R v Gommeson

Judgment 1JOHNSON J: The Crown appeals under s.5D Criminal Appeal Act 1912 with respect to sentences imposed upon the Respondent, Robert William Gommeson, in the Sydney District Court on 11 October 2013 with respect to a series of offences of child sexual abuse. 2The Respondent pleaded guilty to 20 offences committed against seven victims between January 2005 and December 2011, at times when the young male victims were aged between nine and 16 years. The Respondent was aged between 55 and 62 years when the offences were committed. The Respondent befriended the families of the victims and the offences were committed in that context. By the time of the sentencing hearing in the District Court, the Respondent acknowledged that he was a paedophile.

The Offences and Sentences 3The Respondent pleaded guilty to the following offences: (a) one count of possession of child abuse material contrary to s.91H(2) Crimes Act 1900, punishable by a maximum penalty of 10 years' imprisonment; (b) 11 counts of aggravated sexual intercourse with a child between the ages of 10 and 14 years (the circumstance of aggravation being that the victim was under the authority of the Respondent) contrary to s.66C(2) Crimes Act 1900, each offence punishable by a maximum penalty of 20 years' imprisonment; (c) five counts of aggravated sexual intercourse with a child between the ages of 14 and 16 years (the circumstance of aggravation being that the victim was under the authority of the Respondent) contrary to s.66C(4) Crimes Act 1900, each offence punishable by a maximum penalty of 12 years' imprisonment; (d) one count of attempted aggravated sexual intercourse with a child under the age of 16 years contrary to s.61J(1) and s.344A Crimes Act 1900, punishable by a maximum penalty of 20 years' imprisonment; (e) two counts of aggravated indecent assault upon a person under the age of 16 years (the circumstance of aggravation being that the victim was under the authority of the Respondent) contrary to s.61M(2) Crimes Act 1900, each offence punishable by a maximum penalty of 10 years' imprisonment with a standard non-parole period of eight years. 4In passing sentence with respect to a number of these offences, the Respondent asked the sentencing Judge to take into account, on four separate Form 1 documents, a further 11 offences. Those offences were: (a) three offences of sexual intercourse with a child between the ages of 10 and 14 years contrary to s.66C(2) Crimes Act 1900; (b) six offences of aggravated indecent assault of a child under the age of 16 years contrary to s.61M(2) Crimes Act 1900; (c) one offence of aggravated act of indecency contrary to s.61O(1) Crimes Act 1900; (d) one offence of indecent assault contrary to s.61L Crimes Act 1900. 5As mentioned, there were seven victims of the Respondent's crimes: (a) JG, who was aged between 10 and 13 years at the time of offences committed against him between 2005 and 2007; (b) KG (JG's brother), who was aged between 13 and 15 years when offences were committed against him in 2006 and 2007; (c) JH, who was 14 years old when offences were committed against him in 2011; (d) LW, who was 14 years old when offences were committed against him in 2009 and 2010; (e) BW (the brother of LW and JW), who was between nine and 10 years old when an offence was committed against him in 2011; (f) JW (the brother of LW and BW), who was between nine and 10 years old when an offence was committed against him in 2011; and (g) JK, who was 13 years old when an offence was committed against him in 2009-2010. 6The sentences imposed upon the Respondent are summarised in the following table. Offences Maximum Penalty/Standard Non-Parole Period (SNPP) Victim Sentence Between 1.1.2011 and 17.6.2011 attempt aggravated sexual assault of child under 16 years contrary to s.61J(1) and s.344A Crimes Act 1900 - attempt to digitally penetrate anus 20 years' imprisonment JH Fixed term of imprisonment for two years commencing 15 July 2012 and concluding 14 July 2014 (Sequence 49) Between 5.3.2009 and 4.3.2010 aggravated sexual intercourse with a child aged between 14 and 16 years contrary to s.66C(4) Crimes Act 1900 - fellatio 12 years' imprisonment JH Fixed term of imprisonment for three years commencing 15 July 2012 and expiring 14 July 2015 (Sequence 29) Form 1 offence taken into account - between 1.1.2011 and 17.6.2011 aggravated indecent assault of a child under 16 years contrary to s.61M(2) Crimes Act 1900 - licking anus of JH (Sequence 61) Between 1.1.2011 and 31.12.2011 aggravated indecent assault of child under 16 years contrary to s.61M(2) - touching BW on his penis when aged between nine and 10 years 10 years' imprisonment/ BW Full term of three years' imprisonment with non-parole period of two years - full term commencing 15 July 2013 and expiring on 14 July 2016 (Sequence 50) SNPP eight years' imprisonment Between 1.1.2011 and 11.9.2011 aggravated indecent assault of child under 16 years contrary to s.61M(2) - touching JW on his penis when aged between nine and 10 years 10 years' imprisonment/ JW Full term of three years' imprisonment with non-parole period of two years - full term commencing 15 July 2013 and expiring 14 July 2016 (Sequence 51) SNPP eight years' imprisonment Between 5.3.2009 and 4.3.2010 aggravated sexual intercourse with a child between the ages of 10 and 14 years contrary to s.66C(2) Crimes Act 1900 - fellatio with LW when aged 14 years 20 years' imprisonment LW Full term of seven years' imprisonment with non-parole period of five years and three months - full term commencing 15 July 2013 and expiring on 14 July 2020 (Sequence 39) Form 1 offence taken into account - between 5.3.2006 and 4.3.2007 aggravated indecent assault of child under 16 years contrary to s.61M(2) - touching LW on his penis when aged 10 years (Sequence 62) Between 5.3.2009 and 4.3.2010 aggravated sexual intercourse with a child between 10 and 14 years contrary to s.66C(2) - fellatio on JK when aged 13 years 20 years' imprisonment JK Full term of imprisonment for six years and eight months with non-parole period of five years - full term commencing 15 July 2014 and expiring on 14 March 2021 (Sequence 52) On 5.7.2012 possess child abuse material contrary to s.91H(2) Crimes Act 1900 - possession of nine colour photographs depicting JG in sexually explicit positions when aged 11 or 12 years - photographs taken by Respondent in about 2006 10 years' imprisonment JG Fixed term of imprisonment for one year commencing 15 January 2015 and expiring 14 January 2016 (Sequence 3) Three offences committed between 1.1.2006 and 31.12.2007 of aggravated sexual intercourse with a child between the ages of 10 and 14 years contrary to s.66C(2) - each offence involving fellatio on JK when aged 11 or 12 years 20 years' imprisonment for each offence JG Concurrent full terms of seven years' imprisonment with non-parole periods of five years and three months - full terms commencing on 15 January 2015 and expiring on 14 January 2022 (Sequences 19, 21, 23) Four offences committed between 1.1.2006 and 11.5.2008 of aggravated sexual intercourse with a child between the ages of 10 and 14 years contrary to s.66C(2) - each offence involved fellatio on JK when aged 12 or 13 years 20 years' imprisonment for each offence JG Concurrent full terms of seven years' imprisonment with a non-parole period of five years and three months - full terms commencing on 15 January 2015 and expiring on 14 January 2022 (Sequences 26, 43, 44 and 45) Between 1.1.2005 and 31.12.2005 aggravated sexual intercourse with a child between 10 and 14 years contrary to s.66C(2) - fellatio on JG when aged 10 or 11 years 20 years' imprisonment JG Full term of eight years' imprisonment with a non-parole period of six years - full term commencing 15 January 2015 and expiring on 14 January 2023 (Sequence 27) Form 1 offences taken into account - six offences, being three s.66C(2) offences, two s.61M(2) offences and one s.61O(1) offence - offences committed between 1.1.2007 and 11.5.2008 involving acts of fellatio by JG on Respondent, the Respondent licking the anus of JG, the Respondent rubbing his penis up and down against JG's anus and testicles and the Respondent placing his penis in a blow-up doll vagina whilst JG put his penis in the anus of the blow-up doll with both simulating sexual intercourse (Sequences 17, 53, 54, 55, 56 and 57) Four offences committed between 28.8.2006 and 31.12.2007 of aggravated sexual intercourse with a child between the ages of 10 and 14 years contrary to s.66C(4) - Respondent committing fellatio on KG or KG performing fellatio on Respondent when KG aged between 13 and 15 years 12 years' imprisonment for each offence KG Concurrent full terms of five years and three months' imprisonment with non-parole periods of four years - full terms commencing 15 January 2016 and expiring on 14 April 2021 (Sequences 13, 16, 46 and 48) Between 1.1.2006 and 27.8.2006 aggravated sexual intercourse with a child between the ages of 10 and 14 years contrary to s.66C(2) Crimes Act 1900 - Respondent performing fellatio on KG when KG aged 13 years 20 years' imprisonment KG Full term of nine years' imprisonment with a non-parole period of five years - full term commencing 15 January 2016 and expiring on 14 January 2025 (Sequence 7) Form 1 offences taken into account - three offences, being two s.61M(2) offences and one s.61L offence - between 1.1.2005 and 30.8.2008 the Respondent masturbated KG until ejaculation when he was aged 12 or 13 years; the Respondent manipulated a rubber vagina implement over KG's penis when he was aged 15 years and also when aged 16 years (Sequences 58, 59 and 60)

7Although there are apparently conflicting records concerning some of the sentences imposed upon the Respondent, for the purpose of the appeal, the individual sentences are as stated above and the total effective sentence imposed for all offences comprised a non-parole period of eight years and six months commencing on 15 July 2012 and expiring on 14 January 2021, with an additional term of four years' imprisonment commencing on 15 January 2021 and expiring on 14 January 2025.

Grounds of Appeal 8The Crown relies upon the following grounds of appeal: (a) Ground 1 - the sentences for the offences against JH (Sequences 49 and 29) were manifestly inadequate. (b) Ground 2 - the overall sentence was manifestly inadequate because of the inadequate accumulation of individual sentences.

Facts of the Offences 9An Agreed Statement of Facts was tendered at the sentencing hearing. The Respondent gave evidence at that hearing and accepted the accuracy of the facts contained in the Agreed Statement. 10The nature of the Respondent's offending was identified briefly, in tabular form, in the recital of the offences and sentences set out at [6] above. However, some narrative description is required to allow a clear understanding of the breadth and extent of the Respondent's crimes. 11At all relevant times between 2005 and 2012, the Respondent (born in 1949) lived on his own in south-western Sydney. He befriended the families of each of the victims, who lived nearby. He came to be known to the victims as "Uncle Bob". In his evidence, the Respondent acknowledged that he was a paedophile. His offending conduct against the present victims encompassed a seven-year period between 2005 and 2011, when the Respondent was aged between 55 and 62 years. 12What follows is a shortened account of the offences drawn from the Agreed Statement of Facts. Offences Against JG and KG 13JG met the Respondent when he was about 11 years old (about 2005). KG, who was two years older than JG, met the Respondent when he was about 12 years old. The Respondent was a close family friend who lived a short distance away and would socialise with the family of the boys on a regular basis. 14JG and KG would regularly stay overnight at the Respondent's house on weekends. 15Over an extended period of time, the Respondent engaged in conduct including the playing of pornographic movies to the boys, accompanied by sexual interaction with them. The activities involved, at times, each of them being naked in a spa bath. The Respondent provided alcoholic drinks to the boys as well as providing them with sex toys including rubber vaginas and a blow-up female doll. 16The Respondent's sexual offending took place in his home with the boys and whilst on outings or weekends away. 17The Respondent gave expensive items to the boys, as part of an ongoing process of grooming them and facilitating their involvement in sexual activities with him. These gifts included trail bikes, play station games, radio-controlled cars, pornographic magazines, clothing, a gym set, money and other items. 18In 2006, the Respondent took photographs of JG, then aged 11 or 12 years, lying naked on a bed in a sexually explicit pose. The Respondent retained these photographs, which were located at his house on the execution of a search warrant on 5 July 2012. An electronic copy of the photographs was located on a memory card discovered at the same time. These matters gave rise to the charge of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 for which the Respondent was sentenced (see [6] above, Sequence 3). 19The charged offences and Form 1 offences were accepted by the Respondent as being representative counts, against the background of a significant number of other similar activities involving JG and KG. 20The Respondent's sexual offences against KG continued up to KG's 16th birthday, after which the Respondent ceased to show interest in him. Offences Against JH 21JH had known the Respondent since he was eight years old (about 2005). His family lived a short distance from the Respondent and were good friends with him, socialising on a regular basis. 22When JH was about 10 years old, he commenced to spend the night on occasions at the Respondent's house together with his friend, LW. 23On occasions when JH stayed at the Respondent's house, the Respondent touched him on the penis. This occurred many times, with the charged offences being representative counts. Much of this activity occurred when JH was in the spa bath with the Respondent, including occasions when LW was there, as well, and was touched by the Respondent in the same way. 24JH repeatedly demonstrated his unwillingness to participate in sexual activity with the Respondent by telling him to stop or pushing his hand away or otherwise manifesting resistance. Despite these responses from JH, the Respondent persisted in regular sexual abuse of him over a period of time. 25The Respondent took JH to the Gold Coast on one occasion, but JH made it clear to him that he would not perform sexual acts with him. 26On occasions when JH went to the Respondent's house, he was asked by the Respondent to fill out questionnaires compiled by the Respondent. A number of these documents were tendered at the sentencing hearing. They are in typed form, and included questions such as:

• "Do you have fun at Bobs?".
• "Do you enjoy having your cock sucked at Bobs?".
• "Would you like to have sex with Bob and [LW]?".
• "What would you do to Bob for $50?".
• "What alcohol do you like?".
• "What would you do for Bob if he took you to Queensland?". 27JH filled out questionnaires of this type about three times when he was at the Respondent's house. 28During the period in which JH would stay at the Respondent's house, he estimated that the Respondent had masturbated his penis at least 15 times and had sucked his penis about 10 times, and JH recalled seeing the Respondent masturbate and suck LW's penis. 29Over the years that JH knew the Respondent, he gave JH money, mobile telephones, two scooters, helmets, shoes, clothes, an Xbox 360 and games and phone credits. Offences Against LW 30LW met the Respondent when he was about seven or eight years old (about 2004). The Respondent lived nearby and was a close friend of LW's family. LW's father looked up to the Respondent and saw him as a father figure. BW and JW are the younger brothers of LW. 31When LW was about eight years old, he went to the Respondent's house for a swim. The Respondent touched LW on the penis on the outside of his board shorts. Before LW departed for home, the Respondent said "Don't tell anyone what happened". 32Further offending conduct occurred against LW when he was at the Respondent's house with JH, including the spa pool incident referred to earlier (at [23]). After an occasion where the Respondent touched LW on the penis, the Respondent gave him $20.00 and said "Don't tell anyone". 33When LW was 13 years old (in 2009-2010), he went to the Respondent's house with his cousin, JK. The Respondent provided the boys with premixed vodka cruiser drinks and cigarettes. After a time, the Respondent, LW and JK entered the spa. The Respondent told them to remove their pants and he played with LW's penis under the water. 34A questionnaire directed to LW was prepared by the Respondent which included questions of the type referred to earlier (at [26]) together with other questions. These included (AB196):
• "Were you happy to have the weed when [xx] and [xx] had it here"?
• "Do you relax more when your [sic] at Bobs, being spoilt lol"?
• "Do you like the cruisers when your [sic] here"?
• "Is there any other type of drink your [sic] would prefer me to get for you"?
• "Does anyone at your school know anything about you/[xx]/[xx] going to Bobs"? Offence Against JK 35JK met the Respondent through his cousin, LW, who was about the same age. 36The Respondent provided alcohol to JK and LW and touched JK's penis in the spa. The Respondent gave JK money, alcohol and cigarettes and also bought him a phone and credit for the phone. 37The Respondent provided a questionnaire to JK for completion, with part of the questionnaire requesting that the boys nominate new people who they could bring to the Respondent's house. JK stated that he listed some of his friends on the document so that the Respondent "didn't whinge". Tendered at the sentencing hearing (AB198) was a typed document entitled "New guy to join us". It was located at the Respondent's house on 5 July 2012. The document was prepared by the Respondent, and contained criteria for recruitment including the following:

The Respondent's Subjective Circumstances 50As mentioned earlier, the Respondent gave evidence at the sentencing hearing. The sentencing Judge found that his evidence was "contradictory in places" (ROS14). Her Honour said that his apology "appeared sincere" (ROS13). Her Honour doubted the accuracy of the Respondent's claim that he had only known of his attraction to children "for about 15 years" although she observed that this claim at least was "qualitatively different from his earlier statement to police in which he denied being a paedophile or predator" (ROS14). Her Honour accepted that there was some movement towards insight, although time would "tell if his insight continues to grow" (ROS16). In these circumstances, her Honour observed that it was "not possible to make any finding other than that he has potential prospects [of] rehabilitation" (ROS16). 51No other evidence was presented in his case. No psychiatric or psychological report was tendered on the plea. 52The Respondent told the District Court that he grew up in rural Victoria and, after leaving school, became a police officer in that State, a position which he held between 1968 and 1979. After resigning from the police force, he worked in a hotel. He later took over the hotel business, which was in country Victoria. He moved from Victoria to New South Wales in 1988. 53The Respondent stated that he had been married, but was divorced. He was working in the glass manufacturing industry in a managerial capacity at the time of the offences. 54The Respondent acknowledged in evidence that he was a paedophile. He apologised to the victims. He said that he had not obtained psychological or other help with respect to paedophilia until he had spoken to an officer at Parklea Correctional Centre in 2013 concerning possible custodial programs which would be available to him. 55The Respondent has no prior criminal history.

Victim Impact Statements 56Victim impact statements were made by KG, JH, LW, BW and JW (AB204-208). 57Each of the victims referred to the significant disturbance he had suffered and the very considerable difficulty each continued to experience. Feelings of anger, worry, betrayal, confusion and distrust of others were expressed, together with indications of sleep disturbance and adverse effects upon schooling. 58The sentencing Judge adverted to the harm caused to the victims, in the context of a submission about the statutory aggravating factor of "substantial harm" in s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (ROS6-7): "Consideration is given as to whether the injury, emotional harm, loss or damage, caused was substantial such as to amount to an aggravating feature. I have read and considered each of the victim impact statements, some of which were read in court by supporters and all of which were tendered by consent and read by me. Whether a complainant has provided such a statement or not the Court is well aware of the anguish suffered by the victims of such offences over the course of the offending behaviour and the serious difficulties and psychological distress that can follow. Often the difficulties do not surface for a considerable time. In turn the distress of the child is compounded on the families who were not direct victims of the abuse but are left to attempt to support their children. Feelings of shame, lack of confidence and lack of ability to concentrate are sadly features of these children's lives as a result of the abuse suffered. The consequence for each of the complainants, whether they have been able to provide a statement or not will be taken into account. The statements remind the Court of the consequences of this behaviour. The offences were committed on children who were at an age where they were on the threshold of becoming adolescents or were adolescents. They are recognised to be of the most serious nature because of the long term affects of such offences can have on a developing mind. That is why such offences are considered to be of a serious nature with maximum penalties which reflect in part the consequences that frequently accompanies such behaviour. The consequences spoken of in this case are sadly a usual and common result of this type of offending. They do not form a separate aggravating circumstance."

Ground 1 - The Sentences for the Offences Against JH (Sequences 49 and 29) Were Manifestly Inadequate Submissions of the Crown 59The Crown submitted that the sentences for offences committed against JH, which comprised fixed terms of imprisonment of two years and three years respectively, were manifestly inadequate. It was emphasised that the maximum penalties for these offences were imprisonment for 20 and 12 years respectively. 60The Crown submitted that these offences were representative counts, with a further offence being taken into account on a Form 1 on sentence for the s.66C(4) offence (Sequence 29). 61The accumulation applied by the sentencing Judge was such that only 12 months' imprisonment was referable solely to the offences against JH. All of this, the Crown said, pointed to the manifest inadequacy of these sentences. Submissions of the Respondent 62Mr Smith, counsel for the Respondent, submitted that the first ground of appeal was artificial in focusing attention upon sentences imposed with respect to a single victim, when the overall sentencing exercise was a complex one involving seven victims and multiple offences. 63Reliance was placed upon BT v R [2012] NSWCCA 128 at [17], where it was said that a narrow focus on a sentence imposed on one of several counts may introduce an element of artificiality, given that a sentencing Judge has had regard to principles regarding concurrency, accumulation and totality in passing sentence for all offences. 64It was submitted that the individual sentences for offences against JH were not manifestly inadequate in the circumstances of the case. Decision 65The sentencing Judge utilised fixed-term sentences for each of the sentences involving JH. It was not stated why this course was adopted, although it may be taken that it related to the fact that sentences were being passed for multiple offences. These fixed terms ought to be treated as what would otherwise have constituted the non-parole period components of sentences if the Court had set a non-parole period and balance of term for each offence: Collier v R [2012] NSWCCA 213 at [56]-[58]. 66As counsel for the Respondent submitted, it is true that concentration on some of a larger number of sentences in an appeal to this Court may introduce an element of artificiality. This aspect poses an additional hurdle to the first ground of appeal. 67That said, the context in which that observation was made by this Court in R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320 [82], and in BT v R, was somewhat different to this case. The present case involves child sex offences committed against one of seven victims. R v Thalari and BT v R were not cases where challenge was made to a sentence imposed with respect to one of a number of victims of offences committed at different times. 68The offences committed against JH were representative counts. It was not argued for the Crown that the approach adopted by Basten JA (to which I gave guarded support) in Giles v Director of Public Prosecutions [2009] NSWCCA 308; 198 A Crim R 395 ought be taken in this case in approaching sentencing for representative counts. 69The law to be applied, in those circumstances, remains that stated in R v JCW [2000] NSWCCA 209; 112 A Crim R 466. Applying that principle, the Court should bear in mind that the present offences were not isolated offences against JH: R v JCW at 478 [67]-[68]. 70These were serious offences committed against a young boy in the care of the Respondent at the relevant times. 71In addition, one of the questionnaires related to JH (see [26] above). This aspect involves a particular additional insidious aspect of the Respondent's offending, in circumstances where the planned and ongoing nature of his conduct was already manifest. 72Further, the Agreed Statement of Facts made clear that JH, on several occasions, made clear his unwillingness to participate in sexual acts with the Respondent. Of course, the question of consent was entirely irrelevant to the Respondent's criminality. However, in circumstances where the victim made quite clear to the Respondent that he did not wish this conduct to occur at all, the Respondent's ongoing offending is rendered objectively more serious. 73To make good the first ground of appeal, the Crown must demonstrate that the sentences imposed for offences against JH were unreasonable or plainly unjust. A finding of error by way of manifest inadequacy is not justified simply because the result arrived at is markedly different from other sentences imposed in other cases: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538-539 [59]. 74It may be contended, reasonably, that longer sentences ought to have been imposed for the offences against JH. That, however, is not the test by which to measure this ground of appeal. 75In the context of a case involving a large number of offences committed against multiple victims in which questions of concurrency, accumulation and totality loom large, I am not persuaded that the first ground of appeal has been established. 76However, a further issue arises, namely whether a period of only one year's actual imprisonment solely referable to the offending conduct against JH is indicative of error. It is this issue which is at the heart of the second ground of appeal, and I turn to it now.

Ground 2 - The Overall Sentence Was Manifestly Inadequate Because of Inadequate Accumulation of Individual Sentences Submissions of the Crown 77The Crown did not seek to challenge the individual sentences (with the exception of those with respect to JH considered under Ground 1), but submitted that the level of accumulation was too low, and the sentence failed to adequately reflect the totality of the Respondent's criminal conduct to such an extent that manifest inadequacy was demonstrated. 78The Crown pointed to the range of offences committed against seven separate victims, the applicable maximum penalties, the Form 1 offences and the gravity of the Respondent's offending conduct in support of this ground. 79In particular, it was submitted that the overall effect of the sentences imposed did not reflect the need to punish the Respondent for offences committed against seven victims, with a number of the sentences containing either no discrete period to be served by reference to a particular victim or inadequate accumulation. 80Whilst acknowledging that a sentencing exercise involving multiple offences and multiple victims required the Court to undertake a discretionary exercise addressing issues of accumulation, concurrency and totality, the Crown submitted that the exercise actually undertaken in this case gave rise to a manifestly inadequate total effective non-parole period and head sentence. Submissions of the Respondent 81Mr Smith submitted that the sentencing Judge had addressed issues of accumulation, concurrency and totality and had reached a discretionary conclusion in that respect which did not disclose error. 82Counsel submitted that this was a difficult sentencing exercise having regard to the circumstances of the offences and the victims, and the circumstances (including the age) of the Respondent, and that the Crown had failed to demonstrate that the sentencing outcome was manifestly inadequate. 83Reliance was placed upon the decision in R v PFC [2011] NSWCCA 117 as a decision which assisted the submission that the ground of appeal ought be rejected. Decision 84By asserting manifest inadequacy, the Crown alleges that the result embodied in the sentencing Judge's orders was unreasonable or plainly unjust. To make good this ground, the Court must be satisfied that error occurred in the sentencing Judge's approach to accumulation, or in the outcome itself, so that this Court should conclude that the total effective sentence imposed at first instance was manifestly too short: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]. 85In order to uphold this ground, this Court must conclude that there must have been some misapplication of principle, even though where and how that occurred is not apparent from the remarks on sentence: Hili v The Queen at 539 [59]. 86A claim of manifest inadequacy of sentence requires consideration of all of the matters that are relevant to the fixing of sentence: Hili v The Queen at 539 [60]. 87The Respondent was to be sentenced for 20 offences committed against seven different child victims in a period between 2005 and 2011. Attaching to four of these offences (involving four victims) were a further 11 offences to be taken into account by way of the Form 1 procedure, in accordance with the principles in Abbas v R [2013] NSWCCA 115. 88These were not historic child sex offences being dealt with long after the commission of the offences. The Respondent had engaged recently in the repeated serious sexual abuse of a number of young boys, demonstrating a capacity and desire to move on to new victims. The questionnaire documents prepared by him (see [37] above) displayed an intention to recruit further victims (including vulnerable ones from broken families), utilising a form of seduction and manipulation of those victims. 89Despite the fact that the Respondent was 62 years old in 2011, he had shown no sign of slowing down in his entrenched and repeated pattern of sexual offending against boys. 90The Respondent's offences involved a range of substantial maximum penalties, including offences punishable by 20 years' imprisonment (12 offences), 12 years' imprisonment (five offences) and 10 years' imprisonment (three offences). The s.61M(2) offences in the last category were accompanied by a standard non-parole period of eight years. The maximum penalties and standard non-parole periods were important legislative guideposts for the purpose of sentence: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [27]; R v Gavel [2014] NSWCCA 56 at [87]. 91The Respondent was to be sentenced for an offence under s.91H(2) Crimes Act 1900 concerning child abuse material in the form of photographs he had taken of one of his victims in explicit poses in 2006. The Respondent had retained these images, giving rise to the s.91H(2) offence in 2012. Unlike many offences of possession of child abuse material, the photographs depicted one of the Respondent's own young victims whom he had abused over a number of years. This was a s.91H(2) offence of considerable objective gravity. 92The maximum penalty for an offence under s.91H(2) was increased from five to 10 years' imprisonment, in accordance with a recommendation of the NSW Sentencing Council. In recommending this course, the NSW Sentencing Council observed that an increase in the maximum penalty for possession offences to 10 years' imprisonment would serve to emphasise the need for denunciation and general deterrence for this class of offence: R v Gavel at [92]. 93The s.91H(2) offence raised an additional feature of the Respondent's offending behaviour against JG, which was to be reflected in the application of the principles of accumulation, concurrence and totality. 94The second ground of appeal in this case is similar to that considered by this Court in R v PFC, R v Brown [2012] NSWCCA 199 and Doyle v R; R v Doyle [2014] NSWCCA 4. 95Some observations made by Grove AJ (Macfarlan JA and McCallum J agreeing) in R v Brown at [38] are pertinent to the Respondent and his criminal conduct: "The high level of criminality in the respondent's conduct is not only obvious in the commission of very many serious offences over a very long period of time but in the circumstance, pointed to by the Crown prosecutor, that the respondent constantly found new victims. When he found them, he accompanied his behaviour with the accoutrements of the experienced sexual predator, showing his victims pornographic films and plying them on occasions with alcohol and drugs." 96Again in R v Brown, Grove AJ said at [50]: "The aggregate sentence imposed in the District Court significantly failed to reflect the seriousness of the respondent's multiple offences against many victims over a very long period of time. Neither did it adequately reflect the circumstances in which the crimes were committed in particular in the constant acquisition of new victims, the exposure of young people at impressionable ages to pornographic material and, from time to time, plying them with alcohol and drugs all to enable the respondent to experience forms of sexual gratification." 97This Court has emphasised the serious harm caused to victims of child sexual assault. In R v Gavel, the Court said at [110]: "This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]." 98Child victims are especially vulnerable. It is important that sentences passed for child sex offences recognise the harm done to the victim of the crime: s.3A(g) Crimes (Sentencing Procedure) Act 1999; R v Gavel at [112]. 99There were seven victims of the present Respondent. As mentioned above, five victim impact statements were placed before the sentencing court. The fact that victim impact statements were not made by other victims did not permit a conclusion that they were anything other than significantly harmed by these offences: s.29(3) Crimes (Sentencing Procedure) Act 1999. 100Where there are several victims, a failure to accumulate (at least partially) may well be seen as a failure to acknowledge the harm done to individual victims: R v Wilson [2005] NSWCCA 219 at [38]. This statement has particular resonance when it comes to victims of child sexual abuse. It is important that there be punishment that is referable in a real sense to each of the seven victims of the Respondent's serious and separate criminal conduct: Doyle v R; R v Doyle at [459]-[461]. 101Reference was made earlier (at [58]) to the sentencing Judge's comments concerning the victims. In this extract, her Honour was addressing the question whether the harm to the victims fell within the statutory aggravating factor in s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999, namely "the injury, emotional harm, loss or damage caused by the offence is substantial". 102Whilst it is important that this aspect be considered on sentence, it is necessary, as well, to keep in mind the need for the sentences imposed to reflect the harm which the law understands is done to young victims as a result of the predatory and repeated criminal conduct of persons in the position of the Respondent. This must be reflected in sentences actually imposed, which should recognise the harm done to victims of crimes of this type: R v Gavel at [104]ff. 103Although the sentencing Judge referred to these aspects, the level of accumulation does not reflect practical application of this principle in the circumstances of this case. 104The sentencing Judge explained the approach adopted with respect to accumulation, concurrency and totality (ROS16-17): "I will refer to each of the offences separately. However it is useful to look at the totality of the offending and the context of the individual charges as consideration will be given in due course to striking a balance between insuring the criminality of each offence is reflected in the sentence imposed and the principle of totality, that is reflecting the entire criminality of the course of conduct. Many of the charges are individual offences occurring separately from other actions of the offender towards each individual victim. In such cases partial accumulation will be considered in order that the individual counts are reflected as individual acts of criminality. Where there are multiple offences against a single complainant it is appropriate to provide some accumulation and some concurrency. Most of the offences fall into that category. The offender will be entitled to a finding of special circumstances due to the accumulation of sentences with an adjustment made to the parole period ratio for the final offence to reflect a suitable portion of the total sentence. I consider that a small allowance should also be made due to his potential prospects of rehabilitation. Due to the length of the sentence I propose there will be a substantial period of supervision after the expiry of the minimum term anyway. Clause 228 of the Crimes (Administration of Sentences) Act limits the amount of supervision to three years except in some circumstances. There ought be an incentive for Mr Gommeson to engage in therapy while in custody and if a crushing sentence is imposed no such incentive will exist. At present he is superficially motivated. For an offender who has indulged in years of offending any great insight would not be common at this stage." 105The issues of accumulation, concurrency and totality will arise in a variety of circumstances. 106Where there are several victims of crimes of violence (including sexual offences), it is important for the sentences actually imposed to recognise the fact that several individuals have been victimised by the offending conduct. Sometimes there may be several victims of the one course of violent conduct, such as persons robbed at the same time (three victims of robbery in a public place as in Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 116 at 121 [19]) or two victims detained and terrified by an offender simultaneously (as in Jeffries v R [2008] NSWCCA 144; 185 A Crim R 500 at 512-513 [90]). 107In R v Hamid [2006] NSWCCA 302; 165 A Crim R 179, an offender was sentenced for a series of domestic violence offences committed against different partners over a period of years. On a Crown appeal, with the agreement of Hunt AJA and Latham J, I said with respect to accumulation, concurrence and totality (at 203-204 [133]-[136]): "133 I accept the Crown submission that the learned sentencing Judge's approach to accumulation and totality has led to the imposition of manifestly inadequate sentences. With respect to a number of the offences, there is, in reality, virtually no penalty at all imposed upon the Respondent. Where there is a series of offences, some committed on one victim, others committed on another victim, there is a special need to ensure that concurrency of sentence does not gloss over that feature: R v KM [2004] NSWCCA 65 at paragraph 56. 134 In R v Knight (2005) 155 A Crim R 252, the following was said, at 272 [112], concerning questions of accumulation, concurrence and totality: 'It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM Snr at para 70; R v Kalache (2000) 111 A Crim R 152 at 184. The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at para 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at paras 36-37.' 135 A paramount principle for the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct. This principle applies in all cases, including those where punishment is imposed for multiple offences: R v Weldon (2002) 136 A Crim R 55 at 62 [46]. I am satisfied that the sentences imposed upon the Respondent, in their overall effect, fail to reflect the totality of the Respondent's criminality. 136 I am satisfied that the sentences imposed upon the Respondent were manifestly inadequate. The sentences imposed, and in particular the total effective sentence, lay outside the proper range of sentence for offences of the objective criminality that was here involved." 108The decision of this Court in Cahyadi v R [2007] NSWCCA 1; 168 A Crim 41 is referred to frequently with respect to the statement of principle concerning accumulation, concurrency and totality (at 47-48 [27]-[29]). It should be kept in mind that the offences in Cahyadi v R involved dishonesty, money laundering and passport offences, and not crimes of violence or sexual assault. There were no individual victims in that case to whom reference needed to be made. 109This observation is not intended to dilute the statement of principle in Cahyadi v R. Rather, it is to provide a reminder that other considerations will be brought into play as well when issues of accumulation, concurrency and totality arise with respect to crimes of violence, including domestic violence (Vaovasa v R; Jeffries v R; R v Hamid) and sexual assault offences involving several victims (R v Brown; Doyle v R; R v Doyle). The observations in R v PFC at [58]-[63] should be read with these considerations in mind. 110The sentencing Judge considered, in the context of totality, the avoidance of a sentence which would be crushing for the Respondent. Courts are not unfamiliar with descriptions of sentences as "crushing", but that does not articulate some applicable test: Ta'ala v R [2008] NSWCCA 132 at [42]. 111In Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 at 132 [215], with the concurrence of Tobias AJA and Hall J, I said: "An assessment whether a particular sentence is a 'crushing sentence' must have regard to the offence or offences committed by the offender, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality. As Grove J observed in Ta'ala v R at [42], 'justice is individual and each offence and each offender requires assessment'." 112It will be noted from the description of sentences set out earlier that: (a) one year of imprisonment only related solely to offences against JH; (b) the sentences with respect to BW and JW were entirely concurrent; (c) there was no period of imprisonment referable solely to JK or LW; (d) the non-parole periods with respect to KG were entirely absorbed within the non-parole periods fixed with respect to offences against JG. 113Application of relevant principle, of course, allows for partial accumulation of sentences for offences against different victims of sexual abuse. However, this Court has stated repeatedly that it is necessary to ensure public confidence in the administration of justice by the imposition of sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37]; R v Hamid at 204 [134]. 114Where there are several victims, there is a special need to ensure a proper level of accumulation to guard against a view that, in reality, there is virtually no penalty at all imposed for sexual offences committed against one or more of the victims: R v Hamid at 203 [133]. 115Those considerations must, of course, be balanced against the statement of principle in R v PFC at [62], that it is necessary to arrive at an ultimate aggregate sentence that does not exceed what is called for in all the circumstances. 116I am satisfied that the approach taken by the sentencing Judge led to an inadequate level of accumulation which did not pay proper and appropriate regard to the serious crimes committed against seven separate young victims. Error has been demonstrated in this case of the type established in Doyle v R; R v Doyle and R v Brown. As a result, manifest inadequacy has been demonstrated in the total effective non-parole period and the total effective head sentence. 117I would uphold the second ground of appeal.

The Residual Discretion and Resentencing 118In determining a Crown appeal under s.5D Criminal Appeal Act 1912, this Court has a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen [2011] HCA 49; 244 CLR 462 at 465-466 [1]-[2]. This discretion may be exercised for reasons other than double jeopardy: R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 24-25 [92], [95] and at 33 [150]. 119It is for the Court to determine whether the residual discretion to dismiss a Crown appeal ought be exercised, in all the circumstances of the case, and by reference to the material placed before the Court which bears upon the exercise of this discretion. 120If error was demonstrated, an affidavit of the Respondent affirmed 3 June 2014 was read on the appeal. 121The affidavit of the Respondent refers to his placement in the correctional system, and work which he has been undertaking since sentence was imposed in the District Court. He states that the currency of the Crown appeal has worried him and he has wondered if he may die in custody if his sentence was increased. He remains prepared to undertake a custodial sex offender program. The Respondent is on blood pressure and cholesterol medication as well as analgesics to assist with pain arising from osteoarthritis in both knees. 122If error was demonstrated, Mr Smith submitted that this Court should decline to intervene in exercise of the residual discretion. He submitted that the effective sentence actually imposed upon the Respondent was undoubtedly a long one, and that the Court should decline to intervene having regard to the evidence before the Court on appeal. 123The Crown submitted that there was no discretionary basis for declining to intervene to resentence the Respondent and that this Court should move to resentence the Respondent in circumstances where manifestly inadequate sentences had been imposed. Decision 124I am satisfied that the interests of justice require the imposition of appropriate sentences for the Respondent's crimes committed against multiple victims. His offences are patently serious and there is a corresponding propriety in imposing sentences upon the Respondent that reflect this: R v CMB [2014] NSWCCA 5 at [109]; R v Gavel at [126]. 125In forming this view, I have had regard to the sentences actually imposed at first instance and the evidence before the District Court, together with the additional evidence before this Court. 126Whilst the Respondent's age and health are undoubtedly relevant to the exercise of discretion, it should be kept in mind that he committed these serious offences over a period of years up to 2011. He was an active predatory offender despite his years, and there was no sign that the offending conduct was likely to cease. But for his arrest in 2012, it may be inferred that this conduct would have continued as long as he was able to obtain access to victims, utilising the means which had worked with some success for several years. 127I am satisfied that it is appropriate to proceed to resentence the Respondent. In this respect, it is necessary to have regard to the objective gravity of his offences and his subjective circumstances, which have been addressed in some detail earlier in this judgment. The approach to be taken with respect to accumulation, concurrency and totality is that mentioned in consideration of the second ground of appeal. 128I have regard, as well, to the Respondent's absence of prior convictions, keeping in mind the limited use that can be made of evidence of this type in sentencing for this class of offence. Given that the Respondent is a paedophile who was actively committing serious offences as recently as 2011, the evidence does not permit any finding in his favour concerning his prospects of reoffending and rehabilitation. No expert evidence or other material was placed before the sentencing court or this Court bearing upon the Respondent's prospects of rehabilitation. A guarded approach is required. 129The age of the Respondent must be kept in mind, including his age at the time of possible release on parole. 130The level of accumulation to be applied will have regard to the multiple victims, whilst at the same time ensuring that the total effective sentence does not exceed that which is called for, in all the circumstances of the case, applying the totality principle. 131As the first ground of appeal has not succeeded, the sentences for offences against JH will stand. However, as the second ground of appeal ought be upheld, a significantly greater level of accumulation will be applied as between the various sentences imposed in the District Court. 132A finding of special circumstances will be made on account of the level of accumulation to be applied, and to allow for an appropriate period of conditional liberty at the conclusion of what will be a lengthy custodial sentence. 133The total effective sentence will involve a non-parole period of 12 years commencing on 15 July 2012 and expiring on 14 July 2024 with a balance of term of five years commencing on 15 July 2024 and expiring on 14 July 2029. I am satisfied that an effective non-parole period of 12 years is the minimum period that the Respondent should spend in custody in order to appropriately reflect the criminality involved in his offences, and having regard to all the principles of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 718 [63]-[65]. 134I propose the following orders: (a) Crown appeal allowed; (b) confirm the sentences imposed in the Sydney District Court upon the Respondent on 11 October 2013 with respect to the offence against JH of attempt aggravated sexual assault of a child contrary to s.61J(1) Crimes Act 1900 (Sequence 49), and the offence against JH of aggravated sexual intercourse with a child contrary to s.66C(4) Crimes Act 1900 (Sequence 29) (taking into account an offence of aggravated indecent assault under s.61M(2) Crimes Act 1900 on a Form 1 (Sequence 61)); (c) quash all other sentences of imprisonment passed on 11 October 2013 and, in their place, sentence the Respondent to the following terms of imprisonment: (i) for the offence against BW of aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 (Sequence 50), imprisonment comprising a non-parole period of two years commencing on 15 July 2014 and expiring on 14 July 2016 with a balance of term of one year commencing on 15 July 2016 and expiring on 14 July 2017; (ii) for the offence against JW of aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 (Sequence 51), imprisonment comprising a non-parole period of two years commencing on 15 July 2015 and expiring on 14 July 2017 with a balance of term of one year commencing on 15 July 2017 and expiring on 14 July 2018; (iii) for the offence against LW of aggravated sexual intercourse under s.66C(2) Crimes Act 1900 (Sequence 39), and taking into account an offence of aggravated indecent assault under s.61M(2) Crimes Act 1900 on a Form 1 (Sequence 62), imprisonment comprising a non-parole period of five years and three months commencing on 15 July 2015 and expiring on 14 October 2020 with a balance of term of one year and nine months commencing on 15 October 2020 and expiring on 14 July 2022; (iv) for the offence against JK of aggravated sexual intercourse under s.66C(2) Crimes Act 1900 (Sequence 52), imprisonment comprising a non-parole period of five years commencing on 15 July 2016 and expiring on 14 July 2021 with a balance of term of one year and nine months commencing on 15 July 2021 and expiring on 14 April 2023; (v) for the offence involving JG of possession of child abuse material under s.91H(2) Crimes Act 1900 (Sequence 3), a fixed term of imprisonment for 12 months commencing on 15 July 2021 and expiring on 14 July 2022; (vi) on each of seven offences involving JG, being offences of aggravated sexual intercourse contrary to s.66C(2) Crimes Act 1900 (Sequences 19, 21, 23, 26, 43, 44 and 45), concurrent terms of imprisonment comprising a non-parole period of five years and three months commencing on 15 July 2016 and expiring on 14 October 2021 with a balance of term of one year and nine months commencing on 15 October 2021 and expiring on 14 July 2023; (vii) for an offence involving JG of aggravated sexual intercourse contrary to s.66C(2) Crimes Act 1900 (Sequence 27), and taking into account on a Form 1, three offences of aggravated sexual intercourse under s.66C(2), two offences of aggravated indecent assault under s.61M(2) and one offence of aggravated act of indecency under s.61O(1) Crimes Act 1900 (Sequences 17, 53, 54, 55, 56 and 57), imprisonment comprising a non-parole period of six years commencing on 15 July 2016 and expiring on 14 July 2022, with a balance of term of two years commencing on 15 July 2022 and expiring on 14 July 2024; (viii) for offences against KG, for each of four offences of aggravated sexual intercourse under s.66C(4) Crimes Act 1900 (Sequences 13, 16, 46 and 48), concurrent terms of imprisonment comprising a non-parole period of four years commencing on 15 July 2020 and expiring on 14 July 2024, with a balance of term of one year and three months commencing on 15 July 2025 and expiring on 14 October 2026; (ix) for an offence against KG of aggravated sexual intercourse under s.66C(2) Crimes Act 1900 (Sequence 7), taking into account two offences of aggravated indecent assault under s.61M and one offence of indecent assault under s.61L Crimes Act 1900 on a Form 1 (Sequences 58, 59 and 60), imprisonment comprising a non-parole period of four years commencing on 15 July 2020 and expiring on 14 July 2024 with a balance of term of five years commencing on 15 July 2024 and expiring on 14 July 2029. 135The earliest date upon which the Respondent will be eligible for release on parole is 14 July 2024. 136HARRISON J: I agree with Johnson J. 137GARLING J: I agree with Johnson J. 138THE COURT: Following the delivery of judgment by the Court in this matter on 15 August 2014, it was brought to the Court's attention that there was a misdescription of dates in sub-order (viii) of Order 3 made on that date. The order made on 15 August 2014 read (emphasis added): "(viii) for offences against KG, for each of four offences of aggravated sexual intercourse under s.66C(4) Crimes Act 1900 (Sequences 13, 16, 46 and 48), concurrent terms of imprisonment comprising a non-parole period of four years commencing on 15 July 2020 and expiring on 14 July 2024, with a balance of term of one year and three months commencing on 15 July 2025 and expiring on 14 October 2026;" 139As would be clear from the terms of the sentences passed, the order that should in fact have been made is (emphasis added): (viii) for offences against KG, for each of four offences of aggravated sexual intercourse under s.66C(4) Crimes Act 1900 (Sequences 13, 16, 46 and 48), concurrent terms of imprisonment comprising a non-parole period of four years commencing on 15 July 2020 and expiring on 14 July 2024, with a balance of term of one year and three months commencing on 15 July 2024 and expiring on 14 October 2025;" 140The Court therefore directs that the orders made on 15 August 2014 be varied by substituting the words "commencing on 15 July 2024 and expiring on 14 October 2025" for the words "commencing on 15 July 2025 and expiring on 14 October 2026". The correction of this misdescription in no way affects the substantive issues determined in this appeal or the overall period of imprisonment which the Respondent must serve.

Amendments 02 September 2014 - Paragraphs [138]-[140] added pursuant to the slip rule. Amended paragraphs: 138-140 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: 02 September 2014