R v Stefanac

hildren (Criminal Proceedings) Act 1987 (NSW) and section 578A of the Crimes Act 1900 (NSW), there is to be no publication of the names of the child victims or anything tending to identify them. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 22 September 2021 Before: English DCJ File Number(s): 2020/00213770

HEADNOTE [This headnote is not to be read as part of the judgment] On 22 September 2021, the respondent was sentenced in the District Court to an aggregate term of imprisonment of 8½ years, with a non-parole period of 5 years, in relation to 12 sexual offences committed against two 13-year-old girls, to which he had pleaded guilty. The respondent received a 25% discount for his plea of guilty which was applied to the individual indicative sentences. The Director of Public Prosecutions appealed against the asserted inadequacy of the aggregate sentence. The principal issues on appeal were: (1) whether the sentencing Judge erred by failing properly to apply the totality principle (ground 1), thereby imposing an aggregate sentence that was manifestly inadequate (ground 2); and (2) whether the sentencing Judge erred by failing properly to take into account the standard non-parole period applicable to offences contrary to s 66C(2) of the Crimes Act 1900 (NSW) in relation to 10 of the offences committed by the respondent (ground 3). The Court Held (per N Adams J, Beech-Jones CJ at CL agreeing, Hamill J dissenting), allowing the appeal and re-sentencing the respondent: As to grounds 1 and 2 (1) Per N Adams J and Beech-Jones CJ at CL: The aggregate sentence did not reflect the criminality involved in each of the offences. Sentencing Courts no longer require evidence of the profound and deleterious effects of such offending. Wholly accumulated, the indicative sentences totalled 56 years and 6 months in relation to the 10 offences committed against the first victim, and 14 years and 6 months in relation to the 2 offences committed against the second victim. Although a significant degree of concurrence was appropriate for some offences, the aggregate sentence needed to reflect the three discrete periods of offending and additional accumulation was required in relation to the second victim, having regard to the seriousness of the offending and the need to recognise the harm done to each of the victims: [47]-[49], [56]-[59], [64]-[68] (N Adams J); [1] (Beech-Jones CJ at CL). Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41, considered. DBW v R [2007] NSWCCA 236; R v Gavel [2014] NSWCCA 56 applied. Per Hamill J (dissenting): The question for an appellate court is not whether individual indicative sentences disclose error, but whether the aggregate sentence and the non-parole period are plainly unreasonable, unjust or manifestly wrong. The severity of a sentence is not the product of a linear relationship and increases at a greater rate than the increase in the length of the sentence. The degree of notional accumulation was a matter within the broad discretion of the sentencing Judge who applied the totality principle. Considering the seriousness of the offending, the number of offences and the need to recognise the harm to the victims, along with the respondent's background, lack of criminal history and the particularly onerous conditions of custody to which the respondent had been, and will be, subject, the degree of notional accumulation within the total aggregate sentence was sufficient: [30]-[41]. House v The King (1936) 55 CLR 499; [1936] HCA 40; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 applied. As to ground 3 (2) Per Hamill J, N Adams J and Beech-Jones CJ at CL agreeing: The remarks on sentence, read fairly and in context, do not indicate that the sentencing Judge engaged in a "two-tiered" approach to calculating the appropriate non-parole period or otherwise impermissibly departed from the standard non-parole period without sufficient justification. The sentencing Judge's remark that they would "depart from imposing the standard non-parole period" could not, without more, justify an inference that the sentencing Judge incorrectly considered the standard non-parole period: [19]-[29] (Hamill J); [44] (N Adams J); [1] (Beech-Jones CJ at CL). As to re-sentencing (3) Per N Adams J, Beech-Jones CJ at CL agreeing: In circumstances where the aggregate sentence failed to denounce serious criminal conduct, and is therefore unreasonable and plainly unjust, the Court should not exercise its residual discretion to decline to interfere on a Crown appeal: [77] (N Adams J); [1] (Beech-Jones CJ at CL). Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Bugmy v The Queen (2013) 249 CLR 571; CMB v The Attorney-General for New South Wales (2015) 317 ALR 308; [2015] HCA 9, considered. (4) Per N Adams J, Beech-Jones CJ at CL agreeing: The respondent is resentenced to 12 years' imprisonment, with a non-parole period of 7 years' imprisonment, allowing for a significant degree of accumulation between the sets of offences committed against the two victims: [82]-[84] (N Adams J); [1] (Beech-Jones CJ at CL).

Judgment

1. BEECH-JONES CJ at CL: I have read the judgments of each of Hamill J and N Adams J. The judgment of Hamill J comprehensively sets out the background to the appeal and the issues that arise. I agree with his Honour's reasons for dismissing ground 3 of the notice of appeal. In relation to the balance of the appeal I agree with N Adams J and the sentence her Honour proposes.
2. HAMILL J: On Wednesday 22 September 2021, Brandon Branko Stefanac was sentenced to an aggregate term of imprisonment of 8½ years, with a non-parole period of 5 years, for 12 serious offences involving the sexual abuse of two 13-year-old children. The children must not be identified and I will refer to them by the pseudonyms "Annalise" and "Laura". [1] The offences were committed between late April and the middle of July 2020. In addition to the 12 offences, the respondent asked that a further 18 offences, related to the charged offences, be taken into account in sentencing. The respondent pleaded guilty at an early stage and received a 25% discount which was, in accordance with authority, applied to the individual indicative sentences.
3. The Director of Public Prosecutions ("the Director") appeals against the asserted inadequacy of the aggregate sentence imposed by Judge English. The Director raises three grounds of appeal, which are in the following terms: 1. Her Honour erred by failing to properly apply the totality principle. 2. The sentence pronounced is manifestly inadequate. 3. The sentencing Judge failed to properly take into account the standard non-parole period applicable to the offences contrary to s 66C(2) of the Crimes Act 1900 (NSW) being sequences 30, 4, 36, 37, 31, 33, 35, 38, 41 and 46.
4. The appellant does not submit that the individual indicative sentences nominated for the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were manifestly inadequate, although it does submit that those sentences were lenient, particularly those to which a standard non-parole period attached. [2] Rather, the Director submits that the total aggregate sentence failed to encompass the entirety of the criminality engaged in by the respondent and, further, that the sentence did not vindicate the dignity of the two individual victims. Both parties argued the appeal by first addressing ground 3, asserting that the sentencing Judge failed properly to take the standard non-parole period into account, before moving to interrelated complaints concerning an alleged error in the application of the totality principle (ground 1) and the general complaint that sentence was manifestly inadequate (ground 2).

The facts of the offences

1. It is necessary to set out the facts of the offences as they were agreed before the District Court. The Director's written submissions contained a helpful narrative summary of the agreed facts, which were also recounted in the sentencing judgment. The Director's summary is sufficient for the purpose of exposing my reasons. I am grateful to counsel for that summary, which I now reproduce in full: [3] "Background and early offences against Annalise 7. The respondent was 44 years old at the time of the offences. Annalise turned 13 on 21 October 2019. Laura was 13 years old at the time of the offences committed against her. 8. The respondent and Annalise's family were neighbours in 2012. However, in 2017, Annalise's family moved to Queensland. On 19 August 2019, Annalise ran away from home and came to NSW. Annalise's father asked the respondent to meet Annalise in Sydney. Annalise stayed with the respondent and his then girlfriend for 2 weeks before returning to Queensland. 9. Annalise demanded to be able to return to live in Sydney and, following self-harm concerns, it was agreed that Annalise would live with the respondent in Sydney. She moved in on 19 September 2019. Only the respondent and Annalise resided in the respondent's house. His relationship with the previous girlfriend had ended. 10. At first the relationship between Annalise and the respondent was 'like father/daughter' but at some stage it turned into a sexual relationship. Annalise described that they were 'dating'. A review of the text messages between Annalise and the respondent show that they had exchanged text messages from July 2019, and referenced sexual activity from October 2019, becoming more explicit by December 2019. 11. The first time Annalise recalled having sexual intercourse with the respondent, they had been drinking throughout the day and were in the movie room of the house. The respondent jumped on a couch and Annalise jumped on him. They started kissing and took off their own pants. They then had penile-vaginal intercourse with Annalise on top of the respondent. The respondent did not wear a condom and ejaculated outside of Annalise. They then slept in his bed (Seq 31 - Aggravated sexual intercourse with a child aged 10 - 14 (under authority)). 12. The next occasion Annalise recalled involved penile-vaginal sex in the respondent's bed. The respondent ejaculated inside Annalise's vagina but told her not to worry as he couldn't have children (Seq 32 - Form 1C). Thereafter, Annalise always slept in his bed. 13. Annalise also recalled the first occasion they had oral sex. Annalise and the respondent were lying in his bed and Annalise was 'touching up' the respondent. She then started sucking the respondent's penis and he simultaneously perfumed cunnilingus on her. The respondent ejaculated in Annalise's mouth (Seq 33 - Aggravated sexual intercourse with a child aged 10 - 14 (under authority); Seq 34 - Form 1D). 14. A further incident recalled by Annalise occurred when she attended the respondent's work at 1am or 2am in the morning and fellated him in a bathroom while he was on a break. The respondent did not ejaculate (Seq 35 - Aggravated sexual intercourse with a child aged 10 - 14 (under authority)). Offences involving Laura - 24 April 2020 15. On 23 April 2020 Annalise's friend, Laura, went to the respondent's house to sleep over. Annalise and Laura slept in Annalise's bedroom that night. On 24 April 2020 they spent the day together with the respondent riding bikes. In the evening, Annalise asked the respondent to buy them alcohol and he bought a 30-pack of Vodka Cruisers (Seq 1 - Form 1E; Seq 29 - Form 1A). 16. The victims spent the evening drinking the Cruisers, including by playing a drinking game in the kitchen, and doing their makeup. Part way through the drinking game, Annalise went into the games room and she and the respondent had penile-vaginal sex on the pool table (Seq 37 - Aggravated sexual intercourse with a child aged 10 - 14 (under authority)). 17. By this point, each victim had had approximately 11 drinks and some straight Jack Daniels. Laura felt drunk and dizzy, and Annalise was so drunk she had fallen over and hit her head on a couch. The respondent, Annalise and Laura went into the respondent's bedroom. The respondent drank some Jack Daniels and the victims video-called a stranger who told them to kiss each other. They did. They then went into the ensuite bathroom and undressed for a shower. Annalise told Laura not to worry about closing the door. Laura could see that the respondent could see them in the bathroom from his bed. The two showered and kissed more in the shower. Neither has a complete recollection of what occurred next due to their intoxication. 18. At one point, Laura was naked on the respondent's bed with her legs either side of the respondent's face. He had his hands on her upper thighs, pulling her down and forcing her to stay there while he licked and put his mouth on her vagina (Seq 30 - Aggravated sexual intercourse with a child aged 10 - 14 (take advantage of intoxication)). 19. At another stage, Laura was on top of the respondent while he had penile-vaginal sex with her. He grabbed hold of her throat and squeezed so that she could not breathe (Seq 4 - Aggravated sexual intercourse with a child aged 10 - 14 (take advantage of intoxication); Seq 5 - Form 1A). 20. Laura was also on her hands and knees on the edge of the bed at some stage. The respondent was behind her, putting his fingers in and out of her vagina. It was a 'really rough' feeling (Seq 6 - Form 1B). 21. At one stage, the respondent performed cunnilingus on Annalise while she was on the bed (Seq 36 - Aggravated sexual intercourse with a child aged 10 - 14 (under authority)) and he later put his fingers inside her vagina (Seq 7 - Form 1E). 22. Afterwards, Annalise and Laura showered and Laura asked Annalise to close the door as she felt awkward. The three then all slept in the same bed. Laura walked home the next day and cried. For about 3 days after, her vagina was bleeding and red. Offences against Annalise 6 July 2020 - 12 July 2020 23. The following offences arose from detailed CCTV footage recorded between 6 and 12 July 2020 recovered from the respondent's house. The CCTV system was named "[Annalise]cam". 24. On 6 July 2020, Annalise was sitting on the kitchen bench when the respondent approached and kissed her. When she got off her reached behind her and squeezed her buttocks (Seq 9 - Form 1J). 25. At 1:03am on 7 July 2020, the respondent and Annalise were in the kitchen. The respondent kissed Annalise and said, 'I love you'. Annalise removed his shoes for him. He then walked behind Annalise, who lifted her dressing gown, and touched her buttocks. A short time later, they discussed that Annalise was cold. Annalise parted her dressing gown and said, 'Feel how cold'. The respondent touched Annalise's genital area; she was wearing underwear. They told each other, 'I love you' (Seq 11 - Form 1F). Annalise then laid back on the kitchen bench and spread her legs. The respondent approached and kissed Annalise's vagina for about 3 minutes. They then again told each other, 'I love you' (Seq 38 - Aggravated sexual intercourse with a child aged 10 - 14 (under authority)). The respondent then touched her vagina, thrusting his fingers in and out (Seq 39 - Form 1F). The respondent returned to kissing her vagina (Seq 40 - Form 1F), then stood up and again inserted his fingers into her vagina (Seq 41 - Aggravated sexual intercourse with a child aged 10 - 14 (under authority)). 26. The respondent repeated these acts: using his mouth again (Seq 42 - Form 1G), then his fingers (Seq 43 - Form 1G) and repeated that pattern a second time (Seq 45 - Form 1H; Seq 19 - Form 1H) before Annalise rolled off the bench while the respondent was still touching her vagina. The respondent grabbed Annalise by the hips and turned her so that he was standing behind her and she was facing the kitchen bench. Annalise bent forward and lifted up her dressing gown. The respondent then penetrated Annalise's vagina with his penis. During the intercourse, the respondent reached around grabbed her breasts and slapped her buttocks no less than 6 times. At some stage he stopped having sex to tend to a kitchen appliance but soon returned and continued to have penile-vaginal sex. Annalise turned her head to kiss the respondent and he then grabbed her throat with one hand while having intercourse with her. She turned around for another kiss, and after that the respondent took hold of her hair while he continued the intercourse. He then said, 'I'm fucking coming' and grabbed her by the shoulders. She got down on the ground and the respondent ejaculated on her face or in her mouth (Seq 46 - Aggravated sexual intercourse with a child aged 10 - 14 (under authority)). 27. The next morning, the respondent was sitting in the loungeroom where Annalise brought him breakfast. He reached around and squeezed her buttock (Seq 20 - Sexually touch child aged 10 - 16). 28. At approximately 11pm on 9 July 2020, the two were watching television when Annalise stood up, leaned over and kiss the respondent. A few minutes later, the respondent was sitting alone when Annalise approached him, again leaned over and the two kissed for a prolonged period of time (Seq 47 - Form 1J). The two cuddled and kissed twice more in the next few hours. 29. Around midday on 10 July 2020, the two hugged and kissed in the hallway. The respondent then slapped Annalise's buttocks (uncharged). 30. Just after midnight on 10 July 2020, Annalise walked into the loungeroom where the respondent was. She was wearing a hooded jumper and G-string without pants. She lifted her jumper, and the respondent slapped her buttocks. She then bent over to pick up a laptop and the respondent gently kicked her buttocks several times. Annalise then stood up and touched the respondent's groin for a period, moving her hand around. The respondent pursed his lips and Annalise leaned in and kissed him. Later the two were on the couch and Annalise kissed the respondent's neck for a period (Seq 22 - Form 1K). 31. Finally, on 12 July 2020, Annalise got out of bed at approximately 9:30am, walked to the loungeroom where the respondent was, and kissed him on the lips briefly twice. She prepared breakfast and sat down next to him. He bit her fingers a few times. They then kissed and watched TV. Later she stood up, walked to the respondent's side and kissed for a prolonged period of time while wearing just a jumper. She then went to the bedroom. Around 10:30am, she returned and the two kissed again for a prolonged period. During this, the respondent reached around and squeezed her buttocks (she was now wearing a G-string) (Seq 24 - Form 1K). Annalise went to the kitchen. When she returned, they kissed again. Eventually, the respondent went to the kitchen. Annalise sat at the kitchen bench opposite him while he prepared food. When he was done, he stood behind her, hugging and kissing her and groping her breasts (Seq 25 - Intentionally sexually touch child aged 10 - 16). Post-offending conduct and information 32. Laura disclosed the offences against her to police on 17 July 2020. At some stage, the respondent was notified via text message that the police were going to attend his house. After receiving the text message, Annalise and the respondent discussed what they would do, and they formulated a plan to deny that anything had happened. The respondent then asked Annalise to disconnect the CCTV cameras and she handed him the CCTV hard drive. She then hid a pink dildo under a lounge cushion. 33. Police attended the house and arrested the respondent on 21 July 2020. He claimed the CCTV was broken and the hard drive was gone. The hard drive was found by police under a different lounge cushion and was later found to be in good working order. Police also seized a box from the respondent's wardrobe containing pictures of him and Annalise, along with a love letter written by her to him. In interview, he denied any sexual acts with the victims. 34. Annalise participated in 3 interviews with police. In her first and second interview, she denied anything sexual happened with the respondent. She also repeated his claims about the CCTV. She asked police to convey a letter to the respondent after the second interview. It, inter alia, professed her love to him. By her third interview, however, Annalise disclosed details of the offences involving Laura and the early sexual interactions. She disclosed that her and the respondent had sex most of the time that Annalise was drunk, and also that the respondent had purchased the pink dildo for her for when she was 'horny' while he was at work. The two used it in foreplay on more than one occasion. She confirmed that they loved each other, 'not like an uncle, it was something else'".

Subjective and mitigating circumstances

1. The respondent entered an early plea of guilty and received a 25% reduction in the otherwise appropriate sentence. A psychologist's report was tendered on his behalf and this was balanced and insightful. Judge English made a number of favourable findings that militated in favour of a lenient disposition of the matter. None of these findings were challenged. These included:

• The respondent's lack of any relevant criminal history. He was born in July 1975 and 46 years old at the time of sentence. His only previous offences were an assault in 1998 for which he was given a 12-month bond and two offences in 1997 and 1998 of driving while his license was disqualified or cancelled, for which he was fined and disqualified from driving for a short period. He had no offences at all in the 20 years before the offending currently under consideration. Judge English said, correctly, his absence of relevant prior offending meant that he was "entitled to a degree of leniency". [5]
• The respondent had a long history of stable employment, with the sentencing Judge noting he had worked as a truck driver and in logistics over many years, and saying: "He has in the past been able to lead a law-abiding life, contributing to society by caring for someone with a significant illness and maintaining employment for many years." [6]
• The sentencing Judge referred to the respondent's dysfunctional childhood, including the fact that he was "deprived of a stable loving family environment" [7] and became homeless at the age of 15. The respondent was the victim of sexual abuse at the hands of his brother and was estranged from most of his family as a result. His schooling was compromised, and he did not have a close relationship with his mother. He had a closer relationship with his father, but he died many years earlier.
• The respondent had a long-term relationship with a woman who had multiple sclerosis, and this cost him emotionally and financially.
• The respondent was diagnosed as suffering depression and anxiety. This did "perhaps explain how he came to commit the offences as he did" but was "[b]y no means an excuse" and did not "amount to a factor of mitigation". [8] Her Honour noted the psychologist's report did not establish a causal connection between the respondent's childhood dysfunction or his psychological conditions and the offending.

Maximum penalties, standard non-parole periods and Judge English's findings as to objective seriousness of the offences

1. The aggravated sexual intercourse offences, pursuant to s 66C(1) of the Crimes Act 1900 (NSW), each carried a maximum penalty of 14 years and a standard non-parole period of 9 years. The maximum penalty for the sexual touching offences, pursuant to s 66DB(a) of the Crimes Act, was 10 years with no standard non-parole period.
2. The Director's submissions contained a helpful table setting out the 12 charged offences, noting the Form 1 matters taken into account, and the individual indicative sentences nominated by the sentencing Judge pursuant to ss 54A and 54B of the Crimes (Sentencing Procedure) Act. Again, with gratitude to the appellant's counsel, I reproduce that table: [9] Seq Offence Details Indicative Objective seriousness: mid-range Victim: Laura Aggravated sexual assault intercourse with a child aged 10 - 14 (take advantage of intoxication) Act: Cunnilingus 7 y 30 s 66C(2) Crimes Act 1900 Date: 24 April 2020 3 y, 6m Form 1A: - Seq 20: Supply liquor to a minor - Seq 5: Choking Objective seriousness: mid-range Victim: Laura 4 Aggravated sexual assault intercourse with a child aged 10 - 14 (take advantage of intoxication) Act: Penile-vaginal intercourse 7 y, 6 m s 66C(2) Crimes Act 1900 Date: 24 April 2020 3 y, 6 m Form 1B: - Seq 6: Agg sexual intercourse with child aged 10 - 14 (digital) Objective seriousness: mid-range 36 Aggravated sexual assault intercourse with a child aged 10 - 14 (under authority) Victim: Annalise 6 y, 6 m s 66C(2) Crimes Act 1900 Act: Cunnilingus 3 y Date: 24 April 2020 Objective seriousness: mid-range Victim: Annalise Aggravated sexual assault intercourse with a child aged 10 - 14 (under authority) Act: Penile-vaginal intercourse (pool room) 7 y, 6 m 37 s 66C(2) Crimes Act 1900 Date: 24 April 2020 3 y, 9 m Form 1E: - Seq 1: Supply liquor to a minor - Seq 7: Agg sexual intercourse with child aged 10 - 14 (digital) Objective seriousness: mid-range Victim: Annalise 31 Aggravated sexual assault intercourse with a child aged 10 - 14 (under authority) Act: Penile-vaginal intercourse 7 y s 66C(2) Crimes Act 1900 Date: 24 April 2020 3 y, 6 m Form 1C: - Seq 32: Agg sexual intercourse with child aged 10 - 14 (penile-vaginal) Objective seriousness: mid-range Aggravated sexual assault intercourse with a child aged 10 - 14 (under authority) Victim: Annalise 6 y, 6 m 33 s 66C(2) Crimes Act 1900 Act: Fellatio 3 y Form 1D: - Seq 34: Agg sexual intercourse with child aged 10 - 14 (cunnilingus) Aggravated sexual assault intercourse with a child aged 10 - 14 (under authority) Objective seriousness: mid-range 5 y 35 s 66C(2) Crimes Act 1900 Victim: Annalise 2 y, 6 m Act: Fellatio (workplace) Objective seriousness: mid-range Victim: Annalise Act: Cunnilingus 38 Aggravated sexual assault intercourse with a child aged 10 - 14 (under authority) Date: 7 July 2020 6 y, 6 m s 66C(2) Crimes Act 1900 Form 1F: 3 y - Seq 11: Sexually touch child aged 10 - 16 (touch vagina) - Seq 39: Agg sexual intercourse with child aged 10 - 14 (digital) - Seq 40: Agg sexual intercourse with child aged 10 - 14 (cunnilingus) Objective seriousness: mid-range Victim: Annalise Aggravated sexual assault intercourse with a child aged 10 - 14 (under authority) Act: Digital penetration 6 y, 6 m 41 s 66C(2) Crimes Act 1900 Date: 7 July 2020 3 y Form 1G: - Seq 42: Agg sexual intercourse with child aged 10 - 14 (cunnilingus) - Seq 43: Agg sexual intercourse with child aged 10 - 14 (digital) Objective seriousness: mid-range Victim: Annalise Aggravated sexual assault intercourse with a child aged 10 - 14 (under authority) Act: Penile-vaginal intercourse 7 y, 6 m 46 s 66C(2) Crimes Act 1900 Date: 7 July 2020 3 y, 6 m Form 1H: - Seq 45: Agg sexual intercourse with child aged 10 - 14 (cunnilingus) - Seq 19: Agg sexual intercourse with child aged 10 - 14 (digital) Objective seriousness: lower end Victim: Annalise Intentionally sexually touch child between 10 - 16 years Act: Squeeze buttocks 20 S 66DB(a) Crimes Act 1900 Date: 8 July 2020 1 y, 6 m Form 1J: - Seq 9: Sexually touch child aged 10 - 16 (buttocks) - Seq 47: Sexually touch child aged 10 - 16 (kissing) Objective seriousness: below mid-range Victim: Annalise Intentionally sexually touch child between 10 - 16 years Act: Kissing and groping breasts 25 S 66DB(a) Crimes Act 1900 Date: 12 July 2020 2 y Form 1K: - Seq 22: Sexually touch child aged 10 - 16 (buttocks) - Seq 47: Sexually touch child aged 10 - 16

1. Her Honour made clear, if briefly expressed, findings of the relative objective seriousness of each of the offences for which the respondent stood to be sentenced. However, those pithy findings - made necessary perhaps by some of the applicable sentencing legislation - must be read in the light of the whole of the sentencing judgment. For example, her Honour found the offending to be "opportunistic" rather than "predatory". Her Honour accepted (in relation to the offences involving Laura), that the respondent did not set out to "ply these girls with alcohol" but that he did not monitor their consumption as a responsible adult should have and "[c]learly … took advantage of the resultant drunken state of the girls". [10]
2. Judge English described the offending against Annalise as a "gross breach of trust" and commented on that victim's particular vulnerability. [11] Her Honour found the offences occurred in the child's home and that the respondent's moral culpability was high, noting the respondent took advantage and exploited the situation. Her Honour made it clear that that the fact that the complainant was "willing" and that the offences were "consensual" was "irrelevant" and "not a factor in mitigation". As her Honour said, Annalise was a child and could not consent and that she did "not have the maturity to appreciate the nature and consequences for her as a result". [12]
3. The remarks relevant to the assessment of the objective gravity are sprinkled throughout the judgment. There is no suggestion by either party to the appeal that they were wrong, although there was some criticism of her Honour's remark that there was "no physical abuse or force used". However, that observation was almost immediately followed by the remarks about consent to which I have just referred. Her Honour merely remarked that features such as physical abuse and force "would have increased the seriousness of the offending". [13]
4. As to where the offences fell on the putative scale of objective seriousness, her Honour said: "I will shortly indicate where on the range I find those offences to fall. In assessing the seriousness of the offences, there are no statutory requirements to make findings assessing the objective seriousness of the offence by reference to any notional range as the offence does not attract a standard non-parole period. However, as assessing the objective gravity of an offence is an essential element of the sentencing process, I will indicate that I find those matters, namely, the intentional touching of the victim, Annalise, being the incidents on 8 July 2020 and 12 July 2020 fall below the mid-range. Returning then to the assessment of the offences which do attract standard non-parole periods, taking into account the age differences between the victims and the offender, the breach of trust in respect to the victim, Annalise, and the nature of the offences committed including the opportunistic nature of the offending; Sequence 30, mid-range. Sequence 4, mid-range. Sequence 36, mid-range. Sequence 37, mid-range. Sequence 31, mid-range. Sequence 33, mid-range. Sequence 35, mid-range. Sequence 38, mid-range. Sequence 41, mid-range. Sequence 46, mid-range. Sequence 20, at the lower end of the scale of objective seriousness Sequence 25, below the mid-range but not at the lowest end of the scale." [14]

Grounds of appeal

1. The sentencing proceedings were held on 21 September 2021 and Judge English imposed sentence the next day. Given the workload of the District Court, it was for all intents and purposes the equivalent of an ex-tempore judgment. The suggested specific errors asserted under grounds 1 and 3, and the criticisms made of her Honour's remarks in sentencing the respondent, must be considered in this context.
2. The sentencing judgment set out with clarity the relevant objective and subjective circumstances of the case and the principles of law that were applied. It was, as counsel for the appellant acknowledged, a difficult sentencing exercise. Subject to those matters raised in arguing the specific grounds of appeal, no criticism was directed to the findings of fact made or to the principles of law applied. I will follow the lead of counsel for both parties and deal with ground 3 first, before moving to grounds one and two which the parties agreed are interrelated and dependent upon one another.

Ground 3 - The sentencing Judge failed to properly take into account the standard non-parole period applicable to the offences contrary to ss 66C(2) of the Crimes Act 1900 (NSW) being sequences 30, 4, 36, 37, 31, 33, 35, 38, 41 and 46

1. There is no substance to ground 3, which asserts that Judge English failed properly to apply the standard non-parole periods to those offences to which it applied.
2. The arguments turned on the following paragraph of the judgment on sentence: "He is to be sentenced for multiple offences and it is appropriate to impose an aggregate sentence. I will as I am required to do indicate the indicative sentences to which the discount will have been applied in each instance and the applicable standard non-parole period. For those matters which attract a standard non-parole period, I will depart from imposing the standard non-parole period. The offences were not offences which involved violence or threats and with respect to the victim, Laura, they were isolated although not an aberration on his part, as by that time, he was engaged in an inappropriate relationship with the victim, Annalise, and of course he has entered pleas of guilty at the earliest opportunity." [15]
3. The Director suggested that the "only available construction" to be put on that passage is that her Honour embarked on a "two-tiered approach" to sentencing on the ten s 66C offences. It was submitted (in writing) that the passage used "remarkably similar" language to that used by the same sentencing Judge in Ryan v R [2019] NSWCCA 200 at [30]. [16] It was submitted that her Honour's reference to the lack of threats or violence demonstrated error because lack of consent was not an ingredient of the s 66C offences. It was also submitted, at least implicitly, that the numerical difference between the indicative non-parole periods on the s 66C offences (ranging between 3 years and 3 years 9 months) and the standard non-parole period (9 years) indicated that her Honour failed to use the standard non-parole period as a legislative yardstick as required by the High Court's decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and s 54B(2) of the Crimes (Sentencing Procedure) Act. [17]
4. In response to the respondent's written submissions, the Director's argument was refined on the hearing of the appeal. Mr Quilter (counsel for the respondent) referred to several cases where appeals were dismissed despite the sentencing Judge using language that arguably suggested that they commenced with the standard non-parole period and "departed" from it for stated reasons. [18] At the hearing, the Director did not press the submission that there was a "two tiered sentencing process", but argued that "this is one step or no step. This is a [departure] from the standard non-parole period without any other indication as to how it was used." [19] Counsel still placed reliance on the use of the word "depart" or "departure" in reference to the standard non-parole period even though that language had been held to "pass muster" in other cases. [20]

Ground 1 - Her Honour erred by failing to properly apply the totality principle

Ground 2 - The sentence pronounced is manifestly inadequate

1. The parties submitted, jointly and correctly, that grounds 1 and 2 should be considered together. The appellant submits that the failure properly to apply the totality principle resulted in an aggregate sentence that is manifestly inadequate.
2. At the heart of the Director's argument is that the degree of "notional accumulation" of the individual indicative sentences within the total aggregate sentence was insufficient. It was submitted (correctly) that "any sentence for the offending against Laura could hardly contemplate, or at least only in a very limited sense the offending against Annalise, and vice versa." Further, the appellant relied on the fact that the offending against Annalise fell into three distinct time frames.
3. Reference might be made to the highest of the indicative sentences compared against the total aggregate sentence (8½ years with 5 years non-parole) to prove the point. So, for example, on sequence 46 (an aggravated sexual intercourse, by unprotected penile-vaginal intercourse, committed against Annalise) Judge English indicated a sentence of 7½ years with a non-parole period of 3½ years. The appellant submitted that the notional accumulation of 12 months on the total sentence and 1½ years on the non-parole period could not contemplate the criminality in the 11 other offences. The Director referred to sequence 4 (an aggravated sexual intercourse, by penile-vaginal intercourse, committed against Laura) where the same indicative sentence was imposed to make this point in their written submission. A similar argument can be founded based on sequence 37 (another aggravated penile-vaginal intercourse, committed against Annalise) for which Judge English indicated the highest indicative sentence (7½ years with a non-parole period of 3 years and 9 months).
4. There is considerable force in these submissions, particularly with respect to the total sentence (as opposed to the non-parole period). A similar argument was made, and accepted, in a case argued on the same day as the present appeal: see R v McKenzie [2022] NSWCCA 119 at [104]-[109] (N Adams J, with whom Beech-Jones CJ at CL agreed) and [2], [10] (Hamill J).
5. On the other hand, as the respondent submitted, the sentencing Judge specifically referred to the totality principle and the need for partial accumulation and this involved a discretionary judgment in relation to which judicial minds may reach different conclusions, neither of which is wrong: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64].

Residual discretion

1. The respondent also tendered evidence and made arguments concerning the exercise of the residual discretion, a matter upon which the prosecutor would bear the onus. The evidence and arguments were persuasive. They include the delay in the appeal coming on for hearing, the personal circumstances of the respondent, the disruption of his progress in custody and recent threats he has received in gaol. However, it is unnecessary to consider the matter further in view of the conclusions I have reached in relation to the prosecution appeal.

Orders

1. I would make the following order: 1. The Prosecution appeal against sentence is dismissed.
2. N ADAMS J: I have had the advantage of reading the judgment of Hamill J in draft. I agree with his Honour that no error has been shown in relation to ground 3 for the reasons provided by his Honour. I am not persuaded that Judge English embarked on a two-tier approach as the Director contends.
3. As for grounds 1 and 2, I have arrived at a different conclusion to Hamill J on the question of whether the sentencing judge erred in her application of the totality principle resulting in the imposition of a manifestly inadequate aggregate sentence. I would allow the Crown appeal. I am grateful to Hamill J for his summary of what occurred before the sentencing judge, her Honour's reasons on sentence, and the respective submissions of the parties in this Court. My reasons for arriving at a different conclusion assume familiarity with Hamill J's judgment. I propose to adopt the same pseudonyms for the two children as his Honour has.
4. As Hamill J has observed, the Director did not challenge any of the findings of the sentencing judge. Nor is it contended in this Court that the indicative sentences were manifestly inadequate. In those circumstances, the nub of the Director's appeal is that the aggregate sentence imposed by Judge English does not reflect the objective criminality of the sexual offending against two 13-year-old children. This being so, my reasons will be confined to addressing the question of whether error is established in the application of the totality principle.
5. The totality principle applies when an offender, such as the respondent, is to be sentenced for two or more offences. It also applies to the imposition of an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"): JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39]. The sentencing judge was required to first arrive at an appropriate (indicative) sentence for each offence and then have regard to issues of concurrence and accumulation: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. In Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41, Howie J described the approach to determining the degree of concurrence and accumulation between sentences as follows at [27]: "… [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

Residual discretion

1. The Court retains a residual discretion to decline to interfere with a sentence on a Crown appeal even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. It is for the Crown to satisfy the Court that this discretion to decline to intervene and re-sentence the respondent should not be exercised in this case: CMB v The Attorney-General for New South Wales [2015] 317 ALR 308; [2015] HCA 9 at [33], [54].
2. The Crown submitted that this Court should not exercise its discretion to decline to intervene in this case and identified the following matters as pertinent to this question. First, there was no unreasonable delay in the institution of the appeal by the Crown or in notifying the respondent. Secondly, in its conduct in the proceedings below, the Crown did not contribute to the errors it now contends for on this appeal. Thirdly, the respondent's current non-parole period will not expire until 20 July 2025.
3. Finally, the Crown submitted that the Court should intervene to re-sentence the respondent to provide further governance and guidance to sentencing courts on considerations of totality and general deterrence in sentencing for multiple sexual offences involving multiple child victims.
4. On behalf of the respondent, it was submitted that several factors militated against the intervention of this Court. First, the issue of delay; the respondent was arrested on 21 July 2020 and committed for sentence on 9 June 2021. This Crown appeal means that his case is still not finalised. Secondly, the respondent submitted that the imposition of a longer sentence would risk disrupting his rehabilitation, being the work, education and Bible study he has commenced in custody. Reliance was also placed on the respondent's "extremely severe" depression and the challenges of custody during the Covid-19 pandemic.
5. The respondent swore an affidavit on 11 May 2022 that was tendered both on the question of the exercise of the residual discretion and in the event of re-sentence. The respondent described how his time in gaol has been in "SMAP protection". While in custody, the respondent has worked as a "Covid cleaner", in textiles and in bunting. He enjoys the work. The respondent has also started a literacy and numeracy course. He has put his name down to do a First Aid and a warehousing course. The respondent's evidence was that he wants "to do as many courses as I can to help better myself when I get out".

Re-sentence

1. None of the findings of the sentencing judge have been challenged in this Court and I would adopt them all.
2. The respondent's lack of relevant criminal history entitles him to some leniency. He has always been employed. He spent years caring for his sick partner. He had a dysfunctional childhood and was the victim of sexual abuse at the hands of his brother. Her Honour accepted the respondent was remorseful.
3. The psychologist's report did not establish any causal connection between the respondent's childhood dysfunction or his psychological conditions and the offending. The respondent suffers from depression and anxiety. Like her Honour, I am satisfied that incarceration is more onerous on the respondent due to the impact of Covid-19 and his depression, anxiety and physical ill health.
4. The sentencing Judge was appropriately guarded in her assessment of the respondent's prospects of rehabilitation, both because of the nature of the offending and the diagnosis of "pedophilic disorder, non-exclusive type". Her Honour accepted that his risk of re-offending would be "significantly reduced" if he attended the "appropriate treatment regimes" recommended by the psychologist. I would re-sentence the respondent on the same basis. I have also had regard to the positive steps he has taken in custody.
5. The Crown did not contend that the indicative sentences were manifestly inadequate. On that basis, I would not propose higher indicative sentences. The indicative sentences are as set out at [11] of Hamill J's judgment. The 25% discount for the early pleas of guilty has been applied to them.
6. I would allow for significant concurrence in relation to the offences pertaining to the victim Annalise (being mindful that they covered three time periods) and those pertaining to Laura, but I would allow for a significant degree of accumulation as between the two sets of offences.
7. I would not depart from her Honour's finding of special circumstances. Her Honour varied the statutory ratio from 75% to 58%. Although that is a significant variation, I propose to do the same, rounding slightly to avoid a sentence measured in years, months and days.
8. I would propose the following orders.

Orders 1. Crown appeal allowed. 2. The aggregate sentence imposed by Judge English on 22 September 2021 is quashed; in lieu thereof, the respondent is sentenced to an aggregate sentence of 12 years' imprisonment to commence on 21 July 2020 and expire on 20 July 2032 with an aggregate non-parole period of 7 years to expire on 20 July 2027.

Endnotes

1. See s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
2. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(2)(b) (aggregate sentences) and 54A-54C (standard non-parole periods).
3. Appellant's Written Submissions ("AWS"), 1 April 2022 at [7]-[34] (footnotes omitted).
4. Remarks on sentence ("ROS"), 22 September 2021 at pp 19, 20.
5. ROS at p 23.
6. ROS at p 27.
7. ROS at p 23.
8. ROS at p 26.
9. See AWS at [49].
10. ROS at pp 19, 20.
11. ROS at p 22.
12. ROS at p 20.
13. ROS at p 20.
14. ROS at pp 28-29.
15. ROS at p 28.
16. AWS at [58]-[59].
17. See Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27], citing Crimes (Sentencing Procedure) Act, s 54A(2).
18. Bustescu v R [2020] NSWCCA 113 at [5]-[7], Hunter v R [2020] NSWCCA 285 at [12]-[15] and GP v R [2016] NSWCCA 150 at [56]-[65].
19. Appeal Tcpt, 16 May 2022, p 2.
20. Appeal Tcpt, 16 May 2022, p 4, see the cases at fn 18 and Mbele v R [2021] NSWCCA 182.
21. Bustescu v R [2020] NSWCCA 113 at [6]-[7].
22. Hunter v R [2020] NSWCCA 285 at [14].
23. Ryan v R [2019] NSWCCA 200 at [30], [34] (Lonergan J, Simpson AJA and Button J agreeing).
24. GP v R [2016] NSWCCA 150 at [62].
25. ROS at p 8.
26. R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [17].
27. Ibid at [18]
28. Cf Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [12] (Leeming JA), Chartres-Abbott v R [2021] NSWCCA 239 at [23] (Brereton JA) and Moananu v R [2022] NSWCCA 85 at [138] (Hamill J).
29. Power v The Queen (1974) 131 CLR 623 at 628; [1974] HCA 26, R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 297 and R v McKenzie [2022] NSWCCA 119 at [114].
30. House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40, Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [26].
31. ROS at p 27.
32. Remarks on sentence ("ROS"), 22 September 2021 at p 4.