R v Hodson

Court of Criminal Appeal (NSW)|2024-11-20|Before: Mitchelmore JA, Fagan J, Dhanji J

HEADNOTE [This headnote is not to be read as part of the judgment] On 3 November 2024, the respondent, Timothy Hodson, was found guilty following a jury trial in the District Court of 6 counts of aggravated indecent assault (counts 1, 4-7 and 10), 5 counts of sexual intercourse with a child (counts 2 and 11-14), and 1 count of assault with intent to have sexual intercourse with a child (count 8). The offences occurred over a period of 15 years and involved four victims, aged between 4 and 12 years old at the time. On 7 June 2024, David DCJ imposed an aggregate sentence of 9 years and 9 months, with a non-parole period of 6 years and 6 months. Her Honour assessed most of the offences by refence to the mid-range of objective seriousness, with 10 of the 12 offences falling at (count 1), just at (counts 5 and 10), just below (count 14) or below that range (counts 2, 4, 7, 11-13). Only counts 6 and 8 were assessed as being within the lower range. The respondent's subjective case focused on his good character, experience in custody, and mental health history, which included a diagnosis of post-traumatic stress disorder following his experience on remand, and of alcohol use disorder which was in remission. The Crown appealed the sentence on the ground that it was manifestly inadequate. The Crown submitted that the indicative sentences determined by the sentencing judge failed to reflect the objective seriousness of the offending in each count, the notional accumulation of which led to an aggregate sentence that was unreasonable or plainly unjust. It also submitted that the respondent's subjective case did not justify the disparity between the indicative non-parole periods for counts 1, 2, 4, 5, 6, 7 and 10 and the standard non-parole periods for those offences. The respondent, on the other hand, submitted that he had a compelling subjective case. The Court (Mitchelmore JA, Fagan and Dhanji JJ agreeing with additional reasons) allowing the appeal, held: (1) Given the sentencing judge's findings as to the nature and objective seriousness of the offending, the indicative sentences were, to varying degrees, erroneously low: at [52]. Each offence involved a significant disparity between the age of the victim and the respondent, and several of the offences involved skin-on-skin contact with the victim's genitals and sexual intercourse: at [53]-[54]. The offences involved some planning and, in some instances, use of a position of trust: at [55]-[56]. (2) Having regard to the period of offending and number of victims, the respondent was persistent, with the offences escalating in their seriousness for each victim and over time: at [57]-[59]. (3) It was appropriate to accord some weight to the respondent's good character and absence of prior convictions, acknowledging that good character was necessarily of less significance in cases involving a pattern of repeated sexual offending against children over time. It was also necessary to reflect the sentencing judge's finding that that the need for specific deterrence was lessened by the significant trauma which the respondent had endured in a custody: at [62]. Nonetheless, the respondent's subjective case did not explain the disparity between her Honour's assessment of objective seriousness and the lenient indicative sentences and non-parole periods: at [63]. Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2); R v Kennedy [2000] NSWCCA 527 cited. (4) The lenience of the indicative sentences was compounded by the modest accumulation of what were, in all but one instance, separate and distinct offences. Where offences are separate and distinct, it is more likely that the sentence for one offence cannot comprehend the criminality of the other, with the consequence that sentences should be at least partly cumulative. The result was an aggregate sentence that was unreasonable or unjust: at [64]. Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 considered. (5) The Crown has discharged its onus in respect of the Court's discretion to re-sentence the respondent. Notwithstanding the respondent's experiences in custody, the sentence imposed in the District Court was well below the level of sentence that could reflect the seriousness of the offending against multiple victims over a significant period. Maintenance of public confidence in the administration of justice requires this Court's intervention: at [73]. CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 considered. (6) Giving weight to denunciation, adequate punishment, the recognition of the harm done to the victims, the importance of general deterrence in relation to child sex offences, and the need for cumulation in the sentences for offences committed on separate victims and concurrence in sentences imposed for offences relating to the same victim (subject to considerations of totality), the Court sentenced the respondent to an aggregate sentence of imprisonment of 12 years, with a non-parole period of 8 years and 6 months: at [74]-[77]. Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A; R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1; EG v R [2015] NSWCCA 21; PC v R (2022) 108 NSWLR 181; [2022] NSWCCA 107 cited. Per Dhanji J: (7) Planning, or a lack of planning, are recognised in statute as aggravating and mitigating factors respectively and are to be taken into account when determining the objective gravity of an offence. Factors such as these do not, however dictate the sentencing process, and will not be significant in every case. In the present case, the absence of planning was not significant and to describe offences as opportunistic in circumstances where the offender had engaged in conduct over many years rang hollow. (8) The inability of the State to protect the respondent while depriving him of his liberty amounted to a powerful factor against this Court's intervention. Offenders are sentenced to imprisonment as punishment, not for punishment. Ultimately however, the maintenance of public confidence in the administration of justice by the judicial arm of the State should not be undermined, at least in this case, by the lack of confidence in the ability of the State to provide adequate protection against physical and psychiatric harm for prisoners sentenced by the courts.

JUDGMENT

MITCHELMORE JA: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against an aggregate sentence that David DCJ imposed on the respondent, Timothy Hodson, on 7 June 2024, following a trial on indictment before her Honour and a jury for child sexual offences against four victims. Her Honour sentenced the respondent to an aggregate term of imprisonment for 9 years and 9 months, with a non-parole period of 6 years and 6 months, for the following offences: 1. in respect of JH: 1. between 1 June 2003 and 31 December 2004, assault and, at the time, committing an act of indecency, on JH, who was then under the age of 10 years, namely, 4 or 5 years old, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (count 1); 2. between 1 January 2004 and 31 January 2005, sexual intercourse with JH, who was then under the age of 10 years, namely, 4 or 5 years old, contrary to s 66A of the Crimes Act (count 2); 1. in respect of CB: 1. between 1 October 2007 and 31 October 2008, two counts of assault and, at the time, committing an act of indecency, on CB, who was then under the age of 10 years, namely, 7, 8 or 9 years old, contrary to s 61M(2) of the Crimes Act (counts 4 and 5); 2. between 1 October 2007 and 25 October 2009, assault and, at the time, committing an act of indecency, on CB, who was then under the age of 10 years, namely, 7, 8 or 9 years old, contrary to s 61M(2) of the Crimes Act (count 6); 3. between 1 October 2009 and 31 October 2010, assault and, at the time, committing an act of indecency, on CB, who was then under the age of 16 years, namely, 9, 10 or 11 years old, contrary to s 61M(2) of the Crimes Act (count 7); 4. between 1 October 2010 and 31 December 2011, assault with intent to have sexual intercourse on CB, who was then above the age of 10 years but under the age of 16 years, namely, 10, 11 or 12 years old, contrary to s 66D of the Crimes Act (count 8); 1. in respect of RC: between 1 January 2013 and 30 June 2013, assault and, at the time, committing an act of indecency, on RC, who was then under the age of 16 years, namely, 6 or 7 years old, contrary to s 61M(2) of the Crimes Act (count 10); and 2. in respect of KV: between 1 May 2017 and 30 October 2019, four counts of sexual intercourse with KV, who was then above the age of 10 and under the age of 14 years, namely, 10, 11 or 12 years old, contrary to s 66C(1) of the Crimes Act (counts 11, 12, 13 and 14).
The sole ground of appeal is that the aggregate sentence is manifestly inadequate. The Crown submitted that the sentence inadequately reflected the respondent's criminality in committing 12 sexual offences over a period of some 15 years against four victims, aged between 4 and 12 years old at the time. For the reasons set out below, I would uphold the ground of appeal.
The publication of any matter which identifies, or is likely to lead to the identification of, the four victims is prohibited pursuant to s 15A of the Children's (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act. Without intending any disrespect, I will refer to each of the four victims by different initials.

The sentence

The jury delivered its verdict on 3 November 2023, following which the respondent was detained on the Crown's application. The respondent had also spent a significant period on remand following his arrest on 16 September 2020, with bail granted on 30 April 2021.
The proceedings on sentence took place on 22 March 2024, with the Crown tendering the indictment, the respondent's criminal and custodial history, and victim impact statements from CB, RC and KV. The respondent tendered four reports by Tim Watson-Munro, psychologist, the first two of which, dated 25 February 2021 and 27 April 2021 respectively, were prepared in the context of applications for bail. The third report of Mr Watson-Munro, dated 15 October 2021, was prepared in support of a bail variation, and the fourth report, dated 21 March 2024, was prepared for the sentencing proceedings. The respondent also relied on a report of Dr Jeff Bertucen, psychiatrist, dated 28 April 2022, and character references from friends and family.
The sentencing judge noted that among the overlapping purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Procedure Act"), deterrence was a prominent factor when sentencing child sex offenders, having regard to the abhorrence with which the community regards the sexual molestation of young children, particularly where the offender is in a position of trust to the complainant: at [8]-[10]. Community protection, proportionality and denunciation were also important sentencing considerations, as well as recognising the harm done to the victims: at [12].
As to the last factor, the sentencing judge considered the victim impact statements prepared by CB, RC and KV and the impact on each of them of the respondent's offending, at a time each was a young girl entitled to feel safe. Her Honour referred to the obligation of sentencing courts to vindicate the dignity of victims of sexual assault and sexual intercourse offences: at [13]-[14]. Later in the remarks, her Honour also referred to s 25AA of the Sentencing Procedure Act, which at that time required the Court to sentence an offender for child sexual offences in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence, and to take into account the trauma of sexual abuse on child victims as understood at the time of sentencing: at [90].
After setting out general principles relating to the assessment of objective seriousness in relation to child sexual offending (at [19]-[23]), her Honour turned to the fact-finding exercise, starting with the offences against JH.

Offences against JH

JH was born in April 1999. The respondent was in a relationship with JH's mother from 2002 to around January 2005, during the course of which they were engaged to be married: at [25].

Count 1: aggravated indecent assault with child under 10 years

Count 1 took place in 2004, when JH was aged 4 or 5 years old and was in kindergarten at a local public school. The respondent was driving JH home from school. With his right hand on the steering wheel, the respondent looked at JH and asked her to pull her skirt up. JH complied and the respondent put his hand between her legs. JH pulled her underwear to the side and the respondent rubbed his hand on her genitalia for, on JH's account, "not long", a period of "probably 30 seconds": at [26].
In assessing the objective seriousness of this offence, the sentencing judge took into account: JH's young age and the significant disparity between her age and the respondent's; the skin-on-skin contact to JH's genitals; the short duration of the offending, which her Honour described as "opportunistic and impulsive"; and that the respondent was in a position of trust, being in a stepfather-type relationship with JH: at [27]. Her Honour found that the offence fell at the mid-range of objective seriousness and was aggravated by the breach of trust involved (see s 21A(2)(k) of the Sentencing Procedure Act): at [28]-[29].

Count 2: sexual intercourse with a child under 10

Count 2 also took place in 2004. When JH's mother was at work, the respondent was in the bathroom with JH. She described the offence in the following terms: "we were in the bathroom and I was naked in the bathroom and he sat on the toilet seat, both seats were down, and I sat on his lap and I leant all the way back. I remember I felt something poking me on my vagina. It felt big as a finger but that's the best of my memory".
JH stated that it "didn't pass into any further than the outside", passing her labia but not going as far as her hymen. She said "ouch" and it stopped. Although the sentencing judge found that it was unclear what was poking into JH's vagina, her Honour found, consistently with the jury's verdict, that the act involved penetration: at [31].
The sentencing judge assessed this offence as falling below the mid-range of objective seriousness: at [33]. In making that assessment, her Honour considered: JH's youth; that the sexual intercourse was penetrative but did not involve penetration beyond the hymen; that the offending was fleeting and opportunistic; that the intercourse nonetheless hurt JH, although there was no evidence of ongoing pain or injury; that the respondent was in a position of trust; that it did not involve threats of violence; and that the offending occurred in JH's home where she was entitled to feel safe: at [31].
The sentencing judge noted that she did not find the offence to be aggravated by reason of it occurring in JH's home, as this factor was taken into account in assessing objective seriousness. However, her Honour found that the offending was aggravated by the breach of trust that it involved: at [34]-[35].

Offences against CB

CB was born in October 1999 and was known to the respondent through his friendship with her parents. The evidence at trial was that he would often take CB to McCall Gardens, where he worked: at [36].

Count 4: aggravated indecent assault with child under 10 years

This offence occurred when CB was 8 years old and was in Year 3. The respondent took CB to McCall Gardens in his car. The sentencing judge found that whilst CB was in the respondent's car, he opened the car door and tried taking her shirt off, saying to her, "Cause I want to do some things to you and test them." CB responded, "Test what? I'm too young to test this stuff." She described the respondent trying to lift the bottom of her shirt up, "probably like 7 times", and at the same time putting his hand underneath her shirt and trying to touch her breasts.
CB's evidence was that she pulled his arm out so he could stop, and then she tried to take his hand off her shirt so he could stop, and he ended up stopping. He then slammed the passenger door, got in the car and drove her home, because she said she wanted to go home. On the way home, the respondent told CB that she could not tell anyone about anything that happened because he did not want to get in trouble and did not want to lose his friendship with her parents: at [37]-[39].
The sentencing judge found that this offence was below the mid-range of objective seriousness, noting that this was the submission of the Crown and defence. Her Honour considered that the area and nature of touching was not as intrusive as other offences of this nature; the respondent was persistent but the touching was of short duration and he desisted after CB made it clear that she would not cooperate; and that CB indicated to the respondent she was not consenting, and was then told, in effect, "not to tell": at [40]-[41].
The sentencing judge did not find beyond reasonable doubt that the offence involved premeditation, such that it was aggravated under s 21A(2)(n) of the Sentencing Procedure Act. Instead her Honour found that the offence occurred opportunistically and impulsively as the respondent attended McCall Gardens on a number of occasions for lawful purposes, and "the offending involved no more planning that [sic] would ordinarily be expected in these types of offences": at [42].

Count 5: aggravated indecent assault with child under 10 years

This offence also occurred when CB was aged 8 years old and was in the respondent's car at McCall Gardens. CB gave evidence that the respondent tried to take her pants off, taking her belt off, undoing the button at the waist and pulling them down. He then put his hand down into her underwear, moved the underwear to the side and away from her skin, and started to rub her genital area, which occurred for a short time. CB said to the respondent, "why are you trying to do that for?" and he removed his hand. He again told her not to tell anyone: at [43].
The sentencing judge found that this offence fell "just at the mid-range of objective seriousness", taking into account the following: the area of touching was the genital area and involved skin-on-skin touching; the respondent was persistent, although he desisted once it was clear that CB would not cooperate; CB indicated that she did not consent and tried to stop the respondent, after which he did stop; and the victim was told not to tell. For the same reasons as she gave in relation to count 4, her Honour did not find the offence to be aggravated on the basis that it involved premeditation: at [44]-[45].

Count 6: aggravated indecent assault with child under 10 years

This count occurred a year after counts 4 and 5, when CB was 9 years old, again in the respondent's car at McCall Gardens. On this occasion, the respondent pulled his penis out of his trousers and tried to move her hand so that, in CB's words, "I could touch it but I kept refusing and pulled my hand back". The respondent did not succeed in getting CB to touch his penis and the physical contact between them was limited to his touching her hand: at [47].
In finding that the offence fell at the lower end of the range of objective seriousness, her Honour reasoned that there was no actual touching of the respondent's penis; there was some evidence of persistence but it stopped short of a more forceful assault, and after some resistance from CB he did stop; the respondent did not use violence or threats; CB indicated that she was not consenting; and the respondent desisted a short time later: at [48]. Again, her Honour did not find that the offence was aggravated by premeditation, for the same reasons as she gave for count 4: at [49].

Count 7: aggravated indecent assault with child under 16 years

This offence occurred when CB was 10 years old, in a bedroom at the respondent's mother's house: at [50]. CB's evidence was that the respondent told her to lie on the bed with him: "and I was like, 'no, it's all right, I'll keep sitting up' and then ah and then he um, and then he pulled his penis out again and he goes, 'oh come and touch this'. I was like, 'no I'm not touching it' and that's when he dragged me across the bed and tried to make me touch it again."
The respondent dragged CB by the arm and pulled her up. She kept telling him, "I don't want to do it": at [51].
In assessing the objective seriousness, her Honour took into account the following: there was no actual touching of the respondent's penis; there was some evidence of persistence, although, "after some period of persistence", the respondent desisted when CB indicated that she would resist and not co-operate; CB indicated she was not consenting; and there was some physical force by the respondent albeit no actual violence and CB did not sustain any injury. Her Honour found that the offence fell below the mid-range of objective seriousness: at [52]-[53].

Count 8: assault with intent to have sexual intercourse with person between 10 and 16 years

This offence occurred when CB was 11 years old, again in the home of the respondent's parents: at [54]. CB's evidence was as follows: "And then we went in the room and then um, he, he tried to make me, he unbuckled his belt again and then unbuttoned his button then his fly up and then um, that's when he goes, he goes, 'oh, um, try, do you want to try this?' and I said, 'no, I don't want to try it' and then that's when he stood up and then tried dragging my head towards it and then, that's when I said no and then I pushed him and I pushed him away and then I walked out of his room."
In finding that this offending was in the lower range of objective seriousness, the sentencing judge took into account that: there was no actual touching of any genitals; CB indicated she was not consenting; there was some physical force by the respondent (trying to grab her head and move it towards his penis), although he did not persist or pursue CB after she pushed him away and said no; and CB was in the middle of the age range captured by the offence: at [55]-[56].

Offence against RC

RC was born in January 2006. She was known to the respondent through his romantic relationship with her mother.

Count 10: indecent assault of person under 16 years

This offence occurred in 2013, when RC was 7 years old. Her evidence was that she was in the car with the respondent on the way to Parklea Markets, when he reached over and started touching her genital area. RC said that the respondent put his hand "like, up my dress and, like, pulled my underwear, like, aside and started, like, rubbing up and down", touching the outside of her vagina for "probably like a few minutes": at [58]. In assessing the objective seriousness of the offence, her Honour took into account: RC's young age; that the touching was skin-on-skin and to the vaginal area; that it was brief and opportunistic; and that the respondent was in a position of trust given his relationship with RC's mother.
Her Honour found that the offence fell just at the mid-range of objective seriousness: at [59]. The sentencing judge did not find that the offence was aggravated on the basis that the offender was in a position of trust pursuant to s 21A(2)(k) of the Sentencing Procedure Act due to the lack of clarity of the timing of the offending and because her Honour had considered the relationship when assessing objective seriousness: at [61].

Offences against KV

KV was born in October 2006 and was known to the respondent through his friendship with her parents. Counts 11-14 related to three incidents of sexual intercourse (one of which involved two counts) that occurred over a few months between 1 May 2017 and 30 October 2019, when KV was aged 11 or 12: at [62]. Whilst maintaining his innocence, the respondent acknowledged on sentence that the level of offending in relation to these counts was more serious.
Before addressing the individual counts, her Honour recorded that she was reminded by the respondent about the issues she had raised during the trial about the manner in which KV was questioned in the pre-recorded interviews that were in evidence. Her Honour stated that she had concerns about the reliability of the evidence, which made it "difficult to comprehend in any meaningful way the nature and circumstances of the offending for my task of determining the objective seriousness": at [64]-[65]. Her Honour referred in this regard to the Crown's submission that her Honour could not accept some of the estimates KV gave about the duration of the offending the subject of these counts: at [67].

Count 11: sexual intercourse with a child between 10 and 16 years

Count 11 occurred when KV was aged 11 or 12. The respondent and KV were alone in the respondent's living room. He asked her to remove her clothing. She did not want to but the respondent persisted, and removed her clothing. He then placed KV on the lounge and inserted his penis inside her vagina whilst wearing a condom. The respondent also touched KV's breasts for about five minutes. According to KV, the whole thing went for about half an hour: at [69]-[70].
Her Honour recorded the Crown submission that the offence fell at the mid-range by reason of the following factors: the intercourse was penile-vaginal; the offence was inherently serious notwithstanding that the duration of the intercourse was unclear; there was no violence, threats, or evidence of pain or injury; KV was in the middle of the age range of offending; and there was an age disparity with the respondent: at [71]. Her Honour, however, found that the offence sat below the mid-range of objective seriousness: at [72]. Her Honour was not satisfied beyond reasonable doubt that the offence was aggravated by reason of being planned, again using the formulation that it "involved no more planning than would ordinarily be expected in these types of offences": at [73].

Count 12: sexual intercourse with a child between 10 and 16 years

This offence occurred on another occasion when the respondent drove KV to his home and engaged in sexual activity with her on the lounge, with her Honour finding that the respondent inserted his penis into KV's vagina whilst wearing a condom: at [74]. Her Honour assessed this offence as sitting below the mid-range of objective seriousness, taking into account the following factors: KV's age; the offending involved penile-vaginal intercourse; the intercourse could not be said to be brief (although it was difficult to determine its duration); and penile-vaginal intercourse with KV was not isolated. Again, her Honour did not find the offence aggravated pursuant to s 21A(2)(n) of the Sentencing Procedure Act: at [75]-[77].

Counts 13 & 14: sexual intercourse with a child between 10 and 16 years

These offences occurred as part of the same incident, when KV and the respondent were alone at his home, with count 13 involving cunnilingus and count 14 involving penile-vaginal sexual intercourse. Her Honour found that whilst in the living room, the respondent told KV to undress and, when she was lying on her back on the lounge, he inserted his penis into her vagina (count 14). KV said that the sexual intercourse continued for roughly half an hour. The Crown did not submit that the sentencing court would find beyond reasonable doubt that it went for that time but did submit that the offending was not brief or momentary: at [79].
KV gave evidence that the respondent asked her to let him put his penis in her mouth maybe two to three times. She said that he then got on his knees and started licking her vagina on "the inside" (count 13). He did this for a few seconds before getting up off his knees and again inserting his penis into her vagina. The cunnilingus thus occurred in the midst of the penile-vaginal intercourse that was the subject of count 14: at [80]-[81].
In finding that count 13 fell below the mid-range of objective seriousness, her Honour referred to the Crown's submission that the offence fell below the mid-range because it took place amidst the penile-vaginal intercourse; it was not isolated conduct, both in terms of KV and sexual activity with children more generally; and there was no violence, threats, or evidence of pain or injury: at [85]. In finding that count 14 fell "just below the mid-range", her Honour took into account that it was penile-vaginal intercourse; it was not an isolated incident; the offending was not fleeting and "to the victim it felt like it went on for some time"; the respondent was wearing a condom; and there was no violence, threats, or evidence of pain or injury: at [87]-[88]. Again, her Honour did not find that either count 13 or count 14 was aggravated pursuant to s 21A(2)(n) of the Sentencing Procedure Act: at [89].

Mitigating factors

In terms of mitigating factors, the sentencing judge found that the respondent was of good character and had no previous convictions, and that s 21A(5A) of the Sentencing Procedure Act did not preclude her from taking those matters into account: at [92]-[93]. Her Honour was mindful that good character was of less significance in cases of child sexual assault, particularly those involving repeat offending: at [93]. However, having regard to the character evidence from family members and others, her Honour was satisfied on balance that the respondent's good character was a matter she could take into account in mitigation: at [97]. The respondent was also entitled to some leniency by reason of having no prior convictions: at [98].
The sentencing judge found that the respondent had good prospects of rehabilitation "with the right level of professional support, in combination with support upon his release and reintegration back into the community". On the basis of that support, her Honour also found that his risk of reoffending was low: at [103]. Her Honour took into account in this regard that the respondent's experience in prison to date, and his continuing fear of prison, would "continue to be a strong deterrent in the future": at [102]. Remorse was not a mitigating factor as the respondent maintained his innocence: at [104].

Subjective circumstances

The focus of the respondent's subjective case was his mental health history and his experience in custody. Her Honour noted that his subjective material revealed "a complex clinical history", dating back to his 20s and involving "a severe and recurring depressive disorder and an anxiety disorder which has in the past required hospitalisation": at [110]-[111]. Her Honour noted that the respondent had been diagnosed with post-traumatic stress disorder (PTSD) from his time on remand, and also with alcohol use disorder which was in remission: at [111]. Her Honour observed that there was no suggestion that the respondent's mental health problems had any causal relationship with his offending: at [113].
What had occurred to the respondent whilst in prison was the subject of the reports of Mr Watson-Munro and Dr Bertucen. In his report of 25 February 2021, Mr Watson-Munro stated that the respondent had struggled to cope with his incarceration at the time of his arrest, and had not received any treatment or medication. The respondent, who was classified as a protection prisoner, described being constantly stood over in relation to buy-ups and for sexual favours. He also reported having been sexually assaulted on a number of occasions and having witnessed a number of bashings and rapes within the prison setting, including one bashing that led to the death of the victim: at [115]. In his report of April 2022, Dr Bertucen expressed the opinion that the respondent was "suffering quite marked [PTSD] which has been in my view, substantially caused by the horrors and deprivations of his prison experience".
In his report of 21 March 2024, Mr Watson-Munro stated that since the respondent had returned to custody there had been a deterioration in his mood state and an escalation of the intensity of his symptoms, including triggering memories of his earlier time in prison. Mr Watson-Munro described the respondent as severely depressed and emotionally labile, the source of which was his "feelings of hopeless [sic] regarding his current situation and indeed the future referable in particular to his elderly parents": at [118]. The sentencing judge stated that she took into account, as far as she could in the general mix, the respondent's experience in custody, noting that she had already determined that this would remain a considerable deterrent to him: at [119].

Sentence

In the context of the principle of totality, the sentencing judge referred again to the number of counts, victims, and occasions of offending: at [121]-[122]. Her Honour determined that there must be a reasonable degree of accumulation of sentence given the offending involved different victims and that, apart from counts 13 and 14, each offence was an occasion of separate offending: at [123]. Recognising that a number of the offences carried standard non-parole periods, her Honour stated that she had deviated from them on the basis that "the offending was at or below the mid-range of objective seriousness, [the respondent's] lack of any prior criminal antecedents, his good prospects of rehabilitation, and subjective factors favouring the offender": at [131]. Her Honour also made a finding of special circumstances by reason of it being the respondent's first time in custody, there being a need for ongoing rehabilitation on his release, and that upon release he would need considerable assistance in adapting to normal community life: at [132].
The table below sets out the count and victim, together with the offence, the maximum penalty and any applicable standard non-parole period, together with the indicative sentences her Honour expressed: Count (child) Offence Maximum Penalty/SNPP Indicative Sentence 1 (JH) Indecent assault with child under 10 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 5 years 1 year and 8 months imprisonment, NPP 13 months 2 (JH) Sexual intercourse with child under 10 years contrary to s 66A of the Crimes Act 25 years imprisonment, SNPP 15 years 3 years and 2 months imprisonment, NPP 2 years 4 (CB) Indecent assault with child under 10 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 5 years 12 months imprisonment, NPP 7 months 5 (CB) Indecent assault with child under 10 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 5 years 1 year and 8 months imprisonment, NPP 13 months 6 (CB) Indecent assault with child under 10 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 5 years 1 year and 4 months imprisonment, NPP 10 months 7 (CB) Indecent assault with child under 16 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 8 years 1 year and 4 months imprisonment, NPP 10 months 8 (CB) Assault with intent to have sexual intercourse with child between 10 and 16 years contrary to s 66D of the Crimes Act 16 years imprisonment 2 years imprisonment 10 (RC) Indecent assault with child under 16 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 8 years 1 year and 8 months imprisonment, NPP 13 months 11 (KV) Sexual intercourse with child between 10 and 14 years contrary to s 66C(1) of the Crimes Act 16 years imprisonment, SNPP 7 years 4 years imprisonment, NPP 2 years 7 months 12 (KV) Sexual intercourse with child between 10 and 14 years contrary to s 66C(1) of the Crimes Act 16 years imprisonment, SNPP 7 years 4 years imprisonment, NPP 2 years 7 months 13 (KV) Sexual intercourse with child between 10 and 14 years contrary to s 66C(1) of the Crimes Act 16 years imprisonment, SNPP 7 years 3 years and 3 months imprisonment, NPP 2 years 14 (KV) Sexual intercourse with child between 10 and 14 years contrary to s 66C(1) of the Crimes Act 16 years imprisonment, SNPP 7 years 4 years imprisonment, NPP 2 years 7 months

The respondent was sentenced to an aggregate term of 9 years and 9 months, with a non-parole period of 6 years and 6 months. Accounting for the time he spent in custody following his arrest and then following trial, the respondent is eligible for release to parole on 20 September 2029: at [137].

The appeal ground: manifest inadequacy of the sentence

In R v VR [2024] NSWCCA 91, Hamill J provided the following succinct overview of a number of decisions of the High Court involving a ground of appeal based on latent error in the exercise of the sentencing discretion, including Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (footnotes omitted): "[64] In considering a ground based on a latent error in the exercise of the sentencing discretion (manifest excess or manifest inadequacy), the appellate court must take into account that there is no single correct sentence and that the law allows a wide discretion to a sentencing judge to determine the appropriate sentence by their own instinctive synthesis of a wide number of factors, many of which pull in different directions. In the absence of an identifiable error, an appellate court will not intervene unless the sentence imposed is manifestly unreasonable, plainly unjust or wrong. An appellate court must not intervene merely because its members might individually have imposed a more - or less - severe sentence. … [65] In assessing whether a sentence is, or is not, unreasonable or plainly unjust the Court must undertake its own synthesis of the relevant facts and circumstances of the individual case to determine whether the sentence is so far below (or above) a legitimate discretionary range that it must intervene to correct the error. In doing so, it might have regard to statistics and the outcomes in similar cases, but the limitations on such comparisons and comparators are well established. Each sentencing decision will turn on its own facts and circumstances and only limited guidance can be taken from statistics and judgments relating to other cases."
In the present case, the Crown did not allege any patent error in the sentencing judge's reasoning. Rather, the Crown submitted that the aggregate sentence inadequately reflected the respondent's criminality in committing 12 offences against four child victims over an extended period of time. Acknowledging that indicative sentences are not themselves amenable to appeal (as to which see JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], cited more recently in R v Hill [2020] NSWCCA 197 at [105]), the Crown submitted that the indicative sentences failed to reflect the objective seriousness of the offending in each count, the notional accumulation of which led to an aggregate sentence that was unreasonable or plainly unjust.
The Crown gave particular emphasis to counts 2 and 8 (involving JH and CB, respectively), and the identical indicative sentences specified for counts 1, 5 and 10 (involving JH, CB and RC, respectively) and for counts 11 to 14 (involving KV). The Crown also submitted that the indicative non-parole periods for counts 1 and 2 (involving JH), counts 4, 5, 6 and 7 (involving CB) and count 10 (involving RC) were substantially less than the standard non-parole periods, which was not justified by the factors that the sentencing judge identified in departing from them.
The essence of the Crown's submission was that given the nature and objective seriousness of the offending as found by her Honour, the indicative sentences were, to varying degrees, erroneously low. I accept that submission.
At the time of the offences, JH was 4 or 5 years old, RC was 7 years old, CB was between 8 and 11 years old, and KV was 11 or 12 years old. Each offence involved a significant disparity between the age of the victim and the respondent, who was approximately 25 years old upon the commencement of the offending conduct, and around the age of 40 at its conclusion.
Without rehearsing the facts of each offence, a number of the s 61M(2) offences (involving JH (count 1), CB (count 5) and RC (count 10)) involved skin-on-skin contact with the child victim's genitals. JH (count 2) and KV (counts 11 to 14) were subjected to sexual intercourse. Notwithstanding that the sentencing judge found, in respect of count 2, that the object that penetrated JH's vagina was unclear, it was nonetheless a serious offence against a 4 or 5 year-old child. KV was subjected to penile-vaginal intercourse (counts 11 and 12) and cunnilingus (count 13) in between acts of penile-vaginal intercourse (count 14).
In relation to JH and RC, the respondent was in a particular position of trust. There was no equivalent relationship with CB and KV, although the respondent had friendships with the parents of both children. The existence of those relationships created opportunities for the respondent to offend, with the circumstances in which the offending occurred involving the respondent and the child victim being alone on each occasion. The sentencing judge found that counts 1 and 2 involved spontaneous and opportunistic offending, but her Honour otherwise specifically identified that feature only in relation to count 10, which involved RC.
The respondent submitted, correctly, that it was open to the sentencing judge not to be satisfied that the aggravating factor in s 21A(2)(n) of the Sentencing Procedure Act applied. The Crown did not contend otherwise. Rather, the point the Crown sought to make in this regard was that even if, in the view of the sentencing judge, the respondent's conduct did not rise to the level of the aggravating factor, the offences nonetheless involved some planning. I accept that submission.
In relation to the offences involving CB, her Honour found that the offending was accompanied by some evidence of persistence on the part of the respondent, in the face of active resistance. Again, the Crown did not directly challenge that finding but submitted, with some force, that limited weight could be given to the respondent ultimately desisting in the face of resistance, particularly in relation to the later counts involving CB, given that she had resisted on every occasion of the offending, beginning when she was 8 years old. At a more general level, having regard to the period of offending and the number of victims, the respondent was, plainly, persistent, with the offences escalating in their seriousness for each victim and over time.
By the time of the offences involving KV, the offending took place in the respondent's home, having taken KV there. In the written submissions on behalf of the respondent on sentence, it was accepted that the location of these offences, in the respondent's home, was "by design and limited the possibility of assistance to her": at [28(b)]. The nature of those offences represented a significant escalation in what the respondent's written submissions on sentence described, in an extract that the sentencing judge set out at [24], as "penetrative behaviour".
Specifically in relation to the counts involving KV, I have noted above that the respondent interrupted the penile-vaginal intercourse that was the subject of count 14 with the cunnilingus that was count 13, before resuming penile-vaginal intercourse. However, the indicative sentence and non-parole period for count 14 was the same as for counts, 11 and 12.
In relation to the respondent's subjective case, the Crown did not challenge the sentencing judge's findings but submitted that his case did not demand leniency of the order that must have been applied, given the indicative sentences. The respondent's counsel, on the other hand, submitted that the respondent had a compelling subjective case.
The matters that were of most significance to the sentencing judge in this respect were the respondent's good character and the impact on his mental health from his experience on remand (the sentencing judge having made no finding of a causal connection between the respondent's prior mental health history and the offending). The Crown did not challenge the evidence that the respondent tendered on sentence as to both factors, including evidence that the respondent was the victim of sexual assault; and submitted on sentence that the sentencing judge could treat the respondent's good character as a mitigating factor.
It was appropriate to accord some weight to the respondent's good character and absence of prior convictions, nonetheless noting, as the sentencing judge did, that good character was necessarily of less significance in cases involving a pattern of repeated sexual offending against children over time: see, eg, R v Kennedy [2000] NSWCCA 527 at [21]-[22]. It was also necessary to reflect her Honour's finding, which is not challenged, that the need for specific deterrence was lessened by what the respondent had endured in prison whilst on remand. Although the precise nature of the assaults and sexual assaults was not specified in the reports of Mr Watson-Munro, it was clear from those reports, and the 2022 report of Dr Bertucen, that the respondent had been subjected to significant trauma in the custodial setting which, as her Honour found, would act as a personal deterrent to future offending.
That said, her Honour assessed most of the offences by refence to the mid-range of objective seriousness, with 10 of the 12 offences falling at (count 1), just at (counts 5 and 10), just below (count 14) or below that range (counts 2, 4, 7, 11-13). Only counts 6 and 8 were assessed as being within the lower range. The respondent's subjective case does not explain the marked disparity between that assessment and the lenient indicative sentences and non-parole periods. It must be borne in mind that "the standard non-parole period represents the non-parole period for an offence … that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness": Sentencing Procedure Act, s 54A(2). The non-parole periods were set well below the standard non-parole periods prescribed for the respective offences (save for the s 66D offence, for which there was no standard non-parole period).
The lenience of the indicative sentences was compounded by the modest accumulation of what were, in all but one instance, separate and distinct offences. As this Court stated in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 ("Cahyadi") at [27], the principle of totality, which determines whether sentences should be imposed concurrently or consecutively, requires an assessment of whether the "sentence for one offence [can] comprehend and reflect the criminality for the other offence". Where the offences are separate and distinct, then it is more likely that the sentence for one offence "cannot comprehend the criminality of the other" with the consequence that sentences should be "at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences": Cahyadi at [27]. The ultimate result was an aggregate sentence that was unreasonable or unjust.
I note that the Crown referred to a number of sentencing decisions in this Court that addressed three of the individual offence provisions that arose in the present case, namely, ss 61M(2), 66A and 66C(1) of the Crimes Act. The Crown also relied on sentencing statistics for s 66C(1), whilst also acknowledging the well-recognised limitations on the utility of these materials: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [283]-[290], cited with approval in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]. Having reviewed the cases to which the Crown drew the Court's attention on that basis, it was not an exercise that proved to be fruitful. None of those cases involved the same mix of offending conduct as in the present case and, as the respondent submitted, there were some significant differences in the circumstances of both the offending and the subjective cases of the offender.

The residual discretion

In CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9 ("CMB"), Kiefel, Bell and Keane JJ stated (footnotes omitted): "[54] The law reposes a wide discretion in the sentencing judge as to the determination of the appropriate sentence for the offender and the offence. Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King. Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh. Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient. This is sometimes described as 'the residual discretion'. As French CJ and Gageler J explain, the discretion is residual only in that its exercise does not fall to be considered unless House error is established. [55] The joint reasons in Green v The Queen explain the difference in appellate approach to offender and prosecution appeals by reference to the purpose that each serves: offender appeals being concerned with the correction of error in the particular case and prosecution appeals being concerned with laying down principles for the guidance of sentencing courts. …"
Their Honour's reference in [55] to the joint reasons in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green") was to paragraph [1] of the reasons of French CJ, Crennan and Kiefel JJ. Their Honours there described the primary purpose of Crown appeals under s 5D as "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons" (quoting Griffiths v The Queen (1977) 137 CLR 293 at 310; [1977] HCA 44) and continued: "That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the 'residual discretion'."
The joint reasons in Green gave examples of the type of circumstances that may combine to produce the result that "if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice": at [2]. The examples included "consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender's progress towards rehabilitation". Later in the reasons (at [43]) their Honours added to these examples, referring to "the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation". Their Honours concluded those examples with an expression of caution, that "[t]he guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual".
In support of exercising the discretion in the present case, the Crown emphasised the need to maintain public confidence in the administration of justice when sentencing for multiple offences in cases of this nature: see Maxwell v R [2020] NSWCCA 94 at [116] (Johnson J) and the cases there cited. There was no delay on the part of the Crown in instituting and serving the Crown appeal, and the Crown did not lead the sentencing court into error in imposing what I have found was a manifestly inadequate sentence.
The respondent emphasised the impact of his experiences in custody as a factor that told against this Court exercising the residual discretion. At the hearing of the appeal, the Crown accepted that the respondent's experiences in custody were relevant to the residual discretion. That acceptance was consistent with the breadth of the discretion as explained in CMB and in Green, in the passages to which I have referred above.
Counsel for the respondent took the Court through the material in the reports of Mr Watson-Munro and Dr Bertucen on this subject, which the Crown did not test at any stage. He pointed to the following: 1. The report of Mr Watson-Munro dated 25 February 2021 referred to the respondent alleging that he had been brutalised in jail, including being sexually assaulted on at least one occasion, and that he had been bullied by prison guards even though a protection prisoner. The respondent also reported being constantly stood over in relation to buy-ups and sexual favours as well as having witnessed a number of bashings and rapes (I have referred to this at [44] above). 2. The updating report of Mr Watson-Munro dated 27 April 2021 referred to the respondent reporting that there had been additional assaults on him, including that he was headbutted on one occasion and sexually assaulted on two occasions, including an alleged assault by his cell mate. 3. The report of Mr Watson-Munro dated 15 October 2021, which was prepared when the respondent was on bail, described the respondent as living in a state of high anxiety and hypervigilance. 4. The report of Mr Watson-Munro dated 21 March 2024 referred to the respondent reporting that he had received no treatment since being returned to custody, and that while he was not actively suicidal, he did experience some suicidal ideation from time to time. Mr Watson-Munro noted various symptoms, including "intrusive flashbacks, nightmares which included direct witnessing of bashings/hangings/ assaults on prisoners with boiling water and other weapons, in addition to alleged indifference by the prison officers". Mr Watson-Munro also noted the respondent's report of being sexually assaulted at Silverwater jail and being triggered by sirens, helicopters and other noises including police cars. He described a deterioration of the respondent's mood state since his return to prison. 5. As I have already noted, the report of Dr Bertucen dated 28 April 2022, which expressed the opinion that the respondent was suffering from PTSD caused by what he experienced in prison, and which was occurring against a background of longstanding anxious depression and chronic alcohol dependence (allegedly in remission).
More recent electronic client management records held by the Corrective Services, which the Crown tendered on the appeal as relevant to the residual discretion and resentence, included entries from 21 October 2024 and 7 November 2024 in relation to the respondent's attendance at a psychology program. Counsel for the respondent called attention to the record of 21 October 2024, in which the respondent stated that he continued to struggle with PTSD symptoms and foreshadowed that he would feel increased stress as his appeal date approached. He also referred to the record for 7 November 2024, which noted that responses on the DASS-21 demonstrated that over the previous week the respondent's level of depression was in the "Moderate" range, levels of anxiety were in the "Extremely Severe" range, and levels of stress were in the "Severe" range.
Notwithstanding this material, it remains the case that the sentence imposed in the District Court was well below the level of sentence that could reflect the seriousness of the respondent's offending against multiple victims over a significant period. Maintenance of public confidence in the administration of justice requires this Court's intervention. I am satisfied that the Crown has discharged its onus in respect of the residual discretion and that the Court must allow the appeal and increase the sentence.

Resentence

I have taken into account her Honour's findings both on objective seriousness and the respondent's subjective case, none of which were challenged. I have considered the purposes of sentencing in s 3A of the Sentencing Procedure Act. Denunciation, adequate punishment, and recognition of the harm done to the victims must receive significant weight in the present case. General deterrence also has an important role in relation to sexual offences committed against children: see, eg, R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1 at [20]; EG v R [2015] NSWCCA 21 at [42]; PC v R (2022) 108 NSWLR 181; [2022] NSWCCA 107 at [92]-[93]. As the sentencing judge found, the respondent's experience in custody has had the result that the deterrent impact of the sentence on the respondent personally has been achieved.
There must be cumulation in the sentences to reflect the offences committed on the four separate victims, with more concurrence in the sentences imposed for offences relating to the same victim, subject to considerations of totality. The sentencing judge found special circumstances and I would make the same finding having regard to the features that the sentencing judge noted in that context and noting that the Crown did not challenge the finding of special circumstances.
I would impose the following indicative sentences and non-parole periods: Count (child) Offence Maximum Penalty/SNPP Indicative Sentence 1 (JH) Indecent assault with child under 10 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 5 years 2 years and 6 months imprisonment, NPP 1 year and 10 months 2 (JH) Sexual intercourse with child under 10 years contrary to s 66A of the Crimes Act 25 years imprisonment, SNPP 15 years 4 years imprisonment, NPP 3 years 4 (CB) Indecent assault with child under 10 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 5 years 1 year and 6 months imprisonment, NPP 10 months 5 (CB) Indecent assault with child under 10 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 5 years 2 years and 6 months imprisonment, NPP 1 year and 10 months 6 (CB) Indecent assault with child under 10 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 5 years 2 years imprisonment, NPP 1 year and 4 months 7 (CB) Indecent assault with child under 16 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 8 years 2 year and 4 months imprisonment, NPP 1 year and 6 months 8 (CB) Assault with intent to have sexual intercourse with child between 10 and 16 years contrary to s 66D of the Crimes Act 16 years imprisonment 2 years and 6 months imprisonment 10 (RC) Indecent assault with child under 16 years contrary to s 61M(2) of the Crimes Act 10 years imprisonment, SNPP 8 years 2 years and 6 months imprisonment, NPP 1 year and 10 months 11 (KV) Sexual intercourse with child between 10 and 14 years contrary to s 66C(1) of the Crimes Act 16 years imprisonment, SNPP 7 years 6 years imprisonment, NPP 4 years and 4 months 12 (KV) Sexual intercourse with child between 10 and 14 years contrary to s 66C(1) of the Crimes Act 16 years imprisonment, SNPP 7 years 6 years and 6 months imprisonment, NPP 4 years and 4 months 13 (KV) Sexual intercourse with child between 10 and 14 years contrary to s 66C(1) of the Crimes Act 16 years imprisonment, SNPP 7 years 5 years imprisonment, NPP 3 years and 7 months 14 (KV) Sexual intercourse with child between 10 and 14 years contrary to s 66C(1) of the Crimes Act 16 years imprisonment, SNPP 7 years 7 years imprisonment, NPP 5 years and 2 months

I would impose an aggregate sentence of imprisonment of 12 years, with a non-parole period of 8 years and 6 months. Accordingly, I propose the following orders: 1. Appeal allowed. 2. Quash the sentence imposed by David DCJ on 7 June 2024 and in lieu thereof sentence the respondent to a term of imprisonment of 12 years commencing on 21 March 2023 and expiring on 20 March 2035 with a non-parole period of 8 years and 6 months commencing on 21 March 2023 and expiring on 20 September 2031. The respondent will be eligible for parole on 20 September 2031.
FAGAN J: I agree with the individual sentences that Mitchelmore JA has indicated and with her Honour's reasons and proposed orders.
With due allowance for all mitigating subjective circumstances, the gravity of the objective offending on each count was such that the indicative sentences nominated by the learned sentencing judge were all manifestly inadequate. A course of offending may make it appropriate to impose higher penalties for offences committed later in time where there has been a persistent repetition of like criminal conduct, especially if a mounting level of objective seriousness is displayed: R v Swadling [2004] NSWCCA 421 at [61]-[68]. This was such a case. Even the learned judge's indicative sentence for the earliest in time of the offences was manifestly inadequate and there were no appropriate increments in penalty for subsequent offending.
The aggregate sentence had to be commensurate with the totality of the respondent's criminal acts, involving the abuse of four vulnerable young victims and significant harm necessarily done to them by sexual misconduct that spanned 15 years. The sentence of 9 years and 9 months with a non-parole period of 6 years and 6 months fell manifestly short of an appropriate overall penalty.
I adopt Mitchelmore JA's observation that the object of specific deterrence may well have been achieved by so much of the sentence as the respondent has already served, especially having regard to his confronting experiences in custody. However, other purposes of sentencing remain important in a case of serial offending of this nature, including general deterrence, denunciation and recognition of harm to the victims and to the community.
I have had the advantage of reading in draft the reasons of Dhanji J. I share his Honour's grave concern about the apparent exposure of the respondent to violence and sexual abuse at the hands of other inmates while in custody on remand. I am unable to say more, particularly as to whether fault or neglect may be attributed, because the evidence on the appeal, naturally, did not include comprehensive evidence of the nature and surrounding circumstances of the relevant incidents.
DHANJI J: I have had the considerable advantage of reading the draft reasons of Mitchelmore JA in this matter.
When regard is had to the respondent's commission of serious offences against four complainants over a period of approximately 15 years, the sentence of 9 years and 9 months and a non-parole period of 6 years and 6 months imposed after trial is, in my view, manifestly inadequate. I agree with the reasons of Mitchelmore JA in this respect and would add only the following.
The appellant did not suggest any specific error on the part of the sentencing judge. One aspect of the evaluation of the objective seriousness of the offences worthy of comment is the characterisation of offences as not involving planning or being opportunistic. Planning, or the lack of it are recognised as aggravating and mitigating factors respectively in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The factors set out in that section are taken into account when sentencing to assist in the determination of the objective gravity or relative seriousness of an offence. They do not, in some mechanical way, dictate that process. It is, for this reason, not appropriate to use the various factors set out as a checklist to be completed in every case. A factor such as planning might be significant in one circumstance and of little significance in another. For example, a planned armed robbery is likely to be significantly more serious than an unplanned and opportunistic armed robbery. By contrast, a lack of planning in the context of a child sexual assault may say very little about the seriousness of the offence. In the case of offences involving a breach of trust as a result of the offender's position of authority, it is common that position of authority itself will have created the opportunity for the offending. To say the offending in those circumstances was opportunistic offers little to assist in the determination of the relative seriousness of the offence. In the present case, while it might be said that the offences were not carefully orchestrated, the absence of planning was not significant. Further, to describe offences as opportunistic in circumstances where the offender had engaged conduct over many years rings hollow.
An aspect of the appellant's case that required moderation of the sentence was the inability of the State to protect him while depriving him of his liberty. It is trite to observe that offenders are sentenced to imprisonment as punishment, not for punishment. As the reasons of Mitchelmore JA set out, the respondent, on his arrest, was refused bail. Having spent 227 days in custody, he was released to bail. Whilst on bail he sought the assistance of a psychologist and a psychiatrist. The evidence accepted on sentence was that the respondent was sexually assaulted on multiple occasions in custody although, as Mitchelmore JA notes, there was no further specificity to this complaint. Additionally, the report of the psychiatrist, Dr Jeff Bertucen indicates the respondent's experience included the "direct witnessing of bashings/ hangings/ assaults on prisoners with boiling water and other weapons as well as the apparent indifference and callousness of prison officers". While the complaint of sexual assaults were not elaborated, there was no challenge to the evidence of the respondent's psychiatrist that the respondent was suffering "quite marked" Post Traumatic Stress Disorder, substantially caused by his experience in prison.
It would be entirely understandable if the victims of the respondent's crimes, and indeed others in the community, were to feel no sympathy for the respondent's complaints of being sexually assaulted given the crimes he has committed. It is not, however, the question of sympathy for the respondent. Offenders are imprisoned because we as a society insist on adherence to our laws. That same insistence does not stop at the prison gates.
Failures such as those which have occurred here place the courts in a difficult position. In cases such as this, the State complains the term of imprisonment was inadequate. Yet the State, through a different arm, has failed to provide appropriate conditions for that imprisonment. Similar concerns arise daily for judicial officers considering bail applications, particularly where significant delay is expected prior to resolution of the charges.
Returning to the present case, just as there is no formula for converting offences to periods of time to be served as punishment, there is no formula for discounting those periods on the basis of the State's failure to protect the offender or the harm suffered by an offender in custody. The offending against KV was particularly serious. That is not to diminish the seriousness of the offending against the three complainants who came before. When regard is had to the total criminality including the time over which it occurred, the sentence imposed at first instance, after trial is, as I have said, manifestly inadequate.
I have given anxious consideration to whether the appellant has satisfied its onus to establish this Court should exercise its discretion so as to intervene and correct sentence. The failure of the State and the consequent additional impact of imprisonment on the respondent is a powerful factor against intervention. Against that, given the lack of detail in the evidence as to the circumstances giving rise to the respondent's trauma no assessment can be made as to the nature or extent of any failure on the part of the prison authorities. As Mitchelmore JA has indicated, the maintenance of public confidence in the administration of justice is an important consideration in determining the manner in which this Court should exercise its discretion. Ultimately, and to the significant detriment of the respondent, I have reached the view that confidence in the judicial arm of the State, and in particular in the administration of criminal justice, should not be undermined, at least in this case, by the lack of confidence in the ability of the State to provide adequate protection for prisoners sentenced by the courts.
I agree with the orders proposed by Mitchelmore JA.

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: 18 December 2024

Children's (Criminal Proceedings) Act 1987(NSW)

(2022) 108 NSWLR 181

At a glance

Court

Decision date

Before

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Source

Catchwords

Judgment (28 paragraphs)

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Legislation Cited (4)

Cases Cited (27)