R v JJ

Judgment

1. PAYNE JA: Between 27 and 30 August 2018, the respondent, who I will refer to by the pseudonym "JJ" so as to protect the identity of the victim, stood trial before Hoy SC DCJ on an indictment alleging he had committed two offences of sexual intercourse against his de facto stepdaughter, when she was under the age of 10 years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). These offences were committed in 2015 and 2017. On 31 August 2018, the respondent was found guilty by the jury on both counts.
2. On 7 December 2018, JJ was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 3 years and 9 months, each dating from 10 July 2017. The indicative sentences were 4 years with a non-parole period of 2 years and 6 months for count 1 and 5 years with a non-parole period of 3 years for count 2. The sentencing judge made a finding of special circumstances and reduced the statutory ratio between the aggregate sentence and the aggregate non-parole period to 62.5%.
3. On 17 December 2018, the Deputy Director of Public Prosecutions filed a notice of appeal. The sole ground of appeal was that the sentence pronounced was manifestly inadequate.

Relevant facts

1. The respondent had previously been in a domestic relationship with the victim's mother. The victim was born on 6 June 2008. She was the de facto stepdaughter of the respondent. The victim's mother had two children from a previous relationship (including the victim) and two children with the respondent. When the offences occurred, the family lived together on a rural property in southern New South Wales.
2. On 10 July 2017, the victim was interviewed by police. She relayed the details of two specific incidents involving JJ and made other allegations of sexual misconduct involving JJ occurring from the age of six to the age of nine. Those other allegations were led as context evidence in the trial.
3. On 10 July 2017, the respondent was arrested and refused bail. The respondent participated in a recorded interview where he denied the allegations. The indictment contained two counts.

Count 1 - Cunnilingus on victim aged 6 years

1. This offence occurred between 1 January 2015 and 6 June 2015, when the victim was 6 years old. The respondent took the victim for a drive at the farm for what was termed in the household as a "daddy and daughter day". The respondent drove for a period of time, then stopped. He then kissed the victim on the mouth, using his tongue. He then pulled her pants and underwear down. The respondent performed cunnilingus on the complainant and asked her "does it feel good?" The victim replied "no". The respondent then ceased.
2. The maximum penalty for this count was 25 years imprisonment. The standard non-parole period was 15 years imprisonment.

Count 2 - Digital penetration of victim aged 9 years

1. This offence occurred either on 4 or 5 July 2017, when the victim was 9 years old. The victim was on school holidays. The respondent told the victim to come into his bedroom to sleep. She complied and got into his bed. The respondent undid her clothing and upon licking his finger, inserted it into her vagina. This caused the victim pain. The offence apparently ceased upon complaint by the victim.
2. The maximum penalty for this count was life imprisonment, the maximum sentence having been increased on 29 June 2015. The standard non-parole period was 15 years imprisonment.

Proceedings on sentence

1. On 7 December 2018, Hoy SC DCJ delivered his remarks on sentence. The respondent was 44 years of age. The respondent had a number of serious prior traffic and criminal offences, although none of a sexual nature. This was the first time, however, that he faced a substantial period of custody.
2. The sentencing judge described the offences as "extremely serious" and determined "… that each falls below the mid-range of objective seriousness, perhaps somewhere about halfway between mid and halfway mark between mid and low".
3. The sentencing judge made the following relevant findings: 1. The victim was aged 6 years and later 9 years - ages at about the middle and upper end of the range for such offences. 2. There was no specific threat or pressure, although being her stepfather the authority of demand and consequent compliance (was) inevitable. 3. The first (count 1) did not involve penetration, whereas the second (count 2) did. 4. There was no evidence of consequent physical injury. 5. Both offences occurred over a short period of time and were opportunistic. 6. Each ceased upon complaint by the victim at the time. 7. The offences reflect gross breaches of trust and the victim was clearly vulnerable.
4. His Honour found both offences were aggravated as they involved an abuse of a position of trust. His Honour considered the breach to be "significant": Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k). His Honour also found count 2 was aggravated by the fact it had occurred in the victim's home: s 21A(2)(eb).
5. Despite the respondent continuing to deny his offending, his Honour made favourable findings regarding the respondent's prospects of rehabilitation.
6. His Honour considered general deterrence, denunciation and accountability to be particularly relevant in this sentencing - "Offences such as these cannot be tolerated and those who commit them should receive significant punishment".
7. His Honour found special circumstances, on the basis of this being the respondent's first significant period of time in custody, together with the accumulation of sentences, and the necessity for an extended period of rehabilitation and assimilation back into the community. This resulted in a reduction of the statutory ratio from 75% to 62.5% (a reduction in the aggregate non-parole period of 9 months).
8. In relation to totality and accumulation, his Honour found the offences involved separate acts of criminality therefore requiring a degree of accumulation.
9. The respondent did not give evidence on sentence. His subjective case was advanced in the form of testimonials, forming Exhibit 2. Written submissions were provided as Exhibit 1. The subjective case was strong. In particular, another of the respondent's stepdaughters (not the victim), Ms H, wrote the following: "[JJ] has raised me as his own since I was 10 years old never in my life has he done anything inappropriate towards me. This wonderful man taught me so much, he taught me how to drive etc, he always went out of his way as our dad to give us everything we ever wanted, he raised my sister and brother also and we have high respect for him, My dad is innocent I can assure that, I have 3 daughters and they love and miss their poppy very very much, he has never done anything wrong to them, We used to see him multiple times a week now my girls can't even see him, We love him dearly and we just want him home. Nothing I say or do will make a difference to this sentence, but all I ask is you consider he has a lot of family who miss him dearly and he also has 2 little kids of his own that won't even know him soon, that's the saddest part. Please, My dad just wants to come home."
10. The sentencing judge found that the respondent acknowledged his problem with alcohol and has committed to ongoing treatment.
11. The sentencing judge noted that the statistics of sentencing for these offences are limited in number. The sentencing judge also observed that statistics may be of assistance in establishing a range of sentences but do not constitute the outer bounds of permissible discretion.

Crown submissions

1. Senior Counsel for the Crown clarified in his oral submissions that the Crown's case in this Court was that the sentencing process miscarried in that the sentence imposed was unreasonable and plainly unjust such as to engage the fourth category of House v The King (1936) 55 CLR 499; [1936] HCA 50. It was submitted that this Court should intervene to correct the sentence because the sentence was apt to undermine public confidence in the Court's sentencing and the sentencing of offenders for offences against young children.
2. The Crown submitted that five particulars may explain how a manifestly inadequate sentence was arrived at: 1. the sentencing judge erred in his assessment of the objective seriousness of both offences generally and by taking into account the absence of matters which would have made the offending more serious; 2. the sentencing judge erred in his assessment of the objective seriousness of count 1 by failing properly to take into account the victim's very young age and by taking into account the lack of penetration; 3. the sentencing judge erred in his approach to the principle of totality; 4. the sentencing judge erred by nominating indicative sentences that failed to reflect the objective seriousness of the offences having regard to the legislative guideposts of the maximum penalty and the standard non-parole period; and 5. the aggregate sentence failed to reflect the important requirements of general deterrence and denunciation.

Respondent's submissions

1. The respondent submitted that the Court would not be satisfied, on the facts as found by the sentencing judge, that the sentence imposed is manifestly inadequate. The assessment of objective seriousness made by the sentencing judge and the unchallenged findings about the respondent's subjective case had the consequence that the sentence imposed, while arguably lenient, was neither unreasonable nor plainly unjust. The sentence imposed was within the sentencing judge's legitimate discretionary determination. It was submitted that the Court would not be satisfied that the aggregate sentence imposed was so unreasonable that it was not open to the sentencing judge to impose it nor would the Court be satisfied that "there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons".
2. The respondent submitted that the Crown failed to acknowledge that an appeal limited to a contention of manifest inadequacy has significance regarding the nature of arguments that may be advanced in support of that ground of appeal: an argument of manifest inadequacy must focus on the sentence imposed (which is the "result" of the sentencing process), rather than the reasons given by the sentencing judge for that sentence. While an appellate court considering a ground of manifest inadequacy is not bound by the sentencing judge's assessment of the proper weight to be given to, for example, objective seriousness, limits on appellate review nonetheless apply. The issue is not whether the aggregate sentence imposed failed to reflect the objective seriousness of the offences, it is whether it was open to the sentencing judge to impose that sentence.

Objective seriousness

1. In relation to count 1, the respondent submitted that the Court "would not be satisfied that the sentencing judge did err in the way contended by the Crown. The reference to absence of evidence of "consequent" physical injury may be understood as a reference to consequent on "penetration" and, of course, the sentencing judge held, correctly, that only the second count involved penetration. Accordingly, when the sentencing judge referred to absence of consequent physical injury, he was referring to absence of physical injury arising from count 2. The onus rests on the Crown to establish that the sentencing judge erred and the Court would not be affirmatively satisfied that the sentencing judge was referring to count 1".
2. The Crown submitted that the absence of "specific threat or pressure" was also a matter that did not reduce the respondent's criminality. The respondent submitted that, while it may be accepted that the absence of a circumstance is not a matter in mitigation, the sentencing judge did not say that the absence of a specific threat or pressure was a matter in mitigation.
3. The Crown, the respondent submitted, did not explicitly state what the correct characterisation of objective seriousness should have been, nor did the Crown advance a ground of appeal that the sentencing judge erred in assessing the objective seriousness of the offences. Even if such a ground had been advanced, the respondent submitted, the principles in House v The King would apply to its review.
4. The respondent submitted that it was open to the sentencing judge to find that the objective seriousness of both offences was "below the mid-range of objective seriousness", although closer to the middle of the range than the lower end of the range.

Statutory guideposts

1. The respondent submitted that it was not clear whether the Crown contended that the sentencing judge failed to take into account sentencing guideposts at all, or failed to give appropriate weight to them. If the former was contended, the respondent submitted, there should have been a discrete ground of appeal to that effect.
2. The question on appeal, the respondent submitted, was whether the aggregate sentence of 6 years imprisonment was manifestly inadequate for the two offences committed by the respondent, bearing in mind the legislative guideposts as well as other sentencing principles.

General deterrence

1. The respondent submitted that it was not clear whether the Crown contended that the sentencing judge failed to consider the sentencing purposes of general deterrence and denunciation at all, or failed to give appropriate weight to them. If the former was contended, the respondent submitted, there should have been a discrete ground of appeal to that effect.
2. The respondent submitted that, accordingly, the question on appeal was whether the aggregate sentence of 6 years imprisonment was manifestly inadequate for the two offences committed by the respondent, bearing in mind the legislative guideposts as well as other sentencing principles.

Totality

1. The respondent submitted that the Crown did not advance an appeal that the sentencing judge erred in applying the totality principle, but even if such a ground had been advanced, the respondent submitted, the principles in House v The King would apply to the review of that characterisation.
2. The respondent submitted that the Crown appeared to accept that it could not point to specific error in the reasons given by the sentencing judge for determining the degree of accumulation of the two offences. The question on appeal, the respondent submitted, was whether the aggregate sentence of 6 years' imprisonment was manifestly inadequate for the two offences committed by the respondent, bearing in mind the legislative guideposts as well as other sentencing principles.

Consideration

1. In R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [27] Spigelman CJ explained that the notice of appeal "… should be regarded as a formal document which contains within itself the issues to be determined on the appeal". An appeal limited to a contention of manifest inadequacy must necessarily focus on the sentence imposed, rather than the reasons given by the sentencing judge for that sentence.
2. In Carroll v The Queen [2009] HCA 13; 83 ALJR 579, at [24], the plurality explained that in the absence of any challenge to the sentencing judge's findings of fact, it was not open to the Court of Criminal Appeal to evaluate the adequacy of the sentence by discarding reference to facts upon which the offender was sentenced.
3. Whilst an appellate court considering a ground of manifest inadequacy is not bound by the sentencing judge's assessment of the proper weight to be given to, for example, objective seriousness, limits upon appellate review nonetheless apply. The issue is not whether the aggregate sentence imposed failed to reflect the objective seriousness of the offences, it is whether it was open to the sentencing judge to impose that sentence: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [78].
4. In relation to the "particulars" advanced by the Crown of manifest inadequacy, I agree with much of the criticism levelled at that approach in this case by Mr Odgers SC.
5. As to objective seriousness, no error was demonstrated in the conclusion of the sentencing judge that the objective seriousness of both offences was "below the mid-range of objective seriousness", although closer to the middle of the range than the lower end of the range. As Spigelman CJ explained in Mulato v The Queen [2006] NSWCCA 282 at [37] this Court will be "very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion".
6. As to the statutory guideposts, the sentencing judge explicitly recorded that "[M]aximum penalties and standard non-parole periods are 'legislative guideposts' to be considered along with other sentencing practices". No error in this statement or in his Honour's approach to the statutory guideposts was shown.
7. As to general deterrence, the sentencing judge made specific reference to the considerations of deterrence and denunciation. His Honour said "[o]ffences such as these cannot be tolerated and those who commit them should receive significant punishment". I agree. No error in this approach has been shown.
8. As to totality, the Crown did not point to a specific error made by the sentencing judge in determining the degree of accumulation of the two offences. I accept, as Mr Odgers SC submitted, that the real question is whether the aggregate sentence of 6 years imprisonment was manifestly inadequate for the two offences committed by the respondent, bearing in mind the legislative guideposts as well as other sentencing principles recorded by his Honour.
9. Turning to the central issue, in my view 6 years' imprisonment is a manifestly inadequate sentence for these offences. The legislature has conveyed the degree of seriousness of these offences by fixing a maximum term of imprisonment of 25 years for the first offence and life imprisonment for the second. A standard non-parole period of 15 years applies to each. The reasons for this are clear. The age of a victim, which the Crown has to prove beyond reasonable doubt as being under 10, demonstrates in and of itself, the vulnerability of the victim to offences of this kind.
10. The likelihood that such a young person would be able to resist an adult is very low. Courts have repeatedly acknowledged the long-term psychological damage that such conduct can have upon a child. In light of the seriousness of an offence against s 66A of the Crimes Act, Hoeben CJ at CL (with whom Harrison and R A Hulme JJ agreed) said the following in EG v R [2015] NSWCCA 21 at [42]: "General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment."
11. As the sentencing judge correctly said here "offences such as these cannot be tolerated and those who commit them should receive significant punishment". I accept the finding of the sentencing judge about objective seriousness. No error has been shown in making that finding. The sentencing judge made a judgment that, in respect of both offences and considering all the circumstances, the objective seriousness was below the mid-range but closer to the mid-range than the bottom of the range.
12. The respondent's subjective features were important matters to be weighed in the balance. The sentencing judge correctly identified and dealt with the respondent's strong subjective case. He was shown to enjoy a close and loving family and had the support of other stepchildren. The Crown accepted that the finding of special circumstances was correctly made. I adopt all of the sentencing judge's findings about the offender's strong subjective case.
13. Having regard to all of the circumstances of this case, however, I have concluded that the sentence imposed was manifestly inadequate. The sentence imposed fell outside the discretion available to the sentencing judge and was manifestly inadequate. I say that for the following reasons. 1. First, the maximum penalty for the first offence is 25 years and the second is imprisonment for life. That maximum penalty speaks for itself in terms of the view of Parliament about the seriousness of child sexual assault. 2. Secondly, although less important, the significant standard non-parole period of 15 years, applicable to an offence in the "middle of the range of seriousness" is to the same effect. Of course, in saying that, I do not purport to impugn the assessment of objective seriousness made in this matter which I have accepted. 3. Thirdly, this is not a case where the offending just "tipped over" into its more serious form. The victim was 6 years old at the time of the first offence. An adult convicted of performing cunnilingus on a 6 year old is deserving of condign punishment. Although the victim was 9 years old at the time of the second offence she was comfortably below the statutory threshold of 10. 4. Fourthly, the criminal acts undertaken by the respondent had the potential to do significant harm. Sexually assaulting children has the potential to do great damage to the lives of the victims. 5. Fifthly, far from being exceptional, these offences are regrettably not uncommon occurrences in Australian society.
14. In short, for all of those reasons, I respectfully cannot accept that the sentence imposed was an appropriate response of the criminal justice system to the offences committed by the respondent. In my opinion, an aggregate sentence of 8 years full-time imprisonment was required to be imposed for this conduct.

Exercise of the residual discretion

1. Mr Odgers SC accepted that if the Court came to resentence he had no submissions to make in favour of the exercise of the residual discretion not to resentence. The concession was correctly made. I would not exercise the residual discretion not to intervene.

Conclusion and proposed orders

1. For the foregoing reasons I propose an aggregate term of imprisonment of 8 years. Making the same finding of special circumstances an aggregate non-parole period of 5 years should be imposed. Each is to date from 10 July 2017 when the respondent first went into custody.
2. The indicative sentences are as follows: 1. 5 years with a non-parole period of 3 years and 6 months for count 1; and 2. 7 years with a non-parole period of 4 years for count 2.
3. A modest degree of notional accumulation is appropriate.
4. The following orders should be made: 1. Appeal allowed; 2. The sentence imposed by Hoy SC DCJ on 7 December 2018 is quashed and in lieu thereof: 1. The offender is sentenced to an aggregate term of imprisonment of 8 years with an aggregate non-parole period of 5 years, each to date from 10 July 2017. 2. The offender will be first eligible for parole on 9 July 2022.
5. DAVIES J: I agree with Payne JA.
6. BUTTON J: I agree with Payne JA.

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