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.