HEADNOTE
[This headnote is not to be read as part of the judgment]
The respondent pleaded guilty to multiple counts of sexual and related offending. The offending involved a total of 8 separate victims ranging in age from 7 to 14, and encompassed:
1. 1 count of having sexual intercourse with a child under 10;
2. 2 counts of having aggravated sexual intercourse with a child under 16;
3. 1 count of having sexual intercourse with a child between the ages of 10 and 14;
4. 9 counts of indecent assault;
5. 2 counts of detaining a person for advantage (the advantage being sexual gratification);
6. 1 count of entering a dwelling with intent to commit the serious indictable offence of indecent assault, in circumstances of aggravation;
7. 1 count of breaking and entering a dwelling and committing the serious indictable offence of indecent assault on a child under the age of 16 in circumstances of aggravation; and
8. 1 count of possessing child abuse material.
The sentencing judge sentenced the respondent to an aggregate term of imprisonment of 10 years, with a non-parole period of 6 years and 6 months imprisonment. The Crown appealed against that sentence on the single ground of manifest inadequacy. In doing so, the Crown relied upon latent, as opposed to patent, error.
Held per Bellew J (Adamson and Lonergan JJ agreeing) allowing the Crown appeal, quashing the sentence imposed, and imposing in lieu thereof an aggregate sentence of 15 years imprisonment with a non-parole period of 11 years and 3 months imprisonment:
1. Although the Crown relied upon latent and not patent error, it was necessary to make a number of observations regarding aspects of the reasons of the sentencing judge: at [74].
2. Where agreed facts are summarised by a sentencing judge, it is necessary that any such summary be accurate, and that it include a reference to all material facts which bear upon an assessment of the objective seriousness of the offending. In the present case, errors and omissions meant that the true nature of the offending was not set out by the sentencing judge in her reasons: at [76].
3. The reasons of the sentencing judge were inadequate and failed to expose the reasoning process resulting in the various findings of objective seriousness which were made. The requirements of sentencing are not met by a bare recitation of facts. No proper assessment of the offending and its objective seriousness was undertaken: at [76]-[78].
Taylor v R [2018] NSWCCA 255; R v Cage [2006] NSWCCA 304 referred to.
1. The inadequacy of the reasons was compounded by conclusions as to objective seriousness of the offending which were expressed in terms of where the offending fell on a notional range. That approach was not necessary and added nothing substantive to any analysis. What was required was that the sentencing judge fully identify the facts, matters and circumstances which had a bearing on the assessment of objective seriousness: at [79].
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Yeung v R [2018] NSWCCA 52 referred to.
1. There was, in some instances, a displacement between the finding of objective seriousness and the indicative sentence: at [80].
2. The brevity of particular instances of offending, whilst not irrelevant, was of limited significance: at [81]-[82].
Cowling v R [2015] NSWCCA 213 referred to.
1. The sentencing judge's assessment of aggravating factors was lacking in specificity and fell short of what was required: at [83].
R v RMW [2016] NSWCCA 211; R v Matu [2019] NSWCCA 23 referred to.
1. The approach taken by the sentencing judge to sentencing for those offences to which a Form 1 attached did not sit comfortably with the approach which has been set out by this Court: at [84]-[86].
Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 referred to.
1. It was not clear why the sentencing judge regarded one instance of offending as not having been aggravated by the fact that occurred in the victim's home: at [87]-[90].
Jonson v R [2016] NSWCCA 286 referred to.
1. The finding of special circumstances appeared to confuse factors which might properly be taken into account in the general assessment of an offender's subjective case, with factors which could support an adjustment of the statutory ratio between the total sentence and the non-parole period. It was difficult to determine why the evidence in the present case justified a finding of special circumstances: at [91]-[96].
R v Fidow [2004] NSWCCA 172; Collier v R [2012] NSWCCA 213; R v Tuuta [2014] NSWCCA 40 referred to.
1. The sentence imposed was manifestly inadequate and failed to meet the fundamental purposes of sentencing. There was no basis for this Court to exercise the residual discretion not to intervene. The inadequacy of the sentence was so marked that the Court's intervention was required in order to maintain public confidence in the criminal justice system. This was so having regard to a series of factors including the multiplicity of offences, the number and ages of the victims, the planning involved in some instances, the generally predatory nature of the offending, and the gross breach of trust exhibited by the respondent: at [97]-[109].
2. The respondent's subjective case was unremarkable. Whilst he was entitled to a discount of 25% to reflect the utilitarian value of his pleas of guilty, and had a limited criminal history, the evidence did not support a finding that he was remorseful and his prospects of rehabilitation were guarded, as was the assessment of his likelihood of reoffending: at [172]-[177].
3. There was a need for any sentence to reflect considerations of general deterrence, denunciation and protection of the community. Whilst it was necessary to apply principles of totality, those principles were not to be applied in a way which would allow the respondent to escape effective punishment for offences which followed successively upon one another throughout a sustained course of studied and deliberate offending: at [179].
R v Wheeler [2000] NSWCCA 34 referred to.