STB v R

STB v R - [2024] NSWCCA 36 - NSWCCA 2023 case summary — Zoe

JUDGMENT

PRICE J: I agree with Lonergan J.
LONERGAN J: The applicant seeks leave to appeal against the sentence imposed upon him following his pleas of guilty to three sexual offences against his stepsister over a three-year period between January 2018 and May 2020. At the time of offending the victim was nine to twelve years old and the applicant was twenty to twenty-two years old. Also taken into account were offences on form 1 certificates comprising four other incidents of sexual offending against that same victim in that same period of time.
The sentence imposed in the District Court Sydney by Traill SC DCJ on 15 July 2022 was a period of imprisonment of 8 years and 2 months with a non-parole period of 4 years and 9 months. The sentence commenced on 2 June 2020. The non-parole period will expire on 1 March 2025.
The applicant had been arrested on 2 June 2020 and was committed for trial. It was not until the date the matter was listed for the pre-recording of the victim's evidence, 14 December 2021, that the applicant entered the pleas of guilty.
Proceedings on sentence took place on 4 May 2022. Her Honour's sentencing remarks were delivered on 15 July 2022.
The offences, corresponding maximum penalties and the indicative sentences specified by her Honour (taking into account the 5% discount for the guilty plea pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") are set out in the following table: Charge Maximum penalty / standard non-parole period Indicative sentence Count 1: Life imprisonment Sexual intercourse with a child under the age of 10 Standard non-parole period: 15 years imprisonment 6 years 3 months; non-parole period: 3 years 8 months S 66A(1) Crimes Act 1900 Form 1 offence taken into account with respect to count 1: 10 years imprisonment Indecent assault on a child under the age of 16 Standard non-parole period: 8 years imprisonment S 61M(2) Crimes Act 1900 Count 2: 16 years imprisonment 4 years 5 months; non-parole period: 2 years 7 months. Sexual intercourse with a child of or above the age of 10 and under the age of 14 Standard non-parole period: 7 years imprisonment (NB: wrongly taking into account the form 1 offence that took place between February and March 2019) S 66C(1) Crimes Act 1900 Form 1 offence taken into account with respect to Count 2: Indecent assault on a child under the age of 16 (Note: This is subject to ground 4 on the appeal). S 61M(2)(a) Crimes Act 1900 Count 3: 16 years imprisonment Sexual intercourse with a child of or above the age of 10 and under the age of 14 Standard non-parole period: 7 years imprisonment 5 years 4 months; non-parole period: 3 years 2 months (taking into account the offence on the following form 1s). S 66C(1) Crimes Act 1900 First form 1 offence take into account with respect to count 3: Sexual touching of a child aged between 10 and 16 10 years imprisonment S 66DB Crimes Act 1900 Second form 1 offence taken into account with respect to count 3: 10 years imprisonment S 66DB(a) Crimes Act 1900

[2]

The applicant appeals his sentence on four grounds: 1. The sentencing judge erred by failing to make a finding in relation to the applicant's prospect of rehabilitation and likelihood of reoffending. 2. The sentencing judge erred by failing to make a finding in relation to the issue of remorse. 3. The sentencing judge erred by failing to make a finding in relation to the applicant's lack of previous convictions. 4. The sentence proceedings miscarried by the taking into account, in relation to count 2, of an offence of s 61M(2) of the Crimes Act 1900 (NSW) which was alleged to have occurred on a date after the repeal of that provision.
As noted by the Crown in its written submissions on this sentence appeal, there was error inherent in the sentence because the form 1 offence that had been taken into account on sentence with respect to count 2 referenced s 61M(2) of the Crimes Act, which had been repealed, effective 1 December 2018. It should not have been included on a form 1 given that the subject indecent assault occurred between 2 February 2019 and 30 March 2019, after s 61M(2) had been repealed.
The Crown conceded that it is open to the Court to find ground 4 of the appeal is made out and has asserted that the error is of the type that requires the sentencing discretion to be exercised afresh, that is an error of the kind stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 at p 504 to p 505 that make it necessary to resentence the applicant: Kentwell v The Queen (2014) 252 CLR 601.
Having considered the further agreed facts, the evidence before the sentencing judge, the further material tendered on resentence, removing from any assessment the s 61M offence mistakenly included on the form 1 to count 2, and considering the submissions on resentence provided for the applicant, I have concluded that no lesser sentence is warranted in law. Leave to appeal should be granted but the appeal should be dismissed.
By operation of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of the victim's name or any other information that might identify her is prohibited. The sentencing judge noted that pseudonym of "MT" was her approach to ensuring that statutory protections were maintained and so I have adopted the same approach.

[3]

Facts of the offending

These facts are taken from the agreed statement of facts dated 4 April 2022 which was signed by the offender. The facts were set out in the sentencing judge's remarks as follows: "[10] The offenders is 25 years of age and is the half-brother of the victim, MT. [11] The offender grew up in Peru. [12] The offender met MT for the first time following his arrival in Australia on 10 August 2016. The offender was 19 years of age at the time that he commenced living with his father, the victim's mother, victim, and her younger brother. The victim was eight years old at the time. [13] The family lived together in Hurstville until the breakdown of the victim's parent's marriage in 2019. Count 1 - sexual intercourse with a child under 10 years of age Form 1 offence to Count 1 - assault child under 16 and commit act of indecency [14] Between January 2018 and April 2018, when the victim was nine years old and in year five at school, she said she was asleep on the couch in the lounge at her home. Around midday the offender slid his hands up her shirt and rubbed them against her breast and touched her nipples (Form 1). [15] The offender then slid his hand into the victim's pants placed his fingers inside the victim's vagina (Count 1). [16] This was not an isolated incident. Count 2 - sexual intercourse with a child of or above the age of 10 years and under 14 years of age Form 1 offence to Count 2 - assault child under 16 and commit act of indecency [17] Between February 2019 and March 2019, when the victim was 10 years old, the victim's aunt visited the family from overseas. During the aunt's visit, the victim shared a room with the offender and her younger brother. The victim slept on the top bunk bed, while her brother slept on the bottom. The offender slept in a separate bed. [18] One night the victim woke up to get some water. As she got down off the top bunk the offender grabbed her from behind and pulled her into his bed and pulled the blanket over them both. He pulled down victim's pants and lifted up her shirt. [19] The victim tried to push the offender away, telling him that she needed to get water, but he continued to touch her. [20] The offender put his fingers inside the victim's vagina and rubbed her breast with the other hand (Count 2 and Form 1 to Count 2). Form 1 offence to Count 3 - intentionally sexually touch a child between 10 and 12 years of age [21] On 9 May 2020 the victim was 12 years old and staying at her father's house. By this time her father had moved to a house in Allawah. [22] On this occasion the victim's younger brother, father, and the women who lived at the house with her child, were all watching a movie. At around 8 or 9pm, at the opposite end of the house, the victim and the offender were sitting on a lounge playing a computer game on an iPad. [23] The offender placed one arm around the victim and slid his hand through the neck area of her top and placed his hand on her breast area and under her bra while continuing to play the computer game with his other hand. Eventually, the victim pushed the offender away. Count 3 and Form 1 offence to Count 3 [24] On 17 May 2020 when the victim was 12 years old, the victim, her younger brother, and the offender were staying with her father at the house in Allawah. [25] At about 2am, the victim was awake in her bed and about to drift off to sleep while holding her dog, she was dressed in jeans and a jacket. The door was unlocked, and the offender came into the room. He removed the blankets and lay down on top of the victim, unbuttoned her pants and slid his hands beneath her underwear placing his fingers inside her vagina. The offender moved his fingers around. [26] The offender also touched her on the breast below her clothing (Form 1). [27] The victim went to her father's room and woke him and told him that the offender had been touching her that night. [28] Her father confronted the offender, who denied it. [29] The offenders continued to live with his father but resided in the garage and was not allowed inside the home except to get food. [30] When the victim came to visit her father, the offender was not allowed inside the house. [31] On 30 May 2020, following a family gathering at the victim's mother's house, the victim, her younger brother, and the offender went back to the father's house. The victim told her father she did not want to stay near the offender's room because 'He's been touching me on other days'. [32] The victim said she had not told her father before because she thought that she would 'be in trouble'. [33] On Sunday 31 May 2020, the victim's father spoke to her mother. The victim's mother approached the victim and said, "What happened when you were at your dad's?" The victim said '[the offender] has been touching me. [34] The victim's mother contacted the police, and the victim was interviewed on 1 June 2020 and disclosed the offences now before the court. She stated that they were not isolated incidents. [35] The offender was interviewed on 2 June 2020, he admitted to having sexual urges to be with a woman. He also said, 'If that's what [the victim] said then it is probably, almost definitely true, I don't remember many things". He further said, 'Sometimes there are those urges and sometimes before going to sleep I have those thoughts of those urges and I try to avoid thinking about it to sleep." [36] The accused said, 'If a kid says that, I have to wonder how, how would a kid know about these kinds of things?". He further said, 'When I felt that I had the urge those times I was afraid that this would have happened at those times when I was feeling those urges". The accused said, 'I'm afraid of one of those things or something worse has happened. I believe what she said, I was worried maybe the urges would overcome me and it was true."

[5]

Findings on the subjective case

Her Honour then addressed the applicant's subjective case. He was born in Peru. His parents separated prior to his birth. His father moved to Australia when the applicant was three years of age and the applicant did not see him again until he too moved to Australia in 2016. The applicant had completed high school in Peru and begun a graphic design course when he moved to Australia. In Australia he completed a course in English and six months of a graphic design course at TAFE. He then worked in his father's cleaning company and spent some months in an internship with a web design company.
Her Honour noted that the applicant had future career goals to be an artist or animator. He had no known health conditions. He had experienced some bullying at school and some periods of anxiety and depression. He had a previously close relationship with his mother in Peru but she had not contacted him since he was incarcerated, a period of almost two years.
Her Honour noted that the applicant gave evidence at the sentence hearing explaining that when he had seen the psychologist Dr Hughes, when she asked about the offences, he told her that he was not guilty because he was "embarrassed" to talk about the offences in her presence. Her Honour noted also that the applicant gave evidence that he had been in protection in custody, completed some programs, and was a mentor in art classes. He had not had any counselling in custody. He had received only two visits from family since he had been taken into custody. He had suffered from COVID-19 while in custody and was placed in isolation. It was noted that there had also been lock-ins for eight weeks due to COVID-19 infections.
Her Honour noted that in cross-examination, when asked why he told Dr Hughes that he did not commit the offences, the applicant said that he did not say he felt no remorse but he did acknowledge that he had told Dr Hughes he "didn't do it". He denied having any "urges" to reoffend. He was asked how he will manage any such urges going forward and he claimed that "the time spent in custody has taught me to manage those urges", her Honour observing that this may well be because he has not been exposed to children in custody and there is no temptation surrounding him in prison. The applicant described his urges as "general", and not specifically for children. He said he would not engage in any such behaviour when released because he does not want to go back to prison.
The fact that the applicant wanted to stay in Australia and try to continue working with his father was noted by her Honour, as well as the fact that he had no plans for counselling or treatment but "if required" he will engage with counselling.
The report of Dr Hughes, a clinical neuropsychologist and forensic psychologist, was noted. Her Honour observed that the report sets out the applicant's background, and that on the Static 99 risk assessment tool he was assessed in the "moderate low risk" category, and on the risk of sexual violence protocol (RSVP) he had been assessed as a low risk of future serious sexual violence requiring a low routine level of intervention. Dr Hughes concluded that the applicant did not currently meet any diagnosable neuropsychological or psychological condition. Dr Hughes also added that the applicant seemed to be experiencing fewer difficulties in the custodial environment than in the community, something her Honour noted was "of concern".
Her Honour went on to note some general principles regarding the role of general deterrence in crimes of this kind involving children. She concluded that the applicant will need support on release to assist in transitioning to a lawful community life, and so made a finding of special circumstances to assist in his rehabilitation. Her Honour noted that the citizenship or visa status of the offender and the possibility of deportation were irrelevant concerns in sentencing and that given the clear principles on that issue, she did not take those matters into account.
Consideration was given to the principles of accumulation, concurrency and totality, and the effect of the COVID-19 pandemic on the applicant's time in custody. Some focus on the victim impact statement was provided and the importance of those statements in matters involving the sexual abuse of children. Further authorities on sentencing in child sexual abuse matters were cited followed by identification of the indicative sentences for each count and the sentence imposed.
Unfortunately no one noticed or drew to her Honour's attention the problem with the repealed offence on the form 1 to count 2 and so the sentence imposed took the repealed offence into account.

[6]

This appeal

As already observed, ground 4 of the appeal was conceded and so not argued. For the reasons that follow, grounds 1 and 2 have been made out. Consideration must now be given by this Court as to whether a lesser sentence is warranted in law.
The High Court in Kentwell at [42] to [43] described the task of this Court: "[42]… When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the [Sentencing Procedure Act], and any other Act or rule of law, require or permit… [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…" (Footnotes omitted).
I will briefly address grounds 1, 2 and 3 of the appeal, that the sentencing judge failed to make necessary findings on the issues of prospects of rehabilitation and likelihood of reoffending, (ground 1), remorse, (ground 2), and the fact that the applicant had no previous convictions, (ground 3).

[7]

The applicant's submissions on grounds 1 to 3

Counsel for the applicant on this appeal, Mr Neild SC, submitted that the sentencing judge is required to make a finding in relation to an issue where it is the subject of submissions supported by evidence, citing Porter v R [2019] NSWCCA 117 at [56] to [61] and Masters v R [2019] NSWCCA 233 at [28] to [32].
Mr Neild submitted that although there was contained in the report of Dr Hughes a risk assessment of the likelihood of reoffending, and some comments regarding the applicant's prospects of rehabilitation, the sentencing judge made no findings in regard to either of these two considerations. It was conceded by Mr Nield that those two matters did not feature in the written submissions provided at the proceedings on sentence, however questions were directed to these matters (in broad terms), during the applicant's evidence, and oral submissions specifically addressing the question of prospects of rehabilitation were made (T18.19 to T18.40).
In circumstances where an offender's prospects of rehabilitation is a basic consideration in any sentencing exercise, Mr Neild submitted that the sentencing judge was required to make a finding in that regard as well as in respect to the likelihood of reoffending, but she failed to do so. The references in the sentencing remarks to the finding of special circumstances "to assist in the rehabilitation of the offender", and where her Honour noted that "the rehabilitation of the offender is also an important sentencing consideration and is something that I am mindful of in relation to imposing this sentence", are not sufficient and do not comprise findings.
Mr Neild acknowledged that there was some complexity to the evidence regarding remorse (appeal ground 3) given that the applicant denied the offending conduct to Dr Hughes and then gave evidence that he did that because he was "embarrassed". Mr Neild noted that the applicant reiterated his remorse in cross-examination, stating that he was "really really sorry" for what he had done to his sister.
Mr Neild noted that counsel appearing for the applicant at the proceedings on sentence made the submission that the sentencing judge "can find that there is some genuine remorse if your Honour takes what was said to the police at the time of his arrest - that is that [the victim], if she said it, it must undoubtedly be true, and also what he said in Court today", but this submission was not acknowledged and the question of remorse not dealt with in the remarks on sentence.
Mr Neild also complained that her Honour made no explicit reference to the applicant's absence of any criminal record and submitted that with respect to remorse, prospects of rehabilitation and risks of reoffending the remarks comprised only a summary of some of the evidence given by the applicant on the topic, but included no finding as to whether any of the submissions made by counsel appearing on sentence were accepted on those matters or not.

[8]

The Crown's submissions on grounds 1 to 3

In response the Crown submitted that when the remarks on sentence are read fairly and as a whole, it is clear that her Honour carefully considered evidence going to each of the three potential mitigating factors and that findings with respect to each of them "can readily be inferred" from the remarks. In those circumstances, the Crown submitted, the absence of explicit findings does not amount to error.
The Crown cited a number of principles extracted from the authorities that concluded that questions of remorse, prospects of rehabilitation and the likelihood of reoffending are related, interconnected, commonly linked, or overlapping and that the offender bears the onus of establishing those mitigating factors on the evidence. As long as it is evident from the sentencing judge's reasons that the relevant matters have been considered, it is not necessary that express findings be made "in any particular terms", (incorrectly cited in the Crown submissions as "on any particular item"): Baker v R [2022] NSWCCA 195 ("Baker") per Adamson J at [62] and [73], N Adams J agreeing at [115], referred to with approval in Giles-Adams v R; Preca v R [2023] NSWCCA 122, Yehia J at [83], Wright and Chen JJ agreeing.
The Crown submitted that in some cases, given the interconnectedness, questions of remorse, prospects of rehabilitation and risk of reoffending can be dealt with compendiously: N Adams J at [115] in Baker.
Where a judge refers comprehensively to evidence of an offender's prospects of rehabilitation, the Court may be able to discern that the offender's likelihood of reoffending has also been taken into account despite there being no express reference to it. What is required is that the reasons make it evident that the relevant factors have been taken into account: Li v R [2023] NSWCCA 112 per Yehia J at [46] and [48], Fagan and Davies JJ agreeing.
Genuine remorse is a major consideration in determining whether prospects of rehabilitation and unlikelihood of reoffending exist as mitigating factors: Zuffo v R [2017] NSWCCA 187 per Price J at [48] citing R v M.A.K; R v M.S.K (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [41].
There was no oral submission made that the applicant was unlikely to reoffend given Dr Hughes' assessments of the risks of recidivism for this particular applicant. It would not have been open to the sentencing judge to find that the applicant was unlikely to reoffend, in particular given his comments to the police about his "urges", that he denied committing the offences to Dr Hughes and that he expressed no regret or remorse to Dr Hughes. There is also the issue of Dr Hughes observing that the applicant did not display insight into his offending.
The Crown submitted that the applicant's reasons for denying the offences - embarrassment - is inconsistent with Dr Hughes' observations of him that he seemed to be engaging well in the interviews. The Crown also submitted that there was no evidence the applicant has had counselling to deal with his sexual urges. The sentencing judge noted that the offences were not isolated incidents. Inherent in that finding was a conclusion that specific deterrence played an important role in this case. This, the Crown submitted, was a clear indication that her Honour was not satisfied that the applicant was unlikely to reoffend.
On the question of risks of reoffending the Crown submitted that because it was not submitted on the applicant's behalf that the evidence established that his prospects of rehabilitation were good, it could be inferred that her Honour had still considered evidence on that issue.
Finally, on the question of remorse, because the evidence before the sentencing judge was clearly pulling in opposite directions, and the fact that her Honour referred to those parts of the evidence in her remarks, a fair reading of those remarks makes it clear that her Honour was not satisfied that that mitigating factor was established.

[9]

Conclusions regarding grounds 1, 2 and 3

I am not satisfied that the Crown's submissions on grounds 1 and 2 are correct or a reasonable way to assess the remarks on sentence. Whilst it is not appropriate to parse remarks on sentence as if they are statute, and whilst it is obviously necessary to read the remarks on sentence as a whole, it is not sufficient for those remarks to make reference to evidence but then articulate no conclusion at all as to how that evidence informs the relevant aspects of the sentencing exercise. This is particularly so where there have been denials and lies by the applicant and ambiguities within the evidence relevant to those considerations such as has occurred here.
The applicant's prospects of rehabilitation, his risks of reoffending and his remorse are interrelated and were all seminal to the sentencing exercise in this case, given the nature of the offending.
There was (and is) a live issue as to the applicant's insight (or rather lack of insight) into his offending. He told lies about the offending to his retained psychologist Dr Hughes, denying the offending occurred less than six weeks before the sentencing hearing, three months after entering his guilty pleas. To interviewing police when arrested, the applicant initially denied any wrongdoing, only admitting to "laying with the victim in her bed" on two occasions. He then made odd comments implicitly acknowledging as true the victim's account of his offending.
As stated by Johnson J in AK v R [2016] NSWCCA 238 ("AK"): "[102] Where a person commits serious sexual offences against children, an assessment of the risk of reoffending and the need for specific deterrence, will involve an examination of not just a formulaic expression of remorse to a psychologist, but the degree of insight the offender has demonstrated into what he did, and why he did it…." In that case, the offender feigned a lack of memory of the events. Johnson J referred to this as: "having the flavour of an avoidance mechanism, sometimes seen in child sex offenders". I consider that here the applicant used a similar avoidance mechanism here in his denial to his father when first accused and in his denials of his offending to police and his psychologist, Dr Hughes.
There is a lack of coherence in the applicant's later vague acknowledgements and statements to the effect that he knew that he had breached the victim's trust and that he was sorry for that. This lack of coherence is not adequately explained by language difficulties. The applicant gave evidence through a Spanish interpreter at the proceedings on sentence and had the assistance of a Spanish interpreter for both sessions he had with Dr Hughes.
These are all important matters for assessment but there are no stated findings in the remarks on sentence about these issues and inconsistencies and how they have informed her Honour's assessment of the presence or otherwise of remorse, the applicant's prospects of rehabilitation, and his risks of reoffending. Findings cannot be inferred from the remarks on sentence in the way submitted by the Crown, or by any other approach. They are, unfortunately, absent.
Grounds 1 and 2 of the appeal have been established.
Ground 3, however, fails. As submitted by the Crown, in the remarks on sentence at [53], the sentencing judge made reference to the fact that the good character of the offender is a matter that can be taken into account in mitigation under s 21A(3)(f) of the Sentencing Act. She did so under the heading "Mitigating Factors". This is an unambiguous acceptance of the submissions made about the absence of any criminal record. There is no basis to doubt that this was considered by her Honour to be a mitigating factor given where it is placed in the remarks on sentence. Because of that placement under that heading, its role and relevance can easily be inferred as having been taken into account as a mitigating factor.

[10]

(i) Objective seriousness - applicant's submissions

Concessions made below regarding a number of relevant matters were not maintained on appeal. Although there was no specific ground of appeal required, on resentence it was submitted by Mr Neild that this Court should make its own findings on objective seriousness in respect of each of the offences, particularly given there was no overt analysis of the factors underpinning the assessments made by the sentencing judge.
In respect of count 1 Mr Neild submitted that the victim was nine years old and thus in the top of the age bracket for that offending category. Examining that context, the sentencing judge's description of her as a "very young child" at the time of the offending seems inapposite. The offence was of digital penetration rather than penile/vaginal intercourse. The agreed facts were silent about the duration of the offence and were silent about whether the child experienced pain as a result of the offence. There was no force, threats or coercion. It was submitted that this Court would find the objective seriousness of that count as towards the lower end of the range for offences of that type.
In respect of count 2 it was submitted that objective seriousness should be considered to be below mid-range for offences of this type, bearing in mind that the victim was ten years old placing her at the bottom of the age bracket for the offence category, that the offence was again digital penetration rather than penile/vaginal intercourse, that the agreed facts were silent about the duration of the offence and whether she experienced pain as a result of the offence, and that the offence involved minimal force in the sense that the victim tried to push the applicant away, but he persisted, and there were no threats or coercion.
The offending involved in count 3 was submitted to be towards the lower end of the range for offences of that type noting the victim was by then twelve years old, placing her in the middle of the age bracket of the offence category, it was digital penetration again rather than penile/vaginal intercourse, there were no agreed facts about the duration of the offence and whether she experienced pain as a result of the offence, and the offence involved no force, threats or coercion.

[11]

(ii) Objective seriousness - analysis

The description of count 1 in the agreed facts (occurring at the same time as the form 1 offence of the offender touching the victim's breasts and nipples), included this important additional detail: "the offender slid his hand into the victim's pants, and she could feel his fingers inside her vagina all over the place". (Emphasis added). After this is added: "This was not an isolated incident". The victim was nine years old. The offender was twenty years old. He was her older brother. The offence occurred at her home. It was not, from her description quoted in the agreed facts, a short single quick digital penetration. This is in the mid-range of objective seriousness for offences of this type.
In respect of count 2, the offender pulled the victim into his bed in the middle of the night when she had been forced to share a room with him and had got up to get some water. He was twenty-one and she was ten, so she was at the lowest age responsive to this charge. He pulled down her pants. He put his fingers (plural) insider her vagina. She tried to push him away, but he persisted. This is in my view in the upper middle range of objective seriousness for offences of this type.
In respect of count 3, which occurred about 15 months after count 2, whilst falling asleep fully dressed in her bed having unlocked the door to her room to let her dog out, the offender came into her room. Without saying anything he removed the blankets, lay down on top of her, unbuttoned her pants and slid his hands beneath her underwear before placing his fingers (plural) insider her vagina. The offender "moved them all around." At the same time he also touched her on her breasts below her clothing (the additional offence on the form 1 to count 3). This offence is in the lower middle range of objective seriousness for offences of this type.
The victim woke up her father and told him what was occurring. Her father confronted the offender who denied it. A few weeks later when there was a risk the offender was again being allowed to sleep inside the same house as the victim, she told her father that "he's been touching me on other days".
This is serious offending against a child who was eleven years younger than the applicant and captive to his sexual misconduct. The fact that he used his fingers rather than his penis does little if anything in this context to make the offending less objectively serious. As observed by Simpson J in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 with whom, relevantly, Adams and Howie JJ agreed at [24]: "[24] It might be true, as senior counsel suggested, that penile/vaginal intercourse would, in the circumstances, have amounted to a more serious offence. But does that avail the respondent? Let it be supposed that his Honour had not excluded as irrelevant the nature of the sexual activity in question. It is difficult to think that that of itself would have led him to the conclusion that the offence was of something less than mid range gravity. It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s66A (and defined in s61H). It is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness. While penile/vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the mid point of objective seriousness. There are many instances of conduct that come within the definition of sexual intercourse that would be significantly less serious than enforced fellatio. Had his Honour considered the nature of the sexual intercourse as relevant, he must, in my view, have come to the view that enforced fellatio falls somewhere in the middle, or towards the upper end, of that scale."
In the context of a case involving sexual intercourse with a victim aged four to five years and eight years old: Regina v O [2005] NSWCCA 327, Sully J, with whom, relevantly, Hidden and Hall JJ agreed, observed: "[32] I would accept that, as a general proposition, an act of digital penetration, as such, is less serious than an act of penile penetration as such. I do not agree, however, that such a general proposition is, more or less as of course, a proposition of universal applicability in cases of digital penetration. One has only to read the victim impact statements of KW and of JS to see at once how damaging to a particular victim an act of digital penetration, let alone more than a single such act, can be to a very young child."

[12]

(iii) Other considerations and subjective material

Two affidavits of the applicant's solicitor dated 6 October and 16 October 2023, and an affidavit of the applicant's father dated 7 October 2023 were read on resentence. They add little, other than to confirm that the applicant's visa had been cancelled in mid-2023 (a matter to which this Court cannot have regard), and that the applicant is in fact in protection, has been working, doing courses and did at one stage have COVID-19.
Mr Neild submitted that this Court ought to find that the applicant has good prospects of rehabilitation and is unlikely to reoffend based upon the opinion of Dr Hughes. On the application of risk assessment tools directed to the risk of future serious sexual violence Dr Hughes assessed the applicant as low risk. Regarding sexual recidivism generally, she assessed the applicant to be in the moderate to low-risk category.
It was also submitted by Mr Neild that the applicant's own evidence addressed a number of topics pertinent to prospects of rehabilitation including remorse, education and counselling, his plans on release and his asserted plans to reduce the likelihood of reoffending.
References to the transcript of the applicant's evidence were given by Mr Neild but, in my opinion, they are ambiguous and show an immature and limited understanding of what he has done and no real acknowledgment of its criminality at all. Dr Hughes' report noted guilty pleas had been entered however: "He stated on current interview that the allegations did not occur. He did not have regret or remorse apparently for this reason, but said he also had no bad feelings towards his sister". Unfortunately Dr Hughes does not further evaluate this denial of offending.
Dr Hughes noted risk factors of social isolation, sexual frustration and immature regulation skills. She described the circumstances of the likely victim if the applicant was to reoffend as: "…. a female well known to him and (the applicant) would likely be in a comparative position of power (i.e. the victim may be vulnerable due to their emotional, psychological or physical maturity…". This is obviously similar to the circumstances of the subject offences.
Dr Hughes concluded in response to a direct question as to "whether the applicant has insight into the offending or expressed remorse or empathy for the complainant or her family": "At current assessment he did not display insight into his offending or express remorse or empathy. This was ultimately due to denying the occurrence of same. He did display insight into some of the specific relevant risk factors for offending, such as his difficulties establishing relationships, as well as empathy for other family members".
Given that ambivalent conclusion by Dr Hughes and the matters I have set out at [47] to [49], I have concerns regarding the applicant's lack of insight and lack of preparedness to accept that what he did was wrong and caused significant harm to his victim. I find the expressions of remorse he made in his evidence at the proceedings on sentence to be forced and unconvincing. I have concluded that he has uncertain prospects of rehabilitation in the absence of an open and complete acknowledgement of what he has done. This concern feeds into his risk of reoffending which I assess as a moderate risk, despite the applicant's assertion that he has (sexual) "urges" in general, not necessarily towards young children.
The applicant is entitled to a 5% reduction in sentence to reflect the guilty pleas. Mr Neild appropriately submitted that this Court should also take into account the applicant's relative youth at the time of the offending. Undoubtably this is a relevant matter that was missed in the initial sentencing exercise. No submission was made about youth to the sentencing judge. The applicant was aged between twenty and twenty-two at the time of offending and twenty-four at the time he was sentenced. He was also noted to be socially immature. I have taken those matters into account.
He was however prepared to lie to his father, lie to police and lie to the psychologist retained to assess him in the context of having entered guilty pleas.
His offending comprised sly, repeated, opportunistic attacks on a young, vulnerable girl in her own home where she was not able to avoid the attacks until her mother took action to have the applicant removed from the address altogether, and charges laid.
In all the circumstances, and entirely removing from consideration the offence on the form 1 to count 2, I am not satisfied that any lesser sentence is warranted in law, and so although leave to appeal should be granted given that grounds 1, 2 and 4 have been made out, the appeal should be dismissed.

[13]

Orders

I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
DHANJI J: I agree with the orders proposed by Lonergan J and with her Honour's reasons, subject only to what follows.
In relation to ground 4, given the matter was not argued I agree this Court should act on the Crown's concession of error requiring resentence. It should, however, be understood that acceptance of the Crown's concession with respect to ground 4 does not give rise to any precedent (as to which see CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]; Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 at [56]).
While accepting the concession, it is not obvious to me that the incorrect reference to the offence provision resulted in an error which requires this Court to resentence the applicant. While the Form 1 referred to an offence that did not exist at the time it was alleged to have been committed, it is not self-evident that this error affected the sentencing discretion. He was not convicted of the offence on the Form 1. Nor, assuming proper principle was applied, was he punished for it. Rather, the commission of the offence was taken into account when sentencing for the principal offence in the manner described in 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; ("Attorney General's Application"). That is, the commission of the "offence" informed the weight to be given to retribution and to personal deterrence. It was the applicant's admission of the conduct referable to the Form 1 that informed those matters, not the technical identification of the offence.
While the weight to be given to retribution is affected by the sentencing court's understanding that no punishment will ever be imposed with respect to the offences on the Form 1 (see Attorney General's Application at [42]) it is not clear that the reference to the incorrect offence provision was fatal to the resolution of the offence. Had the offence been charged on indictment, an incorrect reference to the particular section by which it was charged would have been immaterial had the words of the charge themselves been sufficient to make out a known offence: The Queen v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345; [1974] HCA 36. While the words of the charge were not repeated on the Form 1, the facts which made out the charge were and were arguably sufficient to resolve the issue between the offender and the State. If it did not so resolve the issue the error would have the result that the joint intention of the applicant and the Crown to "wipe the slate clean" with respect to offences arising out of the applicant's conduct may not have been achieved. If this was the case, in the unlikely event that the Crown did choose to prosecute the correct offence the applicant would no doubt seek to have the matter stayed as an abuse of process, an application which, on its face, would appear to have merit in the circumstances. Nonetheless, given the absence of argument, as I have indicated, I agree that this Court should act on the concession.
With respect to the issues of the applicant's remorse and his prospects of reoffending, care should be taken not to translate every inconsistent statement by an offender into an automatic finding that the offender is not remorseful, lacks insight or has questionable prospects of rehabilitation. There are varied and complex reasons why offenders may fail to present a single coherent repentant narrative. Each case must be assessed on its own facts. That is what Lonergan J has done in the present case. I agree with her Honour's analysis and conclusions.

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