R v Ibrahim

Introduction

1. The Director of Public Prosecutions (NSW) (the appellant) appeals, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), against the sentence imposed in the District Court on Mr Hany Ibrahim (the respondent). The respondent pleaded guilty to a single offence.
2. The sentence was imposed by ML Williams DCJ on 11 May 2021 in relation to a single offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW).
3. On 11 May 2021 ML Williams DCJ sentenced the respondent to a period of imprisonment for a total of 2 years, comprising a non-parole period of 9 months with a balance of term of 15 months. This sentence was imposed after application of a discount of 10% for the utilitarian value of the respondent's guilty plea which was entered on the day the matter was listed for trial.
4. The appellant relies on a single ground of appeal, that being that the sentence imposed on the respondent was manifestly inadequate.
5. The offence of sexual assault contrary to s 61I of the Crimes Act carries a maximum penalty of 14 years imprisonment. Pursuant to s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSPA"), there is a standard non-parole period of 7 years.

Background

1. At the time of the offence on 1 July 2019, the victim was a young woman of 19 years of age. The respondent was aged 43.
2. According to the agreed facts tendered on sentence, at about 8:30pm, the victim entered Priceline pharmacy at Mascot where the respondent was working as a pharmacist, in order to obtain the "morning after" pill. Following her initial enquiry with pharmacy staff, she was told to wait for a private consultation with a pharmacist.
3. At that time, the victim was wearing a large jumper that went down to her knees. She was not wearing underwear as she had been in a rush to attend the pharmacy before it closed. (The victim's apparel is described for the sole purpose of assisting the reader to understand the way in which the respondent committed the offence.)
4. The respondent spoke with the victim at the back counter of the pharmacy, and subsequently took her into a small office for a private consultation. The respondent asked the victim why she needed the morning after pill and whether she had used it before. The victim stated that she had had unprotected sexual intercourse with her partner and was unsure about whether he had ejaculated inside her.
5. Following that exchange, the respondent said, "oh actually I can check it out. I can tell if it happened or not". The victim said, "I don't remember because we were both drunk". The respondent then said, "I can tell. I can check it out - just a quick check".
6. The respondent then lifted up the victim's jumper and looked at her genital area. He then put his finger inside her vagina and moved it backwards and forwards a number of times. That sexual assault lasted for approximately two minutes before the victim stood up and pulled her jumper down.
7. The victim called her partner on her mobile phone. The respondent then told the victim, "please don't talk to anyone. Please don't tell this to anyone - this is a private conversation".
8. By this stage, the respondent was in front of the door and the victim started screaming. The screaming was heard by a staff member.
9. While still on the phone to her partner, the victim left the office. Camera footage showed the respondent and victim had been in the office for a total of 8 minutes.
10. The victim complained immediately to her partner and staff members. As the respondent approached her, she said, "don't touch me - fuck you".
11. Police were called and the victim told them what happened. The respondent denied the offence, saying that he only touched the victim on the shoulder to console her when she was upset during the consultation.
12. Later investigations revealed that the victim's DNA was located on the respondent's fingers.
13. Prior to the offence the respondent was a person of good character. He was born in Egypt in 1973 and moved to Australia in 2009 with his wife and two children. His third child was born here. Both the respondent and his wife practised as pharmacists for many years. There was no suggestion the respondent had ever acted in an untoward manner towards female customers or otherwise.

Submissions of the appellant

1. As noted above, the appellant relies on the sole ground of appeal that the sentence is manifestly inadequate.
2. Despite the absence of any allegation of specific error, the appellant submitted that this Court was not bound by the sentencing judge's assessment of the objective seriousness of the offence as falling at the lower end of objective seriousness: Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13 at [24].
3. The Crown contended that the objective seriousness of the offence should be assessed as being at a higher level than the assessment of the sentencing judge for the following four reasons.
4. First, the offending involved a significant breach of trust. The respondent was a registered health professional who committed a sexual offence against a patient in the course of treatment: see Jung v R [2017] NSWCCA 24 at [60]-[63].
5. Secondly, the respondent had actual knowledge that the victim was not consenting, as opposed to mere recklessness, or an honest albeit unreasonable belief as to her consent.
6. Thirdly, there was a considerable age gap between the victim and the respondent at the time of the offence. (As noted above, they were 19 and 43 years of age respectively).
7. Fourthly, while the offending was not planned, it was not merely momentary.
8. Accordingly, the appellant submitted, this Court would not characterise the offending as falling within the lower range of objective seriousness. Irrespective of the nomenclature used to describe the objective seriousness of this offence, the appellant's case was that in all the circumstances, but particularly having regard to the four factors referred to above, the sentence was manifestly inadequate.

Submissions of the respondent as to objective seriousness

1. The respondent emphasised the absence of any specific error on the part of the sentencing judge. Reference was made to his Honour's observation (at [43]) that the sentence to be imposed: "… must be significantly reduced given the finding of this offence being in the low range of objective seriousness. The plea of guilty, the genuine expressions of remorse, significant prior good character and his excellent prospects of rehabilitation have been considered."
2. It was submitted that the sentencing judge's assessment of objective seriousness was appropriate. It was stressed that in assessing the objective seriousness, the sentencing judge properly had regard to the absence of planning; the absence of threats, violence, or forcible removal of clothing; and the fact that the offence ceased once the victim pulled her jumper down.
3. The respondent also submitted that the appellant's complaint failed to take into account the respondent's age in the context of what was described as his prior exemplary character; the stress he was under at the time of the offending; and his very strong subjective case more generally. (Aspects of the respondent's subjective case are discussed in more detail below.) Insofar as there was an age gap, the respondent pointed out that whilst the victim was young at the time of the offending, she was not a child.
4. The respondent took issue with the appellant's contention that the offending was "not momentary". The respondent pointed to the agreed facts, which established that the victim reacted quickly to the offending conduct by pulling down her jumper and calling her partner.

The respondent's position as a pharmacist

1. Our society places higher expectations on some members than others. Here, the respondent's position as a pharmacist was a prominent feature of the sentencing exercise. As a pharmacist, the respondent was a registered health professional and in a position of trust which in turn imposed significant obligations.
2. In Jung, Johnson J (with whom Hoeben CJ at CL and Latham J agreed), in a passage relied on by the appellant, pointed to a difference between registered health professionals and persons such as masseurs. His Honour observed that while offences committed against patients in both instances involve a significant breach of trust, the "breach of trust is heightened substantially … where a registered health practitioner commits offences against his patients in the course of treatment": [60]. His Honour (at [63]) referred to the decision of this Court in R v Arvind (NSWCCA, 8 March 1996, unreported), where Grove J said: "The gravity of the sexual offences committed by the Appellant was magnified by the circumstance that there was involved a breach of trust which the patient reposed in a medical practitioner. The Court should enunciate that criminal interference with the bodies of persons seeking health care will be met with stern retribution. The present case exemplifies the extreme vulnerability of patients and taking advantage of that situation for self gratification attracts general and personal deterrent elements into [an] appropriate sentence."
3. While the observations of Johnson J are to be accepted, I do not understand them to mean that registration as a health practitioner is an additional aggravating factor, as opposed to a factor which informs the breach of trust involved. The context in which his Honour's remarks were made should be noted. Jung involved multiple offences committed by a physiotherapist against multiple complainants. The course of conduct was suggestive of the offender in that case systematically using his professional practice as a means to commit sexual offences.
4. In Arvind, the offender was a doctor in general practice. The offending involved a single victim who was an ongoing patient of the offender. The victim had vulnerabilities of which the offender must have been aware. After a consultation, he called her back to the practice which had been cleared of both patients and staff. He purported to engage in an examination of the victim, whereupon he forcefully committed offences of indecent assault, sexual intercourse without consent, and attempted sexual intercourse without consent. That matter is closer to the present case, than, say Jung, although given the offences were committed with a significantly greater level of pre-meditation on a patient with known vulnerabilities engaged in an ongoing relationship with the practitioner, it was a more egregious breach of trust.

The respondent knew the victim was not consenting

1. The appellant placed emphasis on the fact that the respondent in this case knew the victim did not consent to the sexual activity. It was submitted that this made the objective seriousness of the offending greater than if the respondent was possessed of some different state of mind.
2. Section 61HE of the Crimes Act defines consent and provides for various states of mind which constitute knowledge of non-consent. It relevantly provides: 61HE Consent in relation to sexual offences (1) … (2) Meaning of "consent" A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity. (3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if - (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity. (4) … (5) … (6) A person who consents to a sexual activity with or from another person under any of the following mistaken beliefs does not consent to the sexual activity - (a) … (b) … (c) a mistaken belief that the sexual activity is for health or hygienic purposes, (d) any other mistaken belief about the nature of the activity induced by fraudulent means. (7) For the purposes of subsection (3), the other person knows that the person does not consent to the sexual activity if the other person knows the person consents to the sexual activity under such a mistaken belief. (8) The grounds on which it may be established that a person does not consent to a sexual activity include - (a) if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug, or (b) if the person consents to the sexual activity because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person consents to the sexual activity because of the abuse of a position of authority or trust. (9) A person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity. (10) This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity. …

Age differential

1. The Crown in its submissions pointed to the significant age gap between the respondent and the victim. I am not of the view that this adds to the seriousness of the offence. As was pointed out in R v Shortland [2018] NSWCCA 34, for offences of sexual assault committed against children, the age difference may be significant but it may not have the same significance with respect to an offence where the victim is an adult (see at [87]-[88]). In the present case the respondent was 43. I do not think the offence would have been any less serious if he was 33 or even 23. The significant difference between the respondent and the victim was in their respective positions. It is that which allowed the respondent to commit the offence by abusing the resultant position of trust.

The duration of the offending

1. The fourth and final matter relied on by the Crown in support of characterising the offence as more serious as assessed by the sentencing judge was the duration of the offending. It was an agreed fact that "the touching lasted for two minutes". (While it is not clear as to how the duration of the offending was determined, the fact was agreed.)
2. The relevance of the duration of the offending was discussed in R v Daley [2010] NSWCCA 223. Price J observed (at [48]) that the short duration of an offence is not generally a mitigating factor. His Honour then went on to observe "… a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased" (see also Shortland).
3. Here, the offence could not be described as fleeting. Nor could it be properly described as prolonged. While it does not significantly aid the respondent given his position, the offending ceased when the victim pulled her jumper down. While not wishing to downplay the serious harm occasioned to the victim, I do not think the duration of the offence was a significant aspect of its seriousness. Certainly, there was no submission that the sentencing judge made any specific error in this regard.

Objective gravity

1. As noted above, while the appellant did not submit that any specific error was made by the sentencing judge, and no grounds other than manifest inadequacy were pleaded, it was nonetheless submitted that this Court would form a different view of the objective seriousness of the offending, having regard to the features discussed above.
2. In cases where, as here, there are no issues as to the facts, I accept that my task is to assess the adequacy of the sentence based on all the circumstances of the case. In doing so, I must necessarily form a view as to the seriousness of the offending. Insofar as there is a challenge to the sentencing judge's assessment that the offending was at the "lower" end of the range, the difficulty is that there is no precision to that assessment. I do not suggest there should have been more precision; an assessment of objective seriousness, while an indispensable step in the sentencing process, is not capable of precise articulation against a scale of hypothetical offending.
3. Here, there was no submission that the offending was in the high or even the mid-range. Any offence against s 61I is necessarily serious. While this matter is clearly not at the lowest end of the range it is, in my view, still in the lower end of the range. That does not, however, mean that I necessarily take the same view of the objective gravity of the offending as the sentencing judge when I consider the facts as part of an assimilation of all relevant matters in the intuitive synthesis required to form a view as to the adequacy of the sentence. The limitations of language are such that there is no way of knowing whether my view is the same as that of the sentencing judge, although the nature of the exercise is such that it is extremely unlikely that it is. Given this, an attempt to review the sentencing judge's label is a distraction.

Other significant matters relevant to sentence

1. The above analysis concerns the objective gravity of the offence. And, while as noted above, any sentencing exercise (or review of such an exercise) [1] requires an understanding of the objective gravity of the offending which must be reflected in the outcome (see R v Dodd (1991) 57 A Crim R 349; R v Geddes (1936) SR (NSW) 554), the assessment of objective gravity is but one part of the exercise. As McHugh J said in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, in a passage adopted by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case."
2. Neatly separating the "objective" features of an offence from the "subjective" features of the offender is not necessarily straightforward. (For a dramatic illustration of this, see Markarian at [53]). [2] The present case is one where, as is not uncommon, a better understanding of the nature and gravity of the offending can be gained through a consideration of what is known of the offender.
3. The respondent was a person of prior good character. He was born in Egypt in 1973 and moved to Australia in 2009 with his wife and two children. His third child was born here. Both the respondent and his wife practised as pharmacists for many years. The respondent's good character went beyond an absence of prior criminal convictions and can be regarded as positive good character (see Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 at [52], [106], [108]). In Elomar v R [2018] NSWCCA 224, Hoeben CJ at CL said (at [116]): "There is, in my opinion, a significant distinction to be drawn between persons whose claim to good character is based upon them not having been engaged in any criminal activity and evidence of good character which goes not only to that subject, but which positively establishes that the particular person or persons under consideration have made a positive contribution to society and have demonstrated a consistent history of philanthropy directed to their fellow citizens. The Elomars well and truly met that criteria and their previous good character was a significant mitigating factor. This ground of appeal has been made out."

Other cases

1. This appeal is not to be decided by a comparison with some other case or cases involving a sentence not said to be outside the available range. No two cases are the same and care must therefore be taken in having regard to sentences imposed in other cases: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]-[42]; Awraham v R (Cth) [2021] NSWCCA 241 at [5], [79]. Nonetheless, some sense of the sentencing range and consequent guidance on the issue of manifest excess or inadequacy may be obtained by reference to the sentences imposed in other matters: see The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26].

The appellant's table of cases

1. The appellant in its written submissions provided a table which set out a number of decisions of this Court relating to sentences imposed for sexual assaults involving digital penetration. Included in the table are the decisions of Afghan-Baig v R [2018] NSWCCA 15; Aliabadi v R [2020] NSWCCA 224; Cordeiro v R [2019] NSWCCA 308; Khanchitanon v R [2014] NSWCCA 204; Salmond v R [2010] NSWCCA 141; and Stewart v R [2012] NSWCCA 183. Beyond the usual concerns with respect to the difficulty of comparing cases that are necessarily different, some additional care must be taken in looking at the results in these cases. All of those cases involved unsuccessful appeals by offenders, each of whom, clearly, had a grievance with the sentence imposed at first instance. It was considered at least arguable in a number of the cases, the sentence imposed was manifestly excessive. In the remainder it was considered arguable that some lesser sentence was warranted on the establishing of error. This is significant in the context of the breadth of the sentencing discretion reposed to judges at first instance.
2. Some of the cases in the table can be put to one side. A case such as Afghan-Baig, involving multiple complainants and a particular modus operandi, is far removed from this case. The appellant submitted the case closest to the present is Salmond, and "to a lesser degree", Khanchitanon.
3. The circumstances in Salmond were summarised by the appellant as follows: The offender, a massage therapist, was sentenced after trial to 4 years, 6 months imprisonment with a non-parole period of 2 years for digitally penetrating a client in the course of a massage (and was also sentenced for an indecent assault, the sentence for which was wholly concurrent). Mr Salmond was found to be a person of prior good character with good prospects of rehabilitation.
4. While there are some superficial similarities between Salmond and the present case, there are some important differences. Salmond was a rejection of a complaint of manifest excess. Apart from the additional indecent assault offences, the offender in Salmond went to trial and continued to maintain his innocence after his conviction. Given that matter, while he may have had the benefit of good character and good prospects of rehabilitation, those matters cannot have had the force of the combination of positive good character, remorse, and good prospects that are present in this case. Perhaps of greater significance, Salmond was a standard non-parole period case decided before the High Court's decision in Muldrock. Given these matters, a finding that the sentence in that case was not manifestly excessive is of little utility in assessing the present sentence.

R v Dijkstra

1. The sentencing judge appears to have been significantly influenced by the decision in Dijkstra, and to a lesser extent the sentencing statistics provided by the Judicial Commission.
2. Dijkstra involved a 68 year old massage therapist and first offender. The 60 year old victim attended on him for a massage. In the course of the massage, the offender took the opportunity to digitally penetrate the victim. He inserted "a couple" of fingers into her vagina and moved them in and out causing the victim pain. The victim froze out of fear. The offender removed his fingers and then reinserted them moving them more vigorously on this occasion. The offender told the victim to roll over whereupon he began rubbing her naked chest. At this point the victim asked him to stop and he complied. In an impressively pellucid and concise judgment which nonetheless addressed all relevant matters (despite its ex tempore delivery), Yehia SC DCJ, after allowing a discount of 15% for the plea of guilty, imposed a sentence comprising a total term of 2 years and 4 months with a non-parole period of 10 months. The sentencing judge referred to the decision and said the case "bears some similarity to the present [case]" (at [41]).
3. There was no appeal (by either party) from the sentence imposed in R v Dijkstra. While it was not referred to in the appellant's written submissions, the decision was the subject of oral submissions at the hearing of the appeal. The appellant did not suggest the sentence in Dijkstra was inadequate. Rather, it was submitted that there are significant differences between that case and the present. Implicit in that submission is that the sentencing judge was too heavily influenced by that decision.
4. Yehia DCJ observed that while the absence of violence does not operate as a mitigating factor, the absence of coercion, intimidation, and manipulation distinguished the case from more serious offending (see Shortland at [89], citing Bravo v R [2015] NSWCCA 302 at [45]).
5. Her Honour observed the offence was aggravated by the breach of trust involved and said this (at [10]-[11]): "10 … Notwithstanding that the offender was not registered as a health provider, the relationship between masseur and customer is one of trust. The victim was naked and allowed herself to be in a position where the offender had control over the situation because he was providing professional therapy to her. 11 The offender breached that trust by committing the offence during the course of massaging the victim. This is a serious aggravating factor to which I have had regard in determining the objective seriousness of the offence".

R v Shortland

1. The offender (and respondent to a Crown appeal) was convicted after trial of three counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act. On each count a sentence of 2 years imprisonment was imposed, but suspended pursuant to (the then) s 12 of the CSPA.
2. The offender and the victim had known each other for a number of years. After a birthday celebration for the offender's partner, the offender, the victim and others returned to the same home. During the night, while others were asleep, the victim got up to use the toilet and encountered the offender. The offender grabbed the victim by putting his hands around her waist; she slapped him three or four times in the course of resisting, to which he laughed. The victim dropped to the floor with her knees up in front of her; the offender pulled the victim's ankles resulting in her being on her back, forcibly removed her clothing, and inserted his penis into her vagina causing the victim pain (count 1). The offender then forced the victim into an act of fellatio (count 2). The victim went to the sink to wash her face, whereupon the offender approached her from behind and perpetrated a further act of forced penile vaginal intercourse upon her (count 3). The appeal was brought by the Crown on the basis of manifest inadequacy. The Court allowed the appeal, and the offender was sentenced to a term of imprisonment of 2 years on each count, comprising a non-parole period of 15 months.
3. The facts in Shortland were very different. I do not regard the present offence as necessarily more or less serious. While Shortland involved a level of violence and coercion, the reason those features were absent here is, as discussed above, bound up with the breach of trust. Shortland did, however, involve three separate offences in a more protracted episode involving different forms of intercourse.
4. In Shortland, there was a claim of exceptional hardship to others. Hidden AJ at [124] found that such a finding "might well be available". Basten JA did not accept that the evidence passed that test (at [19]) but observed (at [18], citations omitted): "In circumstances fully explained by Hidden AJ, counsel for the offender submitted that a custodial sentence would impose "exceptional hardship" on his family. The judge accepted that that could be taken into account only where the circumstances are "highly exceptional", referring to "cases such as R v Edwards." For reasons explained in Director of Public Prosecutions (Cth) v Pratten (No 2), Edwards does not self-evidently stand for the proposition that there is such a hurdle in all cases. A more nuanced approach is not precluded by that decision and too much may have been read into it by way of expansion into a general rule, namely that no account may be taken of hardship to a family unless it was truly exceptional. What Edwards in fact determined was that very significant hardship to a third party if the offender were subject to a custodial sentence was not sufficient to preclude a custodial sentence altogether".

RC v R; R v RC [5]

1. This was an appeal against conviction and an appeal by the Crown against the inadequacy of the sentence.
2. The offender was convicted and sentenced for an offence of sexual intercourse with a child under 10 contrary to s 66A(1) of the Crimes Act. This is a different, and more serious, offence than the present. The maximum penalty is life imprisonment and there is a standard non-parole period of 15 years.
3. The offender was the paternal grandfather of the victim, who was six years old at the time of the offence. The offender was found guilty by a jury of one count of the digital penetration of the boy's anus. He was sentenced at first instance to an 18 month community corrections order. The Crown broadly contended that the objective seriousness should have been classified as greater. The respondent relied on factors including an absence of evidence of sexual motivation (although there appears not to have been any finding, on balance, of some other motivation), the respondent's age; otherwise unblemished record; good relationship with the family prior to the offending; and the depression he suffered as a result of the proceedings.
4. The sentence was found to be manifestly inadequate on appeal. Wilson J, (with whom Hamill J specifically agreed on this point) regarded a proper sentence as one of 3 years with a non-parole period of 1 year (see at [250], and per Hamill J at [6]). However, having regard to the subjective factors of the respondent; the isolated and transitory nature of the offence; and the chronic bronchial condition suffered by the respondent in the context of the Covid-19 emergency, the Court declined to interfere with the sentence. It should be noted that the determination of the non-parole period was particularly influenced by the pandemic and the respondent's medical condition (see at [250]).
5. While, again, the case of RC v R; R v RC is very different, it is significant when regard is had to the more serious offence involved. The decision is informative, to some extent at least, in determining the breadth of the sentencing discretion available here.

Manifestly inadequate?

1. The principles to be applied to appeals of this nature can be found in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31, the High Court (per French CJ, Hayne, Kiefel, Bell and Keane JJ) at [27]: "It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted".
2. Also pertinent is Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, at [24], where it was observed by the plurality: "… within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for [the sentencing judge]. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by [the sentencing judge] was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the Court was satisfied that [the sentencing judge's] discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. In that event, the Court was required to consider whether the Director's appeal should nonetheless be dismissed in the exercise of the residual discretion".
3. The failure to assert in the grounds of appeal, and the inability to identify in submissions, specific error, makes the appellant's task of establishing manifest inadequacy more difficult - see R v Baker [2000] NSWCCA 85 per Spigelman CJ at [19]; Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568; [2001] NSWCCA 332, per Spigelman CJ at [9]. Certainly, the Court should be circumspect in intervening in these circumstances.

The total term imposed in this case

1. There is no doubting the offence was serious. All the purposes of sentencing in s 3A of the CSPA were to be considered. In particular, the need to ensure adequate punishment and the related need for general deterrence, accountability, denunciation, and the recognition of the harm to the victim and the community were all deserving of weight. As apparent from the above discussion, the question of "adequate" punishment is not straight forward. The circumstances of this case presented, as is not uncommon in sentencing, a range of different matters, entitled to weight, but pulling in different directions.
2. The sentence imposed was one of full-time custody which it was anticipated would bear heavily on the respondent. I am not satisfied the appellant has been able to point to any pattern of sentencing that demonstrates that the total term of two years (reflecting a starting point before the discount for the utilitarian value of the plea of, assuming rounding, 2 years, 3 months) is manifestly inadequate. In all the circumstances, I am of the view that, while lenient, when regard is had to the ongoing impact of the sentence beyond the term of imprisonment itself, the head sentence of 2 years is not so lenient as to demonstrate error.

The non-parole period

1. The sentence is of course comprised of a total term and a non-parole period. The period on parole (and its relationship with the non-parole period) was described in Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 (in the joint reasons of Barwick CJ, Menzies, Stephen and Mason JJ) at 629 as providing: "… mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence". (See also R v Simpson (2001) NSWLR 704 at 716-717, [55].)
2. The sentencing judge acknowledged, and apparently accepted, the respondent's submission that "an appropriately reduced non-parole period with a finding of special circumstances would be appropriate": [44]. There was no challenge on appeal to the availability of a finding of special circumstances for the purposes of s 44(2) of the CSPA. Acceptance that the non-parole period might be less than 75% of the total, however, was in no way an acceptance of the adequacy of the non-parole period (see R v Simpson at [73]).
3. Relevant to this issue, the sentencing judge said (at [36]): "… There is no doubt that incarceration of the offender will significantly impact upon his family, principally as a result of the loss of the father figure and carer for their autistic son, given his unpredictably aggressive and frightening behaviour". And at [39]: "… I do take into account as very significant matters his evidence in relation to the impact of incarceration upon the family and in particular the loss of a father figure and carer to the disabled son."
4. In the present case the total term of 2 years was, as described above, lenient. The non-parole period of 9 months is 37.5% of the total. That does not of itself establish error. In some circumstances, a ratio similar to that here will be appropriate (see for example the postulated sentence in RC v R; R v RC at [251]). However, as noted above, the non-parole period must still be adequate. If the head sentence is towards the lower end of the range, it will be difficult to sustain a non-parole period that is very significantly less than the statutory proportion. While I have not found the issue easy to resolve having regard to the particular impact of imprisonment on the respondent, I am of the view that the non-parole period is manifestly inadequate.

The residual discretion

1. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ), reaffirmed, at the commencement of their reasons, that "[t]he primary purpose of prosecution appeals against sentence by the Attorney-General or Director of Public Prosecutions ('Crown Appeals') … is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons'" [6] . Their Honours 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'".
2. Their Honours noted that the characterisation of Crown appeals as exceptional, rested, at least in part, "upon long-standing judicial concern about exposing sentenced persons to double jeopardy, that is, the risk of being re-sentenced" (at [25]). It was observed that the operation of the discretion is now affected by s 68A of the Crimes (Appeal and Review) Act 2001 (NSW). With respect to the operation of s 68A of that Act, their Honours observed that "on any view of its operation [s 68A] does not extinguish the residual discretion" (at [26]). Their Honours referred to the decision of this Court in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49, and noted that it was not necessary to review the correctness of that decision.
3. In CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9 it was made clear that, in the event that this Court reaches the question of the residual discretion, it is "incumbent on the appellant … to demonstrate that the discretion should be exercised" (per French CJ and Gageler J at [33]; see also at [54], [66] per Kiefel, Bell and Keane JJ).
4. At the appeal the appellant relied on the two affidavits of Ms Emma Phillips. The respondent relied on an affidavit of his wife. The parties sensibly reached agreement as to parts of those affidavits which were read.
5. The respondent's wife attests to the difficulties in managing, particularly with respect to their disabled son, in the absence of the respondent. The most recent report indicates that their son "demonstrates features that may suggest a psychotic or mood disorder including paranoia, irritability, disinhibition, and exaggerated self-confidence. The report continues, "the evidence suggests that these episodes have had a longitudinal effect on his younger siblings and presents an acute risk to the family". Overall, the picture that emerges is one of real difficulty. Added to this is the impact of the current pandemic, both with respect to its impact on the respondent's incarceration, and with respect to the impact of his imprisonment on the family more generally.

Orders

1. For the above reasons, I propose the following orders: 1. Appeal dismissed.

Endnotes

1. With the possible exception of mandatory sentencing outcomes.
2. See also Tuncbilek v R [2020] NSWCCA 30 at [56] applying Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]-[113]), where the distinction was drawn between personal factors causally related to the offending, which inform objective seriousness, and those which are not causally related and do not inform objective seriousness.
3. M Bagaric, "Redefining the Circumstances in which Family Hardship should Mitigate Sentence Severity" (2019) 42(1) UNSW Law Journal 154.
4. While this was not an expression used by the Crown this was the import of the submission. The words "draw back" are those of Wells J in R v Wirth (1976) 14 SASR 291 at 295-296, in a passage set out by Gleeson CJ in Edward and suggest a focus on the issue of whether hardship to third parties will have determinative significance in avoiding an otherwise appropriate prison sentence.
5. [2020] NSWCCA 76.
6. At [1], referring by footnote to Griffiths v The Queen (1977) 137 CLR 293 at 310; 51 ALJR 749 per Barwick CJ; Everett v The Queen (1994) 181 CLR 295 at 300; (1994) 74 A Crim R 241 per Brennan, Deane, Dawson and Gaudron JJ, discussed in Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [8]-[20]; 207 A Crim R 91 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. See also R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [70]. 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 December 2021