HEADNOTE
[This headnote is not to be read as part of the judgment]
On 11 May 2021, Michael Anthony Packer, the respondent, was convicted after a trial before a jury in the New South Wales District Court of six counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 14 years' imprisonment, with a standard non-parole period of 7 years. The respondent was also convicted of a further count of attempting sexual intercourse without consent, which carries a maximum penalty of 14 year's imprisonment, with no standard non-parole period. In addition, the respondent was convicted of one count of threatening to distribute an intimate image without consent (an offence against Crimes Act s 91R(2)), one count of distributing an intimate image without consent (an offence against Crimes Act s 91Q(1)), and one count of recording an intimate image without consent (an offence against Crimes Act s 91P(1)), each of which carries a maximum penalty of 3 years' imprisonment. He also pleaded guilty to a further offence of threatening to distribute an intimate image without consent.
The complainant in each of these offences was a person described as NB. In January 2019, NB had arrived in Australia from Nepal on a student visa when she was aged 18. She had met the respondent after responding to a job advertisement to work at his home. She accepted the position in late April or early May 2019, and moved into his home. The offences were committed between 1 May and 12 July 2019 in the respondent's house. The sentencing judge found that the acts of sexual intercourse without consent were accompanied by threats, amongst other things, to disseminate a video that the respondent had covertly recorded of the respondent and NB having sexual intercourse without consent to NB's parents in Nepal, whom the respondent had connected with on Facebook. NB gave evidence at trial that she was of the opinion that her family would "break" their relationship with her if they viewed the video. The count of distribution of an intimate image without consent related to an occasion in July 2019 when the respondent disseminated pictures and a video of the respondent having sexual intercourse with NB without her consent to a person in Nepal, whom he had connected with on Facebook. That person shared NB's surname, had met NB and was from the same area in Nepal, although he did not personally know her. On 12 July 2019, the applicant collected her belongings and, the following day, attended a police station to report the matters to the police.
At the same trial, the respondent was also convicted of a further count of sexual intercourse without consent against another complainant described as FP. He was also convicted of sexually touching FP without consent, which is an offence contrary to s 91KC(a) of the Crimes Act, and carries a maximum penalty of 5 years' imprisonment, with no standard non-parole period. Those offences occurred between 13 July 2019 and 17 July 2019, after FP, who had arrived in Australia in May 2019 aged about 18 or 19, accepted an advertised role as a live-in housekeeper in the respondent's home.
The respondent was found not guilty of five further offences.
On 13 August 2021, the respondent was sentenced to an aggregate sentence of imprisonment of 12 years and 8 months, with a non-parole period of 8 years.
By s 21A(1)(a) and (b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). in determining the appropriate sentence for an offence, a sentencing court is required to take into account such aggravating and mitigating factors as are relevant and known to the court. Section 21A(2)(g) of the Act identifies "the injury, emotional harm, loss or damage caused by the offence was substantial" as one such aggravating factor.
In the sentencing proceedings, NB provided a victim impact statement (VIS), which set out what the sentencing judge described as the "significant impact" the offending had had upon her. The sentencing judge expressly declined to take that harm into account, since he concluded that he could not tie the emotional harm to any of the individual offences, which, he considered, was required by s 21A(2)(g).
Pursuant to 5D(1) of the Criminal Appeal Act 1912 (NSW), the Crown appealed against the respondent's sentence. Following the abandonment of ground (2), the following grounds were pleaded:
(1) the sentencing judge failed to take into account that the emotional harm suffered by the complainant NB was substantial as an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW);
(3) the sentencing judge misapplied the principle of totality in setting the aggregate sentence; and
(4) the sentence is manifestly inadequate.
The Crown accepted that even if error were found with respect to ground (1) it would be necessary for the Crown to establish the manifest inadequacy of the sentence.
The Court held (Davies J, Simpson AJA agreeing with additional remarks, Wilson J agreeing) allowing the appeal, re-sentencing the respondent to an aggregate sentence of 17 years with a non-parole period of 12 years:
As to ground (1)
Per Simpson AJA, Davies and Wilson JJ
(1) The sentencing judge erred in failing to give any weight to the significant emotional harm caused to NB, whether in relation to each of the offences ([110] per Davies J, Wilson J agreeing), or in relation to the aggregate sentence ([11]-[16]) per Simpson AJA).
(2) The evidence before the sentencing judge established, with no real doubt, that the complainant had suffered substantial emotional harm, being harm well beyond what could be expected from the offences for which the applicant was convicted. That substantial emotional harm arose principally from the complainant's background because of the cultural norms within the community from which she came: [6] (Simpson AJA); [79] (Davies J); [122] (Wilson J).
Per Davies and Wilson JJ
(3) The sentencing judge erred in expressly declining to take into account the substantial harm suffered by NB as a result of the respondent's offending. The degree of emotional harm can be established by victim impact statements. In circumstances where no objection was taken to the VIS and no application made to limit its use, the sentencing judge could properly use the statement to establish the aggravating factor in s 21A(2)(g) of the Sentencing Act: [75]-[78] (Davies J); [122] (Wilson J).
R v Tuala [2015] NSWCCA 8; (2015) 248 A Crim R 502; Muggleton v R [2015] NSWCCA 62; (2015) 250 A Crim R 180, cited.
(4) The sentencing judge ought to have found that the offences constituted by counts 2, 9,10 and 11 (namely, the dissemination offences) were aggravated by reason of the substantial emotional harm suffered by the complainant. Although a determination of the objective seriousness of the dissemination offences included a consideration of the harm they were intended to avoid, many or most offences are enacted with the purpose of avoiding some sort of injury, emotional harm, loss or damage. The reason for the inclusion of s 21A(2)(g) as an aggravating factor is that in relation to some offending, the harm goes beyond what could ordinarily be expected, and amounts to substantial injury or harm. No double counting is involved in that regard: [80]-[84] (Davies J); [122] (Wilson J).
(5) As to whether the emotional harm could be attributed to the offences of sexual intercourse, although on one approach the substantial harm was caused by the actual distribution of the intimate image, the evidence both at the trial and in the VIS made clear that the reason for the substantial harm was the fact that the complainant's family and friends became aware that she had engaged (albeit without consent) in sexual relations with the respondent. In those circumstances it was artificial to distinguish the sexual intercourse counts from the circumstances of their being recorded in the first place and their distribution thereafter: [85] (Davies J); [122] (Wilson J).
Per Simpson AJA
(6) In cases of multiple offending, where the evidence establishes that substantial harm has been caused but that harm or damage cannot be attributed to any individual offence, a sentencing judge can take that emotional harm or damage in the determination of the aggregate sentence. The harm caused by the offending (whether that be a single offence or multiple offences) is particularly relevant to the issue of totality: [12], [15]-[16] (Simpson AJA).
As to grounds (3) and (4)
(7) The failure to take into account the emotional harm to NB supports grounds (3) and (4) that the sentencing judge misapplied the principle of totality and imposed a manifestly inadequate sentence: [16] (Simpson AJA); [96] (Davies J); [122] (Wilson J).
(8) Even if regard is had to the indicative sentences stipulated by the sentencing judge, the notional accumulation provided for by the aggregate sentence, when considered in the light of the indicative sentences, is inadequate and does not reflect the overall criminality in the offending. The aggregate sentence does not appropriately recognise the extent of the criminality involved, and gives the perception that the respondent is not being punished for committing multiple offences: [2] (Simpson AJA); [98]-[100], [104] (Davies J); [122] (Wilson J).
R v Hamid [2006] NSWCCA 302; Pannowitz v R [2016] NSWCCA 13, cited.