SR v R

Court of Criminal Appeal (NSW)|2024-05-29|Before: Harrison CJ, Garling J, McNaughton J

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, SR, pleaded guilty to eight child sex offences contrary to the Crimes Act 1900 (NSW). An additional seven Form 1 matters were taken into account on sentence. Between 2000 and 2021, the applicant engaged in sexual activity with six children, which included his biological daughter as well as the children of two partners and friends of those children. The proceedings on sentence were held on 3 February 2023. The sentencing judge was provided with both oral and written sentencing submissions. The applicant contended that an aggregate sentence of seven to nine years' imprisonment should be imposed with a finding of special circumstances made to vary the statutory ratio by a significant degree. After oral exchanges between the sentencing judge and counsel for the applicant, his Honour remarked that he had no difficulty with special circumstances. He concluded by asking the applicant's counsel whether there was anything further he wished to say, which opportunity the applicant declined. In the remarks on sentence, his Honour accepted that the sentence should reflect the totality of the offending. It was also observed that considerable accumulation was required as the offending related to multiple victims and did not take the form of a single course of conduct. It was also recorded that the statutory ratio would not be varied. On 2 March 2023, the applicant was sentenced to 16 years' imprisonment with a non-parole period of 12 years. The applicant sought leave to appeal against his sentence on two grounds: Ground 1: The applicant was denied procedural fairness in respect of his Honour's findings regarding special circumstances. Ground 2: The aggregate sentence imposed was manifestly excessive. The Court (McNaughton J, Harrison CJ at CL and Garling J agreeing) held, granting leave to appeal but dismissing the appeal: As to Ground 1: The proposition that the applicant was denied procedural fairness raises a consideration of substance rather than form. The sentencing judge stated that he had no difficulty with special circumstances in the context of clarifying various aspects of the applicant's written submissions. The remarks were not an indication that the sentencing judge would make a positive finding of special circumstances but, rather, demonstrated that his Honour understood the contentions made by the applicant. There was no denial of procedural fairness to the applicant: per McNaughton J at [88]-[90], [92]-[93] (Harrison CJ at CL agreeing at [1]; Garling J agreeing at [2]-[6]). Dang v R [2014] NSWCCA 47, applied. As to Ground 2: The remarks on sentence were thorough and considered. The sentencing exercise involved several complainants, matters on a Form 1 and a lengthy period of offending. It was appropriate for the sentencing judge to allow a degree of notional accumulation without imposing a "crushing" sentence. The sentence reflects the totality of the criminality involved and is not manifestly excessive: per McNaughton J at [96]-[100] (Harrison CJ at CL agreeing at [1]; Garling J agreeing at [2], [7]). AA v R [2024] NSWCCA 132; JM v R [2014] NSWCCA 297; Kelly v R [2023] NSWCCA 104, referred to.

JUDGMENT

HARRISON CJ at CL: I agree with McNaughton J and the orders that she proposes.
GARLING J: I agree with the orders proposed by McNaughton J, and with Her Honour's reasons. I wish to emphasise some matters which have led me to agree with her Honour's reasons for judgment.
The context for the sentencing judge's remark "I don't have any difficulty with special circumstances" which gives rise to Ground 1 of the proposed appeal, was, as is clear from the exchanges set out by McNaughton J in [59] and [60], that he had not completely read Counsel's written submissions, and so he embarked on a course of going through the submissions with counsel to ensure that he understood them, and could ask questions to clarify any matter if he wished.
The content of this exchange, in my view, did not provide the occasion for the sentencing judge to express any conclusion to which he had come about the submissions. Nor could counsel reasonably understand that to be so. Particularly is this so, as his Honour's concluding remarks make plain, that he had (by then) read the submissions and asked all the questions which he wished. He then added: " Is there anything else you wanted to say ?". Counsel had the opportunity to make any further submissions which he wished. He declined that opportunity.
As well, the reduction in the statutory ratio contended for by the applicant in writing required favourable factual conclusions with respect to the applicant's prospects of undertaking counselling to enhance rehabilitation and reintegration into the community for a period which exceeded the parole period assessed by reference to the statutory ratio. The sentencing judge was not persuaded to make those findings. It is not contended now that any error or unfairness occurred in this aspect of the sentencing judge's remarks.
As with McNaughton J, I conclude that no substantive injustice has occurred.
I have nothing to add with respect to Her Honour's reasons dealing with Ground 2.
McNAUGHTON J: The applicant seeks leave to appeal against the aggregate sentence imposed upon him by his Honour Wilson SC DCJ ("the sentencing judge") at Gosford District Court on 2 March 2023, for a series of child sexual abuse offences committed against six complainants over about a 20 year period. The applicant was sentenced to 16 years' imprisonment with a non-parole period ("NPP") of 12 years, backdated to commence on 29 September 2021.
The offences for which the applicant was sentenced, together with the maximum penalties, Form 1 offences and indicative sentences are as follows: Sequence Offence Maximum penalty Indicative sentence Victim: TH Seq 3 Incite child under 10 years (5 or 6 years) to sexual touching 16 years' imprisonment 4 years, NPP 3 years Crimes Act 1900 (NSW), s 66DA(b) Standard non-parole period ("SNPP") 8 years Form 1 to Seq 3 (Seq 1) Sexually touch a child under 10 years (5 or 6 years) Crimes Act, s 66DA(a) Victim: EH Seq 15 Act of indecency with person under 10 years (7 or 8 years) 7 years' imprisonment 3 years Crimes Act, s 61O(2) No SNPP Seq 6 Indecent assault of child under 10 years (9 years) 10 years' imprisonment 3 years Crimes Act, s 61M(2) No SNPP Seq 14 Aggravated (under authority) sexual intercourse with child of or above 10 years and under 14 years (12 or 13 years) 20 years' imprisonment 8 years Crimes Act, s 66C(2) No SNPP Form 1 to Seq 14 (Seq 8) Aggravated (person under 16 years) indecent assault of person (12 or 13 years) Crimes Act, s 61M(1) Form 1 to Seq 14 (Seq 9) Aggravated (person under 16 years) indecent assault of person (12 or 13 years) Crimes Act, s 61M(1) Victim: AC Seq 12 Indecent assault of person under 16 years (7 years) 10 years' imprisonment 3 years, NPP 2 years 3 months Crimes Act, s 61M(2) SNPP 8 years Form 1 to Seq 12 (Seq 10) Indecent assault of person under 16 years (7 years) Crimes Act, s 61M(2) Form 1 to Seq 12 (Seq 16) Act of indecency with person under 10 years (8 years) Crimes Act, s 61O(2) Victim: AD Seq 17 Intentionally sexually touch child of or above 10 years and under 16 years (12 years) 10 years' imprisonment 2 years Crimes Act, s 66DB(a) No SNPP Form 1 to Seq 17 (Seq 19) Intentionally sexually touch child of or above 10 years and under 16 years (12 years) Crimes Act, s 66DB(a) Victim: EC Seq 20 Intentionally sexually touch a child under 10 years (8 years) 16 years' imprisonment 2 years, NPP 18 months Crimes Act, s 66DA(a) SNPP 8 years Form 1 to Seq 20 (Seq 21) Intentionally sexually touch a child under 10 years (8 years) Crimes Act, s 66DA(a) Victim: AW Seq 22 Intentionally sexually touch child of or above 10 years and under 16 years (12 years) 10 years' imprisonment 1 year Crimes Act, s 66DB(a) No SNPP

The applicant relies on two grounds of appeal: 1. Ground 1: The applicant was denied procedural fairness in respect of his Honour's findings regarding special circumstances. 2. Ground 2: The aggregate sentence imposed was manifestly excessive.
For the following reasons, in my view, neither of the two grounds is made out.

Facts of the offending

A Statement of Agreed Facts was tendered. The facts set out in the remarks on sentence were in accordance with that document, to the following effect.
The applicant was born in December 1968. He was sentenced for sexual offending against six children, one of whom was his biological daughter, EH (born in 1993). The offending took place over about 20 years.
There were eight separate charges, and a further seven matters to be taken into account across five Form 1s. The applicant had been in intimate relationships with the mothers of three of the other victims (TH, born in 2014; AC, born in 2008; and EC, born in 2013) and they had lived in the same home as him.
The other two victims, AD (born in 2009) and AW (born in 2008) were friends of AC and were not otherwise connected to the applicant.

TH offending (aged 5 or 6 at the time of offending; age differential about 45 years)

TH's mother was in a relationship with the applicant in 2019-2020. Around March 2020 they moved into the applicant's residence in Gosford.
Sequence 3, sometime between March and June 2020, involved the applicant telling TH to touch his penis while they were in the bath together. When she refused, he grabbed her hand and placed it on his penis.
The offence to be taken into account on a Form 1 (Sequence 1) involved the applicant touching TH's vagina when they were in the bath together.

EH offending (aged between 7 and 13 at the time of offending; age differential about 24 years)

As a result of the investigation into TH, the police became aware of a 2006 investigation into the child sexual assault upon EH (the applicant's biological daughter) by the applicant. EH's mother was in a relationship with the applicant on and off between 1991 and about 2001.
EH can recall the earliest offending when she was aged either seven or eight years of age, when they were living near Cessnock in New South Wales. The applicant lived with his mother in a two-storey residence at Woy Woy for a few months at some stage between 2002 and 2003. When EH visited the applicant at that Woy Woy residence, she would sleep in the same bed as the applicant.
As to Sequence 15, sometime between 6 March 2000 and 6 March 2002, when EH was seven or eight years old at the address near Cessnock, EH's brother had an allergic reaction and was taken to hospital by their mother, where they stayed overnight. EH's two other siblings had been put to bed, leaving just EH and the applicant awake at home. The applicant had a shower and came out with the towel wrapped around his waist. He and EH were watching a film. The applicant sat in a reclined position on the lounge next to EH. EH felt itchy all over her body because her nightgown had fleas from their dog. The applicant told EH to remove her nightie, which she did, leaving only her underwear.
She lay with her head on the applicant's lap or stomach. The applicant opened his towel and exposed his erect penis near EH's head. He asked her to touch it, which she did using her hand.
After the relationship between the mother and the applicant ended around 2001 or 2002, the children primarily lived with their mother, but continued to spend time regularly with the applicant.
As to Sequence 6, between 6 March 2002 and 6 March 2003, at an address in Empire Bay, EH was at the applicant's house visiting her siblings. They were asleep on the applicant's bedroom floor. The grandparents were in the living room watching television. The applicant and EH were in his bed. She was aged around nine. He rubbed her vagina inside her underwear on the outside of her vagina. She said she experienced feelings which were new to her and she constantly felt as though she needed to go to the toilet but, in fact, did not actually need to.
As to Sequence 14, sometime between 1 January 2005 and 30 April 2006, EH was at the applicant's house at Woongarrah, either in her bedroom or the applicant's bedroom, reading a book. She was between 12 and 13 years old. The applicant came into the room while EH was lying on her back reading. He lay on the bed and performed cunnilingus on her.
The following offences were on the Form 1 in relation to Sequence 14.
Sequence 8 immediately followed Sequence 14, the act of cunnilingus. The applicant wanted the victim to touch his penis. He unzipped his pants, removed the tip of his penis, and exposed it to her. He took hold of her hand and had her stroke his penis a couple of times. The victim went limp to pretend that she was asleep and as if nothing was happening.
Sequence 9, the other matter on the Form 1, occurred when EH was between 12 and 13 years old. The applicant and EH were watching a movie on the floor at the applicant's house. They were both under a blanket facing each other almost stomach to stomach but not completely on their sides. The applicant had EH cuddled up next to him with his arm around her and her head resting on his chest. The applicant slid his hand under her shirt and moved it towards her chest. He then kissed her on her mouth and neck. EH looked over the applicant's shoulder towards the stairs and thought: "What would happen if the kids came down?".
Around May 2006, EH disclosed the offending to her uncle, her mother and the police.
EH wrote a long message to her uncle stating that she was being molested by her father. The uncle subsequently phoned the mother who then talked to EH. EH could not vocalise what was happening when speaking with her mother as she was too upset and crying, so she wrote on a tissue: "when I was younger Dad molested me", with an unhappy face. Notwithstanding the involvement of the police, nothing was done about the applicant at that time.

AC offending (aged 7 and 8 at the time of offending; age differential about 39 years)

AC's mother met the applicant around 2014 and they were in an intimate relationship at time. In 2016, the mother and her two daughters AC, then aged seven, and EC aged about two to three years, resided with the applicant at an address at Kariong for about six months between June and November 2016.
AC and EC had two beds in a makeshift bedroom in a corner of the lounge room sectioned off by cupboards. This was opposite the applicant's bedroom which he shared with the children's mother.
Sequence 12 involved AC lying across the lounge on her back watching television. The applicant stood behind the lounge and reached over and used one hand to rub AC's breasts outside her clothing.
As to Sequence 10 (on the Form 1 to Sequence 12), the mother went out, leaving AC in the applicant's care. The applicant directed AC to sleep in his bed rather than her usual bed. AC awoke to the applicant pulling down her pyjama shorts and underwear, exposing her genitals. AC pulled her pants back up and saw the applicant lying down on his side of the bed pretending to be asleep.
Sequence 16 (also on the Form 1 to Sequence 12) involved AC lying on her bed in the makeshift bedroom. The applicant came into that room to say good night. After saying good night, he pulled the front of his pants down exposing his penis. He placed his hands on his penis and moved it up and down wiggling it around. He was laughing as he did this and AC turned her head and looked away. He then left.

AD offending (aged 12 at the time of offending; age differential of about 40 years)

After EC, AC and their mother moved out of the applicant's premises, the mother and the applicant recommenced a friendship whereby the applicant would visit her and her daughters on a regular basis over the years.
On Saturday 28 August 2021, the applicant attended the mother's address in San Remo for a gathering. The applicant was intoxicated. Throughout most of the night, AC, EC and several of AC's friends (including AD and AW) were sitting in the lounge room watching television.
Throughout the night the applicant moved between the lounge room and outside with the adults. However, he spent most of the time in the lounge room with the children AD, AW and AC. The other adults in attendance at San Remo were EC and AC's mother, her then boyfriend, and the mother of AD. Later in the night, AW's mother was also present.
In the lounge room there was one two-seater recliner lounge and two one-seater recliner chairs adjacent to each other, all of which faced the television in a row. At one stage, AD was cuddling a cat in her arms whilst sitting down on one of the one-seater recliner chairs.
As to Sequence 17, the applicant, who was sitting in the adjacent one-seater recliner chair, reached over and began touching the cat, but also touched AD on her breasts while doing so. Following this, AD's mother drove the applicant to a bottle shop at Northlakes so he could buy more alcohol. Shortly after, AD's mother and the applicant returned to San Remo. AC, AD, EC and AW began watching a movie in the living room. Whilst the applicant was sitting in the living room, he began grabbing at AD's exposed stomach.
As to Sequence 19 (on the Form 1 to Sequence 17), the applicant then touched AD on the upper thigh on the outside of her clothing with his left hand. After this, AD threatened to kick the applicant in the face and then walked away.

EC offending (aged 8 at the time of offending - sister of AC; age differential about 44 years)

Around the time of the above 2021 offending, as noted, EC was also sitting with the other girls in the loungeroom. The applicant then started touching EC on her head, back and neck.
As to Sequence 20, the applicant touched EC just above and to the side of her vagina, very close to her vagina, before she moved his hand away.
As to Sequence 21 (on the Form 1 to Sequence 20), when EC moved the applicant's hand away, the applicant touched her near her breasts. EC then said to the applicant that she needed to go to the toilet and went outside.

AW offending (aged 12 at time of offending; age differential about 39 years)

Sequence 22, around the same time as the offending against EC at San Remo, involved the applicant touching AW on the bottom while in the backyard.1 The applicant was sitting down and AW was standing. The adults were outside in the backyard around a fire pit.

Disclosure by AC

AC and AD felt uncomfortable around the applicant given his behaviour. Sometime after 10:30pm, AC informed her mother about the applicant's behaviour that night and then disclosed what the applicant did to her when they lived with him in the past.
AC attended the Central Coast Child Abuse Unit on 2 September 2021, and participated in a recorded interview where she disclosed the offending as set out above. The applicant was arrested on 29 September 2021, at Gosford Police Station.

Victim Impact Statement by EH

EH, the biological daughter of the applicant, read a Victim Impact Statement before the sentencing judge. His Honour observed that the applicant's conduct has had an ongoing and severely detrimental impact upon his daughter; his first victim.

Proceedings on sentence

The sentence proceedings were heard on 3 February 2023, and judgment was delivered on 2 March 2023.
The Crown tendered material including a Statement of Agreed Facts, the applicant's criminal history and the Victim Impact Statement of EH.
The applicant tendered a psychological assessment report prepared by forensic psychologist Sarah Brann on 25 January 2023. Included in that report was an observation that the applicant had limited self-reflective capacities. Ms Brann also noted: "Regarding [the applicant's] sexual interests, he denied any paraphilic interests or sexual preference for children or young persons. However, as will be further discussed, there is evidence to the contrary."
In terms of the offending, Ms Brann noted there was a 10 year gap between the applicant's earlier offending that was disclosed in 2006 and the further offending which occurred in 2016. Ms Brann commented that the 2021 offending "seemingly" occurred when he was unable to access adult sexual partners for casual sex due to COVID-19 lockdowns, but also noted that she was prevented from discussing the details of the sexual offences with the applicant.
As to the applicant's risk assessment, Ms Brann discussed a number of different assessments, the results of which indicated that the applicant has a moderate number of identified risk and treatment needs, likely to require a moderate level of intervention to target and reduce his sexual offending related risk. Barriers to engagement in treatment included his limited insight and accountability.
Ms Brann concluded that factors which perpetuated the applicant's sexual offending over time include: "his deviant sexual interest in children, access to potential child-victims, alcohol abuse and impulsivity, hostility towards women, weak social connections and lack of healthy sexual outlets, and a lack of negative or legal consequences for his history of sexual offending."
Both the applicant and the Crown filed written submissions on sentence.
In its written submissions, the Crown submitted the following in relation to special circumstances: "The [applicant] is 54 years of age. This is his first time in custody. The custodial penalty will be reasonably lengthy. These are factors which the court may take into account, together with any relevant subjective material, in determining whether or not to alter the statutory ratio."
In the applicant's written submissions, it was contended that an aggregate sentence of seven to nine years should be imposed "with a finding of special circumstances being also made to vary the statutory ratio by a significant degree".
Further submissions were made under headings "Objective Seriousness", "Accumulation", "Offender's Subject [sic] Case" and "Special Circumstances". Under this latter heading, the applicant submitted: "As the Crown notes in his outline of submissions (par 18) the [applicant] is now 54 years of age. This is his first time in custody and the sentence is likely to be reasonably lengthy. He will need an extended period of supervised release to further his prospects of rehabilitation and integration back into the community. The psychologist opines he would benefit from treatment of his alcohol abuse and monitoring on release, as well as sex offender treatment (if this has not already occurred in custody). Therefore, it is submitted that a finding of special circumstances should be made." (Emphasis added.)
During the course of the sentencing hearing, just before lunch on 3 February 2023, after some forthright exchanges between the applicant's counsel and the sentencing judge about the content of the psychologist's report, the following exchange occurred: "HIS HONOUR: Is there anything else in the report you want to go, take me to? [APPLICANT'S COUNSEL]: No, your Honour, but I am happy to answer any other questions your Honour might have about this. […] HIS HONOUR: I will adjourn till 2pm, and at that time we will just run through your submissions. […] LUNCHEON ADJOURNMENT HIS HONOUR: Yes. [APPLICANT'S COUNSEL]: Your Honour, before I move on to my written submissions, can I just make a couple of points for clarification about the lengthy discussion we had prior to lunch. HIS HONOUR: Yes [APPLICANT'S COUNSEL]: In my respectful submission, most of that discussion related to the [applicant's] untruths, and to the extent that they go to issues of contrition, insight and remorse. To be clear, the defence does not make submissions in mitigation on that basis. Rather, these are raised in relation to three matters. First of all, the value of the plea, secondly the assessment of the [applicant's] risk of reoffending upon release, and third, the need for an extended period of supervision upon that release. That's really it. […] [APPLICANT'S COUNSEL]: […] [T]o the extent that he clearly lacks insight, then clearly there is an underlying [sic] for supervised programs, and including an extended period of supervision upon release, your Honour, for those reasons". (Emphasis added.)
The exchange then continued: "HIS HONOUR: […] Can we just run through your submissions? [APPLICANT'S COUNSEL]: Certainly, your Honour. HIS HONOUR: Only because I've only just received them today. I'm not sure when they were filed, but I've only - [APPLICANT'S COUNSEL]: Yesterday morning, your Honour. HIS HONOUR: Thank you, so s 5 crossed. [APPLICANT'S COUNSEL]: Yes, your Honour. HIS HONOUR: 25%. [APPLICANT'S COUNSEL]: Yes. HIS HONOUR: You propose an aggregated sentence of between seven to nine years. [APPLICANT'S COUNSEL]: Yes, your Honour, that's the ultimate submission that is made. HIS HONOUR: With special circumstances. [APPLICANT'S COUNSEL]: With special circumstances, your Honour. […] HIS HONOUR: Going through your submissions, next you deal with […] […] HIS HONOUR: Yes. Have you in your submissions proposed indicative terms for each of the offences? [APPLICANT'S COUNSEL]: Your Honour, I haven't, and I have done that deliberately because clearly, the two most serious categories of offending I have identified, and I have done my best to do that. But given where I say the others fall, it is a matter for your Honour to come up with offences, the real task if I might say for the Court may, your Honour may consider to be whether or not, the extent to which these are accumulated upon each other. HIS HONOUR: Yes, I was going to come to that. […] [APPLICANT'S COUNSEL]: The two most serious offences are against his biological daughter. HIS HONOUR: Yes, so the sequence 14. [APPLICANT'S COUNSEL]: 14, and against his stepdaughter, sequence 3. HIS HONOUR: Sequence 3. [APPLICANT'S COUNSEL]: Yes. HIS HONOUR: Just let me remind myself of that. Yes, and so in relation to those two offences, have you proposed indicative terms? [APPLICANT'S COUNSEL]: I have, your Honour. HIS HONOUR: What did you propose for sequence 3? [APPLICANT'S COUNSEL]: Sequence 3, your Honour, I submitted about 30 months. HIS HONOUR: Two and a half years? [APPLICANT'S COUNSEL]: Two and a half years. I did so on, the difficulty your Honour is this, this is a new offence. It would otherwise be dealt with under legislation which would have had a maximum penalty of ten years. It is not appropriate to look at those. There is very limited, there is no reported cases on JIRS. There is only indicated sentences and ranges, and I have dealt with that as best I can and taking into account where I say that falls just below the midrange and coming up with that figure, that's as good as I can do. HIS HONOUR: There are six victims. [APPLICANT'S COUNSEL]: Yes. HIS HONOUR: That speaks against substantial concurrency. [APPLICANT'S COUNSEL]: Your Honour, in my respectful submission, there should [be] substantial concurrency under the totality principle, otherwise if your Honour were to have consecutive sentences for these matters, you would be talking decades, but. HIS HONOUR: No, I'm not. No, I'm just saying that there must be some accumulation. [APPLICANT'S COUNSEL]: I embrace that submission, your Honour. HIS HONOUR: I gather that's reflected by your indicative terms for the two charges. [APPLICANT'S COUNSEL]: It is. HIS HONOUR: Which comes to six and half years, and your overall submission that the appropriate range is seven to nine years. [APPLICANT'S COUNSEL]: Yes, that's right your Honour. HIS HONOUR: I don't have any difficulty with special circumstances. [APPLICANT'S COUNSEL]: May it please the Court. HIS HONOUR: Yes, I have read your submissions, and I have asked whatever questions I have. Is there anything else you wanted to say? [APPLICANT'S COUNSEL]: No, your Honour." (Emphasis added.)

Remarks on sentence

After referring to the facts, the sentencing judge confirmed that he had taken the Form 1 matters into account for the principal offences to which they attached. This was carried out with a view to increasing the penalty which otherwise may have been imposed in respect of the charge to which they attach. His Honour gave effect to this correctly by lending greater weight to personal deterrence and the community's entitlement to exact retribution from an offender for serious offending.
His Honour also set out the maximum penalties and SNPPs and noted they are guideposts for sentencing judges. He also noted that Sequences 14, 8 and 9 included circumstances of aggravation, namely that the relevant child was under the authority of the applicant as his biological child or stepchild.
He commented that there was no doubt this was serious offending.
The offences to which the applicant pleaded guilty commenced when he was about 32 years old and continued until he was about 53 years old. His criminal history showed a conviction of assaulting a female in 1993.
The sentencing judge stated that Ms Brann's psychological report was of limited use. It had been prepared following a conference conducted by audio visual link on 18 January 2023. The author was not required for cross-examination, nor did the applicant give evidence as to the accuracy of the contents.
The report noted that the applicant was "potentially" exposed to domestic violence within his parents' relationship prior to their separation when he was 10 or 11 years old. Because of the use of the word "potentially", the sentencing judge placed no weight on that statement. He seemed to have a good relationship with his mother and his stepfather. He moved out of home at the age of 16 to live closer to work and became more independent. His childhood and education were generally unremarkable, beginning work at the age of 15 in a car yard as a panel beater/spray painter. He intends, upon release, to reconnect with his former employer who he has known for 15 years.
The sentencing judge noted that he had an unremarkable medical history. He suffered migraines from the age of 14. He had self-harmed from the age of 50 for a few years. That was attributed by him to stress about money, employment, feeling lonely and conflict with his children. The sentencing judge noted that he did not include reference to the fact that he had sexually abused a number of his victims prior to that time.
The applicant was noted to be a big drinker, and that he had been affected by alcohol during the San Remo offending - which did not mitigate the offending.
The report further included that he had abused recreational substances such as amphetamines and cocaine once or twice a week, about 35 years ago, which he blamed on the influence of his then partner.
The report noted that it appeared the applicant lacked insight into his social difficulties. He had had eight significant romantic relationships, with six children from two relationships. His four oldest children were born between 1993 and 1996. The relationship with them broke down in 2000 due to conflict and him working six days a week. He had fortnightly contact with his children through Family Court arrangements.
He indicated to the psychologist that he had full-time custody of his two youngest children, aged 17 and 19 at the time of the psychological assessment, since separating from their mother in 2005, and that he maintained weekly phone calls to them from custody.
Included in the report was an account that the applicant had had 50 or 60 sexual partners over his lifespan, mostly involving one-night stands. The psychologist stated: "[t]his indicates that most of [the applicant's] sexual experiences have been superficial and lacked commitment or emotional connection." The applicant denied engaging in regular masturbation throughout his life, offering a preference for intercourse. He denied using pornography.
The sentencing judge then noted that the report stated the applicant's access to healthy sexual outlets in the lead up to the 2021 offending had been limited due to the COVID-19 pandemic. The sentencing judge did not accept that his access to healthy sexual outlets around that time in any way justified or excused his behaviour.
The sentencing judge recorded that the applicant had denied any difficulties initiating conversations with women in order to access sexual intimacy and had no problems initiating sex or relationships. He further denied issues indicative of difficulties inhibiting sexual impulses or social preoccupation such as the use of sex workers and infidelity.
The sentencing judge then noted the following: "Paragraph 28 of the report reads, 'Regarding [the applicant's] sexual interests, he denied any paraphilic interests or sexual preference for children or young persons'. However, as will be further discussed, there is compelling evidence to the contrary. I find the [applicant's] denial of having a sexual interest in children to be completely unbelievable and I reject it. He has demonstrated an interest in children since March 2000 and has acted upon it on a number of occasions as the facts establish. The statement he made to the psychologist was plainly a lie designed to play down or otherwise mitigate the seriousness of his offending. Plainly, he is in denial about being a paedophile. […] Notwithstanding the complete absence of any acceptance of responsibility (other than through his guilty plea) and insight into his offending, and notwithstanding his denial that he is a paedophile, the [applicant] apparently indicated to the psychologist that he would participate in any recommended sex offender or alcohol-related treatment as he was motivated to gain release from custody. The psychologist stated he is not internally or genuinely motivated towards treatment (that is, he does not identify as having problems which he believes he needs help or support in addressing.) This highlights the complete lack of insight which this offender has in respect of his offending and his sexual interest in children. It reflects poorly upon any prospects of rehabilitation and also causes concerns about the risk of reoffending. Notwithstanding the guilty plea, I am unable to find that the offender is remorseful."
The sentencing judge clearly rejected the lack of healthy sexual outlets as a reason for the applicant's offending, finding that it was due entirely to his long established deviant sexual interest in children. The sentencing judge found that, given his lack of insight, there would be no benefit from the applicant undertaking any counselling.
The sentencing judge recorded it was conceded that the Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 threshold was crossed. It was accepted that the applicant was entitled to a discount of 25% given the timing of his guilty plea. It was further recorded that a submission was put on behalf of the applicant that an aggregate sentence of seven to nine years would be appropriate. This was not accepted by the sentencing judge.
The sentencing judge recorded other submissions made on behalf of the applicant, as follows: "He warned me against double counting in relation to the abuse of trust and authority. I accept that submission. He made submissions concerning the objective seriousness of the offending, and also made a submission concerning special circumstances suggesting that as it is the [applicant's] first time in custody, I ought to vary the ratio of parole to non-parole so as to release the [applicant] from prison earlier. As will be apparent, the sentence which I intend to impose is one which will leave the [applicant] with a sufficient period on parole to deal with any questions of reintegration or treatment. So, even if I were to find special circumstances, I would not vary the ratio."
The sentencing judge then proceeded to undertake a detailed consideration of objective seriousness of the offences. In doing so, he noted matters including: the relationship of the victims to the applicant, the ages of the victims at the time of the offending and relative ages of the victims as compared to the ages contemplated by the relevant offence provision, the nature of the physical contact, the location of the offending and the presence of breach of trust and authority where relevant.
The sentencing judge also dealt with, in turn, the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. His Honour found, in addition to the need for adequate punishment and general deterrence, the need for specific deterrence was heightened by the obvious absence of remorse or insight on the part of the applicant. The sentencing judge also noted the psychologist's remarks that the offending was becoming more brazen, in that he was offending against people other than those with whom he had a familial relationship, thus highlighting the need for protection of the community. He also stated: "[h]e has taken advantage of a class of persons, perhaps the most vulnerable members of our community, namely children, and, in particular, his own daughter." As to rehabilitation, the sentencing judge noted the complete absence of insight, and placed little weight on this factor. As to accountability, as he had shown no remorse, "[t]he sentence therefore must be stern and directed towards making him accountable for his conduct. Something which [he] has to date not been willing or prepared to do other than through his guilty plea". The sentencing judge also addressed the need for stern denunciation of the applicant's conduct and finally to recognise the harm done to the victims and the community.
The sentencing judge again addressed the issue of special circumstances: "Whilst I acknowledge that there are circumstances which may give rise to a finding of special circumstances, I do not intend to vary the ratio of non-parole for parole for the reasons previously indicated. In the sentence which I propose, I consider the parole period is sufficient to permit his rehabilitation, if any, and any reintegration into the community without adjusting the ratio."
The sentencing judge further noted that he was mindful of the need for proportionality and totality, and the need for some concurrency, but that the sentence should also reflect that there were six victims which justified considerable accumulation. Further, whilst acknowledging the SNPPs, the sentencing judge did not intend to apply them as they would result in a sentence which was unduly harsh.
The sentencing judge then set out indicative terms (as noted above) and viewed the terms in the light of the principle of totality. In considering this matter, he noted that the offending did not involve a single course of conduct, and whilst a number of events occurred at the San Remo address, they involved different victims. The offending against the daughter occurred over a period of time. He noted the need for some degree of concurrency in relation to the offending involving EH and also in relation to the San Remo offending.

Ground 1: The applicant was denied procedural fairness in respect of his Honour's findings regarding special circumstances

The applicant accepts that the Court is not obliged to vary the statutory ratio if circumstances exist that are capable of constituting special circumstances: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73]; R v Fidow [2004] NSWCCA 172 at [22]; Caristo v R [2011] NSWCCA 7 at [28]-[30]. However, it is contended that the sentencing judge's "positive indication" that he did not have any difficulties with special circumstances effectively foreclosed any further submissions from counsel for the applicant. It is submitted that the statement "I don't have any difficulty with special circumstances" could only mean that the sentencing judge was going to not only find special circumstances, but that finding would translate into a tangible alteration in the ratio of the NPP and the parole period. In giving this false impression, it is contended, the applicant was denied the opportunity of making further submissions.
The respondent submitted that the applicant was not deprived of an opportunity to advance submissions. The applicant had made written submissions on this topic (as extracted above). The bases asserted were that: 1. it was the applicant's first time in custody; 2. he would need an extended period of supervision to further his prospects of rehabilitation and reintegration; and 3. he would benefit from treatment of his alcohol abuse and sex offender treatment.
The respondent reviewed the relevant case law and submitted the circumstances in this case were analogous to those in Dang v R [2014] NSWCCA 47 at [45] where Adamson J (Simpson and Davies JJ agreeing) held that the real question is whether there has been actual unfairness, not whether there has been a disappointment because an expectation engendered by the decision-maker has not been fulfilled.
The respondent contends that the submission on sentence made on behalf of the applicant that there should be a finding of special circumstances was made in the context of the ultimate submission that he should receive a total aggregate sentence in the range of seven to nine years with a finding of "special circumstances being also made to vary the statutory ratio by a significant degree".

Consideration

The proposition that the applicant was denied procedural fairness raises a consideration of substance rather than form. It must be determined by reference to the circumstances during the proceedings: Dang at [45]. As can be seen from the detailed outline of the course of the sentencing proceedings, the sentencing judge had been given, in advance, the written submissions of the parties. It is clear from the transcript of the hearing that his Honour then proceeded to ask the applicant's counsel any questions he had about aspects of his written submissions. The applicant's written submissions had a clear section on special circumstances, as noted above. It was in this specific context that the sentencing judge stated he had no difficulty with special circumstances. That is, he understood the propositions contended for in the written submissions and had no questions about them.
In my view, the indication given by the sentencing judge was not an indication that he would in fact make a finding of special circumstances to alter the ratio and reduce the NPP. When one calmly and logically considers the applicant's proposition in the context of the sentencing hearing, it cannot be sustained. At that point in the sentencing proceedings, the structure of the sentence had not been determined, and a definitive view about an adjustment of the ratio could not have been made.
Having made the determination that there were circumstances which constituted special circumstances, the sentencing judge was entitled (indeed, obliged) to consider the overall effect of the aggregate sentence he had in mind, including an appropriate NPP, and an appropriate period of supervision. It was certainly not incumbent upon the sentencing judge, having later settled upon an appropriate aggregate sentence, and then having determined not to make a finding of special circumstances, to give the parties an opportunity to make further submissions.
Had the sentencing judge imposed a sentence in the range suggested on the applicant's behalf (i.e., seven to nine years), the statutory ratio would have resulted in a significantly shorter period during which the applicant would have been eligible for release on parole. The submission that there should be a variation of the statutory ratio in order to address the identified concerns was made in circumstances where applying the standard ratio to the sentence suggested on the applicant's behalf would have resulted in an appreciably shorter period of eligibility for parole. Although his Honour accepted the existence of those factors, he determined that the period of eligibility for parole was sufficient to address them.
In Dang at [47], Adamson J stated: "In the present case, the indication from the Bench came after both parties had had an opportunity to address her Honour on all matters and had availed themselves of that opportunity. The present case is to be distinguished from cases such as Weir and Button or cases, where a judge has given an early indication that a custodial sentence will not be imposed and has subsequently imposed a custodial sentence. In those circumstances, the offender has a legitimate grievance that he or she has, by the judge's indication, been denied the opportunity of addressing the Court on why a custodial sentence ought not to be imposed."
In light of the course of the sentencing proceedings, and the proper concession by the applicant that a finding that there are circumstances capable of constituting special circumstances does not necessarily require an adjustment of the statutory ratio, there was no denial of procedural fairness. Ground 1 has not been made out.

Ground 2: The aggregate sentence imposed was manifestly excessive

The applicant submitted that consideration of the starting points and discounted indicative sentences imposed for some of the offences offers support for the submission that the aggregate sentence is manifestly excessive, such as the following: 1. in relation to Sequence 15, it is submitted that a 3 year indicative sentence (after a 25% percent discount and a maximum penalty of 7 years) was excessive; 2. in relation to Sequence 14, and taking into account the offences on the Form 1, it is submitted that a pre-discount starting point of 10 years and 8 months (with a maximum penalty of 20 years' imprisonment) for an offence of cunnilingus found to be just above the mid-range of objective seriousness was manifestly excessive and substantially contributed to an aggregate sentence that was manifestly excessive; and 3. as to Sequences 17 and 20, they carried different maximum penalties, and both received the same indicative sentence of 2 years. This was said to bespeak error in light of the same finding of just below mid-range objective seriousness, with Form 1 procedures with sexual touching well below mid-range attached to both offences.
The respondent submitted the sentence was not manifestly excessive in light of the totality of the offending.

Consideration

As stated most recently in AA v R [2024] NSWCCA 132 at [4] (Ward P and Wilson J): "As R A Hulme J said in JM v R [2014] NSWCCA 297 at [40], there can be no appeal against an indicative sentence because an indicative sentence is not a sentencing order. The appeal lies only against the aggregate sentence. See also PN v R [2024] NSWCCA 86 at [47], which followed and applied JM and the long line of similar authority thereafter. Although it is not axiomatic, where there is clear error in an indicative term, it may signal error in the aggregate term. Much will depend upon the circumstances of the individual case and the level of notional concurrence and accumulation involved in the determination of the aggregate sentence. In some cases, any error in an indicative term will be subsumed and overtaken by the application of the principle of totality such that there is no discernible capacity for the error to have had an impact upon the aggregate sentence. In others, it will be found to have contributed to or occasioned error in the sentencing order of the court."
In this matter, as noted above, the applicant was sentenced for sexual offending against six children, with eight separate charges and a further seven matters to be taken into account across five Form 1s. The offending took place over about a 20 year period. One of the victims was the applicant's biological daughter.
I am not of the view that any clear error in any indicative sentence has been made out. The remarks on sentence were thorough and considered. The sentencing exercise was a complex one, involving the need to recognise the number of complainants, including the biological daughter of the applicant, the matters on a Form 1 where applicable, and the length of the period of offending. It was appropriate for the sentencing judge to allow a degree of notional accumulation of the sentence for each offence upon each victim.
The sentencing judge indicated appropriately that "there should be some concurrency" but that the number of victims "justifies considerable accumulation" without imposing a sentence "which is crushing". The aggregate sentence was open to his Honour.
In my view, the aggregate sentence reflects the totality of the criminality involved: JM v R [2014] NSWCCA 297 at [40]; Kelly v R [2023] NSWCCA 104 at [44]. It is not manifestly excessive. Ground 2 is not made out.

Proposed orders

The orders I propose are therefore as follows: 1. Grant leave to appeal. 2. Dismiss the appeal.

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: 05 August 2024

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