respondent. Crown appeal dismissed; aggregate sentence of 23 years 6 months with non-parole period of 17 years upheld.
Key principles
An appellate Crown appeal alleging manifest inadequacy of an aggregate sentence succeeds only if the applicant demonstrates that the aggregate sentence was below the range of...
A sentencing judge's description of offending as within the 'worst category' is misleading and should be disregarded where the judge has separately and consistently assessed...
Standard non-parole periods are legislative guideposts and do not operate as mandatory starting points; sentencing judges may appropriately take into account subjective factors...
A judge's indicative sentences under s 53A are not themselves directly amenable to appeal; they are a guide to whether the aggregate sentence reflects total criminality; an...
Issues before the court
Whether the Crown has established that the aggregate sentence was manifestly inadequate.
Whether the sentencing judge erred by categorising the offending as within the 'worst case category' when indicative head sentences did not approach...
Plain English Summary
The Director appealed the District Court sentence imposed on Hill for the abduction and repeated sexual assault of an 11-year-old and possession of child abuse material, arguing the aggregate sentence was manifestly inadequate. The Court of Criminal Appeal held that to succeed the Crown had to show the aggregate sentence fell outside the permissible range and that a misapplication of principle occurred. The Court accepted the sentencing judge's unchallenged assessments of objective seriousness and his consideration of subjective factors (mental illness, remorse, protective custody, limited prior record). It found the judge's single remark that the offending was 'in the worst case category' was inconsistent with his detailed findings and should be disregarded. Because the judge lawfully balanced aggravating and mitigating factors, treated SNPPs as guideposts, and applied totality, the Court dismissed the Crown appeal and upheld the aggregate sentence of 23 years 6 months (non-parole 17 years).
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Deep Dive
2,069 words · generated 22/07/2026
Whether the sentencing judge was obliged to use the Standard Non-Parole Period (SNPP) as the starting point for non-parole periods in aggravated...
Whether the judge failed to adequately accumulate sentences in the aggregate sentence.
Cited legislation
3 cited instruments linked from this judgment.
What happened
On 12 June 2018 the respondent, then aged 47, abducted an 11-year-old girl (referred to as Michele) as she walked to school in Newcastle. The respondent forcibly raped her multiple times at locations including a park, in his vehicle, and at two separate bush locations, over an approximately five hour period. During the ordeal the respondent threatened her with extreme violence and death, bound her, blindfolded her at one stage, photographed or filmed some acts, and degraded her repeatedly using multiple forms of forced sexual intercourse (fellatio, digital vaginal and anal penetration, penile vaginal and anal penetration). After release the victim reported physical injuries and significant psychological trauma (Victim Impact Statement; Professor Hayes' report describing PTSD symptoms and suicidal ideation). Forensic evidence linked the respondent to the victim (DNA on swabs, clothing, tapelifts). The respondent's phone contained 271 images of child abuse material unrelated to the victim.
The respondent pleaded guilty to nine offences: aggravated kidnapping (s 86(2)(b) Crimes Act 1900 (NSW)), seven counts of aggravated sexual intercourse without consent (s 61J(1)), and possession of child abuse material (s 91H(2)). On 17 December 2019 Ellis DCJ imposed an aggregate sentence of 23 years and 6 months imprisonment (date to run from 16 June 2018) with an aggregate non-parole period of 17 years (sentencing particulars and indicative head sentences were set out in compliance with s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)). The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW) alleging manifest inadequacy of the aggregate sentence. On 10 August 2020 the New South Wales Court of Criminal Appeal (Price J, Garling J, Wright J) dismissed the Crown appeal.
References in the judgment relevant to facts and procedure: agreed statement of facts (background and detailed offending), forensic and medical evidence, Professor Hayes' psychological report, the respondent's forensic psychiatric report (Dr Nielssen) and the sentencing hearing where the judge indicated and then imposed aggregate sentence. The appeal focused on whether the aggregate sentence was manifestly inadequate in light of objective seriousness assessments, indicative head sentences, standard non-parole periods (SNPPs) and the extent of accumulation.
Why the court decided this way
The Court's decision turned on classic appellate sentencing principles. The key legal point is that Crown appeal alleging manifest inadequacy requires a demonstration that the sentence imposed fell outside the permissible range, that it was so far below what could be justly imposed that some misapplication of principle must have occurred (citing Pham and Bugmy principles; see Consideration, particularly the opening paragraphs of that section).
Three elements were central to the Court's reasoning:
The judge's unchallenged discrete assessments of objective seriousness
The sentencing judge assessed each of counts 1–8 individually: counts 1, 2, 6, 7 and 8 were in the 'high range'; counts 3, 4 and 5 were in the 'lower end of the high range' (table at [64]; recapitulated in Consideration at [67]). The Crown did not challenge those findings in the appeal. Because those discrete findings were not attacked, they formed a strong foundation for the judge's sentencing exercise.
Proper role of SNPP and subjective factors
The Court emphasised that SNPPs and maximum penalties are legislative guideposts, not inflexible starting points (citing Muldrock; judgment at [72]). The sentencing judge had considered the respondent's subjective circumstances, major depressive illness, substance use disorder, limited prior record, expressions of remorse, likelihood of serving sentence in protective custody (a harsher custodial environment), assaults in custody, age and prospects on release, and treated these as mitigating or special circumstances that could justify reductions. The Court held that judicial weighting of such subjective material is a discretionary judgment; absent error it should not be disturbed.
The 'worst case category' comment
The sentencing judge stated that the offending was "in the worst case category for offences of this type" (quoted at [65]). The Court viewed that broad characterisation as inconsistent with the judge's otherwise careful discrete assessments (high range / lower end of high range) and observed the High Court's teaching in R v Kilic that the 'worst category' label should be reserved for offences warranting the maximum prescribed penalty. The Court concluded it was appropriate to disregard that blanket phrase here (Consideration [69]-[71]).
Weighing these factors together the Court concluded that although the aggregate sentence might be regarded by some as lenient, it did not fall outside the permissible sentencing range and did not disclose a misapplication of principle. The Court therefore dismissed the Crown appeal.
Key paragraphs: the Court's analysis at Consideration, overview of appellate principle (early in Consideration), the table of objective findings at [64], the quote at [65], and the discussion on SNPP and totality at [72]-[75], culminating in the conclusion at [80]-[82] that the aggregate sentence did not disclose manifest inadequacy.
Before and after state of the law
Before this decision the established authorities already governed the principles used by the Court: appellate restraint on sentencing appeals (Pham [28]), SNPPs as guideposts not mandatory starting points (Muldrock), the role of totality and aggregate sentencing (Pearce, Vaughan), and the significance of subjective material (Hemsley, De La Rosa, Bugmy). This decision applies those established principles to the specific context of a Crown appeal against an aggregate sentence imposed for extremely serious child sexual offending.
After R v Hill the law remains consistent: appellate courts will not lightly disturb sentences where the sentencing judge has made coherent, unchallenged assessments of objective seriousness and has weighed subjective material in an intelligible way; a loose description of the offending as 'worst case' will not override discrete findings and can be disregarded if inconsistent. The decision reinforces the proposition that SNPPs are guideposts and that an aggregate sentence must be assessed holistically under the totality principle.
In short, R v Hill does not change the law; it illustrates its application: the Crown must do more than point to indicative starting points or legislative guideposts; it must establish that the overall sentence falls outside the available range.
Key passages with plain-English translation
Quotation (Price J): "A consideration of the agreed facts ... leads inevitably to the conclusion that the offending against this young victim was in the worst case category for offences of this type." (Quoted at [65].)
Plain English: The sentencing judge said, based on all the material, that this was among the most serious types of these offences. The CCA later said this broad label was inconsistent with the judge's own separate assessments and should be disregarded where it did not translate into head sentences approaching the statutory maximum.
"The SNPP of 10 years and the maximum penalty of 20 years are legislative guideposts in the sentencing exercise." (Consideration at [72].)
Plain English: The standard non-parole period and the statutory maximum are tools to guide sentencing but they do not automatically determine the sentence; a judge may lawfully start from below or above an SNPP depending on the case.
"The indicative sentences recorded in accordance with s 53A(2) ... are not themselves amenable to appeal, although they may be a guide..." (Consideration, citing Kerr and JM).
Plain English: The individual indicative sentences the judge states for each count (required by s 53A) are intended to show how the judge assesses each count. They are not directly appealable; an appellate court may use them only to see whether the final aggregate sentence properly reflects total criminality.
On 'worst category' (citing R v Kilic): "It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being 'within the worst category'." (Consideration at [70] paraphrasing Kilic.)
Plain English: Calling something 'worst category' implies it should attract the maximum penalty. If the judge does not in fact treat it that way, using that label can mislead and should be avoided.
What fact patterns trigger this precedent
This decision will be relevant when:
The Crown appeals against an aggregate sentence imposed for multiple serious sexual offences or kidnapping, alleging manifest inadequacy.
The sentencing judge has provided discrete objective seriousness findings and s 53A indicative sentences but also relied on substantial subjective material (mental illness, remorse, protective custody, limited prior record).
The sentencing judge uses emphatic descriptors (for example 'worst case category') inconsistent with the judge's detailed discrete findings and indicative head sentences.
There is no body of closely comparable decisions provided by the Crown to establish an objective 'yardstick' of sentencing ranges.
In such fact patterns Hill stands for the proposition that an appellate court will not set aside the aggregate sentence where the sentencing judge's reasoning is coherent, subjective mitigating factors were legitimately weighed, and the aggregate sentence, while perhaps lenient to some observers, remains within the permissible range.
How later courts have treated it
As this is a 2020 NSWCCA decision, later courts in NSW and elsewhere will treat it as persuasive appellate authority about:
The permissible scope of appellate scrutiny in manifest inadequacy appeals,
The correct treatment of the SNPP as a guidepost,
The need to disregard inconsistent 'worst category' labels where unsupported by the judge's discrete assessments.
Practitioners should watch whether Hill is cited in subsequent sentencing appeals where judges have used expansive language or where the Crown attempts to rely on s 53A indicative sentences to overturn an aggregate sentence. Hill will be relied upon to emphasise appellate restraint and to criticise imprecise 'worst category' formulaic statements by sentencing judges.
(At the date of this decision the judges themselves cited and applied established authorities, Pham, Kilic, Muldrock, Pearce, Bugmy, rather than breaking new ground. Future cases will determine Hill's specific precedential weight.)
Still-open questions
Quantifying accumulation in aggregate sentences
Hill reaffirms that a sentencing judge using an aggregate sentence need not set out precise concurrency/arithmetic (citing Vaughan), but the boundary remains somewhat uncertain. When will a failure to show the judge's accumulation arithmetic cross the line into a misapplication of principle? Hill accepts some latitude, but the precise evidentiary threshold for appellate intervention on inadequate accumulation remains fact-specific.
The limits of 'worst category' characterisations
Hill criticises the use of 'worst category' where inconsistent with discrete assessments. Future appellate decisions may further delineate when such language is so inconsistent as to warrant re-sentencing, or whether, in some contexts, 'worst category' can be reconciled with non-maximum indicative sentences (for example, where subjective mitigation fundamentally alters the appropriate head).
The weight to be given to protective custody and custodial hardship as special circumstances
Hill treated protective custody and assaults in custody as relevant to special circumstances and mitigation. How much reduction is permissible for such factors, particularly in the context of extremely serious offending, remains an open issue for subsequent sentencing judges and appellate courts.
Use of comparable decisions in Crown manifest inadequacy appeals
Hill notes (at [63]) the Crown did not provide comparative cases for offences under s 86(2) and s 61J(1). The judgment implicitly suggests such comparators are valuable; future cases will develop the extent to which the absence of comparators weakens a Crown appeal and what constitutes adequate comparative material to demonstrate manifest inadequacy.
Interaction of subjective mental illness findings and causal nexus
The judge accepted mental illness was not causative but relevant to sentencing. The boundary between causation and relevance, and the extent to which non-causative psychiatric conditions should reduce sentences, will continue to be litigated and refined in later cases.
Practical takeaways for practitioners:
When advancing a Crown appeal for manifest inadequacy, provide robust comparable cases and demonstrate misapplication of principle rather than arguing the sentence is simply lower than you would have imposed.
When defending sentence, ensure the sentencing judge's assessment of objective seriousness and subjective factors is clearly articulated and consistent; avoid formulations that are broader than the reasoning supports (for example 'worst case') unless the judge intends and justifies maximum-level sentencing.
Remember SNPPs are guideposts; articulate clearly why a departure above or below an SNPP is warranted based on the balance of aggravating and mitigating factors and totality.
This deep dive has drawn directly from the Court of Criminal Appeal's reasons (Price J, with Garling J and Wright J agreeing) in R v Hill [2020] NSWCCA 197, focusing on the legal reasoning, statutory and appellate authorities cited, the factual matrix and the appellate outcome.
Catchwords
[2013] HCA 3787 ALJR 1022302 ALR 192229 A Crim R 337
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301270 A Crim R 556327 FLR 71
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194273 ALR 324205 A Crim R 1243 FLR 28
Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 4585 ALJR 195272 ALR 465204 A Crim R 43478 ATR 11
JM v R [2014] NSWCCA 297246 A Crim R 528
Kerr v R [2016] NSWCCA 21878 MVR 191
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 2579 ALJR 1048215 ALR 213
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 3985 ALJR 1154281 ALR 652212 A Crim R 254
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221350 ALR 103
Pearce v the Queen (1998) 194 CLR 610[1998] HCA 5772 ALJR 1416156 ALR 684103 A Crim R 372
R v AJP [2004] NSWCCA 434150 A Crim R 575
R v Hemsley [2004] NSWCCA 228
R v Kilic (2016) 259 CLR 256[2016] HCA 4891 ALJR 131339 ALR 30264 A Crim R 315
R v King [2009] NSWCCA 117
R v Nakash [2017] NSWCCA 196
R v Pham (2015) 256 CLR 550[2015] HCA 3990 ALJR 13325 ALR 400244 A Crim R 280
TB v R [2020] NSWCCA 108
The Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428[2017] HCA 4191 ALJR 1063
Judgment (24 paragraphs)
[1]
17 December 2019
Before: Ellis DCJ
File Number(s): 2018/00186689
[2]
Judgment
PRICE J: This is a Crown appeal brought by the Director of Public Prosecutions ("the Director") pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on Brett David Hill ("the Respondent") by Ellis DCJ ("the judge") on 17 December 2019. The Notice of Appeal was signed by the Acting Director of Public Prosecutions on 4 March 2020 and served on the respondent on the following day.
The respondent pleaded guilty to nine offences being one count of aggravated kidnapping contrary to s 86(2)(b) of the Crimes Act 1900 (NSW), seven counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act and one count of possessing child abuse material contrary to s 91H(2) of the Crimes Act.
For the offences contrary to s 61J(1) the circumstance of aggravation was that the complainant, Michele, was under the age of 16, being 11 years old at the time of the respondent's offending. Michele is not the complainant's real name as s 578A of the Crimes Act prohibits the publication of any matter which is likely to lead to the identification of the complainant.
For the offence contrary to s 86(2)(b), the charge averred that the respondent took and detained Michele with the intent of sexually assaulting her (that being a serious indictable offence).
All of these offences were committed on 12 June 2018 in Newcastle.
The proceedings on sentence were held on 17 December 2019. Following a short adjournment, his Honour sentenced the respondent to an aggregate sentence of imprisonment of 23 years and 6 months to date from 16 June 2018 and expiring on 15 December 2041 with an aggregate non-parole period of 17 years expiring on 15 June 2035.
In accordance with s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour indicated the sentences he would have imposed but for the aggregate sentence. The following table details the maximum penalties for each of the offences, the various dates the guilty pleas were entered and the indicative sentences:
Count Section, offence and offence date Max penalty and SNPP Date plea of guilty entered Indicative sentence
Crimes Act
Sentencing count 1 (sequence 1) s 86(2)(b) 20 years imprisonment 20 February 2019 in the Local Court 10 years 6 months
Aggravated detain for advantage No SNPP
D.O.O. 12/06/18
Crimes Act 20 years imprisonment 7 years 6 months
Sentencing count 2 (sequence 2) s 61J(1) Aggravated sexual intercourse without consent SNPP 10 years 20 February 2019 in the Local Court NPP 5 years
D.O.O. 12/06/18
Crimes Act 20 years imprisonment 6 years
Sentencing count 3 (sequence 6) s 61J(1) Aggravated sexual intercourse without consent SNPP 10 years 20 February 2019 in the Local Court NPP 4 years
D.O.O. 12/06/18
Crimes Act 20 years imprisonment 6 years
Sentencing count 4 (sequence 7) s 61J(1) Aggravated sexual intercourse without consent SNPP 10 years 20 February 2019 in the Local Court NPP 4 years
D.O.O. 12/06/18
Crimes Act 20 years imprisonment 8 years 1 month
Sentencing count 5 (indictment count 4/sequence 8) s 61J(1) Aggravated sexual intercourse without consent SNPP 10 years 13 May 2019 in the District Court NPP 5 years 6 months
D.O.O. 12/06/18
Crimes Act 20 years imprisonment 11 years 5 months
Sentencing count 6 (indictment count 5/sequence 9) s 61J(1) Aggravated sexual intercourse without consent SNPP 10 years 16 October 2019 in the District Court NPP 8 years 6 months
D.O.O. 12/06/18
Crimes Act 20 years imprisonment 12 years 4 months
Sentencing count 7 (indictment count 7/sequence 10) s 61J(1) Aggravated sexual intercourse without consent SNPP 10 years 16 October 2019 in the District Court NPP 8 years 6 months
D.O.O. 12/06/18
Crimes Act 20 years imprisonment 11 years 5 months
Sentencing count 8 (indictment count 8/sequence 18) s 61J(1) Aggravated sexual intercourse without consent SNPP 10 years 16 October 2019 in the District Court NPP 8 years 6 months
D.O.O. 12/06/18
Crimes Act
Sentencing count 9 (indictment count 10/sequence 12) s 91H(2) 10 years imprisonment 28 February 2019 in the District Court 2 years 8 months
Possess child abuse material No SNPP
D.O.O. 16/06/18
[3]
The ground of appeal advanced by the Director is that the aggregate sentence is manifestly inadequate.
[4]
Facts
A lengthy statement of agreed facts was placed before the judge. The following summary is drawn from the Director's written submissions with which Mr Trevallion, the respondent's counsel, had no issue.
On the morning of 12 June 2018, Michele (then aged 11) was walking by herself to school when she was abducted by the respondent (then aged 47), who was a stranger.
The respondent attacked Michele without warning as she walked through Hudson Park, Newcastle, along a path to reach her school. The respondent raped Michele at this location, then forced her into the back of his car and drove her to two separate and unknown areas of remote bush/forest in the Newcastle area, where he again raped her at each location.
The respondent held Michele captive for five hours. He eventually released her near Kotara railway station. During this five hour ordeal, Michele was subjected to serious violence, death threats, and multiple acts of nearly every form of forced sexual intercourse - including forced fellatio, digital vaginal, digital anal, penile vaginal, and penile anal intercourse. When the respondent was later arrested, 271 unrelated child abuse images were located on his phone. The facts of these offences are outlined in greater detail as follows.
[5]
Hudson Park
At 7:50am on Tuesday 12 June 2018, the respondent left the Backpackers' Hostel located on Denison Street, Newcastle, where he had checked in two days earlier. He had told the manager he would go to Bunnings to pick up some parts to fix a door at the Backpackers. He was captured on CCTV leaving the hostel.
At about 8:15am that morning, Michele and her older brother were driven by their mother to their grandparents' home in Kotara. It was their normal routine for the children to be dropped at their grandparents' home in the morning and then they would later walk to their respective schools.
At about 8:45am, Michele left her grandparents' home and began walking by herself towards her school. She was wearing her school uniform. CCTV captured the respondent's vehicle driving past Michele as she waited to cross a street. The respondent continued along that street then turned into another street. He parked his car and made his way to the bush area between Hudson Park and the street, where he waited for Michele.
[6]
Count 1
As Michele was walking near some bushes in Hudson Park, she saw the respondent walking towards her. He looked at Michele and she looked away. As the respondent neared Michele, he grabbed her around the neck and pulled her off the path and into the bushes (the aggravated kidnapping - count one - commenced at this point). She screamed. He told her to shut up and said words to the effect of "don't move. I have a knife, and if you don't shut up, I'll kill you." He also said to her "do you want to live tomorrow?" The respondent held his hand over Michele's mouth and said "shut up or I'll suffocate you". Michele did not see a knife, but she believed the respondent had one.
The respondent pushed Michele to the ground and asked for her name and her age. Michele gave a false name of Lucy and a false age of 10; she did not want to give him her real name or age. The respondent dragged her to an area near the dressing sheds at the park and sat her down. He undid the buttons on her shirt and took pictures of her face with his phone. He was touching her body and "feeling everywhere".
The respondent pulled down Michele's underpants. She tried to pull them back up. He then laid her face down on the ground and laid on top of her. At this time a lady was walking back from xx Public School having dropped her child at school. The lady saw the respondent laying on his stomach about two or three metres off the path. The respondent raised his torso and turned to stare at her. The lady continued on her way but later rang the school to report what she had seen.
[7]
Count 2
The respondent then pulled Michele over behind the shed and exposed his penis. He told Michele to "open wide" and said to her "suck on it. Open your mouth and get the whole thing in there", forcing her to fellate him (sentencing count 2). He said "get the whole thing in there" and shoved his penis in her mouth. Michele had to "suck on it for a while". The respondent took pictures of Michele with his phone while she was sucking his penis. Michele kept asking him "can I please go to school?", but he would not let her go. Michele asked several times "are we done yet" and he said "no we're not done yet". The respondent said "I know where you live, I saw you coming out of your house".
The respondent pulled Michele to a tree and tied her hands behind her back with what she thought was a phone charger cord. She was made to sit with her back against the tree with her knees up, and she was told not to look at him. The respondent used a black cable around Michele's neck to attach her to the tree. He put Michele's underpants in her mouth and put his hoodie over her head, telling her he had to "go take a piss". She tried to undo the restraint on her hands but it was too tight.
The respondent brought his vehicle closer to where Michele was bound to the tree. He undid the cable around her neck and took her to his vehicle, her hands still bound and her head still covered by the hoodie. He placed her on the back seat of his car. Michele tried to open to the door to escape, but the respondent locked the car and told her to "lay down". Michele complied due to her fear of being hurt. He placed blankets on top of her.
[8]
First bush / forest location
The respondent began driving. Michele asked him where they were going but he told her to be quiet. Michele thought they drove for 20 - 30 minutes. When they arrived in an area of bushland, the respondent exited the vehicle and went to Michele. He removed all of her clothes and used scissors to cut the shoulder straps of her bra top and then tore the front of it off her. Michele still had the hoodie over her head, but she could see what the respondent was doing if she lifted her head a bit. She saw the respondent take photographs of her vagina and breasts with his phone. He touched her all over her body, including her breasts, vagina and buttocks, and he rubbed his penis over her body.
[9]
Count 3 and 4
The respondent used sunscreen to rub inside and around Michele's vagina and anus. He used his fingers to penetrate her vagina (sentencing count 3), telling her he was "stretching it out, so his penis could go in there". Michele told him to stop several times, and each time he responded "no". Michele was crying from the pain. He said "relax Lucy". He penetrated Michele's anus with his fingers to stretch her anus. She said "ow, that hurt", and he said "relax, it's just my pinkie finger, relax, I'm stretching it out. I'm just trying to make it less painful, so this penis can go in there".
[10]
Counts 5 and 6
The respondent then forced Michele to fellate him for about five minutes. Michele kept having drinks of water to try to make him stop putting his penis into her mouth. The respondent forced his whole penis into her mouth, causing her to almost vomit. He said "open wide". She asked him, "after this, if I do what I'm told, can you please take me home?" He said, "if you do anything stupid, I won't take you home, but if you do as I say, I'll take you home". At this location the respondent also rubbed his penis around her vagina and put his penis in her vagina.
[11]
Count 7
Michele was laying on her back on the back seat of the car with her legs apart. The respondent penetrated Michele's anus with his penis. He thrust his penis in and out of her anus causing her pain (sentencing count 7). By this stage Michele's hands were untied, but she still had the hoodie over her head. He said to her words to the effect of "oh, be quiet, otherwise I'll punch you really hard".
At some stage Michele needed to urinate. She was allowed out of the car to do so on the ground. She saw the respondent using his phone to film or photograph her. She said "don't take a photo of me peeing". He said "don't tell me what to do". He told her to get in the car. She said "can I go home now?" He said "no, we're gunna have sex". He kissed her mouth. Michele believed the respondent heard another vehicle approaching, so he put Michele in the car and put the blankets over her again, then he drove to another location in the bush.
[12]
Second bush / forest location
At the second bush location, the respondent stopped the car and opened the back door. He grabbed Michele by her legs and pulled her out of the car. He placed a blindfold over her eyes, but she was able to see some things through the gaps. The respondent laid a blue blanket out on the ground. He instructed Michele to lay down on her side with her knees bent. The respondent then lay also behind her on his side, holding her around her waist. He penetrated her anus with his penis, causing her pain (sentencing count 8). They were both naked. The respondent was making noises such as "ooh yeah". He put Michele back in the vehicle and gave her clothes back to her. He said, "are you gunna tell anybody about this? If you do tell somebody and I hear it on the radio or TV, I'm waiting for you."
[13]
Release of victim and investigation
The respondent drove Michele to an area proximate to Kotara Train Station. He got out of the car and put a wet plastic bag over Michele's head, telling her not to look up at him. He sat her on a seat and said, "look Lucy, I'm gunna let you out here and you're gunna walk the rest home". He told her it was Kotara Train Station. She asked if he could drop her off at her house. He said, "no that's where I'll get caught". She asked him for her shoes and bag, and he left them near her. He did not give back her underwear or socks. He then left (thus bringing the aggravated kidnapping, which lasted from about 9am to 2pm, to an end).
Michele ran towards her grandparents' home, arriving there at 2:20pm. She immediately disclosed what happened. Her grandmother rang 000. Police, ambulance and Michele's mother arrived shortly thereafter.
Michele was taken to John Hunter Hospital where she was observed to have ligature marks on her wrists, a scratch on her face, marks on her neck, multiple small scratches on her legs, drying secretions/fluid around her perineum, a significant amount of discharge on her inner thighs and vulval area, swelling of her hymen and vulva, irritation to her hymen, and a positive screening test for blood in the vulval and perianal swabs. Michele also suffered a small amount of bleeding after using her bowels, and soreness to her genitals and mouth. She was interviewed by police that evening.
On 16 June 2018 (four days after the offences), the respondent was driving his red Commodore (being the car he used to effect the abduction) when he was stopped for a breath test in Hudson Street, Hamilton. He had taken active steps to change his appearance. Specialist police arrived at the scene and advised the respondent his car was suspected of being used in a child abduction and sexual assault matter, and he was placed under arrest and conveyed to Newcastle Police Station. He refused to answer any questions or to consent to any forensic procedure. The respondent's DNA was obtained via a Senior Officer's Order.
DNA matching the respondent was later identified on a perioral swab taken from Michele, as well as in blood on the rear of Michele's backpack and on the rear of her shirt and front of her jacket. The respondent's partial DNA profile was located on Michele's vulval swab. A tapelift from the rear of a belt located in the respondent's vehicle matched Michele. The respondent could not be excluded from Michele's chest swab, sock and shoe; and Michele could not be excluded as a contributor to DNA located in a tapelift taken from the backseat of the respondent's vehicle and on the top of a sunscreen bottle in the vehicle.
[14]
Count 9
The respondent's phone was later examined and found to contain 271 images of unrelated images of child abuse material, comprising 128 Interpol Baseline Category 1 images, and 143 Other Child Abuse material Category 2 images (sentencing count 9). No photographs of Michele were located on the respondent's phone or during searches of his room at the Backpackers or his car.
A series of CCTV stills were tendered by the Crown on sentence to demonstrate the respondent's movements between 10 and 16 June 2018. Those stills show that within about half an hour of releasing Michele, the respondent was depicted at an IGA Store in Elermore Vale, having already changed out of the clothing he was wearing during the abduction, purchasing items including a bottle of turpentine and scourers.
[15]
Professor Hayes' Report
The material placed before the judge by the Crown included a report from Professor Emeritus Susan Hayes AO, a forensic psychologist and Michele's Victim Impact Statement.
Professor Hayes reported that Michele was demonstrating some of the adverse consequences of childhood sexual assault which included PTSD, psychological distress, low self-esteem, depressive symptoms, anxiety, poor body image, suicidal thoughts and fear.
Professor Hayes observed that there is a higher rate of mental health problems for victims of child sexual assault. A number of studies had found that sexual abuse was a significant risk factor for suicide attempts or ideation. Professor Hayes noted that Michele had already experienced suicidal thoughts, and continued counselling was a priority.
Another observation made by Professor Hayes was that there appeared to be an elevated risk of serious trauma if victims of child sexual assault encounter further stressful or traumatic events. She opined that their responses are likely to be significantly elevated and may require longer time to resolve.
Professor Hayes expressed the opinion that Michele was demonstrating many of the mental health conditions and concerns that are typically experienced by victims of child sexual assault. Michele was receiving significant family support and was participating in counselling which Professor Hayes considered may assist Michele to maintain a level of resilience. Professor Hayes stated that Michele's ongoing welfare and symptomology needed to be monitored, especially during periods of significant change or stress.
[16]
Michele's Victim Impact Statement
In her Victim Impact Statement, Michele told the respondent that she was only 11 years old when he changed her life forever. He had had a huge impact on her, on her family and her whole life. Michele stated that she will be scarred and never be cured. She said that she had been carefree, happy and a confident person but the respondent had changed that.
Michele described lying awake every night and being unable to sleep with her body shaking. She saw the respondent's face everywhere in places that she should be safe. She had taken days off school because of her mental health and had trouble concentrating. Michele said that she had suicidal thoughts because she wanted the pain to stop and to be in control of her thoughts and feelings. She had to deal with this for the rest of her life.
Michele said that to cope with the horrible abuse the respondent had done to her, she snuggles and talks to her dog but mostly she struggles to control her feelings. She had lots of anger for what he had done to her and found it hard to control her anger. She was scared and struggled to trust anyone.
Michele told the respondent that he had taken away her safety and life as she knew it. She had survived and was holding him responsible. He had to live with what he had done to her and she could never forgive him.
[17]
The respondent's subjective case
The respondent gave evidence before the judge and a report dated 13 December 2019 from Dr Olav Nielssen, a forensic psychiatrist, was tendered in his case.
The respondent was born on 25 September 1970 and was 47 years old at the time of his offending. He grew up in Muswellbrook, the youngest of his parents' four children, with three older sisters. He attended local primary and high schools.
Dr Nielssen reported that the applicant worked as a security guard from the age of 19 until the birth of his son and then had other employment in a hotel and car dealership. The respondent told Dr Nielssen that in recent years his employment had been inconsistent and his partner was the main breadwinner. He has three children, the youngest of whom was aged 19.
The respondent told Dr Nielssen that he had been a regular drinker for most of his adult life and had been a longstanding user of cannabis. However he said that he had cut down prior to the offences.
When asked by Dr Nielssen about the offences described in the Statement of Facts, the respondent replied "that is the big question with me is why I did such a thing?" the respondent said "I woke up that morning… I had drunk a lot the night before… I made a deal with the manager to fix his sliding door… I remember sitting on the lounge… I remember going out and smoking half a joint of a home made synthetic stuff… it affected me so I don't remember what I did… I remember being at the park and that a girl was underneath me… I had her come to the car with me… she just walked with me… I told her I would bring her back… I drove her around for half an hour or forty minutes… I took her to some bushland… I told her to get her gear off… I touched her [in the genital area] and she said unicorn", which he said she explained was what she said when she thought she was about to be hurt, which caused him to stop, and he said "instead I made her perform fellatio on two occasions". However, he said that he was unable to get an erection because of erectile dysfunction and did not ejaculate.
In response to questions about his state of mind at the time the offences took place, the respondent said, "I had lost my job… I did not have a place to live… I got up [got angry with] the kids and they did not want to speak to me". He said "I had thought of taking my life by driving my car into a telegraph pole… I knew I was going downhill."
[18]
Some findings by the judge
The Director helpfully provided to this Court the table at [64] below which summarises the findings that the judge made as to objective seriousness, the discounts for the pleas of guilty and the undiscounted starting points of the indicative sentences. Neither the Director nor the respondent contended that there was error in the judge's assessment of the objective seriousness and the discounts for the pleas of guilty with the exception of count 5. The different discounts for the pleas of guilty are explained by the timing of the respondent's pleas. Some of the pleas of guilty were entered in the Local Court and others in the District Court.
Mr Baker SC, who appeared with Ms Baker for the Director, pointed out that his Honour erred in allowing a discount of 10% for the guilty plea in count 5. As the plea of guilty was entered on the day of the pre-recorded hearing in the District Court which was the first day of the trial, the Director submitted that the discount should have been 5%. Mr Trevallion accepted that this was the correct discount.
Count Section & Offence Max. Pen & SNPP Conduct Starting Point for indicative sentences (before discount) Discount Indicative sentence nominated (after discount) Objective seriousness finding
Sentencing count 1 (seq 1) Crimes Act 20 years Kidnapping 14 years 25% 10 years 6 months High range
s 86(2)(b) Aggravated detain for advantage
Hudson Park Newcastle
Sentencing count 2 (seq 2) Crimes Act 20 years Fellatio 10 years 25% 7 years 6 months High range
s 61J(1) Aggravated SIWOC SNPP 10 years NPP 6 years 8 months NPP 5 years
First unknown bush/forest location in Newcastle area
Sentencing count 3 (seq 6) Crimes Act 20 years Digital/vaginal 8 years 25% 6 years Lower end of high range
s 61J(1) Aggravated SIWOC SNPP 10 years NPP 5 years 4 months NPP 4 years
Sentencing count 4 (seq 7) Crimes Act 20 years Digital/anal 8 years 25% 6 years Lower end of high range
s 61J(1) Aggravated SIWOC SNPP 10 years NPP 5 years 4 months NPP 4 years
Sentencing count 5 (Indictment count 4/seq 8) Crimes Act 20 years Fellatio 9 years 10% 8 years 1 month Lower end of high range
s 61J(1) Aggravated SIWOC SNPP 10 years NPP 6 years 1.33 months approx. NPP 5 years 6 months
Sentencing count 6 (indictment count 5/seq 9) Crimes Act 20 years Penile/vaginal 12 years 5% 11 years 5 months High range
s 61J(1) Aggravated SIWOC SNPP 10 years NPP 9 years 5.33 months approx. NPP 8 years 6 months
Sentencing count 7 (indictment count 7/seq 10) Crimes Act 20 years Penile/anal 13 years 5% 12 years 4 months High range
s 61J(1) Aggravated SIWOC SNPP 10 years NPP 9 years 2.52 months approx. NPP 8 years 9 months
Second unknown bush/forest location in Newcastle area
Sentencing count 8 (Indictment count 8/seq 18) Crimes Act 20 years Penile/anal 12 years 5% 11 years 5 months High range
s 61J(1) Aggravated SIWOC SNPP 10 years NPP 9 years 5.33 months approx. NPP 8 years 6 months
Sentencing count 9 (indictment count 10/seq12) Crimes Act 10 years 271 child abuse images on respondent's phone 3 years 10% 2 years 8 months Mid-range
s 91H(2) Possess child abuse material
[19]
After making his findings of objective seriousness of each offence as detailed in the table, the judge said that the criminality of the respondent was "extremely high". His Honour went on to say:
"A consideration of the agreed facts, the photographic and video material, the victim impact statement, the report of Professor Susan Hayes, the age of the [respondent], the age of the victim, and the fact that the detention and violation of the victim was accompanied by numerous threats of injury and death and extended over a period of approximately 5 hours, leads inevitably to the conclusion that the offending against this young victim was in the worst case category for offences of this type." (Emphasis added.)
The judge found that the respondent showed no sympathy, empathy, compassion or concern for the impact of his criminal conduct upon Michele. However, his Honour acknowledged that the respondent did release Michele without carrying out the threats of serious physical injury and death.
His Honour had no doubt that Michele was "unbelievably terrified" of the respondent, of what he was doing and threatening to do to her. His Honour observed that Michele was rightly concerned for her life and that she had shown enormous intelligence and character in the manner in which she had dealt with the respondent's offending.
The judge said that he had taken into account Michele's victim impact statement, which painted "a clear picture of the significant damage, both physical and mental suffered by Michele". The judge found that Michele faced very problematic long-term sequelae as a result of the trauma occasioned to her by the respondent.
The judge found that the respondent had a very limited criminal history and there had been a 15 year break from criminality.
His Honour observed that general deterrence and community protection were significant sentencing factors.
Having considered s 21A of the Crimes (Sentencing Procedure) Act, the judge noted, in terms of aggravating factors, that the respondent threatened the use of violence and the use of a weapon. The judge said that Michele was vulnerable by reason of her age and noted that her age was a relevant factor in each count of sexual intercourse without consent. His Honour noted there was substantial emotional harm.
His Honour found that the respondent's offending was of such a nature and the consequences were so significant that it "fell above the average".
[20]
The Director's submissions
Mr Baker argued that this Court should intervene and set aside the aggregate sentence imposed as it was "plainly unjust, being so far below the range of sentences that could justly be imposed" and was "thereby likely to undermine public confidence in the proper administration of criminal justice".
Mr Baker submitted that "the judge correctly assessed the objective seriousness of each of the offences being in the 'high range' of objective seriousness (with counts 3, 4 and 5 being in the lower end of the high range)" but despite these findings, the head sentence for the indicative sentences imposed for those offences were between 10 to 13 years. Mr Baker argued that this places those sentences within "the realm of the 10 year Standard Non-Parole Period ("SNPP") for those offences". Mr Baker contended that the indicative sentences imposed for counts 1-8 were manifestly inadequate and did not reflect the judge's findings of objective seriousness.
Another submission made by Mr Baker was that "despite finding (i) that the criminality was 'extremely high' and 'in the worst case category for offences of this type' and (ii) that the objective seriousness of each of the aggravated sexual assault charges was 'high range', none of the indicative sentences contained a non-parole period that exceeded the SNPP for an offence of aggravated sexual assault, and many of the non-parole periods imposed were almost half the SNPP". Mr Baker argued that there was no justification for reducing the non-parole period for any indicative offence below the SNPP.
Mr Baker referred to the aggravating factors of the offending and to the judge's finding of the emotional harm to Michele and contended that there were few factors that would significantly mitigate the sentence.
Mr Baker recognised it was not sufficient for the Director to merely demonstrate that the indicative sentences were manifestly inadequate as such a deficiency could be corrected by an aggregate sentence that had a large degree of accumulation. However, it was submitted that it could not be said that the process of accumulation had corrected the inadequacy of the indicative sentences.
Mr Baker further contended that the manifest inadequacy of the indicative sentences has been compounded by the failure of the judge to adequately accumulate the sentences for the discrete periods of offending and the acts committed against the victim.
[21]
The respondent's submissions
Mr Trevallion pointed out that the Director must establish that it is the aggregate sentence that is manifestly inadequate and not the individual or indicative sentences.
As to the Director's argument that the judge's findings of objective seriousness of each of the offences were inconsistent with the aggregate sentence imposed, Mr Trevallion contended that the Director's analysis did not give sufficient consideration to the weight that the judge was entitled to give to other relevant sentencing factors. Mr Trevallion referred to the respondent's pleas of guilty, his lack of a significant criminal history, his genuine expressions of remorse, his willingness to participate in the sexual offender program, his history of depression, Dr Nielssen's diagnoses of a major depressive illness and substance abuse disorder, the assessment of a moderate likelihood of re-offending, the lack of pre-meditation and planning, the service of the sentence in protective custody, the respondent's age at the time of sentence and the findings of special circumstances.
When referring to the Director's argument that there were no mitigating factors of significance, Mr Trevallion put to this Court that the Director's contention was that the judge had erred in the weight that he had placed on the subjective factors which was a discretionary matter for the judge. Mr Trevallion argued that no such error had been pleaded by the Director in the appeal.
It was submitted that when taken in context, the judge's comment that the offending was "in the worst category" did not contradict or add to his Honour's earlier statements. Mr Trevallion said it was unfortunate that the judge had used that expression. Moreover, the Director did not contend that the judge's characterisation of the objective seriousness of the offences was erroneous.
The respondent argued that the legislative guideposts of the maximum penalties and standard non-parole periods, together with all other factors and circumstances, contribute to the instinctive synthesis of the sentencing process. When asked by this Court about the indicative sentences for counts 6, 7 and 8, Mr Trevallion replied that they did not demonstrate error as the subjective factors were taken into account by the judge. Furthermore, no error was disclosed by the judge's application of the totality principle.
[22]
Consideration
In order to succeed on a ground of appeal asserting that an aggregate sentence is manifestly inadequate, the Director must establish that the judge imposed an aggregate sentence that was below the range of sentences that could be justly imposed for the respondent's offending consistently with sentencing standards. "Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence." [4] Appellate intervention is not justified simply because this Court may have exercised its sentencing discretion differently. [5]
The Director did not rely on previously decided cases so as to provide a yardstick against which the sentences indicated by the judge could be measured or as illustrative of approaches taken by other sentencing judges. [6]
The Director's failure to provide this Court with any comparable cases for offences against s 86(2) of the Crimes Act and for offences against s 61J(1) of the Crimes Act was surprising and did not assist the Director's case.
Notwithstanding the absence of comparative sentencing decisions, manifest inadequacy may be revealed by consideration of all of the matters that are relevant to fixing the sentence. [7] The imposition of a just sentence is not to be approached as if it were a mechanical or arithmetical exercise. [8]
In R v Pham, the plurality (French CJ, Keane and Nettle JJ) said at [28]:
"Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle." [9]
The Director's argument focussed on the findings by the judge of objective seriousness for counts 1-8, the maximum penalties of 20 years imprisonment, the standard non-parole periods for counts 2-8 of 10 years imprisonment, and the indicative head sentences after the reduction of the discounts for the pleas of guilty.
It is well established that the indicative sentences are not themselves amenable to appeal, although they may be a guide as to whether there is error in the aggregate sentence. Should the indicative sentences be assessed as being inadequate, it does not necessarily follow that the aggregate sentence is manifestly inadequate. [10] Bathurst CJ (with whom Hoeben CJ at CL and Price J agreed) said in Kerr v R:
"As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive." [11]
This statement of principle applies to manifest inadequacy appeals.
[23]
Endnotes
(1998) 194 CLR 610; [1998] HCA 57; 72 ALJR 1416; 156 ALR 684; 103 A Crim R 372.
R v Hemsley [2004] NSWCCA 228.
Director of Public Prosecutions (Cth) v De La Rosa (2010) 29 NSWLR 1; [2010] NSWCCA 194; 273 ALR 324; 205 A Crim R 1; 243 FLR 28.
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; 87 ALJR 1022; 302 ALR 192; 229 A Crim R 337 at [24] ("Bugmy").
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; 350 ALR 103 at [43]; TB v R [2020] NSWCCA 108 at [146]-[147].
R v Nakash [2017] NSWCCA 196 at [13].
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; 85 ALJR 195; 272 ALR 465; 204 A Crim R 434; 78 ATR 11 at [60].
Markarian v The Queen (2005) 228 CLR 357 at 372-375 [30]-[39]; [2005] HCA 25; 79 ALJR 1048; 215 ALR 213; The Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41; 91 ALJR 1063; 349 ALR 37 at [45].
(2015) 256 CLR 550 at 559; [2015] HCA 3; 90 ALJR 13; 325 ALR 400; 244 A Crim R 280.
JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40].
[2016] NSWCCA 218; 78 MVR 191 at [114].
(2016) 259 CLR 256; [2016] HCA 48; 91 ALJR 131; 339 ALR 30; 264 A Crim R 315 at [18]-[19].
(2011) 244 CLR 120; [2011] HCA 39; 85 ALJR 1154; 281 ALR 652; 212 A Crim R 254 at [32].
See for example Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; 270 A Crim R 556; 327 FLR 71 at [174].
Bugmy at [24].
R v AJP [2004] NSWCCA 434; 150 A Crim R 575; R v King [2009] NSWCCA 117.
[2020] NSWCCA 3 at [91].
[24]
Amendments
10 August 2020 - Paragraph formatting only
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: 10 August 2020
Crown appeal dismissed; aggregate sentence of 23 years 6 months with non-parole period of 17 years upheld.
When asked about the further charge of possession of child abuse material, the respondent said that it stemmed from looking at pornography on his mobile phone. He said that he did not search for child abuse material and instead was diverted to a site with images of girls who were obviously underage and from which he was sent images and he said "after that my phone was jammed with constant downloads". He said that he sent two emails to the Australian Federal Police to notify them of the adult sites promoting those links, but did not receive a reply.
Included in Dr Nielssen's review of the respondent's psychiatric history was the respondent's report of his first contact with mental health services in about 1995 for depression after he was injured in a car accident. He reported taking medication and seeing a counsellor on two or three occasions.
The respondent told Dr Nielssen that his next contact was in around 2006 when he took an overdose of medication prescribed for anxiety. He said he had been injured in a car accident that year and referred to a psychologist who made a diagnosis of post-traumatic stress disorder. He was prescribed medication for depression. However, the respondent did not report any longer term treatment.
The respondent said that in addition to the suicide attempt by taking an overdose, he had contemplated suicide by crashing his car in the months before the offences and by hanging himself in custody.
When asked by Dr Nielssen about treatment in custody, the respondent said that he had seen a doctor several times and been prescribed the sedating antidepressant mirtazapine, at the high dose of 60mg per day. However, the respondent did not report any contact with psychologists or counsellors during the year and a half he had spent on remand.
Dr Nielssen's documentary review of the respondent's medical history included a referral to a psychiatrist, Dr G Vickery in March 2006 because of "severe depression and anxiety". He had been prescribed antidepressant medication at the time. A mental health case plan referring the respondent to a psychologist had been completed by the respondent's general practitioner in July 2007.
Justice Health records revealed that the respondent reported depression and wanted to die. He was placed on suicide watch. In December 2018, he was seen by a psychiatrist who diagnosed depression and prescribed mirtazapine. The records disclosed that the dosage was increased by another psychiatrist in June 2019.
Dr Nielssen diagnosed a major depressive illness and made a further diagnosis of substance use disorder. Dr Nielssen considered the possibility of a paraphilia or a disorder of abnormal sexual interest such as heterosexual paedophilia on the bases of the offence involving a girl, the respondent correctly estimated to be around 11 years old. However, the respondent had reported that he was in a long term relationship with a woman several years older than himself and had brief relationships with other women who were similar in age to himself. Dr Nielssen expressed the opinion that it was not clear the respondent had a specific fixation with pre-pubescent females required to meet the accepted diagnostic criteria for that form of paraphilia.
Dr Nielssen assessed the respondent as having a moderate likelihood of reoffending. He reported that the respondent had expressed remorse for his actions and appeared to be a suitable candidate for referral to the sexual offender programs in person and for further counselling and supervision after release to the community.
In oral evidence before the judge, the respondent's testimony included that he was currently in protection because of threats he had received, he was receiving daily antidepressant medication and was willing to participate in the sexual offender program. When asked whether he wished to say anything to Michele, the respondent said:
"…I'm so sorry. I never set this day out to be a horrible person but I did something I never thought I would ever do. I hope one day you can move on from this."
The respondent said that he understood Michele may never move on and would be carrying the burden for the rest of her life. In cross-examination, he accepted that he knew what he was doing when he committed the offences.
The respondent's prior criminal history disclosed offences of obtain benefit not payable (1994), stealing (1996), common assault (1999 and 2002) and assault occasioning actual bodily harm (2001).
In terms of mitigating factors, the judge said that the respondent had no significant criminal history and had pleaded guilty, albeit in relation to counts 6, 7 and 8, those pleas did not come until Michele was forced to give evidence at the pre-trial evidence recording hearing.
The judge said that he would comply with the High Court's decision in Pearce v The Queen [1] by imposing indicative sentences that reflect his assessment of the discrete criminality involved in each of the separate counts, "the criminality varying from count to count… even within those counts of sexual intercourse without consent of a person under 16".
His Honour said that he would apply the principle of totality by imposing an aggregate sentence which reflected his assessment of the total level of criminality and the subjective material placed before him.
The judge observed that the respondent expressed remorse and contrition and apologised to Michele during his evidence. However, the judge said that whilst the respondent may well regret what he had done to Michele, there was also a certain amount of self-interest involved in the statements of remorse and contrition. His Honour went on to say that an individual can both have genuine remorse and contrition and seek to act in his own interest.
The judge dealt with Dr Nielssen's report in some detail but noted there was no causal connection between the major depressive illness and the respondent's offending. His Honour said that he had nevertheless taken into account what this Court had said in cases such as Hemsley [2] and De La Rosa [3] that mental health issues, "even when not causative, are, nevertheless, relevant to be taken into account in the mix when the court determines the appropriate penalty".
When referring to the passage in Dr Nielssen's report quoted at [49] above, the judge said that the respondent's counsel indicated that whilst that was no excuse, it did provide some insight "into why this middle aged person with little criminal history would have done what he did for this five hour period on 12 June 2018, noting that it was consistent with a self-destructive attitude."
His Honour referred to the respondent's counsel's submission that there was no pre-meditation prior to the respondent's sighting of Michele and said the Crown did not put it before that. His Honour went on to say "certainly the Crown's view is that, on sighting this young lady, he then determined to follow a course consistent with what he actually did."
His Honour was unable to "positively reach" the conclusion that the respondent was unlikely to re-offend and had good prospects of rehabilitation. His Honour said that he would "need to be prescient to be able to conclude as much" but he "certainly [did] not conclude to the contrary".
The judge noted that the respondent indicated that protection meant that the respondent would be locked in his cell for some 14 or 15 hours per day. His Honour said the fact that the respondent was on protection would be taken into account by a finding of special circumstances. The judge said it did mean that the respondent's time in custody would be served in harsher circumstances than would otherwise apply to those in the general prison population.
The judge found other special circumstances being this was the respondent's first time in custody, his age of 49 years and the need for a reasonably lengthy period on parole to assist with substance abuse relapse prevention and with his reintegration back into the community and to deal with his mental health issues such as his major depressive illness. His Honour observed that the respondent would be "a reasonably old man" on release and whilst in custody, "the older one is the harder it is to deal with the custodial environment".
The judge noted that the respondent had been assaulted on two occasions whilst in custody and accepted what the respondent said about "threats of violence and, indeed, death from other inmates".
The judge indicated the sentences and discounts disclosed in the table at [64] above. His Honour then imposed the aggregate sentence.
Mr Baker submitted that the aggregate sentence imposed, being 23 years and 6 months with a non-parole period of 17 years, was manifestly inadequate when viewed against the seriousness of the offences, both considered individually and in their totality.
When referring to the error in the discount allowed by the judge for count 5, Mr Baker told this Court that the Director did not rely on this error to support his claim of manifest inadequacy but asked the Court not to replicate the discount if it came to re-sentence the respondent. The Court was informed that the error results in a difference of 5.4 months.
Mr Trevallion contended that in evaluating the overall criminality of his offending, an important consideration was that all the offences with the exception of count 9 occurred over a five hour period.
The judge's assessments of the objective seriousness of each of the offences were not challenged by either party in this Court. For Counts 1-8, his Honour's findings were:
Count 1 - High range
Count 2 - High range
Count 3 - Lower end of high range
Count 4 - Lower end of high range
Count 5 - Lower end of high range
Count 6 - High range
Count 7 - High range
Count 8 - High range
Although the Director did not challenge these findings of objective seriousness, some reliance was placed on his Honour's conclusion in the passage quoted at [65] above.
"That the offending against this young victim was in the worst case category for offences of this type." (Emphasis added.)
His Honour's conclusion that the respondent's offending fell within the "worst case category" was inconsistent with the individual findings of the objective gravity of the offences. There is a difference between an assessment of an offence being in the "high range" or "lower end of high range" and an assessment of an offence being within the "worst category". A characterisation of an offence against s 61J(1) of the Crimes Act as being within the worst category would warrant an indicative sentence approaching the maximum penalty of 20 years imprisonment. In R v Kilic the High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) said:
"What is meant by an offence falling within the "worst category" of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the "worst category", it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence.
Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty - as the offending was agreed to be here - a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being "within the worst category". It is a practice which should be avoided." [12] (Citations omitted.)
In my respectful opinion, it was unapt for his Honour to have made a statement which encompassed all of the respondent's offending (other than count 9) as being in the "worst case category" when he had otherwise assessed the offences individually. As the Director does not complain about the individual assessments of objective seriousness, it is appropriate in my view, to disregard his Honour's reference to the "worst case category".
An argument advanced on behalf of the Director was none of the non-parole periods for counts 2 to 8 exceeded the SNPP of 10 years. The High Court in Muldrock v The Queen made it clear that the SNPP period neither has determinative significance in sentencing an offender nor should be treated as if it were a necessary starting point. [13] The SNPP of 10 years and the maximum penalty of 20 years are legislative guideposts in the sentencing exercise.
The respondent's submission that the assessment of the undiscounted starting point of an indicative sentence is not confined to the objective seriousness of the offence but must embrace all relevant matters, including an offenders subjective case cannot be doubted. [14] Furthermore, the weight that is given to an offender's subjective case and other sentencing considerations, such as deterrence, is quintessentially a matter for the sentencing judge. [15]
His Honour's findings on the respondent's subjective case included:
1. There was no pre-meditation for the commission of the offences prior to the respondent's sighting of Michele.
2. The respondent showed no sympathy, empathy, compassion or concern for the impact upon Michele. However, he released Michele without carrying out the threats of serious physical injury and death.
3. The respondent had no significant criminal history and had pleaded guilty, albeit in relation to counts 6, 7 and 8, those pleas did not come until Michele was forced to give evidence at the pre-trial evidence recording hearing.
4. Whilst observing that there was no causal connection between the respondent's major depressive illness and his offending, the respondent's mental health issues were relevant to the determination of the appropriate penalty.
5. There was a certain amount of self-interest involved in the respondent's statements of remorse and contrition but an individual can both have genuine remorse and contrition and seek to act in his own interest.
6. He was unable to "positively reach" the conclusion that the respondent was unlikely to re-offend and had good prospects of rehabilitation.
7. The respondent was in protection which would be taken into account by a finding of special circumstances. The respondent's time in custody would be harsher and the older one was, it would be harsher to deal with the custodial environment. The respondent was 49 years old and would be a reasonably old man upon release.
8. The respondent had been assaulted on two occasions whilst in custody and had death threats from other inmates.
None of his Honour's findings on the respondent's subjective case were challenged on appeal. The Director did not complain about the finding of special circumstances.
What then was the totality of the respondent's criminality? It is not necessary to recount again all the details of the various offences as they are set out at [9]-[34] above.
For sexual offences, it has been made clear there is no kind of hierarchy of the different types of offending that fall within the concept of sexual intercourse but what is to be considered is all the circumstances surrounding the commission of the offence. [16] Those circumstances in the present case demonstrate heinous conduct by the respondent.
Michele, who was 11 years old, was abducted by the respondent whilst she was walking through Hudson Park on her way to school. At Hudson Park, she was forced to perform an act of fellatio after she had been restrained and threatened with extreme violence. The respondent's criminality after this offence included attaching the child to a tree by restraints to her hands and around her neck. The child's underpants were placed in her mouth with the respondent's hoodie over her head.
At the first bush location, there was digital penetration and enforced fellatio. The act of digital penetration caused Michele pain. These criminal acts occurred whilst Michele was the respondent's prisoner. She had been forced into the back of the respondent's car, driven to this location where he removed her clothes. The penile-vaginal penetration and penile-anal penetration of the child that followed the enforced fellatio were acts of degradation of the highest kind. At the second bush location, the respondent penetrated the child's anus again causing her pain.
The offences were committed over five hours during which Michele was held captive. The respondent used serious threats of violence and other forms of pressure to ensure the child's compliance with his demands. As the judge found, the respondent showed no sympathy, empathy, compassion or concern for the child. Furthermore, his Honour acknowledged the terror that the child experienced and the significant damage to her life.
The judge was well aware of the high seriousness of the respondent's offending and his characterisation of the objective gravity of each of the offences is not challenged. His Honour was mindful of the need for general deterrence and protection of the community. However, the respondent's pleas of guilty and his subjective case required a reduction in sentence and the principle of totality was to be borne in mind. In my opinion, the sentences that his Honour indicated do not reveal error, other than as mentioned in [62]-[63] above.
Mr Baker was critical of the judge's failure to adequately provide for accumulation in the aggregate sentence. Although the judge was required to fix the indicative sentences, he was not required to state how they were made concurrent or accumulated. Johnson J (with whom Macfarlan JA and R A Hulme J agreed) observed in Vaughan v R:
"The principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen, have no application where an aggregate sentence is used by the sentencing Court. The principle of totality has operation with the sentencing Court to undertake that task bearing in mind totality." [17] (Citations omitted.)
The aggregate sentence of 23 years and 6 months imprisonment with a non-parole period of 17 years does not, in my opinion, disclose an excessive degree of concurrency.
Whilst I am also of the opinion that the aggregate sentence might be regarded as lenient, I am not persuaded that the aggregate sentence is manifestly inadequate.
Accordingly, I propose that the Crown's appeal should be dismissed.
GARLING J: I agree with the orders proposed by Price J. In my view, the Crown has not demonstrated that the aggregate sentence was manifestly inadequate. I am unpersuaded that the sentence fell outside the range of sentences which could properly have been imposed by the sentencing Judge.
WRIGHT J: I agree with the orders proposed by Price J for the reasons that his Honour has given. In particular I agree that, although a sterner aggregate sentence may properly have been imposed, the aggregate sentence imposed by the learned sentencing judge was not such as to be manifestly inadequate in the circumstances.