Facts
5There was on the previous appeal, and now, no dispute about the facts found by the sentencing judge. They were set out in his sentencing judgment as follows:
"[8] The only mitigating factor which I could find proved was that apart from these offences, the offender should be regarded as a person of good character. He gave no evidence at the trial and gave no evidence at the sentencing proceedings. He was entitled, of course, to decline to give any evidence, but his electing to take this course has meant that I know nothing about his motivation in committing these offences and I can form no opinion about rehabilitation. I must sentence the offender, in my opinion, on the basis that he committed three serious sex offences against his eight-year-old daughter and that he has no contrition for what he has done. Furthermore, these crimes were committed during a period in which he did similar things to his daughter on about 20 or 30 occasions.
[9] The offender and TLS, the mother of the child, K, had a relationship of a sexual type during her teenage years and K was born, but at the time of the birth, the offender and TLS were no longer in a relationship. When K was about one year old, TLS contacted the offender and told him that he was the father of a girl. Commendably, he accepted responsibility for this and resumed the relationship with TLS. As a result of the resumption of this relationship, TLS had another child, a little boy, C. The four of them lived as a family until K was five years old, and C was two years old. The parties then split up again, and the offender went back to live in Narrabri. From this time until the 5th of October 2004, both parents shared the custody of the children. This meant that the children would go to live with the offender at his place of residence in Narrabri, on occasions, and with their mother in Shellharbour on other occasions. In 2003, the little boy, C went to live with his father on a more or less full-time basis.
[10] In February 2004, the father of the offender died in Narrabri and TLS took the two children to Narrabri to be with their father at the funeral. She left them in Narrabri, for a few days, and it was during this time that the first offence was committed by the offender.
[11] On the day of the funeral, the offender, and members of his family went to the funeral and to the wake. It would appear that the offender, and others in his family were drinking heavily. That night, the offender and the two children stayed at the house of one of the offender's brothers. I am satisfied that the evidence establishes beyond reasonable doubt that the two children went to bed in a double bed, and they were joined there quite late at night, by their father, the offender. He slept between the two children. K was asleep, but she felt her father, pulling her pants down the side of her legs. He then placed his penis between her legs from the back into her vulval opening. She felt it go up and down, felt his pubic hair and notice that she was 'yucky' and 'wet inside' the vulval opening. She then got up from the bed went to the kitchen, had a drink and then went [and] slept in another bed. Her father said nothing to her about this, nor did she say anything to him.
[12] After a few days the two children went back to their mother, and stayed with her until May of that year. TLS drove the two children back to Narrabri in May and they remained with their father until later in the year.
[13] The second offence of which the offender was convicted occurred in late August 2004. The child, K, was able to say that this offence occurred just before a named schoolteacher commenced at her school in Narrabri. It was agreed by the accused that the named schoolteacher came to the school on the 30th of August 2004. During May to August 2004, the children and their father lived with his mother in a house, some distance from Narrabri. One night, when K was in bed, and the offender was there too, he stuck his hands down her pants and pushed his fingernail into her vaginal opening. This caused her pain.
[14] The third offence of which he was convicted again occurred when she was in bed with him. This was probably in September of the same year. On this occasion, he pulled her on top of him, so that they were facing each other and he moved her up and down on his penis a number of times. He did not ejaculate. She fell off on the ground and hit her head.
[15] She said in evidence that similar sexual episodes occurred on 20 or 30 occasions, and that she had made notes in a diary by marking the days when these events occurred. Despite a search by police, that diary was not found. However, in my opinion, the complainant, K was a truthful, reliable and impressive witness. She was intelligent and definite in her evidence. It is obvious that the jury had the same opinion.
...
[18] The offender was interviewed by police on the 6th of October 2004 and denied committing any sexual acts against his daughter. The jury considered those denials, but rejected them. I am certain that the jury was correct in coming to that conclusion.
[19] These events came to light on the 5th of October 2004 when the little girl, K was at the home of a friend of her mother and was showing unusual behavioural signs. When her mother inquired further, K told her what had been going on. Police were contacted and she made a video interview with police on the 6th of October 2004. At the trial she was asked why she did not speak of these events before the 6th of October 2004 and she said that she was scared."
6The sentencing judge found that the offences of penile/vaginal intercourse in counts 1 and 4 were more serious than the offence in count 3 involving digital/vaginal intercourse. He also found that the offence in count 1 was more serious than that in count 4 because it involved ejaculation. Personally I am not sure that makes terribly much difference but the count 1 offence occurred when the complainant was aged eight whereas count 4 occurred when she was aged nine so it may be considered more serious on that account as well. In any event, this Court on the previous appeal accepted the findings of the sentencing judge concerning the comparative seriousness of the counts 1 and 4 offences as "justifiable": RJA v R at [48] (Spigelman CJ).