SB v R

Court of Criminal Appeal (NSW)|2022-06-27|Before: Beech-Jones CJ, Garling J, Wilson J, Jones CJ

Judgment

BEECH-JONES CJ at CL: I agree with Wilson J.
GARLING J: I agree with the orders proposed by Wilson J, and with Her Honour's thorough and comprehensive reasons.
WILSON J: Between 23 October and 1 November 2017 the applicant stood trial before the District Court at Newcastle accused of multiple sexual offences against the children of his former de facto partner, children who were aged in the range of three to six years at the relevant time. Section 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) operate to prohibit the publication of any information that would or might identify the children. Accordingly, the applicant's name, and the names of the children, have been anonymised in this judgment.

On 22 February 2022 the applicant filed an Application for Leave to File a Notice of Appeal After Expiry of the Filing Period, together with a Notice of Appeal. The Notice of Appeal was filed years outside the permissible period. No explanation for much of that significant delay has been provided.
The applicant advances one proposed ground of appeal, that the sentence imposed upon him is manifestly excessive.

The Proceedings in the District Court

The matter having proceeded before the District Court as a trial, it was for the trial judge to find the facts of the offences upon which the applicant was to be sentenced. As no complaint is made about the facts as found by her Honour, the following summary is taken from the sentencing court's remarks, delivered ex tempore at the conclusion of the sentence hearing, on 29 June 2018.

The Facts of the Offences

In 2002 the applicant and ST commenced a relationship. ST had two children, anonymised as LT and HT. In 2005 the family moved from Western Australia to New South Wales, residing initially in a caravan park, before moving to a house in Raymond Terrace, where they lived between 1 January 2006 and 31 January 2007. Each of the offences committed by the applicant occurred in that period, when LT was aged 5 or 6 years old, and HT was aged 3, 4, or 5 years old.
Count 1 reflected an act of penile-vaginal intercourse with LT that occurred at a time when LT was with the applicant in his and her mother's bedroom. The applicant had a pornographic video playing on a television, and had intercourse with LT. Although she asked him to be "a bit more gentle" as this occurred, the applicant moved "harder and harder".
After this act, the applicant lifted LT up and placed her on a cupboard. He again penetrated her vagina with his penis. The extent of penetration was "[n]ot much this time" and it did not continue for "that long"; however, LT said "it hurted". When the applicant asked LT if what he was doing felt good, she told him "[n]o", and asked him to stop. He told her to be quiet by way of response, stopping only when LT said "[o]w". This act was reflected by count 2.
Count 3, another act of intercourse, followed. The applicant told LT to kneel on the floor and, when she did as she was told, he put his penis into her mouth. LT told the jury, "I put it in my mouth because I didn't want to get badly hurt". She had to continue to suck the applicant's penis until "it gets all the white stuff". The applicant asked her if she would "drink the white stuff", withdrawing when she responded "no". A "dribble" of ejaculate went into LT's mouth, with the applicant depositing the balance onto a handkerchief. Oral intercourse had continued for a period, which LT described as "not long".
On another occasion, when LT was at home ill with chicken pox, the applicant carried her to his bedroom and told her to pull down her pants and get onto the bed. The applicant lowered his own pants and then lay on top of LT, inserting his penis into her vagina, "not that far in". When LT began coughing into the applicant's face, he stopped and told her to pull her pants up. He told LT to send her sister, HT, into the room.
Count 6 relates to HT on an occasion when her mother was not at home, and HT was with the applicant in his bedroom. A pornographic video was playing on the television in the room. The applicant rubbed his exposed penis against HT's vagina. The sentencing judge could not be satisfied to the criminal standard that HT's vagina was also exposed, and the applicant was sentenced on the basis that the contact was against the child's clothing. HT told the jury this sort of conduct happened more than once, and sentence was imposed on the basis that count 6 was not isolated.
Her Honour regarded these facts as representing "very serious objective criminality".
The applicant had been in custody referable to these matters since 28 November 2016, and the sentencing judge recognised that feature by commencing the aggregate sentence on that date.

The Crown Case on Sentence

The Crown tendered the applicant's criminal histories from Tasmania, Western Australia, and New South Wales.
The applicant's Tasmanian record commenced with a 1999 conviction for a 1998 car stealing offence. Also, in 1999 the applicant was sentenced for aggravated burglary, assault, stealing, and destroying property, together with some traffic offences, receiving community service orders amongst other penalties. Further traffic offences occurred in 2000. In 2008 the applicant was given a suspended custodial sentence for assault, stealing, dishonestly obtaining a financial advantage, trespassing, using abusive language, and failing to comply with a direction. Offences of contravening a notice and failing to comply with a direction, also in 2008, attracted fines.
The applicant breached the terms of the suspended sentence imposed in 2008 and was re-sentenced in 2010. He was sentenced for other offences in the same year, receiving a further suspended custodial sentence for offences of common assault; and fines for resisting arrest, resisting a police officer, assaulting a police officer, and disorderly conduct. Another charge of disorderly conduct was dealt with by way of a fine in 2011.
In 2013 the applicant pleaded guilty to resisting a police officer and a suspended custodial sentence was imposed. In 2014 the applicant breached the community service orders and suspended sentences previously imposed, and he was resentenced to further suspended terms of imprisonment. A drink driving offence and some traffic infringements were similarly dealt with. The applicant's last Tasmanian conviction was for common assault, recorded on 27 July 2016, and penalised by a community service order.
The applicant's Western Australian criminal history records convictions from 2002 to 2007, for offences including possession of a prohibited weapon, assaulting a police officer, receiving, possessing a controlled weapon, common assault, burglary, criminal damage, assault occasioning actual bodily harm, and aggravated burglary. He received sentences including community service orders, suspended custodial sentences, and full-time imprisonment.
In this State, the applicant has a conviction from 2008 for property damage, penalised by a fine.
A Pre-Sentence Report ("PSR") dated 21 February 2018 was before the sentencing court. The author noted the applicant's failure to comply with community-based sentencing orders in other states, observing that, since entering custody, the applicant had incurred one institutional infringement for fighting, and was regarded as "a management problem".
The applicant told the report author that his childhood had been disrupted by domestic violence and alcoholism, and by his family's peripatetic lifestyle. He had begun using methylamphetamines at age 20 and continued using this drug until he was about 27 years old. He also used cannabis, and this continued until his 2016 arrest for these matters. At the time of sentence, the applicant was aged 36, and had been residing in Tasmania with his current partner and their child. He was unemployed.
The applicant denied the commission of the offences and claimed to have no sexual interest in children. He did not see his drug use as a problem. He was assessed as presenting a medium/high risk for general re-offending, and above average risk of sexual re-offending. Following a psychological assessment, the applicant was regarded as having problems with self-regulation and impulsivity, hostile beliefs towards women, and limited pro-social supports. He displayed limited insight.
Victim Impact Statements prepared by LT and HT were provided to the sentencing court. Each statement is a distressing account of severe emotional trauma leading to ongoing disturbance. LT spoke of the nightmares that disrupted her sleep, leaving her constantly tired; and the flashbacks and emotional numbness to which she was prone. She said she is always anxious and tense, unable to trust others, and perpetually on guard, with panic attacks leaving her feeling unable to breathe. She suffers with an eating disorder and depression, thinks about suicide, and feels anger and guilt at what happened to her, and for what she sees as her failure to protect her sister. Her education was adversely affected. LT is prescribed anti-depressants.
HT also described feelings of ongoing fear and being perpetually on guard for danger. She suffers terrible nightmares and flashbacks and has developed debilitating physical symptoms associated with trauma, including seizures. HT's education has been disrupted, and she struggles with suicidal feelings. She has a history of self-harming and has been hospitalised on occasion after suicide attempts. HT is also prescribed medication for depression and sleeplessness.

The Subjective Case on Sentence

The applicant relied upon a psychological report from Dr Derek Gilligan dated 19 February 2018.
Dr Gilligan recorded the applicant's continuing denial of his responsibility for the offences. The applicant conceded having a criminal history for "a handful of offences" but claimed that these offences were committed against police officers, or men who "deserved it". He gave Dr Gilligan a history of being the youngest of four children, and growing up effectively as an only child, after his older siblings left home. He said his mother had not been the best mother, and the family moved frequently as she entered or left a relationship. The applicant said that his mother was physically abusive.
The applicant told Dr Gilligan that he had done well in primary school, although he was suspended from time to time in high school for fighting. He left school in Year 11 with "good grades", being subsequently unemployed for some years. He had intended to set up as a tattoo artist prior to his arrest. The applicant acknowledged having used amphetamines from age 16 years, and binge drinking in his younger years. He said he was a regular user of cannabis, a habit he did not regard as problematic. He reduced and then ceased amphetamine use after entering a relationship with his current partner, as she disapproved. The applicant reported a stable relationship for eight years prior to sentence.
At about age 30 the applicant was prescribed an anti-depressant because, he said, his "life had not turned out how [he] wanted". He had stopped taking the medication when his child was born but began using it again after having been charged with respect to these matters. He acknowledged associating with anti-social elements, with Dr Gilligan observing that he had "some anti-social personality pathology in his past", under control for the previous five or six years.
Dr Gilligan concluded that the applicant appeared to have moved "towards becoming a responsible father and partner for his family" who, despite having "a number of criminogenic risk factors for general and violent offending", was estimated as at "very low" risk of future offending.

The Remarks on Sentence

Her Honour assessed the offences as involving very serious criminality. She concluded that, in each instance, the complainant had been betrayed by her stepfather, with whom the children lived [in a domestic and familial relationship]. The breach of trust was grave and reprehensible. Citing Lee J in R v Dent (Court of Criminal Appeal (NSW)), 14 March 1991, unrep), the sentencing judge noted the abandonment of the role as a carer that was involved where an adult family member molested a child, as was said in Dent, "in order to gratify his lust on the child".
With respect to counts 1 to 4, the offences against LT, her Honour had regard to LT's young age, being 5 or 6 years old, in the context of an offence capturing children under the age of 10 years; and the disparity between her age and that of the applicant, who was 24 or 25 years old at the time. Noting that counts 1, 2, and 4 involved penile-vaginal intercourse, and count 3 oral intercourse, her Honour concluded: "In my view there is little differentiation between the criminality in respect of counts 1, 2, 3, and 4, and notwithstanding the different type of intercourse in circumstances where, in relation to count 3, the offender ejaculated."
Her Honour concluded that these offences fell within the middle of the range of objective gravity for offences of this nature.
Her Honour also found that count 6 fell in the middle of the range for an offence of aggravated indecent assault, noting HT's very young age, the disparity between her age and that of the applicant, and the nature of the physical act, being rubbing of the applicant's penis against the child's vagina.
With respect to statutory features of aggravation referred to in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge concluded that those at ss 21A(2)(eb) and 21A(2)(k) had been made out; respectively, that the offences occurred in the home of the children; and that the applicant abused a position of trust.
Her Honour summarised the contents of the Victim Impact Statements given by LT and HT, which included suicidal thoughts and, in HT's case, suicide attempts, observing that the offences had had a devastating effect on each of the complainants.
The applicant's lengthy criminal histories across three states were set out, with her Honour concluding that the applicant's criminal past deprived him of any entitlement to leniency.
Her Honour set out at length the contents of the psychological report in evidence, accepting on the basis of it, and in contrast to the assessment made by the author of the PSR, that the applicant's risk of reoffending was "very low". She was not, however, able to conclude that the applicant was unlikely to reoffend, observing only that he had "some prospects of rehabilitation". The applicant's continued denial of any responsibility for his offending conduct was a feature that was given some weight by her Honour in making that assessment.
A finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act was made because of the applicant's need for support upon release from prison in reintegrating into the community and leading a drug-free lifestyle.
With respect to the principle of totality, her Honour said: "Whilst counts 1 to 3 occurred during the same episode of criminality, I consider that partial accumulation is required to reflect the total criminality. Similarly, partial accumulation is also required for counts 4 and 6 to reflect the separate and distinct criminality, and the separate victim (with respect to count 6)."

The Application for an Extension of Time

In support of his application for an extension of time in which to seek leave to appeal, the applicant relies upon an affidavit of his solicitor, Ms Walz, affirmed on 21 February 2022. Ms Walz deposes that she took over carriage of the applicant's appeal in April 2020, almost two years after sentence was imposed. In the time that Ms Walz has been instructed it is clear that she has done all that she could to expeditiously ready the application for leave to appeal, by seeking out a copy of all of the material before the District Court, securing a grant of legal aid to obtain counsel's advice on merit, and subsequently filing the application. Ms Walz is not responsible for the delay in bringing the application, and the passage of time between April 2020 and 22 February 2022 is adequately explained by her in her affidavit.
The solicitors who previously acted for the applicant could not assist Ms Walz in explaining the 22-month period in which it appears that little was done to further the application. The solicitor who previously had carriage of the matter could only tell Ms Walz that he could not recall the reason for the delay in filing. It should not be necessary for a solicitor to have to "recall" the circumstances surrounding the commencement, or failure to commence, an appeal; thorough file notes should record all relevant information and provide a proper contemporaneous record of events. It is entirely unsatisfactory that the applicant's previous solicitor seemingly had no or inadequate file notes to assist his memory, leaving this Court with no information at all to account for the early failure to pursue the application within time.
The absence of any explanation for such a lengthy delay in bringing this application is a matter that militates against an extension of time. It is only the seriousness of the crimes, the length of the aggregate sentence imposed, and the possible blamelessness of the applicant personally for the delay that persuades me that an extension of time should be granted.

The Application for Leave to Appeal

The applicant's complaint and the basis of his application for leave is that the aggregate sentence imposed upon him is manifestly excessive. He referred the Court to the decision of TO v R [2017] NSWCCA 12 and argued that some of the features referred to in the judgment of Fagan J as indicating a high level of seriousness for an offence contrary to s 66A of the Crimes Act did not feature in his offending, and thus the sentence was excessive. The applicant relied upon the following features in support of that submission: 1. There was no pattern of systematic abuse; 2. The duration of each offence was short; 3. The degree of penetration with respect to the s 66A offences was limited; 4. The offences were not accompanied by threats or violence; 5. There was no physical injury caused to the child; 6. The offending was not planned, and it did not occur in front of other children; 7. There was no grooming behaviour; and 8. The applicant was not the natural father of the children.
Some of the same considerations are argued to be relevant with respect to the s 61M(2) offence, being those noted at [45(2), (4), (5), (6), (7), and (8)] above. Further, the applicant contends that the nature of the act, contact between his penis and HT's vagina in circumstances where the sentencing judge could not be satisfied beyond reasonable doubt that HT's underpants had been removed or lowered, warranted a lower penalty than that imposed.
The applicant submits that, when those objective features are considered in conjunction with his subjective case, the aggregate sentence is demonstrated to be excessive. Citing sentencing statistics that record a head sentence greater than 10 years for a s 66A offence in only 30% of offenders, he also relies upon what are said to be excessive indicative sentences, leading to the excessive aggregate sentence.
Finally, the applicant contends that the level of notional accumulation between the indicative sentences points to an erroneously high aggregate sentence.
The Crown disputes the use made by the applicant of the decision in TO v R, arguing that Fagan J did not, in his judgment, intend to distil a list of features by which the gravity of a s 66A offence could be measured, and to approach the matter in that way would lead to a "check-box exercise" that would promote the assessment of the seriousness of individual crimes by reference to features that, if present, would heighten their gravity.
The Crown submitted that those features that were present, and to which her Honour had regard in determining the sentence to be imposed, supported the conclusions reached in the District Court as to the gravity of the crimes, and justified the aggregate sentence imposed. The statistical comparison was unhelpful, particularly in circumstances where the argument relied upon statistics for single offences to impugn an aggregate sentence imposed for multiple offences. The totality argument is submitted to be flawed, in that the approach taken by the sentencing judge was open to her Honour.

Consideration

The principles that apply to a complaint of manifest excess are well established; they may be found stated in many decisions of this Court, including Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J; Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing); and Hughes v R [2018] NSWCCA 2. In the latter, the Court said at [86]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: 1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; 2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; 3. it is not to the point that this Court might have exercised the sentencing discretion differently; 4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and 5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust."
Where a complaint of manifest excess relates to an aggregate sentence, it is the aggregate term to which attention should be given, as R A Hulme J observed in JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]: "[…] The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence […] A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures" (enumeration and citations omitted).
It is for the applicant to establish that there has been some misapplication of principle which has led to the imposition of a sentence that is so far outside the available range of sentence as to be plainly unjust. That conclusion is not reached simply because the judges comprising the Court may have imposed a different sentence to that imposed at first instance. As Bell P (as his Honour then was) said in Byrne v R; Cahill v R [2021] NSWCCA 185 at [1]: "… A sentence will not be disturbed for the simple reason that members of the Court of Criminal Appeal may have taken a more lenient or harsh view of the matter, were they conducting the sentencing hearing, than the sentencing judge. Something more must be shown that warrants appellate interference with the sentencing judge's discretion, as the famous decision in House v The King (1936) 55 CLR 499; [1936] HCA 40 makes plain."
These are the principles to be applied in considering the applicant's proposed ground.
The process of considering the applicant's proposed ground must be, to a degree, an instinctive one, as is the procedure for determining sentence at first instance. Just as there is no single or mathematically correct sentence that should be imposed by a sentencing court, there is no mathematical equation by which an intermediate appellate court can conclude that a sentence is manifestly excessive or inadequate. The Court may be informed by considering sentencing statistics and other decided cases, or by conjecturing as to the level of notional concurrence or accumulation that may underlie an aggregate sentence, but questions of the excessive or inadequate nature of a sentence are matters for evaluative judgment. Considering all of the facts and circumstances that apply in a particular case, and having regard to the applicable principles of law, is the sentence imposed so far outside the acceptable range of sentence that it is erroneous?
In commencing that evaluative exercise, it is useful to turn immediately to the statutory guideposts that are important to the imposition of a proper sentence for the applicant's crimes: see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The four counts contrary to s 66A of the Crimes Act carry a maximum sentence of 25 years imprisonment. By the Table to Division 1A of the Crimes (Sentencing Procedure) Act a standard NPP of 15 years applies. For count 6, an offence contrary to s 61M(2) of the Crimes Act, a maximum penalty of 10 years imprisonment and a standard NPP of 8 years imprisonment are applicable. The maximum penalty applicable to the offences represents the upper end of the range of sentence for the applicant's crimes, with the qualification that the maximum sentence is reserved for those examples of the offence type which are found to be of the highest objective gravity.
The applicant's offences were found by the sentencing judge to fall within the middle of the range of objective gravity: there is no discordance between those conclusions - about which no complaint is made - and the indicative sentences announced. Neither is there anything in the NPP specified for each offence by the indicative sentences that strikes a jarring note when considered in light of the standard NPP. The gravity of the crimes is, in my opinion, properly reflected by the individual indicative sentences.
Whilst the applicant relied upon sentencing statistics, and statistics can be of some very limited use in considering a complaint of manifest excess or inadequacy, in the way described in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41], per French CJ, Hayne, Kiefel and Bell JJ, the utility of the exercise is sharply qualified in this instance by the comparison between sentencing statistics referable to single offences, and an aggregate sentence imposed for multiple offences. Even with that significant qualification, the statistics do not support the applicant's contention, since it fixes both the indicative sentences and the aggregate sentence within the statistical range. At least one of those matters caught in the statistical material reflects the imposition of a penalty greater than that in question here.
The applicant relies significantly upon the absence of features referred to by Fagan J in TO v R at [252] to argue that both the indicative sentences and the aggregate sentence are manifestly excessive. The relevant passage is as follows: "In fulfilling their duty to give effect to the will of the Legislature in this regard the courts have recognised significant variation in the degree of objective seriousness which may be exhibited from one instance of this crime to another. Any form of sexual intercourse with a child under 10 years is an appalling act but it may, for example, be much worse when accompanied by violence and induced fear or when it is part of a repetitive course of abuse. The crime may be more serious if the victim is of an age well below 10 years rather than just below. If the perpetrator is a close family member, for example the child's natural father, the offence may be objectively worse because of the greater damage that may be done to the child's sense of security. There are numerous other variables."
That argument, however, misapplies what was said there and overlooks his Honour's repeated use of the word "may". In referring to features that might be present in s 66A offences, his Honour was doing no more than making the point that, whilst all such offences reflect "appalling" acts, the seriousness of individual instances will vary depending upon the particular circumstances. The features mentioned by his Honour were merely examples of circumstances that may be present in particular cases, and may elevate the gravity of the crime; they were not set out as a checklist by which the gravity of all s 66A offences can be determined.
It is unhelpful, as well as contrary to authority, to seek to diminish the gravity of a crime by reference to what it is not. It does not make a s 66A offence less serious because it was not accompanied by violence for example, a point repeatedly made in this Court. In Faehringer v R [2017] NSWCCA 248 I referred to some of those decisions and the principles derived from them, at [49]-[50]: "That no violence or threat of violence was alleged against the applicant is why he does not stand charged with more serious offences; it cannot operate to make the charged offences less serious. This Court has expressed that principle on numerous occasions. Most recently, in R v CTG [2017] NSWCCA 163, this Court allowed a Crown appeal where the sentencing judge had erroneously concluded that sexual assault offences were less serious because of the absence of violence. At [60] - [63] Hoeben CJ at CL (with whom R A Hulme J and I agreed) said: "It was not appropriate for his Honour to take into account the absence of actual bodily harm and the absence of force and coercion as matters in mitigation of the offending so as to impact directly upon an assessment of objective seriousness. If there were any doubt on that issue, it was clarified in such decisions as Bravo v R [2015] NSWCCA 302 and Mills v R [2017] NSWCCA 87. In Bravo v R, R A Hulme J (Beazley P and Johnson J agreeing) said: '45 … Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: "[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse".' In Mills v R, R A Hulme J (Leeming JA and Beech-Jones agreeing), in addition to referring again to Grove J's statement in Saddler, said: '57 Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], "In plain language, it does not make what has been done by an offender less serious because it could have been worse'."
See TM v R [2018] NSWCCA 88 at [65]; GW v R [2018] NSWCCA 79 at [31]; Tindall v R [2019] NSWCCA 136 at [8]; Gibbons (a pseudonym) v R [2019] NSWCCA 150 at [30]; R v LS; R v MH [2020] NSWCCA 148 at [150]; and Yaman v R [2020] NSWCCA 239 at [120] for further statements of the same principles.
That there was no systematic abuse or grooming of, or physical injury inflicted on, the children is irrelevant to the gravity of the crimes for the same reasons. Had there been systematic abuse a different charge, likely one pursuant to s 66EA of the Crimes Act, would have been available, probably in addition to the charged and particularised offences, exposing the applicant to a higher penalty. Had injury been occasioned to either child during the commission of any of the individual offences, other additional or alternative charges would have been available. Evidence of grooming would have aggravated the gravity of the offences; its absence does not lessen the gravity of the crimes.
Similarly, it does not make a s 66A offence less serious because it was not committed by a victim's natural father; that will depend upon the circumstances. Here, the applicant had lived with LT and HT since the children were little more than babies, and he had filled the role of a father-figure for most of their young lives. That he was not the biological father of the children was irrelevant to the assessment of the gravity of his crimes. What was relevant was the grave breach of trust inherent in the offences, committed as they were by a man who formed part of the children's day-to-day family environment, and stood in the position of a father. These are features that elevated the seriousness of the charges.
The limited duration of the offences was a matter of little or no significance in assessing the gravity of the crimes; it was not a feature that made the offending less serious. For HT, whose evidence was that the charged offence was one example of events that happened repeatedly, the duration of the individual assault upon her could have made no difference to the horror of the experience. For LT, the frightening nature of what occurred on each occasion, the three acts of intercourse inflicted upon her one after the other on the first occasion and their varied nature, and the fear that must have accompanied the fourth separate attack, would not have been lessened by what might later be categorised in a court as the short duration of the crimes.
The point was recently re-stated in R v Lau [2022] NSWCCA 131, where Bellew J observed, at [82]: "Although the time over which the individual instances of offending took place may not have been an entirely irrelevant consideration, it was of limited significance. It has been observed by this Court on numerous occasions that offending of this nature is capable of having profound, long-term, and generally deleterious effects upon victims, both physically and psychologically. The victim impact statements tendered in this case provide a ready example of those effects. As Leeming JA said in Cowling v R: "The statement of agreed facts does not disclose how many seconds or minutes passed during which the assault took place, although its short duration (if that was what it was) would not ordinarily be regarded as a factor which reduced its objective seriousness." [Footnotes omitted].
The same logic applies to the argument concerning the "limited degree of penetration" relevant to the s 66A offences. To LT, who at age 5 or 6 might be expected to have known little of such matters, the degree of penetration would have been entirely irrelevant to the shock and distress of the experience. With respect to count 1, the degree of penetration, whatever it was, was sufficient to hurt LT, who asked the applicant to be "more gentle". His response was to move "harder and harder". That can hardly be a mitigating feature. The oral penetration the subject of count 3 continued until ejaculation, with some of the ejaculate landing in LT's mouth. There is no reason to suppose that the penetration on that occasion was of a mitigatingly limited nature.
Whilst an extended episode of intercourse may serve to elevate the objective gravity of a s 66A offence, the converse does not apply. The offences are made out by penetration to any degree.
There was no evidence before the sentencing court as to planning and her Honour made no finding in that regard. I would not conclude on the unchallenged factual material that these were unplanned offences. There is at least some evidence - in the correspondence between the occurrence of the offences and the absence from home of the complainants' mother - to suggest at least some planning or forethought. There is nothing to support the conclusion that the offences occurred spontaneously, and the sentencing judge made no such finding.
In short, the absence of the features the applicant referred to, as cited in TO v R, does not serve to lessen the gravity of the offending acts. Gravity falls to be assessed by the features that were present, and not by reference to those that were not.
The final matter raised by the applicant is that of the level of accumulation that the aggregate sentence suggests. As has been previously observed in this Court, it is difficult to accurately determine the level of concurrence or accumulation as between indicative sentences from the aggregate sentence imposed. In Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 Button J said, at [231]: "[…] it is clear that the process of aggregate sentencing, unlike traditional sentencing, does not permit of a mathematical analysis of the degrees to which partial and complete concurrence or accumulation have been adopted by a sentencing judge. All one can really do is look at each of the individual offences for which the offender was to be dealt, consider the indicative sentences […] and then determine whether the aggregate head sentence and aggregate non-parole period are erroneous in light of that background. The whole point of aggregate sentencing is to free sentencing judges from the task of creating elaborate sentence structures. A logical consequence of that is that this Court is not in a position to undertake an analysis of explicit questions of concurrence and accumulation in the same way that it can analyse traditional sentencing structures."
Given that the indicative sentences announced by the sentencing judge amount to a total of 43 years imprisonment with 28 years by way of NPP, the aggregate term of 17 years imprisonment with an 11-year NPP clearly incorporates a significant level of concurrence. The applicant argues that, particularly with respect to counts 1, 2, and 3, which occurred in one course of criminality, the aggregate sentence suggests an inadequate level of concurrence. That contention does not hold good in my opinion.
The principles that apply to questions of concurrence and accumulation are well settled, and they do not amount to a process of applying a mathematical formula. In Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, Howie J said, at [27]: "[…] there 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."
In this case there were two victims and the sentence for the offences against one child could not reflect any part of the offending against the other; only the principle of totality allowed for some concurrence. Similarly, the sentence imposed with respect to counts 1, 2, and 3 could not reflect the separate incident the subject of count 4. Even for those offences that occurred during the same incident, counts 1, 2, and 3, some accumulation was necessary to reflect the three different acts of intercourse, and the additional harm done to the complainant with every further assault upon her. I am not persuaded that there was error in the application of the principle of totality leading to an excessive aggregate sentence.

Conclusion

The sentence imposed upon the applicant was stern but within the available range of sentence for serious offences such as these. I propose the following orders: 1. Grant an extension of time until 22 February 2022 in which to file an application for leave to appeal; 2. Grant leave to appeal; 3. Dismiss the appeal.

Endnotes

In the remarks on sentence the NPP for count 3 was given as 6 years. However, the sentence Continuation Sheet, signed by Judge Bright, and the District Court's electronic record, both give the NPP as 6 years and 6 months. Presumably, there is an error in the transcript of the remarks.
At the time of the commission of the offences the standard NPP was 5 years. However, Schedule 2 to the Crimes (Sentencing Procedure) Act 1999 (NSW) provides for the application of the SNPP applicable at the time of sentence for this offence, a period of 8 years.

Amendments 24 August 2022 - Typographical error amended in [46]. 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: 24 August 2022

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