R v NT

The Crown appeal

The single ground of the Crown appeal is that the aggregate sentence imposed was manifestly inadequate. As is well known, that is an assertion that the sentence was "unreasonable or plainly unjust": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25].
On behalf of the Crown it was argued that there were indicators of error of principle in the Remarks on Sentence.
The first was (somewhat confusingly) that his Honour failed to implement his stated intention to reduce the sentences by 15 per cent by reason of the respondent's pleas of guilty. This inference was drawn because of the "round numbers" of the sentence imposed, and the indicative sentences. It was argued that, had the intended reduction been implemented, the inadequacy of the sentence his Honour proposed to impose would have been exposed.
This cannot be accepted. His Honour clearly stated that the starting point was a sentence of imprisonment for 4 years. Reduction of that sentence by 15 per cent yields a little under 3 years and 6 months. The sentence imposed was 3 years and 4 months, conforming precisely (subject to rounding) with his Honour's stated intention.
The second point made on behalf of the Crown was that the indicative sentences in respect of all offences were the same - imprisonment for 18 months, and that this did not adequately reflect the variations in the "degree of culpability", particularly with respect to the attempted penetration of G's mouth, the repeated nature of the offending against K, and the involvement of N in Count 3.
There is some force in the argument that the indicative sentences did not reflect the variation in the offences. However, the question for present determination is whether the resultant aggregate sentence was, or was not, manifestly inadequate. Indicative sentences are required for the purpose of ensuring that proper attention is paid to the individual circumstances of each offence. Nevertheless, as I have said, the ultimate question is directed to the aggregate sentence imposed.
The third asserted error of principle concerned his Honour's treatment of any psychological damage that may have been suffered by the victims, or either of them.
In my opinion, his Honour's treatment of this was correct. There was no evidence of psychological damage, and, very likely, there could have been none, given the ages of the victims, and the relative recency of the offences. It is true that, in recent times, there has been virtually an assumption of psychological damage resulting from childhood sexual abuse contact: R v Muldoon (NSWCCA, 13 December 1990, unreported), with R v MJB [2014] NSWCCA 195, per Adamson J. However, significant damage is an aggravating factor under s 21A(2)(g) of the Sentencing Procedure Act, and must be proved beyond reasonable doubt. His Honour's treatment of this issue demonstrated a proper appreciation of the common consequences of sexual offences against children, and a recognition that specific harm could not be taken into account as an aggravating factor, unless proved beyond reasonable doubt.
The final error asserted was failure adequately to accumulate the indicative sentences to result in an adequate aggregate sentence.
I would reject this proposition also. It is no more than an assertion, in another guise, that the aggregate sentence was manifestly inadequate.
This was an unusual case, made so by reason of the personal circumstances of the respondent. It is also to be borne in mind, notwithstanding that the offences were serious, that his Honour considered them to be at the lower end of the range of offences of their kind.
In my opinion, no issue of sentencing principle arises in this appeal. The sentence has not been shown to be manifestly inadequate, having regard to all of the circumstances.
For these reasons I agree with Rothman J that the Crown appeal ought to be dismissed.
ROTHMAN J: On 18 September 2014, the Director of Public Prosecutions, on behalf of the Crown, appealed against the sentence imposed upon the respondent, NFT, by Blackmore DCJ in the District Court in Albury on 18 August 2014.
The respondent pleaded guilty to four offences, comprising one count of aggravated indecent assault on a child under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW), and three counts of attempted sexual intercourse with a child under 10 years of age, contrary to s 66B of the Crimes Act 1900 (NSW). The aggravated indecent assault offence carries a maximum sentence of 10 years' imprisonment and a standard non-parole period of 8 years' imprisonment, while the attempted sexual intercourse offences each carry a maximum sentence of 25 years' imprisonment, the same sentence as is applicable to the completed offence of sexual intercourse with a child of such age (see also s 344A of the Crimes Act 1990 (NSW) which implements the same principle more generally).
In determining this appeal, it is necessary to deal with the facts which gave rise to the offences; the Remarks on Sentence that are the subject of the appeal; the principles to be applied in a Crown appeal against sentence; the errors, if any, in the sentencing process; and, in the event that an error is found, whether the Court should exercise its residual discretion to dismiss the appeal, and, if not, the degree to which a more severe sentence is warranted in law.
Because of the victims' ages and relationship between the victims and offender, the legislation requires that the names of the victims and of the respondent be supressed. Facts
The sentence hearing proceeded on the basis of agreed facts, prepared by the Crown Prosecutor, and his Honour recited those facts in his sentencing judgment. The facts so recited are as follows: "The Offender…is the maternal grandfather of both of the victims. Count 1, between 11 March 2011 and 20 February 2012 in [Albury] whilst at the Offender's residence the Offender was bathing the victim GBT in the bathroom. Whilst the Offender was drying the victim with a towel the Offender used his fingers to tickle the victim on the outside of her vagina. Count 2, in relation to the same complainant; between 1 February 2012 and 20 February 2012 whilst at the Offender's residence the Offender and the victim were located in the shed in the backyard. Whilst the Offender was standing in close proximity to the victim the Offender removed his penis from his underwear, exposing his penis to the victim. The Offender asked the victim to open her mouth to which the victim complied. The Offender took his penis in his hand and placed his penis on the outside of the lips of the mouth of the victim. The victim then closed her mouth and prevented the penis from entering her mouth. Count 3, in relation to a complainant KBT, between 1 January 2011 and 31 Janurary 2011 whilst at the Offender's residence the Offender was alone with the victim and the victim's cousin NT in the back shed of the property. NT was approximately seven years of age at the time of the offence. The Offender ha[d] taken down the pants and underwear of the victim and also NT. The Offender took hold of the penis of NT and manipulated NT's penis in an attempt to insert it into the vagina of the victim. There was no penetration as NT pulled away. Count 4, on or about 30 May 2011 whilst at the Offender's residence the Offender was alone with the victim KBT. Whilst the Offender was standing in close proximity to the victim the Offender removed his penis from his underwear exposing his penis to the victim. The Offender asked the victim to open her mouth to which she complied. The Offender took his penis in his hand and placed his penis on the outside of the lips of the mouth of the victim. The victim closed her mouth and prevented the penis from entering her mouth" (Remarks on Sentence, 1-2).
On 18 August 2014, the respondent was sentenced by Blackmore DCJ in the District Court. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 NSW (hereinafter, "the Act"), the sentencing judge imposed an aggregate sentence of a non-parole period of 1 year and 8 months, with a balance of term of a further 1 year and 8 months. His Honour indicated that the sentences he would have imposed, if sentencing for the offences individually, were: aggravated indecent assault: imprisonment for 18 month, with a non-parole period of nine months; each offence of attempted sexual intercourse with a child under 10 years of age: imprisonment for 18 months, with no non-parole period specified.
On 18 September 2014, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions appealed, relying upon one ground of appeal, namely, that the sentence was manifestly inadequate. Remarks on Sentence
In his Honour's Remarks on Sentence, the sentencing judge noted that each offence was separate and distinct, and occurred on separate occasions (ROS, 3). While taking into account the principle of totality, his Honour stated that the respondent's sentence must reflect that each offence was "seriously wrong" and that the respondent must serve "an identifiable period in custody for each offence" (ROS, 3).
In relation to the objective seriousness of the offences, the sentencing judge found that the sexual acts themselves were "towards the lower end of seriousness" when compared with other possible acts, within the description of the relevant offence, that could have been committed (ROS, 3).
The sentencing judge noted that at the time of the offences the victims were aged three and five respectively. His Honour accepted the Crown's submission that the young age of the victims was "an especially high aggravating factor" (ROS, 3). A further aggravating factor taken into account by his Honour was the breach of trust involved in each offence, since the respondent was the grandfather of both victims and since the victims' parents, as well as the wider community, trusted him to behave correctly with his grandchildren (ROS, 3).
The sentencing judge took into account as mitigating factors evidence that the respondent was of prior good character, particularly that he had assisted with numerous community organisations over the years, and that the respondent did not have a prior criminal record (ROS, 4).
The sentencing judge also found that a term of imprisonment would weigh more heavily on the respondent as he was the primary caregiver for his wife, who suffered from a range of serious medical conditions, and his son, who had been diagnosed with autism (ROS, 4). His Honour also found that the respondent's deteriorating back problem would cause him constant pain in custody and also make his period in custody more difficult (ROS, 5).
The sentencing judge noted that the victims were not physically injured in any way (ROS, 5). His Honour stated that, given their age, it was difficult to determine the psychological damage suffered by the victims, but hoped that the exposure of the respondent's actions and his plea of guilty might ameliorate any long term psychological damage (ROS, 5).
The sentencing judge also found that the respondent had very good prospects of rehabilitation, particularly as he had expressed remorse for his actions, which his Honour accepted as genuine, and as he had begun psychological counselling in the community (ROS, 5-6). His Honour also noted that the Community Corrections indicated that the respondent was at low risk of re-offending (ROS, 5).
The sentencing judge allowed a discount of 15% for the respondent's pleas of guilty shortly before trial, which had removed the need for the victims to give evidence at the trial (ROS, 6).
Finally, the sentencing judge accepted the respondent's submission that special circumstances existed, thereby requiring a downwards adjustment of the non-parole period, as it was the respondent's first time in custody and as he would benefit from a longer period on parole to undertake more counselling (ROS, 6). Principles on Crown Appeals against Sentence
The High Court in CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 317 ALR 308, has recently considered the principles upon which Crown appeals against sentence are determined. It is therefore necessary to summarise briefly the principles as they have been reiterated by the High Court.
Sentencing judges have a wide discretion in determining an appropriate sentence for an offender: a sentencing judge "should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accord with the statutory regime under which sentencing is effected": Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58]. An appellate court can only intervene in a sentence when the applicant, be it the offender or the Crown, establishes that the sentencing judgment is affected by an identifiable or manifest error: House v The King [1936] HCA 40; (1936) 55 CLR 499.
The Crown's right of appeal against a sentence is a creature of statute, otherwise unknown to the common law.
Even if error in a sentencing judgment were found, there is a residual discretion to dismiss the appeal. In their reasons for judgment in CMB v Attorney-General (NSW) at 316, French CJ and Gageler J held that the discretion is residual in the sense that it does not fall to be considered, unless an error has been established.
The reason that an intermediate court of appeal must explicitly consider, even after an error has been established, whether to exercise their discretion to re-sentence an offender, is related to the purpose of Crown appeals. As Barwick CJ held in Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310: "…An appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perorm its proper function in this respect, namely, to lay down principles for the goverence and guidance of courts having the duty of sentencing convicted persons."
While appeals against sentence initiated by the offender may be concerned with "the correction of error in particular cases", the High Court has repeatedly affirmed that appeals brought by the Crown are concerned with the clarifying the general principles of sentencing: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295; CMB v Attorney-General (NSW). This particular purpose of Crown appeals is the reason why Crown appeals against sentence should be exceptional or a rarity.
The residual discretion operates notwithstanding the terms of s 68A of the Crimes (Appeal and Review Act) 2001 (NSW), which provides that an appellate court must not dismiss a prosecution appeal against sentence on the grounds of double jeopardy. In considering its residual discretion, the appeal court cannot decline to exercise its sentencing discretion on the basis that the respondent will be affected by double jepoardy, but may decline to do so on the basis of other considerations: R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7.
It is unnecessary and inappropriate to set out exhaustively, or to define precisely, the many considerations that may inform the appellate court's exercise of its residual discretion. To provide an understanding of what such considerations may be, it is sufficient to reiterate the following examples from previous judgments: an offender's success in rehabilitiation; the proximity of the date for eligibilty for parole; the totality principle; delay; parity; fault on the part of the Crown and lack of fault on the part of the offender: see Green & Quinn at [43].
In CMB v Attorney-General (NSW), the High Court recently stated that it is the Crown who bears the onus of establishing that the appellate court should not exercise its residual discretion. In doing so, the High Court overturned R v Smith [2007] NSWCCA 100, in which this Court had held that the offender must prove that it should re-exercise its sentencing discretion. As a consequence, the Crown must prove, on the balance of probabilites, that this Court should decline to exercise its discretion not to re-sentence the respondent.
Manifest Inadequacy
The Crown relies upon one ground of appeal in these proceedings. The Crown submits that the sentence imposed is manifestly inadequate, that is, the aggregate sentence of imprisonment for 1 year and 8 months, with the balance of term being 1 year and 8 months, is unreasonable or plainly unjust: Markarian v The Queen at [25]. The Crown must satisfy this Court that the sentence imposed on the respondent was outside the range of sentences that could have been imposed: Hili v The Queen; Jones v The Queen at [59].
In its written submissions, the Crown outlines particulars as to why the sentence imposed on the respondent was manifestly inadequate. The first particular is that, contrary to s 53A(2)(b) of Act, the indicative sentences issued by the sentencing judge had not been reduced by 15%. As stated earlier in these reasons for judgment, his Honour had proposed to reduce the respondent's sentence by 15% for his plea of guilty. The Crown accepts that such an error, if found, does not invalidate the aggregate sentence ultimately imposed, pursuant to s 53A(5) of the Act. However, in the Crown's submission, relying on SHR v R [2014] NSWCCA 94 at [35]-[45], this alleged error may still demonstrate an error in the aggregate sentence.
In his Honour's Remarks on Sentence, the sentencing judge stated that the Court would allow a discount of 15% for the respondent's guilty plea. Shortly afterwards, his Honour issued the indicative sentences for the offence of aggravated indecent assault and the offences of attempted sexual intercourse. The sentencing judge does not explicitly state that these indicative sentences have been determined after taking into account the 15% discount, that is, his Honour does not state that the starting point was 4 years' imprisonment, which when discounted by 15% is approximately the sentence imposed. Further, his Honour says nothing inconsistent with the foregoing. In such circumstances, I accept the respondent's submission that there is no basis for a conclusion that the indicative sentences have not been properly determined.
Moreover, in SHR v R, Fullerton J, with whom Basten JA and Davies J agreed, emphasised a failure to comply with s 53A(2)(b) of the Act will only be significant when that error is "material to the outcome". At all times, the key issue is whether the aggregate sentence is "sustainable": SHR v R at [40]. The Crown has not demonstrated how the aggregate sentence has been affected by the alleged failure to comply with s 53A(2)(b) of the Act.
The second particular argued by the Crown in support of manifest inadequacy is that, in determining the indicative sentences, the sentencing judge failed to differentiate between the varying "degrees of culpability" (sic) involved in each offence. The Crown submits that, in relation to the offences involving the victim GBT, the respondent's conduct in Count 2, namely attempting to penetrate the victim's lips with his penis, was more culpable than his conduct in Count 1, which involved tickling the outside of the victim's vagina. Moreover, the Crown argues that the respondent's culpability was greater in relation to Counts 3 and 4 as those offences involved repeated offending of the same nature against a second victim. The Crown also submits that the respondent's culpability in relation to Count 3 was greater than that in the other attempted sexual intercourse offences (Counts 2 and 4), due to the nature of the respondent's conduct and the involvement of a third child.
Unlike the error alleged in relation to the first particular, this alleged error concerning the indicative sentences has the capacity to affect the aggregate sentence ultimately imposed on the offender. It is therefore necessary to consider this second particular in detail.
It should be noted that the fact that an offender is charged with two different offences (in this case, aggravated indecent assault and attempted sexual intercourse with a child) will not necessarily result in different sentences being imposed for each offence. Nor will the fact that an offender was charged with different counts of the same offence necessarily lead to different sentences. It may be that the level of criminal culpability involved in each offence and/or count was the same and, therefore, the sentences imposed for each will also be the same.
In this case, the objective seriousness of each offence was very similar. I agree with the sentencing judge's finding that the nature of the offender's conduct was, in each count, "towards the lower end of seriousness" for these types of offences, especially given the nature of the acts themselves and the fact that the offender did not persist when the victims resisted. Ultimately, a sentence of 18 months imprisonment for each count was not outside the range available.
It is also important to bear in mind that the sentencing judge in this case, like most sentencing judges, delivered these remarks on sentence ex tempore. In that circumstance, greater licence must be given to the sentencing judge in the wording used or in some aspects of component parts of an ultimate sentence that is otherwise appropriate.
The third particular submitted by the Crown is that the sentencing judge queried the psychological damage, or potential psychological damage, suffered by the victims and that his Honour gave little weight to the impact of the respondent's offending on the victims. The Crown draws the Court's attention to several cases in which it has been held that child sex offences "inevitably give rise to psychological damage" to the victims: SW v R [2013] NSWCCA 255 at [52]; see also R v Gavel [2014] NSWCCA 56 at [110].
It is appropriate to set out the relevant passage of the sentencing judge's remarks in full: "There is no suggestion that the victims were physically harmed in any way. Given their age it is difficult to speculate on what psychological damage the Offender's actions may have had. Hopefully exposure of his actions and his plea of guilty will ameliorate at least to some extent, any long term psychological damage. Given the Offender is their grandfather, who previously had been held in very high regard by his own children, and, no doubt, by his grandchildren, revelation of this offending can be expected to have significant ramifications for the whole family. That will inevitably be felt by the grandchildren themselves and they may need further counselling to deal with those effects." (ROS, 5)
In my opinion, it is clear that his Honour did not query the psychological impact on the victims. Rather, his Honour emphasised it and noted that while the subsequent conduct of the offender may lessen its effect, because of the familial relationship between the victims and the offender, adverse effects may result. This allegation of error is untenable.
The fourth particular is that the sentencing judge's accumulation of the indicative sentences did not reflect the seriousness of child sexual offences committed on several occasions against young victims under his care and authority. This is another way of submitting that the sentence is outside the range available.
As stated above, sentencing judges have a wide discretion in determining an appropriate sentence and given that the Crown has not identified an error in the sentencing judge's application of the principles of totality or accumulation, nor in the sentencing judge's consideration of the objective and subjective circumstances of the offences or offender, this Court may not interfere with the sentence imposed on the offender on this basis other than if the sentence is outside the appropriate range. In the particular subjective circumstances of this offender and the objective circumstances of the offences, the sentence, although exceedingly light by ordinary standards, is within range.
The fifth and final particular put forward by the Crown in support of manifest inadequacy is that the aggregate sentence imposed by the sentencing judge does not reflect either the maximum penalty for each offence or the standard non-parole period for the Count 1 offence as relevant legislative guideposts.
The sentencing judge explicitly noted the maximum penalty of the offences and the standard non-parole period in relation to the offence in Count 1.
The ultimate question to be determined is whether the sentence imposed on the offender was outside the range of sentences that could have been imposed. The Crown's main contention is that, in all the circumstances of the case, particularly "the extremely serious offences of sexual assault" (sic) with which the offender was charged, the young age of the victims and the fact that each count was a "separate instance of serious criminality" (sic), the aggregate sentence of 1 year and 8 months imprisonment, with a further term of 1 year and 8 months, was outside the range available.
I am not satisfied the sentence fell outside of the range of sentences that could have been imposed. Other than their bold assertion that the range requires a more severe sentence, the Crown did not present any material to support the assertion of the range, such as statistics or comparable cases.
While statistics must be used with care, an assertion of that kind ought be accompanied by some comparative material. As earlier stated, given that the gravity of the offending was towards the lower end of objective culpability and given the nature of the subjective circumstances of the offender, the sentence is not outside the range available and is not manifestly inadequate. Residual Discretion
Regardless of my finding in relation to manifest inadequacy, I am also not satisfied that the Crown has established that the Court should decline to exercise its residual discretion.
The Crown submits that given the extent of the manifest inadequacy of the sentence imposed on the offender, the Court would not exercise its residual discretion. In support of its submission, the Crown relies on the joint judgement of French CJ and Gageler J in CMB v Attorney-General (NSW) in which they quoted the majority judgment in Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600. In the later case, French CJ and Hayne, Crennan, Kiefel, Gageler and Keane JJ held: "[76] …the conclusion that the sentence imposed was manifestly inadequate… was sufficient to justify intervention given that to decline to intervene would have been to perpetuate a manifest injustice."
The above passage from the majority judgment in Munda v Western Australia suggests that there may be cases in which a decision not to re-sentence an offender whose sentence has been found to be manifestly inadequate would be to perpetuate a manifest injustice. In such situations, as it would appear from the High Court decisions referred to above, the Court may decline to exercise the residual discretion.
However, the above passage must be read in its context. In Munda v Western Australia, both the majority at [73] and Bell J in dissent at [90] held that the restriction of the residual discretion by the Supreme Court of Western Australia was incorrect. Their Honours held that McLure P had wrongly stated that "save where parity considerations arise, the residual discretion is only likely to be exercised if the error has not resulted in a manifestly inadequate sentence". The majority of the High Court affirmed the considerations relevant to the determination of whether to exercise the residual discretion as outlined by the majority in Green & Quinn, which included parity of sentences of co-offenders, delay in the hearing and determination of the appeal, the imminent or past release of the offender on parole and the rehabilitation of the offender in prison: Green & Quinn at [43]; see also the judgment of Bell J in dissent at [131].
It is clear from Munda v Western Australia and Green & Quinn, that an appellate court has a wide discretion not to re-sentence an offender in a Crown appeal and that there are many considerations that may be taken into account in determining whether to exercise that discretion. Contrary to the Crown's submission, the fact that a sentence is manifestly inadequate will not automatically result in the Crown having satisfied the burden that the Court should not exercise their residual discretion.
Nevertheless, it is open for an appellate court to re-sentence an offender whose sentence has been held to be manifestly inadequate, despite there not being any identifiable error of sentencing principles to correct: Munda v Western Australia at [76]. This is particularly so if in resentencing, the appellate court is seeking to correct the range that may otherwise be thought to apply. In those circumstances, the appellate court is interfering because not to do so would be to grant its imprimatur to an unjust range of sentences.
In these proceedings, it is clear on the evidence before the Court that an extension of the offender's time in prison would cause great distress on himself and his family. I also note that the offender has made some progress, both during his time on bail and whilst in prison, towards rehabilitation. I therefore find that the Crown has not fulfilled the burden upon it to satisfy the Court to decline to exercise the residual discretion.
For the foregoing reasons, I propose that the appeal be dismissed.
BELLEW J: I have had the advantage of reading, in draft, the judgment of Rothman J and Simpson J.
I agree, for the reasons set out by Rothman J that the Crown appeal should be dismissed. I also agree with the additional observations of Simpson J.

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