the parties.

Residual discretion

I am satisfied that the Court should not exercise its discretion to decline to intervene. The Crown's notice of appeal against sentence was filed on 8 September 2022, being 28 days after the date of sentence, and the Crown's written submissions were filed promptly on 1 December 2022. The respondent does not complain of delay, and given the early indication of the appeal, the Court should not decline to intervene on this basis. Nor is this a case where the sentencing judge was led into error by the conduct of the prosecution. Nor would re-sentencing the respondent unduly disrupt his progress towards rehabilitation, and his parole date is not imminent: Green v The Queen at [43]; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [77].

Re-sentence

The Court's independent sentencing discretion is exercised having regard to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. I have adopted and acted upon the unchallenged findings of the sentencing judge, including the finding of special circumstances. The respondent did not seek to rely upon any evidence of post-sentence conduct.
The offending in counts 4 and 7 was serious for the reasons summarised at [43] above. Offending of this kind is of particular concern. Family members residing in the same household with stepfathers or de facto stepfathers are entitled to expect they will be able to feel safe in their own bedrooms without the fear of being attacked, either sexually or otherwise. The offending resulted in significant harm to the victim. The long-term psychological damage that sexual offending can have on a child or young person, has been repeatedly recognised by this Court: see for example, R v Gavel [2014] NSWCCA 56 at [110]-[112] (Leeming JA, Johnson and Hall JJ agreeing).
It is appropriate to impose an aggregate sentence. After applying the 5 per cent discount for the pleas of guilty, the individual sentences that I would indicate in accordance with s 53A of the Sentencing Act are:

count 4 (and taking into account the Form 1 offences): an indicative sentence of 9 years, 11 months imprisonment with an indicative non-parole period of 6 years, 8 months. (The starting point before the 5 per cent discount is 10 years 6 months.);
count 7: an indicative sentence of 10 years, 5 months imprisonment with an indicative non-parole period of 7 years. (The starting point before the 5 per cent discount is 11 years.)

In arriving at an aggregate sentence, it is necessary to have regard to notional accumulation, concurrency, and totality. Here, there were two separate episodes of serious sexual offending against the same person. It is necessary that the aggregate sentence reflect the total criminality involved: Noonan v R [2021] NSWCCA 35 at [41]; Aryal v R [2021] NSWCCA 2 at [50]. There should be some accumulation to reflect that each offence involved a discrete episode separated in time.
In my view, the respondent should be sentenced to an aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years.

Orders

I propose the following orders: 1. Crown appeal allowed. 2. Set aside the sentence imposed by the District Court on 11 August 2022. 3. In lieu, impose an aggregate sentence upon the respondent of 12 years imprisonment with a non-parole period of 8 years. The sentence is backdated to commence from 23 November 2020. 4. The first date that the respondent is eligible for release to parole is 22 November 2028.
FAGAN J: I agree with Gleeson JA. The learned sentencing judge made careful and well supported findings of fact and took into account every relevant factor. No specific error is suggested. However, each of the indicative sentences was in my view excessively lenient, by a significant margin, and this has led to the aggregate sentence being manifestly inadequate. Gleeson JA's consideration of sentences that this Court has either declined to disturb, or has itself passed by way of resentence after a successful appeal, shows that the aggregate sentence now under consideration is markedly inconsistent with the outcomes in comparable cases.
The objective circumstances recorded by the learned judge constitute two very serious instances of this type of offending. The respondent exhibited sexual interest in the complainant for three years prior to his commission of the offences, from when the complainant was 11. He was spoken to by family members about this and had ample opportunity to contemplate the wrongfulness of sexual activity with a stepdaughter in her early teens and to restrain himself. Each instance of sexual penetration was forceful, accompanied by threats and committed against a defenceless child. The two counts were separated by two weeks, justifying significant accumulation. It was a ready inference from the complainant's description of what had occurred that significant psychological harm would have been done to her. She provided a victim impact statement describing how she had been affected. Based upon these and all other factors to which Gleeson JA has made reference, including the respondent's subjective case, I concur in the increased term of imprisonment that his Honour proposes.
I refer to my observations in R v PC [2022] NSWCCA 59 at [55]-[58] concerning the diminution of the general deterrent effect of sentences imposed in these cases, caused by the need to anonymize the offender to comply with s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) and the consequent reluctance of media to report these cases. The present is yet another instance of a stepfather becoming sexually interested in a stepdaughter while sharing a house with the girl and her mother, then acting upon his interest when the girl reaches early to mid teens. Even before considering the volume of prosecutions that do not progress beyond trial or plea in the District Court, the number of such cases that reach this Court on appeal shows that criminal sexual offending against young girls in these circumstances is alarmingly commonplace. It appears to occur with far higher frequency than sexual offending against biological daughters. Condign punishments are imposed. However, without free dissemination of the Court's decisions, including the offender's name, the penal consequences of this type of wrongdoing are not publicised in a way that would be likely to reach potential offenders. Adult males who may feel sexual attraction to young female members of their household, not being their own offspring, could well be deterred if made aware of the long sentences that are imposed. Publication of the facts and sentencing outcomes might also make the mothers of young girls who are at risk more alert. Suppression of publicity for judgments, directed towards preserving the privacy of past victims, is likely to be defeating the deterrence of potential future offenders.
DHANJI J: I agree with Gleeson JA and I would only add the following. His Honour (at [36] and [37]) refers to the judgment of this Court in R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42. It should be noted that the principles to be applied in Crown appeals set out by Wood CJ at CL in R v Wall predate the introduction of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW). Section 68A restricts a court's power to dismiss a prosecution appeal, or to impose a lower sentence "than the court would otherwise consider appropriate" on the basis of "any element of double jeopardy involved in the respondent being sentenced again". The effect of this provision on the pre-existing common law with respect to Crown appeals was the subject of this Court's decision in R v JW (2020) 77 NSWLR 7; [2010] NSWCCA 49 (a decision of a five-judge bench) and see in the context of federal offences: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. Consistent with what Gleeson JA has said, that amendment did not change the fundamental nature of Crown appeals. With respect to this the plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 said (at [1]): "The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions ('Crown Appeals') under s 5D of the Criminal Appeal Act 1912 (NSW) ('the Criminal Appeal Act') is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.' That purpose distinguishes Crown appeals from appeals against the severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases ..." (footnotes omitted)
Their Honours later said (at [36]): "The primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.' That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion." (footnotes omitted)
To similar effect, Bell J, said (at [112]): "Their Honours [the majority in the Court of Criminal Appeal] did not address the distinctive nature of Crown appeals, which is that they should be brought as a rarity to establish a matter of principle including, where appropriate, to redress manifest inadequacy in sentencing standards." (footnotes omitted)
As Gleeson JA notes at [36], referring to authority, the limited nature of the power extends to allow intervention for the avoidance of manifest inadequacy or inconsistency in sentencing. That cannot justify intervention in every case of manifest inadequacy. In the present case, however, the nature of the offending and community concern with respect to such conduct, together with the degree of inadequacy and the absence of any significant countervailing considerations persuade me that intervention in this case is both available and appropriate.

Appendix

Enriquez involved a 39-year-old stepfather, who had been separated from the victim's mother for a year. He returned to the home in the middle of one night while the mother was working a night shift. He entered the victim's bedroom and locked the door. When the victim tried to move away, he took hold of her and prevented her from getting off the bed. He had forcible penile-vaginal intercourse with the victim. The victim was aged 15. Differences from the present case include that the offender did not threaten the victim to maintain secrecy; there was no history of grooming or sexualised conduct; the offender remained in the home until the next morning and later surrendered himself to police; compelling evidence of remorse was given; the sentencing judge found good prospects of rehabilitation; and a plea of guilty was entered and 15 per cent discount was allowed. The sentencing judge accepted that the offender had longstanding symptoms of depression, anxiety, and low self-esteem, but these did not require any less weight to be given to general deterrence. The offender had a history of "minor crimes" which tempered the leniency to be afforded to him. Special circumstances were found but the variation to the statutory ratio was modest (71 per cent).
The sentence imposed was 8 years 6 months with a non-parole period of 6 years. This took account of an offence, on a Form 1, of attempted aggravated sexual intercourse. That was an attempt by the offender to force the victim to perform fellatio on the same night, a short time prior to the principal offence. Without the effect of the discount, the starting point sentence for the s 61J offence for purposes of comparison with the present case was 10 years with a non-parole period of 7 years.
The offender's appeal against sentence was dismissed by this Court, finding that the sentence was not manifestly excessive, and the sentencing judge did not err in various findings against which the applicant complained. The sentence imposed in Enriquez for the single s 61J offence taking into account the attempted offence on the Form 1, even after the discount of 15 per cent, was significantly higher than both of the indicative sentences in this case and markedly higher than the aggregate sentence imposed on the respondent for two s 61J offences on two separate occasions with a further s 61J offence on a Form 1.
Aloniu involved offences committed on a single occasion by a 47-year old uncle by marriage of the victim, who was aged 15. She resided in his home, also shared by his wife and children. The offender had entered the room where the victim was sleeping and committed three s 61J aggravated sexual assaults comprised of digital penetration, cunnilingus, and penile-vaginal intercourse. The victim was crying during the assaults. The offender told the victim not to tell anyone and said he would buy her anything for Christmas. There was a late plea of guilty and the offender was allowed a 6 per cent discount. The offender was sentenced on the basis that he was unlikely to reoffend and had good prospects of rehabilitation but had not shown remorse, as he did not take responsibility for his actions and did not grasp the gravity of his conduct. The sentencing judge found there was no need for specific deterrence. The offender had a minor criminal record comprising an offence of common assault (domestic violence-related) for which he was fined. The sentencing judge took into account hardship on the applicant's family, in particular, his young son. There was a finding of special circumstances based principally on the offender's physical health. An aggregate sentence was imposed of 8 years 11 months with a non-parole period of 5 years 9 months. This Court (by majority) found error on a procedural fairness ground, but determined that no lesser sentence was warranted.
This Court described the offences in Aloniu as three very serious examples of sexual assault on a young person under the authority of the offender and noted that the offences were aggravated as they occurred in the victim's home and involved a gross breach of trust: see Aloniu at [73]-[74]. Notable distinguishing features between the objective circumstances in Aloniu and the present case are that Aloniu did not involve violence or aggressive physical conduct; the victim was a year older in Aloniu (aged 15); there was no prior grooming or sexualised conduct in Aloniu; and the three offences occurred within a single incident rather than in two distinct episodes as in the present case. In Aloniu, the indicative sentence for count 3 (penile-vaginal penetration) after the 6 per cent discount was 7 years with a non-parole period of 4 years 8 months, which is markedly higher than the respondent's indicative sentence for count 4 despite the features which make count 4 more serious than Aloniu, namely, aggressive physical conduct to silence the victim and threats to the victim to maintain secrecy.
Wright v R involved a 31-year-old stepfather who had resided with the victim and her mother since the victim was five years old. When she was 15, he entered her bedroom early one morning, while she was half asleep, and had forcible sexual intercourse with her (the s 61J offence). This had been preceded by repeated sexual touching over a protracted period and consequently the offence was the culmination of a course of conduct. On a second occasion, when the victim was aged 16 years, the offender committed two aggravated indecent assaults which involved kissing the victim while in her bed and then taking his pants off, exposing his penis, and trying to take the victim's pants off before she pushed him off and walked out. The offender was found guilty by a jury on all three counts and sentenced to an aggregate sentence of 12 years with 9 years non-parole. The indicative sentence for the s 61J offence was 9 years with a non-parole period of 6 years and 6 months.
The basis of sentencing included that the three counts were not isolated acts, but rather, part of a course of conduct, given the offences had been preceded by repeated sexual touching over a protracted period starting when the victim turned 14. The offender's subjective case included that his behaviour was uncharacteristic; he had a minor criminal offence and this was his first custodial sentence; generally, he had good relationships with women; what had occurred was in part explicable by his relationship with the victim's mother having gone through a period of discord and that he thought it was appropriate to satisfy his sexual needs by grooming and then engaging in the conduct the subject of the offences; there was a low risk of re-offending. Whilst there was a qualified finding of "not much" remorse, the offender in Wright did not maintain strident denial after conviction, as did the respondent in the present case. The aggregate sentence was not disturbed on the offender's appeal.
The notable similarities between Wright and the present case include the course of sexual conduct leading up to two separate occasions when sexual offences were committed, however, the offending in the present case was markedly more serious because Wright did not involve violence or physical aggression, nor did the offender take steps during or after the offence to threaten the victim into silence. There was evidence which provided an explanation for the offender's conduct in Wright, which led to an acceptance by the sentencing judge that he posed a low risk of offending, whereas the respondent failed to properly accept responsibility for all of his actions and there is no explanation for his sexual conduct towards the victim, which led to the finding that his prospects of rehabilitation are guarded. Notable differences included that the present case involved two s 61J offences committed on separate occasions, with a further s 61J offence to be taken into account on a Form 1, and the offender in Wright had a more favourable subjective case. Yet, both the indicative sentences and the aggregate sentence in the present case are markedly lower than the indicative sentence for the s 61J offence in Wright.
In FB v R, the offender was not a stepfather but a 40-year-old schoolteacher with whom the victim was temporarily residing due to conflict with her family. The victim was aged 14 years. The s 61J offence (penile-vaginal intercourse) involved moderate force and was perpetrated against the victim's resistance. The offender was found guilty after a judge alone trial but nevertheless expressed profound remorse and was found to be at a moderate risk of reoffending. A sentence of 6 years and 6 months with a non-parole period of 4 years was appealed by the Crown as manifestly inadequate. It was set aside and a sentence of 10 years with a non-parole period of 6 years was substituted.
Fisher v R involved two s 61J offences committed against one victim, aged 13, and three s 61M(1) aggravated indecent assault offences committed against the victim's twin sister on a separate occasion. The offender had been in a relationship with the victims' mother, and on occasions when their mother was working, cared for the children at his home. The two s 61J offences occurred on a single occasion as part of a continuous course of conduct. One such count involved digital penetration using a vibrator, the other involved penile-vaginal intercourse until the offender ejaculated. The sentencing judge found that the offending was at the mid-range of objective seriousness. The offender's subjective case included a psychologist report that the offender had reported a difficult childhood, that as a child and a teenager he had been the subject of sexual abuse by different older man, and that he posed a low-moderate risk of reoffending.
The reasons in this Court refer to the sentence on the "first count of aggravated sexual assault" as a total term of imprisonment of 10 years with a non-parole period of 6 years. However, the absence of any reference in the reasons to the sentence on the second s 61J count suggests that it was concurrent in the total term imposed on the "first count". The sentencing judge imposed an overall effective sentence of 11 years with a non-parole period of 7 years. The offender's appeal including on the ground of manifest excess was dismissed.
R v DP was a successful Crown appeal against sentence on the ground of manifest inadequacy. DP is of very limited assistance because of the paucity of facts of the offending that were known. The offender aged 47 years had sexual intercourse with a young girl aged 11 who conceived a child and gave birth about eight months later. The victim was related to the offender's wife and resided at the offender's home on occasions. Given that the victim became pregnant, the offending was very serious. The offender was convicted by a jury and sentenced to imprisonment of 7 years with a non-parole period of 4 years. A Crown appeal on the ground of manifest inadequacy was upheld and the offender resentenced to a term of imprisonment of 9 years with a non-parole period of 5 years 3 months.
DH v R involved offences committed by the partner of the victim's mother comprising two s 61M(2) indecent assault offences and two s 61J offences; the sentence for the first s 61J offence took into account three further offences of indecent assault listed on a Form 1. The 61J offences occurred when the victim was aged about 11 years 10 months. Both counts 8 and 9 involved penile-vaginal intercourse and in count 9, the offender ejaculated onto the bed. The offender was aged 52 when first sentenced and he had several health conditions. The offender's appeal was successful.
This Court resentenced the offender to an aggregate sentence of 10 years with a non-parole period of 7 years 6 months. The starting point of the indicative sentences for the s 61J offences were 6 and 5 years respectively. When reduced by the 10 per cent discount for the guilty pleas, the indicative sentences were 5 years 4 months with a non-parole period of 4 years and 4 years 6 months with a non-parole period of 3 years 4 months respectively. Notable differences to the present case include that the offending was not violent, and the offender had a stronger subjective case given his unreserved remorse and apology and health conditions.
R v BG involved an aggregate sentence of 9 years and a non-parole period of 6 years for multiple offences, including a s 61J offence (penile-anal penetration). The multiple offending occurred on a single occasion in a motel room perpetrated by the stepfather of the 15-year-old victim. The offender received a 10 per cent discount for his guilty pleas. The prospects of rehabilitation were found to be at least reasonable. The starting point of the indicative sentence for the s 61J offence was 6 years 9 months. The indicative sentence was very lenient given that the sentencing judge assessed the objective seriousness of offending as above the mid-range. This case is of limited assistance as sentences of the District Court carry less weight than sentences that have been reviewed by an intermediate appellate court: DPP v De La Rosa at [144] (Basten JA) cited with approval in Moodie v R at Appendix at [12].
TP v R involved an unsuccessful severity appeal on the ground of manifest excess against an aggregate sentence of 9 years 6 months with a non-parole period of 6 years 2 months. The offender indecently and sexually assaulted his 14-year old natural daughter while giving her a massage by rubbing her breasts and buttocks (counts 1 and 2: s 61M(2) offences), inserting a finger into her vagina (count 3: s 61J offence (digital penetration)) and licking and kissing her breasts (count 4: s 61M(2) offence). The offending occurred on a single occasion as part of a continuous course of conduct. Each offence was assessed by the sentencing judge as below the mid-range of objective seriousness. The offending was aggravated as it occurred in the victim's home and the offender had abused his position of trust. The applicant's subjective case included several favourable findings: he was of prior good character; the offending was out of character and an aberration; he had good prospects of rehabilitation; and he was unlikely to reoffend given his age (which is not specified in the judgment) and good character. A finding of special circumstances was also made.
The indicative sentences were not stated on appeal. Notable differences to the present case included that the offending in TP was committed on a single occasion; there was a single s 61J offence (digital penetration) which was assessed as being below the mid-range of objective seriousness. By comparison, the s 61J offences in the present matter were notably more serious, being assessed by the sentencing judge as within the mid-range (count 4) and "at least" in the mid-range (count 7), and unlike TP they involved violence, threats to secure the victim's silence, and count 7 involved ejaculation. Further, in TP, the offending was characterised as an aberration, whereas in the present matter, there was a period of sexualised conduct starting when the victim was 11 years old. The sentence imposed in TP was markedly higher than the aggregate sentence imposed on the respondent in this case.
R v GWM involved a successful Crown appeal on grounds which included manifest inadequacy. The offender sexually assaulted his 11-year-old niece when he woke her in bed and engaged in penile-vaginal intercourse ejaculating in the victim. The offender was drunk at the time of the offence. He refused to stop when asked by the victim. The offender's subjective circumstances included a background of physical and mental abuse and excessive consumption of alcohol and cannabis from an early age. He had limited criminal history. The sentencing judge found the offender was genuinely remorseful and had reasonable to good prospects of rehabilitation provided he received effective counselling for his long-term problem with drugs and alcohol and the underlying psychological and psychiatric factors which led him to these addictions.
On resentence, this Court made a finding of special circumstances based on the intervention required to assist rehabilitative steps concerning the offender given the psychiatric and psychological evidence before the Court. Applying a 25 per cent discount for the offender's plea of guilty, this Court imposed a sentence of 7 years 6 months with a non-parole period of 4 years 10 months. The starting point before the discount was 10 years. Whilst the seriousness of the offending in GMW was increased by the tender age of the victim at 11 years, notable differences with the present case are that the offending in GMW did not include the same level of force, or threats used to secure the victim's silence, whereas the offender in GWM had a far stronger subjective case.

Amendments 07 March 2023 - Amendment made to [14] 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: 07 March 2023

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