[2002] NSWCCA 518
Betts v The Queen (2016) 258 CLR 420
[2016] HCA 25
Cahyadi v R [2007] NSWCCA 1
[2014] HCA 37
Lehn v R [2016] NSWCCA 255
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120
Source
Original judgment source is linked above.
Catchwords
[2002] NSWCCA 518
Betts v The Queen (2016) 258 CLR 420[2016] HCA 25
Cahyadi v R [2007] NSWCCA 1[2014] HCA 37
Lehn v R [2016] NSWCCA 255
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120
Judgment (6 paragraphs)
[1]
The Applicant's Offences and Circumstances
In exercising the discretion to resentence, I adopt the sentencing judge's findings as described above, except as to six matters.
First, the independent re-exercise of the sentencing discretion by this Court is to be undertaken by reference to the circumstances prevailing at the time of resentence. To that end, affidavits concerning the applicant's time in custody were read in this Court on the "usual basis" (see Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]‑[4]). The material refers to two incidents of fighting in custody, although it does not reveal whether the applicant was the instigator or was defending himself. He is described as being a "consistent employee" in the stores area of the prison. Overall, this material does not add to or detract from the sentencing judge's assessment of his subjective circumstances, including his prospects of reoffending, which I adopt.
Second, it follows from the above that I do not accept that Veen (No. 2) has any significance to the sentencing process.
Third, it also follows that an assessment of the objective seriousness of each of the subject offences is to be undertaken without reference to the accompanying Form 1 offences. Instead, the Form 1 offences are matters to be considered as (only) demonstrating an "additional need for personal deterrence and retribution" (Abbas at [23]). In this case, that "additional need" is not insubstantial. The Form 1 offences were extremely serious instances of sexual abuse of Angela. In Abbas at [23], Bathurst CJ referred to the approach of considering Form 1 offences as relevant to personal deterrence and retribution as "generally, but not universally, lead[ing] to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account". This is an instance where at least some of the Form 1 offences warrant the imposition of a "significantly longer" sentence than would otherwise be required.
Fourth, even though the assessment of the objective seriousness of each of the subject offences is not to be undertaken by taking into account the Form 1 offences, the objective seriousness of the offences is at least that found by the sentencing judge and with some offences it is higher. All of the offences took place in the context of the applicant and Angela's mother exercising full parental control over Angela. By a sinister use of force, rewards and the threat of force or rewards (or both), between the ages of eleven and fourteen Angela was effectively subjected to sexual slavery by those who were responsible for her safety and wellbeing.
Although the assessment of objective seriousness of offences that do not carry a standard non‑parole period does not require the identification of where the offence sits on some hypothetical range, I will adopt that approach here given that the sentencing judge did so. As noted, counts 1, 3 and 7 on the indictment were offences under s 61J(1) of the Crimes Act. It was not an element of those offences that Angela was under the authority of the applicant. Instead, that was an aggravating circumstance (Sentencing Procedure Act, s 21A(2)(k)) as was the commission of the offences in Angela's home (s 21A(2)(eb)). Counts 1 and 7 involved forced fellatio with count 7 being committed in Angela's home with her own mother co‑operating. Both counts 1 and 7 were above the mid‑range of objective seriousness. Count 3 involved Angela being at first cajoled and then eventually dragged from her own bed in her own home by force after midnight by her own mother and the applicant so that she could be raped by the applicant while her mother held her arms down. Angela must have been terrified throughout the ordeal. Criminal conduct of this kind warrants a heavy sentence. This offence was towards the high end of the range of objective seriousness for offences of this kind.
Counts 2, 4, 5, 6 and 8 on the indictment were offences under s 66C(2) of the Crimes Act. It was an element of those offences that Angela was under the applicant's authority. However, in determining the objective seriousness of these offences, this does not preclude a consideration of the extent to which that authority was exercised and abused which, in this case, was severe. Count 4 involved forced fellatio in Angela's home with her mother actively participating and the 'offering' of a reward in the form of "raid[ing]" the kitchen. Count 5 involved penile - vaginal sex in Angela's bedroom after she was offered food. Both were above the mid‑range of offending for offences of this kind. Count 6 again involved Angela being forcibly removed from her bedroom, this time to perform fellatio on the applicant with her mother present and assisting. It was well above the mid‑range of offending of this kind. Count 8 involved the applicant forcing his partner's 13‑year‑old daughter to become drunk and then raping her while she felt sick from intoxication. It was towards the high end of the range of objective seriousness for offences of its kind.
Fifth, it follows from the findings in relation to ground 4(a) that, subject to the next point, the proper application of s 47 of the Sentencing Procedure Act would justify the applicant's sentence commencing six months earlier.
Sixth, it is necessary to consider whether any sentence should be made at least partly concurrent with the sentence for the assault offences on Angela on account of the totality principle. I have already rejected the contention that the sentencing judge erred in failing to address whether the sentence for the subject offences should be partly concurrent with the sentence for the assault offences on Angela, principally because no submission to that effect was made to her Honour. However, such a submission is made to this Court as part of the re-sentencing exercise that is required by Kentwell. As noted, this Court was not provided with the material placed before the Local Court when the sentencing for the assault offences was imposed. Even so, I accept that if the applicant had been "sentenced at one time" (Mill at 66) for all the subject offences and the assault offences it would be appropriate for some concurrency to be allowed for on account of totality. The physical assault of Angela on the one hand and the sexual abuse of her on the other were not completely "discrete and independent criminal acts" and, at least to an extent, could be considered "part of a single episode of criminality with common factors" (Cahyadi v R [2007] NSWCCA 1 at [27]; (2007) 168 A Crim R 41 (per Howie J, with whom Adams and Price JJ agreed)).
Otherwise, I note that the sentencing judge's finding of special circumstances, that was sufficient to warrant a parole period that is half the non-parole period, appears highly favourable to the applicant. However, as there was no challenge to that finding, I will adopt it.
[2]
Approach and Backdating
In light of the above, the application of s 6(3) to the applicant's circumstances is not straightforward. At the hearing of the application for leave to appeal, the Court raised with the parties the possibility that it might characterise the objective criminality of the subject offences as more serious than the findings of the sentencing judge and therefore conclude that no lesser or even a greater length of sentence was warranted. It invited the parties to provide further submissions on how it would then address the conceded error in relation to the commencement date of the sentence.
The applicant's submissions sought to isolate the error in failing to backdate the sentence from the balance of the errors in the sentencing judgment. It contended that a failure to backdate the sentence was not an error that in itself warranted the re‑exercise of the Court's sentencing discretion but was akin to "an arithmetical error ... in the calculation of the commencement and end date of the sentence" as referred to by Bathurst CJ in Lehn v R [2016] NSWCCA 255 at [72] ("Lehn"). It submitted that, even if the Court considered that no lesser length of sentence was warranted, it should not dismiss the appeal but instead make orders backdating the commencement date of the existing sentence imposed by the sentencing judge to account for the backdating error. It submitted that this outcome would still mean that the Court consider that "some other sentence … should have been passed" (ie, one commencing six months earlier) and would therefore enliven the power conferred by s 6(3) of the Criminal Appeal Act 1912.
The applicant also contended that the Court could exercise the power conferred by s 43(2) of the Sentencing Procedure Act to reopen the proceedings because a penalty has been imposed "contrary to law" (s 43(1)(a)). This contention can be put aside. Leaving aside whether a failure to backdate in these circumstances amounts to the imposition of a penalty "contrary to law" (Achurch v The Queen [2014] HCA 10 at [36] (French CJ, Crennan, Keifel and Bell JJ)), s 43 can only be invoked by the Court that imposed the relevant penalty (s 43(1) and (2)). This Court has not sentenced or otherwise dealt with the applicant previously.
The respondent submitted that an error in the application of s 47(3) of the Sentencing Procedure Act was not simply an "arithmetical error" of the kind described in Lehn (citing Kaderavek at [23]). It further submitted that, error of that and other kinds having been established in the exercise of the sentencing discretion, this Court must resentence the applicant and in doing so apply s 47(3) and consider the period of time the applicant was solely in custody referable to the subject offences. It submitted that, even having regard to that period, it should conclude that no lesser overall sentence is warranted in law, even allowing for her Honour's failure to backdate the commencement date appropriately.
The debate about whether the failure to backdate the sentence was an "arithmetical error" of the kind described in Lehn requiring the re-exercise of the sentencing discretion does not arise in this case. The other conceded errors mean that, consistent with Kentwell, the sentencing discretion must be re-exercised. Otherwise, the respondent's submissions correctly describe the task that this Court must exercise. Given the applicant would ordinarily be entitled to a sentence that accounts for an extra 6 months referable to his time in custody for the subject offences and some allowance for totality in relation to the assault offences on Angela, it follows that this is a case where the Court must indicate more about what sentence is warranted, rather than simply specifying that no lesser sentence was warranted in law. This is especially so as the sentence imposed was an aggregate sentence, the length of which is informed by the indicative sentences for the subject offences. At least in this case, unless indicative sentences for the subject offences are specified, then it cannot be determined whether an aggregate sentence of lesser, greater or the same length is warranted. Depending on the outcome of that assessment, regard can then be had to the proposed commencement date of any sentence to determine overall whether some "sentence that is warranted in law", including its commencement date, is "more or less severe" than the sentence that was imposed.
[3]
Proposed Indicative Sentences
As stated, count 3 on the indictment was an offence under s 61J(1) of the Crimes Act and was towards the high end of the range of objective seriousness for offences of its kind. The maximum sentence for that offence was (and is) 20 years imprisonment. I would specify an indicative sentence of 16 years imprisonment for that offence before any discount for the plea of guilty. After rounding for the discount on account of the plea and preserving the ratio of non-parole period to parole period that was reflected in the sentencing judgment, I propose an indicative sentence for that offence of 13 years and 7 months with a non‑parole period of 9 years and 1 month.
Each of counts 1 and 7 on the indictment were above the mid-range of objective seriousness for offences under s 61J(1). Count 1 was accompanied by a serious offence under s 66C(2) of the Crimes Act on a Form 1 committed on a different occasion. I would specify an indicative sentence of 14 years imprisonment, prior to any discount for the applicant's plea of guilty. After allowance for the plea of guilty and rounding, the proposed indicative sentence for count 1 is 11 years and 11 months with a non‑parole period of 7 years and 11 months. For the offence the subject of count 7, I would specify an indicative sentence of 13 years imprisonment, prior to any discount for the applicant's plea of guilty. After allowance for the plea and rounding, I propose an indicative sentence of 11 years and 1 month with a non‑parole period of 7 years and 4 months.
The remainder of the offences were contraventions of s 66C(2). As no standard non‑parole period was specified for those offences at the time it is not obligatory to specify any such period for an indicative sentence (cf Sentencing Procedure Act, s 54B(4)). With respect to count 2, I accept the sentencing judge's characterisation of the offence as "mid-range". Included on a Form 1 accompanying count 2 was another offence under s 66C(2), which took place on the same fishing trip. Prior to any discount for the applicant's plea, I would specify an indicative sentence of 11 years. After allowance for the plea and rounding, I propose an indicative sentence of 9 years and 4 months.
Both counts 4 and 5 were above the mid‑range of objective seriousness for offences under s 66C(2). Associated with count 5 on a Form 1 was another offence under s 66C(2) which took place on a completely different occasion. Prior to any discount for the applicant's plea of guilty, I would specify indicative sentences for the offences the subject of counts 4 and 5 of imprisonment for 12 years and 13 years respectively. After allowance for the plea and rounding, I propose indicative sentences of imprisonment for 10 years and 2 months and 11 years and 1 month respectively.
Count 6 was well above the mid‑range of objective seriousness for offences under s 66C(2). It was accompanied by two offences on a Form 1, each committed on separate occasions. Prior to any discount for the applicant's plea of guilty, I propose an indicative sentence for the offence the subject of count 6 of imprisonment for 14 years. After the discount and rounding, I propose an indicative sentence of 11 years and 11 months.
With count 8, as noted I consider that this offence was towards the high-range of objective seriousness for offences of this kind. Included on a Form 1 associated with this offence was another offence under s 66C(2) committed on a different occasion. I propose that, prior to any discount for the applicant's plea of guilty, the indicative sentence for that offence is 15 years imprisonment. After the discount for the applicant's plea of guilty and rounding, the indicative sentence that I propose is 12 years and 9 months.
The following table records the proposed indicative sentences:
Offence Indicative Sentence
Count 1: s 61J(1) 11 years, 11 months;
NPP: 7 years 11 months
Count 2: s 66C(2) 9 years, 4 months
Count 3: s 61J(1) 13 years, 7 months
NPP: 9 years 1 month
Count 4: s 66C(2) 10 years, 2 months
Count 5: s 66C(2) 11 years, 1 month
Count 6: s 66C(2) 11 years, 11 months
Count 7: s 61J(1) 11 years 1 month
NPP: 7 years 4 months
Count 8: s 66C(2) 12 years, 9 months
[4]
Whether More or Less Severe Sentence is Warranted
In determining what aggregate sentence is warranted in law having regard to these indicative sentences, consideration needs to be given to the totality of the applicant's criminal conduct. There is no doubt that if he was to be sentenced for each offence there would be substantial overlap between the individual sentences, given that they were all part of a sustained course of sexual abuse committed against Angela. However, the sentences would not be fully concurrent. As noted, while charged with responsibility for Angela's care, he subjected her to sexual slavery over a sustained period of time. Although the above indicative sentences vary considerably from those indicated by the sentencing judge, I would nevertheless impose the same overall aggregate sentence imposed by her Honour, namely imprisonment for 21 years. Although I am sceptical about the finding of special circumstances and the ratio of the non‑parole period to the parole period that it produced, there was no challenge to that finding. Accordingly, I accept that the appropriate non‑parole period is 14 years imprisonment.
There remains to be considered the commencement date of the sentence. It follows from the above that it should be backdated by six months to allow for the error in relation to the parole period for the assault offences. I would allow a backdating of a further two months on account of totality considerations with those offences. It further follows that, in accordance with s 6(3) of the Criminal Appeal Act 1912, I consider that a less severe sentence is warranted in law, namely, an aggregate sentence of the same length but one which commences eight months prior to the sentence imposed by the sentencing judge. As I propose the imposition of a less severe sentence, if that is imposed, it would follow that the indicative sentences noted above become the relevant indicative sentences for the applicant's aggregate sentence. I add that, were it not for the finding of special circumstances, I would have proposed that the appeal be dismissed.
[5]
Proposed Orders
Accordingly, I propose that the applicant be sentenced to the same aggregate term and non‑parole period, namely, imprisonment for 21 and 14 years respectively. However, I also propose that those sentences commence eight months prior to the start date fixed by the sentencing judge, namely, 1 August 2016 instead of 1 April 2017. If orders to that effect are made, the applicant's non‑parole period will expire on 31 July 2030, he will be eligible for release on parole on 1 August 2030 and his sentence will expire on 31 July 2037.
As this involves the imposition of a fresh sentence on the applicant, he should be advised of the existence of the Crimes (High Risk Offenders) Act 2006 and its application to the subject offences (s 25C).
Accordingly, the orders that I propose are:
(1) The applicant be granted leave to appeal;
(2) The appeal be allowed;
(3) Set aside the aggregate sentence imposed by Wass DCJ on the applicant on 13 October 2017;
(4) In lieu thereof:
(a) impose an aggregate sentence of 21 years imprisonment to commence on 1 August 2016 and expire on 31 July 2037;
(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 set a non-parole period of 14 years;
(c) specify that the earliest date the applicant will be eligible to be released on parole is 1 August 2030;
(d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are those specified in the schedule hereto.
(5) Direct the applicant's solicitor to notify the applicant of the existence of the Crimes (High Risk Offenders) Act 2006 and its application to the offences the subject of this application.
Schedule
Count 1 (s 61J(1)) - Imprisonment for 11 years 11 months with a non‑parole period of 7 years and 11 months;
Count 2 (s 66C(2)) - Imprisonment for 9 years and 4 months;
Count 3 (s 61J(1)) - Imprisonment for 13 years and 7 months with a non parole period of 9 years and 1 month;
Count 4 (s 66C(2)) - Imprisonment for 10 years and 2 months;
Count 5 (s 66C(2))- Imprisonment for 11 years and 1 month;
Count 6 (s 66C(2)) - Imprisonment for 11 years and 11 months;
Count 7 (s 61J(1)) - Imprisonment for 11 years and 1 month with a non‑parole period of 7 years and 4 months;
Count 8 (s 66C(2)) - Imprisonment for 12 years and 9 months
N ADAMS J: I too have had the significant advantage of reading the judgment of Beech-Jones J in draft. I agree with the orders proposed for the reasons provided by his Honour. I wish to make some additional observations regarding the approach this Court should take when, after exercising the sentencing discretion afresh under s 6(3) of the Criminal Appeal Act 1912 (NSW), a finding is made that a sentence more severe than that imposed at first instance is warranted in law.
Beech-Jones J has distilled the relevant principles derived from the decisions in O'Grady v R, Gal v R and Turnbull v R on this question at [89]. If, after exercising its independent sentencing discretion, this Court concludes that a greater sentence is warranted in law then the sentence is not increased and the appeal is dismissed. As the majority observed in Kentwell at [43]:
"The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal".
The decision of Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 appears in the footnote to the above passage in Kentwell. The usual practice of this Court is that, after hearing oral submissions, the decision is reserved and judgment delivered at a later date. This practice renders it impractical to reconvene the Court to give a "Parker" warning in the event that a conclusion is made that a higher sentence is warranted in law. As Beech‑Jones J has set out at [89], in such a case the Court has two courses to take. The first course is to state the conclusion that a higher sentence is warranted without specifying it and then dismiss the appeal. This is the course that I consider to be preferable, for the reasons explained by Beech‑Jones J in Gal v R at [44].
His Honour goes on to state that the alternate course is to specify the sentence that was warranted (as Simpson AJA did in Turnbull v R) and then dismiss the appeal. I agree with Beech-Jones J that this second course should only be taken if some particular circumstance in the case warrants it. For my part, I am unable to identify what such a circumstance might be. In this regard I respectfully disagree with his Honour that a possible circumstance is when the Court is considering the application of s 6(3) to an aggregate sentence.
The applicant was sentenced to an aggregate sentence pursuant to s 53A of the Sentencing Procedure Act in relation to the eight counts on the indictment. In exercising his Honour's independent sentencing discretion, Beech-Jones J proceeded on the same basis. Section 53A is, relevantly, in these terms:
(1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.
(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following:
(a) the fact that an aggregate sentence is being imposed,
(b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.
At [111] of his judgment Beech-Jones J has set out the indicative sentences he would have imposed as part of the re-sentencing process as required by s 53A(2)(b). Although these indicative sentences vary considerably from those indicated by the sentencing judge, his Honour was satisfied, after application of the totality principle, that an aggregate sentence of the same length as that imposed by the sentencing judge ought be imposed (putting to one side the backdating issue). After taking into account the backdating issue his Honour was satisfied that a lesser aggregate sentence was warranted in law. On that basis he was required by s 53A(2)(b) to set out the indicative sentences, as he did at [111]. But this does not answer the question as to what circumstances might arise warranting the specification of a higher rather than a lower aggregate sentence.
It seems to me that there is no need to set out proposed indicative sentences unless a new aggregate sentence is to be imposed. In neither of the two courses described above at [119]-[120] does such a circumstance arise. That is, if after exercising the Court's independent sentencing discretion an aggregate sentence which is the same or higher is arrived at, it will not be imposed and the appeal is dismissed. In those circumstances there is no statutory requirement to specify those higher indicative sentences and/or the higher aggregate sentence. Rather, it would be sufficient if it was simply noted that the new indicative sentences were higher without specifying them.
[6]
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: 09 August 2019
6
Gal v R [2015] NSWCCA 242
Gilmour v R [2018] NSWCCA 295
House v R (1936) 55 CLR 499
Johnson v R [2004] HCA 15
Kaderavek v R [2018] NSWCCA 92
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R [2016] NSWCCA 255
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nye v R [2018] NSWCCA 244
O'Grady v R [2015] NSWCCA 168
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
PD v R [2012] NSWCCA 242
Porter v R [2019] NSWCCA 117
RH v R [2019] NSWCCA 64
SHR v R [2014] NSWCCA 94
Stavropoulos v R [2018] NSWCCA 12
Turnbull v R [2019] NSWCCA 97
Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Principal judgment
Parties: RO (Applicant)
Regina (Respondent)
Representation: Counsel:
N Steel (Applicant)
G Newton (Respondent)
Judgment
BATHURST CJ: I have had the advantage of reading the judgment of Beech‑Jones J in draft. I agree with the orders proposed by his Honour and with his Honour's reasons.
BEECH-JONES J: This is an application for leave to appeal from a lengthy aggregate sentence imposed for very serious sexual offences committed by the applicant against his partner's daughter. The respondent agreed that the sentencing judgment was affected by error of the kind stated in House v R (1936) 55 CLR 499 at 504-505 ("House"). For the reasons set out below I consider that concession was properly made. It follows that I consider that it is necessary to grant leave to appeal and undertake the resentencing process (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell")). However, for the reasons set out below, I would impose a sentence of the same term but would vary the commencement date and specify different indicative sentences.
By operation of s 578A(2) of the Crimes Act 1900, the publication of the victim's name or any other information that might identify her is prohibited. For ease of reference she will be referred to by a completely unrelated name, specifically "Angela". The Court was advised that, due to the relationship between the applicant, his co-offender (being Angela's mother), and Angela, the sentencing judge made a non‑publication order in respect of all of their identities. For that reason, the applicant is being referred to by a pseudonym in the title to these proceedings
The Sentencing Judgment
In the sentencing judgment, her Honour summarised the agreed statement of facts in terms that are not relevantly different to that set out above. The following twelve matters should be noted about her Honour's reasons.
First, her Honour made an assessment of the level of objective seriousness of each offence on the indictment, the effect of which has been described above. As I will explain, the first ground of appeal is that with respect to count 1 her Honour erred in taking into account the conduct on the Form 1 offences associated with count 1 in assessing the objective seriousness of count 1.
Second, so far as the uncharged acts are concerned, her Honour recorded that they were not used to justify an increase in what would otherwise be an appropriate sentence, but merely to rebut any suggestion that the offending was isolated or otherwise out of character.
Third, her Honour identified a number of aggravating factors beyond the elements of each offence associated with the offences. Thus, with counts 1, 3 and 7, her Honour noted that the offending took place in circumstances where the applicant breached his position of trust as step‑father. With each of counts 3, 4, 5, 6 and the Form 1 offences associated with counts 5, 6, 7 and 8, her Honour noted that all took place in Angela's home, a place where she had a right to "feel safe and secure". Otherwise, the sentencing judge noted that the applicant used his position of power to orchestrate being alone with Angela, that he used discipline, violence, deprivation and rewards to further his offending, and that he used control and threats of violence against Angela's mother to maintain compliance. The sentencing judge described the applicant's level of moral culpability as being "extremely high". Otherwise, the sentencing judge also noted how Angela was rendered "virtually helpless against the abuse that was perpetrated against her" given that her mother was either unwilling or unable to protect her.
Fourth, in light of Angela's Victim Impact Statement, the sentencing judge found that the emotional harm caused by the offences was substantial and indeed, "significantly more deleterious than that which an ordinary person would have experienced" had they been the subject of this offence (Sentencing Procedure Act; s 21A(2)(g)).
Fifth, her Honour allowed a discount on sentence of fifteen per cent on account of the applicant's plea of guilty.
Sixth, the sentencing judge noted the applicant's expression of remorse and the Crown's submission that the applicant "showed no real insight into the damage he has done". The manner in which the sentencing judge dealt with this was initially the subject of ground 2 of appeal but that was not pressed. The sentencing judge expressly stated that the applicant's "expressions of remorse" were considered. Implicit in that statement is the fact that her Honour accepted the expressions as genuine.
Ground 1: Using Form 1 Offence to Determine Objective Seriousness
Ground 1 of the application contends that the sentencing judge erred in "having regard to the related Form 1 offences in determining the objective seriousness of counts 1, 2 and 5". The Crown conceded this ground so far as it concerned count 1. At the hearing of the application, the balance of the ground was not pressed.
In describing the objective seriousness of count 1, the sentencing judge stated:
"Count 1 involved the offender taking advantage of the situation that he found himself in, he undertook forceful conduct upon [Angela] who was then only 11 or 12. Given the age of [Angela], the length of time and the nature of the offending and the offence, and taking into account those matters on the Form 1 I find the offending to be in the mid-range of offending for matters of this kind. Without the matter on the Form 1 I find that the offending would have been only slightly below the mid-range for offending of this kind." (emphasis added)
It is clear from this passage that in assessing the objective seriousness of the offending embraced by count 1, the sentencing judge took into consideration the conduct of the applicant in relation to the Form 1 offence described at [12] which concerned another incident at a different time. The sentencing judge found that the Form 1 offence elevated the objective seriousness of the offending.
This involved error at two levels. First, it is erroneous because the assessment of the objective seriousness of a criminal offence that carries a standard non‑parole period "is to be determined wholly by reference to the nature of the offending" for that offence and not other criminal conduct engaged in on a different occasion (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]).
Second, it is erroneous because it is inconsistent with the Sentencing Procedure Act for Form 1 offences to be considered in this manner. For present purposes, the relevance of the Form 1 offences to the exercise of the sentencing discretion for the subject offences was that they demonstrated an "additional need for personal deterrence and retribution" (Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23] (Bathurst CJ); see also at [64] (Basten JA); at [104] (Hoeben CJ at CL) and at [154] (Garling J); ("Abbas") and Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]).
It follows that the Crown's concession of error in this aspect of the sentencing judge's reasoning was well founded.
The conceded error in relation to ground 1 concerned the proper characterisation of the objective seriousness of one of eight serious offences that all were the subject of an aggregate sentence. In some circumstances, there may be scope for argument as to whether such an error in relation to one of eight offences affects the aggregate sentence for all (SHR v R [2014] NSWCCA 94 at [40]-[42] (Fullerton J); PD v R [2012] NSWCCA 242 at [44]). However, given the concession in relation to ground 3, it is unnecessary to consider this further.
Ground 3: Applicant's Criminal History
Ground 3 of the application contends that the sentencing judge "erred in her approach to the applicant's criminal history". The Crown conceded that her Honour so erred.
This ground arises out of the following passage in the sentencing judgment:
"I find that to some extent [the applicant] understands the nature of his offending, and despite the long period of offending and on multiple occasions, that he has some prospects of rehabilitation. It is important however that he receives rehabilitative counselling and treatment whilst in custody. There is a need for general deterrence in cases such as this….
There is a particular need for specific deterrence and the protection of the community, particularly where the offending in this case has continued for so long and for so many occasions. Indeed, given his commission [of] many similar offences and his engagement in conduct of a sustained nature, consideration of the sentencing principles set out in Veen No. 2 is called for. It showed a continued disobedience of the law such that retribution, deterrence and protection of the community are of increased importance indicating that a more severe penalty is warranted than would otherwise be the case."
The applicant contended that this passage revealed a misapplication of (one of) the relevant principle(s) stated in Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 at 477 ("Veen (No. 2)"). In effect, the applicant contended that the sentencing judge elided the difference between being sentenced for multiple offences and the circumstances where an offender had previously been sentenced for the same or similar offences. As noted, the Crown conceded this error. It was correct to do so.
The above passage from the sentencing judgment in this case appears intended to invoke the following statement by Mason CJ, Brennan, Dawson and Toohey JJ in Veen (No. 2) concerning the relevance of an offender's prior criminal history (at 477 to 478):
"The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." (emphasis added)
Ground 4: Backdating and Totality
Ground 4 contends that the "learned sentencing judge erred in selecting the commencement date of the aggregate sentence imposed by a) failing to take into account all relevant pre-sentence custody; and b) failing to have regard to the principle of totality".
Before the sentencing judge there was tendered a document entitled "Crown Sentence Summary" which listed the offences on the indictment and the Form 1 offences that accompanied them. It referred to his arrest date of 24 September 2015 and the 197 days he had spent in custody from that time until the date of the commencement of his sentence for the assault offences, namely 18 April 2016 (allowing for seven days released on bail). It stated "[i]n custody serving sentence for other matter from 18/4/2016". This was a reference to the sentence for the assault offences (see [35]). No submissions were made to the sentencing judge in relation to the commencement date of the sentence for the subject offences. No submissions were made to the effect that considerations of totality warranted some overlap between the non‑parole period imposed for the assault offences and for the subject offences.
Not surprisingly, in the sentencing judgment her Honour stated:
"I take into account that the offender is in custody for other matters which expire in four days and that he has spent 197 days in custody in relation to these matters. Therefore, and by agreement between the parties, I have backdated his sentence by 193 days to commence 1 April 2017."
In relation to ground 4(a), the applicant contended that he had an automatic right to parole with respect to the sentence for the assault offences and thus the calculation of "pre‑sentence custody ought to have been by reference to the expiry of [his] non‑parole period" for those offences (citing Kaderavek v R [2018] NSWCCA 92 at [16]-[22] (Hamill J with whom Beazley P and Schmidt J agreed) ("Kaderavek")). In Kaderavek, that consequence was held to follow from s 47(3) of the Sentencing Procedure Act and "general principles of sentencing" (Kaderavek at [20]).
Subsection 47(3) obliges sentencing judges considering whether to backdate the commencement date of a sentence to "take into account any time for which the offender has been held in custody in relation to the [subject] offence". The effect of the submission is that her Honour acted inconsistently with this provision by excluding the parole period for the assault offences from the determination of the period for which the offender was held in custody in relation to the subject offences.
The respondent accepted that the sentence was affected by this "error". It is self‑evident that if it was an error, it was not of the sentencing judge's making but one that her Honour was led into by the parties. Even though the conduct of the parties can be relevant to a determination of whether an error of the kind discussed in House at 504‑505 is made out, as this contention involves the fixing of a sentence in a manner contrary to a statutory provision, I am satisfied that ground 4(a) is established.
Approach to Re-sentencing and Section 6(3)
Kentwell described the task faced by this Court in applying this provision as follows (at [43]):
"After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal …." (emphasis added)
Kentwell involved an aggregate sentence. This passage contemplates that, where the identified error concerned an aggregate sentence, s 6(3) would be applied by reference to this Court's conclusion as to what aggregate sentence was warranted in law, and not any other form of sentence structure. In this matter there was no suggestion that s 6(3) should be applied other than by reference to a consideration of what aggregate sentence is "warranted in law". Otherwise, three matters should be noted about the exercise described by this passage from Kentwell.
The first concerns the relevance of the sentence imposed by the sentencing judge in determining that "some other sentence … is warranted in law". In Turnbull v R [2019] NSWCCA 97 at [44]‑[46] ("Turnbull") Simpson AJA (with whom Ierace J agreed, Wilson J not deciding) stated:
"In my opinion, where error has been established, the duty of this Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that "no lesser sentence is warranted in law". This Court must, as was made clear in Kentwell, take into account the purposes of sentencing and any relevant legal sentencing requirements, the agreed or determined facts, its assessment of the criminality involved, together with factors personal to the offender that may bear upon the selection of the appropriate sentence. That includes, as was made clear in Simpson [R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534] and Baxter [Baxter v R [2007] NSWCCA 237], and restated in Kentwell, any post sentencing factors of which evidence has been admitted. It is appropriate to adopt relevant findings of disputed fact made by the sentencing judge. And where assessments or evaluations (for example, of objective gravity or of the offender's prospects of rehabilitation) have been made that have not been the subject of challenge, they also may be adopted and acted upon.
…
I have, accordingly, attempted to put out of my mind the sentences imposed by the sentencing judge." (emphasis added)
Seventh, so far as rehabilitation is concerned, the sentencing judge found that the applicant understood the nature of his offending and "that he has some prospects of rehabilitation". Her Honour found that it was important that he received "rehabilitative counselling and treatment whilst in custody and upon his release".
Eighth, the sentencing judge noted the applicant's criminal history. The relevant offences on his record were a charge of affray from 2010 for which he received a bond under s 9 of the Sentencing Procedure Act, as well as the assault offences against Angela noted above. As noted, the applicant was taken into custody on 25 September 2015 following his interview on the charges the subject of this application. The sentencing judge noted that the applicant's record was not one that entitled him to any leniency that might have been afforded if he was a first offender.
Ninth, the sentencing judge addressed the need for general and specific deterrence. The manner in which her Honour addressed the need for specific deterrence is the subject of ground 3 of the application.
Tenth, the sentencing judge addressed the applicant's personal circumstances. The applicant was born in October 1985. At the time he was sentenced he was 32 years old. He commenced offending against Angela when he was 23 and that continued over a period of 8 years. The applicant grew up in a regional area and came from a large family. He experienced learning difficulties as a child. He did not complete primary school and by the time he left school he was socially isolated. After he left school, he commenced abusing drugs and alcohol. He intermittently performed manual work. The sentencing judge noted that he had a number of intimate relationships, including with Angela's mother.
Eleventh, in imposing an aggregate sentence her Honour stated that there was a need to "take into account matters of totality". Her Honour backdated the applicant's sentence by 193 days to commence on 1 April 2017. This backdating represented the period since the applicant had been in custody for the subject offences (ie, 197 days) less four days for the balance of the applicant's sentence for the assault offences committed against Angela. This aspect of her Honour's sentence is the subject of ground 4 of the application.
Twelfth, her Honour made a finding of special circumstances based on the applicant's "limited intellect", "drug and alcohol issues" and his "clear need for counselling and work with regard to his rehabilitation both in custody and for an extended period on parole".
For the sake of completeness, I note that this Court has already dismissed an appeal by Angela's mother against an aggregate sentence imposed on her of 16 years imprisonment with a non‑parole period of 11 years (RH v R [2019] NSWCCA 64 ("RH")). After a trial, Angela's mother was found guilty of a number of the same offences the subject of this application (RH at [34]). No parity argument was raised in the grounds of appeal. It is unnecessary to refer to that judgment any further.
I would uphold ground 1 of the application.
In this case, the "antecedent criminal history" of the applicant did not engage this reasoning. Leaving aside his conviction for assaulting Angela, which occurred after most of the subject offences were committed, the applicant's criminal history consisted of the affray offence noted above, driving offences and offensive language offences. Otherwise, while it may be accepted that the subject offences committed against Angela by the applicant were clearly not an "uncharacteristic aberration" and could be said to manifest a "continuing attitude of disobedience of the law", to include those offences in a discussion as to why a "more severe penalty is warranted" for the subject offences suggests that the applicant might have received extra, or double, punishment for the same offending. Otherwise, this part of the sentencing judge's reasons is inconsistent with the sentencing judge's finding that the applicant had "some prospects of rehabilitation".
I would uphold ground 3 of the application.
Ground 4(b) contends that, in circumstances where the sentencing judge was made aware that the applicant's existing term of imprisonment concerned a physical assault on the same victim (ie, Angela), her Honour erred in failing to consider whether the principle of "totality" warranted some part of the sentence for the subject offences being partly concurrent with the sentence for the assault offences (see Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70 ("Mill"); Johnson v R [2004] HCA 15 at [26] (Gummow, Callinan and Heydon JJ); 78 ALJR 616).
The respondent submitted that the sentencing judge considered the principle of totality. It noted that her Honour stated that "[w]here there are multiple acts of offending issues of totality and accumulation arise" and that "I am mindful to take into account matters of totality so as not to impose a crushing sentence". However, those statements were referable to the application of the totality principle to the indicative sentences for the subject offences. They did not concern the possible application of the totality principle to so much of the applicant's criminal conduct that embraced those offences as well as the assault offences against Angela.
Nevertheless, I do not regard any error of the kind described in House as having been established. The material concerning the physical assault on Angela was only included in the agreed facts as part of an explanation of the atmosphere of violence and intimidation that prevailed in Angela's home during the period she was sexually abused by the applicant. That assault, albeit serious, was of a different nature to the sexual abuse of the applicant. Her Honour was not presented with the statement of facts or other material upon which the applicant was sentenced for the assault offences. In circumstances where there was no suggestion, much less a submission, made to her Honour that some consideration of totality warranted any concurrency between the sentence for the subject offences and the sentence for the assault offences, then I do not accept that error has been established by her Honour's failure to address it or take account of it.
Accordingly, I would uphold ground 4(a) but reject ground 4(b).
Subject to the following, I respectfully agree with this passage.
The second concerns the nature of the comparison exercise undertaken to determine whether the sentence that is warranted in law is "more or less severe" than the sentence the subject of the appeal. There does not appear to be any reason to confine the comparison to simply comparing the length of the sentences while excluding other components such as commencement dates. Clearly, the latter may have a significant impact on the length of the period in which an offender is incarcerated.
The third concerns the approach of this Court in the circumstance where it ultimately concludes that the sentence that is warranted in law is more severe than that imposed at first instance. In such a case, is this Court required, permitted or precluded from specifying what that more severe sentence would have been before it dismisses the appeal?
In O'Grady v R [2015] NSWCCA 168, Bathurst CJ stated (at [3]) that:
"…where, as in this case, the Court is of the view, on the re-exercise of the sentencing discretion, that a greater sentence than the one imposed by the sentencing judge is warranted, it is not always necessary to specify the actual sentence which the Court believes is warranted. My present view is that it would generally be sufficient that the judgment demonstrates that the re-sentencing exercise has in fact been carried out and provides reasons as to why the Court was of the view that a greater sentence was warranted in law. However, it is not necessary to come to a final conclusion on this matter." (emphasis added)
In Gal v R [2015] NSWCCA 242 ("Gal") at [44], I referred to this passage and concluded that, in light of Kentwell, the application of s 6(3) does not necessarily require the Court to specify what the higher sentence would have been. I noted that there may be strong reasons not to do so, including, "considerations of finality [which] dictate that [the sentence appealed from] be taken as representing the definitive sentence" and the potential unfairness to an offender resulting from a statement by this Court that "they deserved more, and specifically how much more" because it may affect decisions such as whether to release them on parole or their classification within the prison system. Chief Justice Bathurst and Price J agreed (Gal at [1] and [2] respectively).
Consistent with this, it is common in this Court in cases where s 6(3) is invoked to dismiss an appeal against sentence not to specify the more severe sentence that was warranted in law (see for example Porter v R [2019] NSWCCA 117 at [92] (R A Hulme J); Stavropoulos v R [2018] NSWCCA 12 at [31] (Hoeben CJ at CL); Nye v R [2018] NSWCCA 244 at [83] (Button J); Gilmour v R [2018] NSWCCA 295 at [82] (Johnson J); Clinton v R [2018] NSWCCA 66 at [53]‑[55] (Schmidt J)).
However, in Turnbull at [57] to [63], Simpson AJA applied s 6(3) by specifying the sentences that her Honour would have imposed if exercising the sentencing discretion afresh, which were higher than those imposed by the sentencing judge, before dismissing the appeal. Her Honour did not refer to Gal or explain why it was necessary to specify the sentence that would have been imposed.
The end result is that the approach of this Court to re‑sentencing is to be undertaken in a manner consistent with what is stated in Turnbull above (at [81]), ie, by putting aside the sentence imposed at first instance. In undertaking that exercise, if the Court concludes that a greater sentence is warranted then it is not obliged to specify what the sentence was but may instead simply dismiss the appeal (Gal; O'Grady) although it may decide to specify the sentence that was warranted (Turnbull). For my part, in light of the observations in Gal, I consider that the Court should only take the latter course if some particular circumstance warrants it. One possible such circumstance appears to follow from the emphasised statement in the above passage from Kentwell, namely where the Court is considering the application of s 6(3) to an aggregate sentence. That passage appears to contemplate that, at least in some cases, the Court may need to identify the particular indicative sentence that is warranted for each offence prior to the Court forming a conclusion about whether an aggregate sentence that it considers is warranted in law is more (or less) severe than the aggregate sentence the subject of the appeal.