R v Scavera

Court of Criminal Appeal (NSW)|2016-05-30|Before: Simpson JA, Garling J, Wilson J

Judgment

SIMPSON JA: I agree with Garling J.
GARLING J: This is a Crown appeal pursuant to s 5D(1) of the Criminal Appeal Act 1912 against a sentence imposed in the District Court by Acting Judge Delaney on 26 November 2015.
The respondent, Antonio Scavera (who is also known as Anthonio Scavera), pleaded guilty on 27 May 2015 in the Local Court to four offences. The offences, the maximum penalties, and the sentences imposed by Delaney A‑DCJ are set out below: Nature of the Offence Maximum Penalty Sentence Imposed Possession of child abuse material: s 91H(2) Crimes Act 1900 Imprisonment for 10 years. Imprisonment for a fixed term of 18 months to commence on 18/12/2014. Aggravated Indecent Assault on person under 16: s 61M(2) Crimes Act 1900 Imprisonment for 10 years. Standard non-parole period of 8 years. Imprisonment for a non-parole period of 12 months to commence on 18/6/2015 with a balance of term of 12 months. Aggravated sexual intercourse with a person under 10: s 66A(2) Crimes Act 1900 Imprisonment for life. Standard non-parole period of 15 years. Imprisonment for a non-parole period of 20 months to commence on 18/6/2015 with a balance of term of 1 year and 4 months. Aggravated sexual intercourse with a person under 10: s 66A(2) Crimes Act 1900 Imprisonment for life. Standard non-parole period of 15 years. Imprisonment for a non-parole period of 3 years and 8 months to commence on 18/6/2015 with a balance of term of 2 years and 4 months.

Facts

A statement of Agreed Facts was tendered to the sentencing Judge, which can briefly be summarised as follows.
In December 2013, the respondent was babysitting a 6 year old male child. He did so at the request of the child's mother, with whom he had become friends through the social media site, Facebook. Through that connection the respondent also became friends with the 6 year old boy and they often played computer games together.
In December 2013, the victim's mother and her partner went out for dinner. The respondent was asked to babysit for them. Upon returning home, the mother overheard a conversation between her son and the offender, which caused her some concern. She asked the respondent to leave.
During the course of his babysitting duties, in a timeframe of between 30 minutes and 1 hour, the respondent performed three separate sexual acts upon the victim. Each of these sexual acts was charged separately on the Indictment.
One of the sexual acts involved the respondent performing oral sex on victim's penis (one offence against s 66A(2) of the Crimes Act 1900), the second involved the respondent digitally penetrating the victim's anus (the second offence against s 66A(2) of the Crimes Act), and the third involved the respondent masturbating and bringing his penis into contact with the victim's bottom (the offence against s 61M(2) of the Crimes Act). The respondent recorded each of these acts on his iPad.
After these acts took place, the victim disclosed to his mother that he had been touched by the respondent. However, the victim's mother did not contact the police about the respondent's behaviour for reasons which were not disclosed to the Court.
On 18 December 2014, the police arrested the respondent at Stockland Corrimal Shopping Complex for unrelated matters. At the time of his arrest, the respondent was in possession of a mobile phone and an electronic Notepad. These devices were seized and accessed as part of a preliminary investigation. Child abuse material was found on both devices. They were seized as exhibits.
The police then executed a search warrant at the respondent's home. Numerous computer hard-drives, an iPad, a computer tower, mobile phones, a digital camera, and male underwear sizes 4 to 6 were seized as exhibits. When the iPad was accessed, a video recording was found which depicted the sexual acts upon the victim to which reference has earlier been made in [10] and [11].
On 4 February 2015, the respondent participated in an electronically recorded interview with police officers. He made full admissions to performing the three sexual acts upon the victim.
The child abuse material found on the respondent's computer equipment and electronic devices was classified in accordance with the CETS scale. Of the 479 images identified, 348 were in Category 1 of the CETS Scale, 5 in Category 5 and 126 in Category 6. One hundred and eighteen videos were also identified. Fifty-eight of those were in Category 1 of the CETS Scale, 8 in Category 3, 12 in Category 4, 13 in Category 5 and 27 in Category 6.
A fact of particular relevance to the aggravated sexual intercourse and aggravated indecent assault offences was that the victim had been diagnosed as having autism spectrum disorder, and had features which demonstrated that he was a particularly vulnerable individual.
A statement of a psychologist who had been treating the victim described him as a boy whose communication skills were very poor, with a diminished ability to express emotion and a need to improve his communication skills with other children. She said that her observations of the victim were that he met all of the criteria for a spectrum disorder (Autism/Aspergers). She said of the victim that he: "… had socialisation issues, sensory issues, communication issues, emotional regulation issues, very poor boundaries in relation to appropriate and potentially risky behaviour. He is a vulnerable child and would be easily taken advantage of."
A Victim Impact Statement completed by the victim's mother spoke of the physical and emotional impact that the respondent's actions have had upon the victim. The victim and his mother have had to seek alternative housing as the victim can no longer live in the house where the incident occurred. The victim will also have to change schools, a prospect which, given his autism, causes him significant distress. The victim also receives weekly therapy to cope with the effects of the abuse.

Notice of Appeal

On 11 December 2015, the Deputy Director of Public Prosecutions filed a Notice of Appeal against the sentences upon the ground that they were manifestly inadequate.
On 27 April 2016, the Crown gave notice of additional grounds of appeal. They were as follows: "1. His Honour failed to adequately assess or erred in his assessment of the objective seriousness of the aggravated indecent assault offence; 2. His Honour failed to sentence in accordance with his findings on objective seriousness for the two sexual intercourse offences; 3. His Honour erred in his consideration of rehabilitation; 4. His Honour erred in failing to partially accumulate the sentences imposed."

Remarks on Sentence

His Honour's Remarks were delivered on the afternoon of the day when he heard the submissions on sentence.
His Honour commenced his Remarks on Sentence by recording the offences to which the respondent had pleaded guilty, and setting out the applicable maximum sentences and the applicable standard non-parole period. His Honour then noted some of the subjective features of the respondent. His Honour recorded that the respondent had previously been convicted of an offence of indecent assault on a victim under the age of 10. For that offence, the respondent was given probation.
His Honour, by reference to a report of psychologist Dr Emma Collins dated 23 March 2015, recounted in detail the respondent's personal history and background. Although the respondent's background was unusual and some aspects of his upbringing were dysfunctional, his Honour did not regard it as being exceptional in a way which would detract from the weight to be given to considerations of general deterrence in sentencing the respondent.
His Honour then recounted the facts of the offences which had been agreed between the parties and which I have already outlined.
His Honour referred to the Victim Impact Statement and noted that he would treat it in accordance with the views which had been expressed in R v Previtera (1997) 94 A Crim R 76 and R v King [2009] NSWCCA 117. His Honour then moved to examine the degree of criminality and objective seriousness of the offences.
With respect to the two offences against s 66A(2) of the Crimes Act, his Honour concluded that they were "… just short of mid-range in the extent of criminality …". That finding reflected a submission made by counsel for the respondent. His Honour then referred to some aggravating features, which the Crown submitted should be taken into account in determining the seriousness of the criminality. His Honour accepted that submission. Those features were that the offences took place in the home of the victim, where the victim was entitled to the benefit of safety and security, and the respondent was in a position of trust with respect to the victim and had abused that trust.
His Honour then considered the indecent assault, and described it as involving "… a much lower level of criminality". His Honour then turned to consider the current subjective circumstances of the respondent. He did so by referring at some length to the report of Dr Collins, to which earlier reference has been made.
His Honour noted that although Dr Collins had expressed the view that the respondent's risk of re-offending was high, that view needed to be moderated by virtue of an email which had been sent by Dr James Oldham on 9 November 2010, when he was then the Chief Psychiatrist of the South Eastern Sydney and Illawarra Area Health Service.
His Honour referred to some inter-current medical problems from which the respondent suffered. He noted the submission, which he accepted, that the respondent should receive a reduction of 25% for his early plea of guilty and early admissions.
His Honour made a finding of special circumstances.
His Honour then sentenced the respondent. He indicated that he was not asked, and would not, impose an aggregate sentence. He said that he was of the view that there should be some accumulation "… but not at a great level'.
It will be observed that his Honour first imposed the sentence dealing with the child abuse material, and then the three sentences with respect to the remaining offences, two of which by reason of the maximum sentences applicable, must be seen as significantly more serious. Those three sentences were all made concurrent by his Honour, but accumulated by 6 months on the child abuse material sentence.

Crown Submissions

As earlier mentioned, in addition to the principal ground of manifest inadequacy, the Crown relied on four grounds of appeal. It is to be observed that the four additional grounds of appeal pointed to particular errors of the sentencing Judge, which on the Crown's submission caused his Honour to impose a manifestly inadequate sentence.
The first error pointed to by the Crown was that the Sentencing judge erred in characterising the aggravated indecent assault offence as involving a "… much lower level of criminality" than the aggravated sexual intercourse offences.
The Crown accepted that any finding on objective seriousness is an evaluative determination which ought not to be disturbed simply because this Court has a different view: Mulato v R [2006] NSWCCA 282 at [37] and [46]. However, the Crown submitted that it was not open to the sentencing Judge to characterise the aggravated indecent assault offence as he did, and that this Court ought intervene.
In this regard, the Crown drew attention to the images of the offending conduct found on the respondent's iPad. The Crown noted the features of that material, including the youth and vulnerability of the victim, the location of the offence being the home of the victim, and the breach of trust involved in the offending having regard to the fact that the respondent was babysitting the victim at the time. The Crown also pointed to the clear evidence of vulnerability of the victim by reason of his being diagnosed with autism spectrum disorder.
The Crown submitted that his Honour's assessment of the objective seriousness of the indecent assault offence was not supported by clear reasoning and was imprecisely expressed, both of which features indicated error. The Crown submitted that his Honour's assessment could not be reconciled with the presence of the aggravating features to which I have just referred.
The Crown submitted that, at the very least, the assessment of this offending ought to have been the same as that for the sexual intercourse offending, namely that it was "just short of mid-range" of objective seriousness, because such assessment was open to the sentencing Judge.
The second error pointed to by the Crown was that the sentencing Judge failed to impose sentences for the sexual intercourse offences which adequately reflected his Honour's assessment of the objective seriousness of those offences. In making this submission, the Crown accepted that it could not challenge the sentencing Judge's assessment of the sexual intercourse offences as being "just short of mid-range" of objective seriousness.
In this regard, the Crown submitted that the sentencing Judge, without explanation, imposed dramatically different sentences for the offence involving fellatio and the offence involving digital penetration. The offence involving digital penetration resulted in a total sentence of 3 years, with a non‑parole period of 1 year and 8 months, while the offence involving fellatio resulted in a total sentence of 6 years, with a non-parole period of 3 years and 8 months. The Crown submissions noted that the entirety of the sentence for the first sexual intercourse offence was less than the non-parole period for the second sexual intercourse offence.
The Crown noted the authorities in this Court, which are well-known, that there is no hierarchy of sexual intercourse offences enabling a sentencing Judge to rank them, so that one form of sexual intercourse is more serious than another. Rather, as the authorities make plain, each sentencing Judge needs to have regard to all of the facts and circumstances involved in the offending.
The Crown pointed to the fact that whilst the sentencing Judge had apparently accepted that these were very serious offences, and had referred to the maximum term of imprisonment of life, he had nevertheless imposed sentences which wholly failed to reflect the objective seriousness of the offending, notwithstanding anything that might properly be said as part of a subjective case for the respondent.
The third error pointed to by the Crown was that his Honour erred in his consideration of the respondent's prospects of rehabilitation and re‑offending. In particular, the Crown submitted that the sentencing Judge erred in concluding that the report of Dr Oldham moderated the opinion expressed by Dr Collins about the respondent's high risk of re‑offending. The Crown submitted that because Dr Oldham's report was not a full and complete assessment, and was made nearly 5 years before the report of Dr Collins, and well before the present offences, there was nothing in Dr Oldham's report which could reasonably be said to contradict or ameliorate the conclusions of Dr Collins. The Crown pointed to the fact that Dr Collins' report was a current assessment based on the extensive material which she had to hand, and that there was simply no basis for discounting it in any way, particularly as Dr Collins' report was tendered by the respondent as part of his case, and the sentencing Judge was thereby asked to accept the contents of it.
The fourth error pointed to by the Crown was that his Honour erred in failing to partially accumulate each of the sentences for the indecent assault and sexual intercourse offences. The Crown submitted that while these offences were committed against the same victim on the same day and over a 30 minute to 1 hour period, the sentencing Judge nevertheless erred in failing to accumulate, to some degree, the sentences imposed for these offences. The Crown pointed to the fact that a failure to accumulate the sentences meant that the respondent in these proceedings would serve no period of time which reflected the first two of the offences for which he received shorter sentences.
Finally, the Crown submitted that the sentences were, in all the circumstances, manifestly inadequate. It submitted that the sentences failed to reflect the objective seriousness of the offences and the importance of denunciation and general deterrence in offences of this kind. It further submitted that specific deterrence had an important role to play in sentencing the respondent.

Respondent's Submissions

With respect to the objective seriousness of the aggravated indecent assault offence, the respondent submitted that the sentencing Judge found that the offence, as with the sexual intercourse offences, was just below mid-range. The respondent submitted that the phrase referring to a "…much lower level of criminality", merely indicated a comparison by the sentencing Judge between the seriousness of the indecent assault offence and the two sexual intercourse offences.
It is appropriate to allow for the fact that the remarks on sentence were delivered ex tempore and must not be read with an overly critical eye as to the form and expression within them. The indecent assault offence carried a maximum penalty of 10 years imprisonment, compared with the sexual intercourse offences that carried a maximum penalty of life imprisonment. This difference amply justifies the expression used by the sentencing Judge when he described the indecent assault offence as having a much lower level of criminality. The respondent's submissions are to be accepted. I am unpersuaded that error has been established.
It is appropriate to record the effect of the respondent's submission to this Court which was that, in substance, the sentencing Judge concluded that the offending on the indecent assault charge was just short of the mid-range. The respondent accepted that such an assessment was the correct one.
With respect to the sentences for the sexual intercourse offences, the respondent submitted that it was open to the sentencing Judge to impose different sentences with respect to the two different forms of sexual intercourse, and it was open to him to conclude that one was in fact more serious in this case than the other. The respondent pointed to the absence of any significant factual material which would suggest that these findings were not open to the sentencing Judge.
With respect to his Honour's consideration of the respondent's prospects of rehabilitation and reoffending, the respondent submitted that his Honour had not made a specific finding with respect to either of these matters and that, accordingly, it was not possible to detect error of the kind to which the Crown's submissions were addressed.
With respect to the issue of accumulation, the respondent submitted that the mere fact that the sentences were not made cumulative to any degree at all did not reflect, of itself and without reference to the individual sentences, any error on the part of the sentencing judge. The respondent submitted that the question of accumulation and/or concurrence involved discretionary matters of evaluation upon which this Court, and many sentencing Judges, could differ when presented with the same case. The respondent submitted that the sentencing Judge carefully attempted to craft, and had successfully achieved, an appropriate sentence which had regard to the principles of totality and proportionality.
Finally, the respondent submitted that the sentences were not manifestly inadequate. The respondent submitted that the offences formed part of an isolated incident and that, while there was an abuse of trust, the offences did not involve any threats of violence. The respondent also drew attention to his complex subjective case, to which it is necessary now to make further reference.

The Respondent's Subjective Case

The subjective case of the respondent was advanced principally through the expert report dated 23 March 2015 of Dr Emma Collins, a Clinical and Forensic Psychologist. Dr Collins interviewed the respondent on one occasion in March 2015 for the purpose of assessing him and providing a report to the sentencing Judge.
Dr Collins recorded the respondent's background history at some length in which he had described a mixed childhood. She recorded that when the respondent was 9 years old, he was sexually assaulted by an older male neighbour, and experienced difficulties at school due to bullying and social awkwardness. The respondent had a varied primary school history, attending a number of primary schools as he moved between living with one or other of his parents, who had separated, and his grandparents.
Although broken in time and location, Dr Collins recorded that the respondent completed his education in Year 9 at school. He received a further 2 years of education when he participated in a "Youth Off the Streets" program for adolescents.
The respondent had not worked in any formal job after leaving school, and had been in receipt of a Disability Support Pension at all times since the age of 16.
The respondent described his psycho-sexual and medical history to Dr Collins in some detail. It is unnecessary to repeat that here. He gave an account of his offences, and offending behaviour.
Dr Collins proceeded to an assessment. She expressed the view that whilst the respondent impressed with mood lability and interpersonal problems marked by social awkwardness, he did not currently meet the criteria for autism spectrum disorder, because such a condition required demonstrated reduced socio-emotional functioning and reciprocity, and restricted or repeated patterns of behaviour, neither of which were in evidence during the assessment.
Amongst other things, Dr Collins undertook a risk assessment to explore the respondent's likelihood of re-offending. On one scale, an actuarial assessment known as the STATIC-99 Scale, Dr Collins placed the respondent in a moderate/high risk category of sexual recidivism. On another rating scale, known as the RSVP Scale, Dr Collins noted that the respondent posed a high risk of re-offending. She expressed this conclusion: "On the basis of the current assessment, Mr Scavera presents an overall high risk of sexual recidivism. He has a history of acting on sexual fantasies with children, and he continues to experience such thoughts on a persistent basis presently. What bodes well in the current case is Mr Scavera's openness in discussing his sexual fantasies and his desire to reduce these cognitions. These factors will need to be addressed in treatment to ensure some confidence around future management of risk. It is hoped that some of his dynamic factors might reduce should he successfully complete intensive offence-specific treatment."
The respondent's subjective case also depended in part upon the email sent in November 2010 by Dr James Oldham, the Chief Psychiatrist of the South Eastern Sydney and Illawarra Area Health Service. Dr Oldham had expressed the view that at that point in time, the respondent did not suffer from a diagnosed psychiatric illness and that the respondent had a low to moderate risk (10%‑15%) of re-offending.
Dr Oldham's assessment was regarded by the sentencing Judge as being of some weight and as providing a real balance to the somewhat more pessimistic expression of opinion from Dr Collins. The sentencing Judge seemed to conclude that the consequence of the earlier note of Dr Oldham meant that the results obtained by Dr Collins did not necessarily reflect the reality of the situation. Accordingly, he seemed to find that the prospect of re‑offending and of rehabilitation to be less pessimistic than that of Dr Collins.

Discernment

In my view, in considering whether or not the sentences imposed were manifestly inadequate, it is necessary to begin by identifying the seriousness of the three offences. The offence against s 61M(2) of the Crimes Act of aggravated indecent assault carries a maximum penalty of 10 years imprisonment with a standard non-parole period of 8 years.
With respect to the offences against s 66A(2), the Parliament has indicated that it regards the offences as being of the utmost seriousness by designating a maximum period of imprisonment of life
The maximum sentence and a standard non-parole period (where fixed) are legislative guideposts to which a sentencing Court is obliged to have regard: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 132 [27].
With respect to the offences against both these sections it is clear why the legislature regards them as serious. It is an element of the offence against the first section that the victim is under the age of 16. It is an element of the offence against the second section that the victim is under the age of 10. The vulnerability of the victim in offences of this kind, particularly the s 66A offences, renders them particularly serious offences. As this Court has recently said in R v ND [2016] NSWCCA 103 at [39]: "The likelihood that such a young person would be able to resist an adult is very low. As well, Courts have acknowledged the long-term psychological effects that such conduct can have upon a child. All of these features combine to demonstrate why the legislature and the Courts regard this offence as very serious."
This Court has also said, particularly with respect to offences against s 66A of the Crimes Act, that general deterrence, denunciation and protection of the community are principles of sentencing which are particularly relevant in cases involving child sexual abuse. In EG v R [2015] NSWCCA 21 at [42], Hoeben CJ at CL (with whom Harrison and R A Hulme JJ agreed) said: "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."
In my view, accepting that the offending can properly be described as being just short of the mid-range of objective seriousness, an assessment which was not put in issue on this appeal, there were particular features of this case which merited the imposition of a significant period of imprisonment upon the respondent. Those features included: 1. the victim, aged 6 years, was well below the statutory age of 10 years for the s 66A offence and well below the statutory age of 16 years for the s 61M offence; 2. the victim was, by reason of his autism spectrum disorder, particularly vulnerable; 3. the victim was in the care of the respondent who abused his position of trust in behaving as he did; and 4. the respondent videoed the encounter and kept it, apparently for his ongoing sexual gratification.
The subjective case mounted for the respondent did not demonstrate persuasively, or at all, that there was any explanation for, or justification of, the respondent's conduct. On the contrary, accepting both the opinion of Dr Oldham in 2010, which was prior to the respondent's further offending, and the more considered and thoughtful opinion of Dr Collins, there nevertheless remained a significant risk of re-offending. This risk did not enable any leniency to be afforded of the kind that one would expect where a sentencing Judge was satisfied that there was little or no risk of re-offending and that the prospects of rehabilitation were good. Such a feature was not present here.
In his submissions, the respondent drew attention to what was said by his lawyer before the sentencing Judge. It is necessary to record that here: "The ultimate submission that this material goes to, your Honour, is that Dr Collins' assessment is that Mr Scavera presents overall as a high risk of re‑offending. At this stage, it would be difficult for your Honour to take a different view of that. What the material from Dr Oldham would seem to indicate is that with some very intensive treatment, and obviously Mr Scavera when this email was written had spent a lengthy period in hospital being treated, obviously having completed that treatment, Mr Scavera was presenting a much more positive way, and so he is able to address his prospects of rehabilitation in a very positive way. The difficulty is now Mr Scavera effectively needs to start again, he needs to engage in treatment and the report from Dr Collins is indicative of the fact that Mr Scavera is willing to engage in treatment and certainly to this day, my instructions remain consistent on that point, that Mr Scavera wants to engage in the programs that are going to assist him because he is no longer able to resort to the medication which has been successful in the past."
The significance of the submission of the respondent was that all the sentencing Judge should infer from the earlier email of Dr Oldham was that with proper treatment, the respondent's risk profile would be likely to fall. However, his Honour did not make any assessment of these facts and really expressed no particular view as to what the respondent's likelihood of re‑offending was and what his prospects of rehabilitation were.
In the particular circumstances of this case, having regard to the respondent's previous criminal history and the expert evidence tendered by his own counsel with respect to his future high risk of sexual recidivism, it was incumbent on the sentencing Judge to make a specific finding about the respondent's prospects of rehabilitation and his risks of re-offending if those matters were to be regarded as matters in mitigation of sentence: see ss 21A(3)(g), 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999.
The absence of any specific finding of the kind contended for means that this Court should conclude that his Honour was unpersuaded that the respondent was unlikely to re-offend, and unpersuaded that the respondent had good prospects of rehabilitation.
However, in light of the respondent's submissions and the expert evidence to which reference has been made, careful attention was required to be paid by the sentencing Judge to the objective of specific deterrence in assessing the appropriate sentence.
In considering the objective seriousness of the offences and the respondent's subjective case, I have concluded that the sentences which were imposed were manifestly inadequate as the Crown submitted. They did not reflect the principle of general deterrence or denunciation of the crime, nor did they adequately reflect the legislative guideposts which demonstrate, particularly with respect to s 66A, that the offences are of the utmost seriousness. Finally, the respondent's subjective case did not point to any good reason why significant leniency should be afforded to the respondent. On the contrary, his high risk of re‑offending pointed to the need for specific deterrence to be prominent in the sentencing of the respondent.
I am not satisfied, as the Crown submitted, that his Honour erred in finding that the objective seriousness of the indecent assault offences reflected a much lower level of criminality. His Honour was there making a comparison between the offences. The objective seriousness of each of the three offences was properly to be characterised as just short of mid-range. The respondent's submissions accepted that this was the appropriate way to regard his offending.
The second ground of the appeal articulated by the Crown was no different from the general basis of its appeal of manifest inadequacy. For the reasons given earlier on the manifest inadequacy submissions, this ground ought to be upheld.
The third ground of appeal dealt with an allegation of error on the part of the sentencing Judge in the consideration of the respondent's prospects of rehabilitation and re-offending. I accept the respondent's submissions that the finding of the sentencing Judge was not inconsistent with the expert report of Dr Collins. Importantly, the Judge did not find, and no complaint was made about this, that the respondent had good prospects of rehabilitation, and was a person who was unlikely to re-offend, as he was required to do if those were to become matters of mitigation. I would not be prepared to uphold this ground of appeal.
On the issue of accumulation, I am mindful of the remarks of Hoeben J (as he then was) in R v PFC [2011] NSWCCA 117 at [63]-[64] (Allsop P and Hall J agreeing): "63. Once a sentencing judge has set individual sentences for each offence, the questions of accumulation and/or concurrence are discretionary matters. It is not a question of what another court or another judge might regard as appropriate, but whether correct principle has been applied in the instant case. As RS Hulme J observed in Qing An v Regina [2007] NSWCCA 53 at [195]: '195 ... The issue is what effective total non-parole period and sentence properly reflect the Appellant's criminality and other circumstances. The matter is one where there is no single correct answer and one upon which minds can readily and reasonably differ.' The process followed by his Honour of setting discrete sentences for each offence and then determining the overall sentence so as to have regard to proportionality and totality was fully in accord with principle and authority. In any event, the total sentence passed was a not insignificant one."
I am not persuaded that, considered in isolation of other matters, the sentencing Judge erred in his failure to accumulate the sentences for the indecent assault and sexual intercourse offences. That is not to say, however, that this Court will adopt the same approach if it concludes that it should intervene to re-sentence the respondent.

Residual Discretion

The Court has a residual discretion in the event of a Crown appeal, to decline to uphold the appeal despite finding error. It is a matter for the Crown to persuade the Court that, even if error is found, the Court should nevertheless intervene to uphold the appeal and re-sentence the respondent.
On the question of the exercise of the discretion, the respondent relied upon an affidavit sworn by him on 25 May 2016.
That affidavit, together with its annexures, points to some significant difficulties which the respondent had in adjusting to his placement in custody. It notes that he required medication for anxiety and to assist with disrupted sleep. It also notes that in June 2015, the respondent attempted to commit suicide. He was unsuccessful and remained in hospital for an overnight stay.
All of this material was available to be put before the sentencing Judge, but apparently this was not done.
The respondent's affidavit records that he was advised that the Crown was appealing the sentencing decision shortly before Christmas 2015. He recorded that this upset him greatly and he became depressed. He failed to understand the basis upon which the Crown could seek to challenge the sentence which was imposed. His affidavit recorded that on 16 March 2016 he again attempted to commit suicide by overdosing on pills which he had stored up. He had written a suicide note. His attempt was unsuccessful because a fellow inmate notified staff of what had occurred, with the consequence that the respondent was hospitalised.
He also noted that he has sought treatment from psychiatric and psychological sources whilst in custody and that he has expressed a desire to receive treatment.
He recorded that he has found it difficult to cope with the ongoing stress of dealing with correspondence with his lawyers relating to the Crown appeal.
The purpose of Crown appeals against sentence is to enable this Court to lay down or clarify sentencing principles for the guidance of sentencing courts. Consistency of sentencing is a matter of importance in maintaining public confidence in the administration of justice.
There is no specific matter in the respondent's affidavit that militates against intervention. The Crown appeal has been brought on promptly. The respondent's particular difficulties associated with the lodging of the Crown appeal are not reasons for this Court to decline to exercise its discretion.
I am satisfied that the residual discretion should not be exercised to refrain from intervening. The disparity between the sentences actually imposed and the sentences necessary to reflect the objective seriousness of the offences points to the need to maintain public confidence in the administration of justice, such that it would be inappropriate to exercise the Court's residual discretion to refrain from intervening.

Re-Sentence

As has been said, leaving aside the offence of possession of child abuse material against which this appeal is not taken, the other offences fell just below the mid-range of objective seriousness. I have earlier referred to the facts found by the sentencing Judge, and the discrete matters of aggravation which draw attention to the seriousness of the offending. I have also earlier referred to the subjective case put to the sentencing Judge by the respondent.
There is little, if any, real dispute about any of these matters. I have canvassed them sufficiently as to form the basis of the sentences which now need to be imposed.
Particular care in this case in determining the appropriate sentences needs to be paid to general and specific deterrence. The offences involving, as they did, a victim aged only 6 years old, need to be firmly denounced.
The fact that the respondent pleaded guilty at the earliest opportunity means that the Court should reduce the sentences which it would otherwise have imposed by 25%: s 22 Crimes (Sentencing Procedure) Act 1999.
The sentencing Judge made a finding of special circumstances. This finding was clearly open to the sentencing Judge, and is one which this Court should also make. The extent of the alteration of the statutory ratio which is warranted in this case is a modest one.
In lieu of the sentences imposed in the District Court, I would impose the following sentence: 1. for the offence against s 61M(2) of the Crimes Act, being the offence of aggravated indecent assault, a fixed term of 2 years and 9 months imprisonment to commence on 18 June 2015; 2. for the offence of digital penetration contrary to s 66A(2) of the Crimes Act, a fixed term of 4 years imprisonment to commence on 18 June 2016; 3. for the offence of fellatio contrary to s 66A(2) of the Crimes Act, a non-parole period of 4 years and 6 months to commence on 18 June 2017, with a balance of term of 3 years.
The total effective sentence for all offences, including the offence of possessing child abuse material, is one of 7 years non‑parole with an effective total term of 10 years.

Orders

I propose the following orders: 1. Appeal upheld. 2. Quash the sentences imposed in the District Court of NSW on 26 November 2015, except for the sentence of the offence against s 91H(2) of the Crimes Act 1900. 3. In lieu of the quashed sentences, impose the following sentence upon the respondent, Antonio Scavera: 1. for the offence against s 61M(2) of the Crimes Act, being the offence of aggravated indecent assault, a non-parole period of 2 years and 9 months imprisonment to commence on 18 June 2015 with a balance of term of 1 year; 2. for the offence of digital penetration contrary to s 66A(2) of the Crimes Act, a non-parole period of 4 years imprisonment to commence on 18 June 2016, with a balance of term of 1 year and 4 months; 3. for the offence of fellatio contrary to s 66A(2) of the Crimes Act, a non-parole period of 4 years and 6 months imprisonment to commence on 18 June 2017, with a balance of term of 3 years; 4. The earliest date upon which Mr Scavera is to be released on parole is 17 December 2021.
WILSON J: I agree with Garling J.

Amendments 29 July 2016 - Amendment to table in [3], amendment to date reference in [4] 16 September 2016 - Amendment [3] table 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: 16 September 2016

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