Tomlinson v R

The applicant's evidence

1. The applicant prepared a 30-page handwritten statement outlining the losses he had suffered since his arrest. This somewhat rambling document included descriptions of all that he had lost as a result of the charges interspersed with a list of all that he had achieved prior to entering custody. The items covered in the letter include: loss of family relationships; loss of career; developing a fire mapping system for the RFS; the WA Ultramarathon Rescue; clients' refusal to pay invoices leaving him in debt of over $280,000; defaults on loans meaning he will need to declare bankruptcy; loss of the relationship with his daughters and inability to support them; time on remand in the MRRC including being branded a paedophile and experiencing or witnessing assaults; the Waterfall Train Crash; the lack of resources in prison for treatment of PTSD; the Cronulla Riots; the East Coast Targa Rally Crash; being stripped of prestigious awards and accreditations; the fact that his Diazepam is not available in the prison system; the fact that after publicity of his charges, he did not receive his Emmy award certificate and he was ex-communicated by the industry; the fact that the helicopters over the MRRC remind him of the industry from which he has been ostracised; his once extensive travel for work is now likely to be subject to indefinite restrictions; and his memories of child sexual abuse when he was seven or eight years old are now part of his trauma experience in prison.
2. The applicant gave evidence on sentence. He discussed his career achievements in detail, including his fall from grace upon his arrest and his belief that he would never be able to obtain work in the same industry again. He stated that he was "hated instantly" and immediately started receiving messages from companies he had worked for saying that they had no interest in ever working with him again. The applicant described the loss of his career and personal freedom as "beyond devastating".
3. The applicant gave evidence about the impact of the convictions on his personal life, including that his two daughters no longer wanted any contact with him. The applicant also stated that he had lost contact with his brothers after his arrest. The applicant described the conditions he had experienced in custody while on remand, including that he had been in maximum security and on "limited association", that he had witnessed others being stood over in gaol, had been threatened with physical violence and on one occasion was physically assaulted.
4. The applicant stated that he had been sexually assaulted at the age of seven or eight and that this had made it difficult for him to trust people. He said that this had been impacting him more while in custody as he had more time to reflect on what happened. The applicant also discussed his diagnosis of PTSD as a result of the traumatic events he witnessed through his work.
5. In cross-examination, the applicant denied all the offences and disavowed any sexual interest in young teenagers. He stated that he would only undertake a treatment program in relation to an inappropriate sexual interest in children if it was required of him, and that he did not believe it was necessary for him. While he acknowledged that his own experience of child sexual abuse had had a lasting impact on him, he believed that the victims were "perfectly fine". He went on to state that he believed the court process had been detrimental to the victims and that he and "almost everybody else who's not being paid [to be in court]" were victims of the justice system.
6. The applicant stated that he believed his partner, TB, had suffered more than anyone, including the victims. When asked whether he took any responsibility for TB's distress, he stated that "[s]he knew that I was in a relationship with other … people … there was… an arrangement where at time, I would have relationships with other people." He went on to say that "[s]he was fully aware of what was going on" and that, "she wasn't distressed, and neither was I until I was arrested". He also stated that "the only reason [TB]'s been put through this is because they [the victims] lied… I'm not responsible for [TB]'s distress". He went on to say that he was "absolutely disgusted" that the victims had put themselves through the court process. When asked by the sentencing judge whether the effect of his evidence was that TB was fully aware of what was going on and that his conduct was not the source of any of her distress, he confirmed that that was the case.
7. The applicant gave evidence that he did not take any responsibility for his fall from grace. When asked if he thought it was the media's fault, he said, "[i]f you want me to sit here and blame people, that's going to take a very long time". He did not blame himself because he was a victim of the system. He stated that he, TB and the two victims were all victims of the "endless abuse that the system provides".
8. In re-examination the applicant was asked whether he would be more careful in future: "Q. Now, when you're released, have you at least learned this from your experience, of what you call the system; that engaging in sexual encounters with very young women who maybe around the age of 16, whether a little below or above, but young women, young teenage women; have you learned from your experience that if you ever encounter that situation, that you would have to show enormous caution. Have you learned that? A. Absolutely, yeah. Q. Well, tell us in your own words how you've learned that, in a real way. Have you learned that in a real way? A. Well, I think it's obvious now you have to go to extraordinary lengths to try and find out what someone's real age is. But I've really got no interest in any relationship with anybody at all when I get out. There's not going to be me being - anybody who types my name in Google finds out exactly what these charges are, and the chances of me..(fault in audio visual link)..anybody of any age, it is so remote, and it would be - it's almost scary to even want to have a relationship with anybody now, because even if you're truthful with people and say, this is the scenario, like the jury members, all they do is go well, you're accused, therefore you're guilty. So it's - I've got no interest in having a relationship with anybody at all, ever. Q. Well, I understand that that's how you feel at the moment, but what I'm asking you is, when you are released, have you learned that you must show extreme caution in developing a relationship with a young female who maybe around the age of 16 or 17? A. Yes; I've got no interest in anybody who's in that age bracket in anyway. I've got no interest whatsoever, and I would avoid them like the plague, and to be honest, to the detriment of society, if there was a car accident, and there was a young lady in there that needed help, I would probably run the other way, because I've got no interest in going near anybody who - I've tried to help a lot of people over the years. I've tried to save people that have been in pretty shitty and traumatic experiences, not once have I ever had to turn up and go, hang on a second, there's a chance they might throw some charges at me, I'm not going to help. Every single time I've tried to help anybody, no matter what it is. So I'm going to have more caution; absolutely."
9. The applicant concluded by stating that if anyone "pursued" him like the victim HS did, he would "ignore them" and "literally just run away".
10. In relation to the offences of producing and possessing child abuse material, the applicant denied knowing of any of the material except one folder containing photos of HS.

Remarks on sentence

1. The sentencing judge set out the facts taking her summary from the document provided on sentence by the Crown headed "Fact finding Proposed by the Crown Following Trial". The only part of that document not expressly adopted by her Honour in her narrative was the evidence of the victims as to what they told the applicant about their respective ages.
2. Her Honour then noted that there was a live issue as to whether the applicant was to be sentenced on the basis of an honest but unreasonable belief or on the basis of actual knowledge of the age of the victims. It was noted that the applicant's case at trial was that "in most instances" although he admitted to the sexual intercourse, he honestly and reasonably believed the victims were aged over 16. Her Honour noted that the Crown's position on sentence was that he should be sentenced based on his actual knowledge that the victims were aged less than 16 years but observed that both cases had been left to the jury.
3. In relation to DA, her Honour was not satisfied that the applicant saw the age on DA's Facebook profile or that their discussion about her being "underage" necessarily meant "under 16". Her Honour observed "a concern on DA's part about the age gap between them and a willingness to lie about it" including concealing the relationship from her mother. She noted that DA was able to travel to hotels with the applicant but had to be home "quite soon after school".
4. In relation to HS, the sentencing judge noted that HS "had been leading a relatively independent life" before meeting the applicant including drinking alcohol and smoking cannabis. It was noted that HS was "attempting to pass herself as older than she truly was" when she first met the applicant. In relation to her evidence that she first told the applicant she was 15, the sentencing judge noted HS' statement to police in which she had said 15 or 16 and considered that it was possible that HS first told the applicant she was 16. Her Honour noted that HS said that she told the applicant her true age just before her 14th birthday. It was also noted that HS was able to travel for overnight stays without parental supervision.
5. The sentencing judge concluded that the evidence established that the offender had a sexual interest in women aged around 16 or younger, that the victims looked much younger than the applicant but not "demonstrably under 16 years" and that the applicant did meet up with the victims when they were in school uniform but that in itself did not establish that they were under the age of 16. Her Honour found at [57]-[58] that: "I have no doubt that the offender knew that the victims were young schoolgirls in their teens. I am highly suspicious that the offender actually knew that both DA and HS were under the age of 16, particularly DA, and I find that indeed their respective young ages was part of the attraction for the offender. I find that his belief became increasingly unreasonable as the relationships progressed. However, given the above it is quite possible that the jury concluded that the offender honestly believed DA and HS both to be 16 but that belief was not reasonable. The Crown went to the jury on that basis and in those circumstances he will be given the benefit of the small but reasonable doubt, that he in fact knew that they were under the age of 16 given the way that the Crown put its case to the jury and he will be sentenced on that basis."

Applicant's submissions

1. Counsel for the applicant submitted that the indicative sentence on count 3 was disproportionate in comparison to the indicative sentences on the other counts. It was submitted that there were no aggravating features beyond the elements of the offence and that the offence had been assessed as falling below the mid-range of objective seriousness.
2. In relation to ground 3A it was submitted that the sentencing judge erred in attributing a SNPP of 9 years to count 3, the count of aggravated sexual intercourse without consent.

Crown submissions

1. The Crown noted that it is the aggregate sentence, not the indicative sentence, that is amenable to appeal (JM v R [2014] NSWCCA 297 at [40(11)]) and addressed the complaint under this ground in its submissions on manifest excess.
2. As stated above, the Crown conceded error in her Honour sentencing the applicant on the basis that count 3 attracted a SNPP.

Consideration: Grounds 3/3A

1. The table behind s 54D of the Sentencing Act now nominates an SNPP of 9 years imprisonment for an offence against s 66C(2) of the Crimes Act. But that SNPP was only introduced on 29 June 2015 by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW). Count 3 was committed between 1 November 2012 and 17 January 2013. Accordingly, no SNPP was applicable at the relevant time and the sentencing judge erred in relying upon it.
2. The indicative sentence imposed on count 3 was considerably higher than all of the other indicative sentences. Although it is to be accepted that the maximum penalty for count 3 was double that of the other sexual assaults (20 years imprisonment as compared with 10 years) it is also suggestive of her Honour using the SNPP as a guidepost.
3. At [74] of the remarks on sentence, her Honour found that the objective seriousness of the sexual assaults was "below the mid-range of seriousness of offending", but "not significantly so" and at [75] that this was a "particularly important finding" so far as count 3 was concerned "having regard to the standard non parole period that applies".
4. As Basten JA explained in Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Hamill and Lonergan JJ agreeing), since Kentwell, an applicant does not need to establish that an error has had an actual effect on the sentence imposed; only that it had the "capacity to influence the sentence".
5. I am satisfied that the error had the capacity to influence the indicative sentence and the aggregate sentence. Accordingly, I am satisfied that the Crown concession was properly made, and this Court must intervene to re-sentence the applicant afresh.
6. It is to be noted that her Honour was led into this error as to the SNPP. The Crown Sentence Summary stated that an SNPP of 9 years applied and defence counsel at trial did not correct the error. As I recently observed in Haines v R [2021] NSWCCA 149 at [67], this is, regrettably, a surprisingly common occurrence. District Court judges dealing with large caseloads should be able to rely on counsel to assist in this regard.
7. Before turning to re-sentence the applicant I first will consider grounds 1 and 2 as they pertain to factual findings made by the judge. The correctness of those findings is relevant to the material upon which the applicant stands to be re-sentenced.

Applicant's submissions

1. Counsel for the applicant submitted that the sentencing judge's comments about TB were "only remotely relevant" to the sentence proceedings, and "erroneously contributed to the adverse findings" made about the applicant.
2. Reliance was placed on Geagea v R [2020] NSWCCA 350, in which the primary judge held that the objective seriousness of failing to stop and assist after a vehicle impact causing death was "made substantially worse" by the offender's post-offence conduct in misleading police and concealing the offence. The Court of Criminal Appeal held that the primary judge erred in considering the post-offence conduct as a part of the offence and thereby elevating the objective seriousness. The Court did however observe that it would not have been erroneous to take the post-offence conduct into account in relation to matters such as the offender's character, remorse, or attitude towards the offending: at [24]. The Court went on to conclude at [39] that the post-offence conduct did reflect poorly on the offender's character.

Crown submissions

1. The Crown submitted that the sentencing judge did not find that the applicant's subterfuge in relation to TB made the offending "substantially worse", and no such finding appeared anywhere in the remarks on sentence. The Crown observed that the only references to TB in the assessment of objective seriousness were when the sentencing judge noted that TB was away when the applicant took HS to the apartment and that the applicant lied to TB over many months to maintain the relationship with HS.

Consideration: Ground 1

1. This ground was premised on a misconception. Although the alleged error is said to be the finding that "the offence [sic] was 'made substantially worse'" by the applicant's subterfuge in relation to his partner, there is no such finding anywhere in the remarks on sentence nor any reference to that phrase at all in the remarks on sentence. I shall proceed to determine this ground on the basis that the error contended for is that the sentencing judge had regard to the applicant's subterfuge in relation to his partner, TB, in a manner which was not open to her Honour.
2. I have set out some of the evidence on this topic above at [168]-[169] and referred to the relevant parts of the remarks on sentence where this issue is touched upon above at [182]-[183]. The issue arose because of the inconsistency between the questions put to TB in cross-examination at trial as compared with the evidence given by the applicant on sentence on the same subject matter.
3. At the time of the commission of the offences, the applicant was in a de facto relationship with a woman referred to as "TB". TB met the applicant when she was 15 years old and commenced a relationship with him shortly thereafter. She became aware of the applicant's relationship with HS and was called as a witness for the Crown at the trial.
4. At the proceedings on sentence the applicant gave evidence that his behaviour towards DA and HS had not caused any distress to TB and that she was "fully aware of what was going on". He also gave this evidence: "I tell you what I am not going to say today, I am not going to say that I'm guilty of a crime and if HS and DA were both telling the truth, and had told me that they were actually the age they said they were, then there would be no victim here, but they lied. Now, the only reason that TB has been put through this is because they lied. I'm not responsible for TB's distress. The system is completely responsible for TB's distress. It is caused this - and - I am absolutely disgusted that HS and DA put themselves through that"
5. After the applicant's evidence at his proceedings on sentence concluded, the sentencing judge indicated to the parties that she had reviewed the evidence from the trial over the luncheon adjournment, in particular TB's evidence about whether she was aware of the applicant's relationships with the victims. Her Honour provided counsel with transcript references of TB's evidence at trial.

Applicant's submissions

1. Counsel for the applicant submitted that her Honour's finding that the applicant had "almost no prospects of rehabilitation" (ROS at [131]) was contrary to the preponderance of the evidence and that none of the matters referred to by the sentencing judge could have informed such a finding. Counsel for the applicant contended that the applicant had been penalised for defending the charges and that her Honour made an "almost psychiatric diagnosis" on the basis that the applicant maintained his innocence. It was submitted that there was "no evidence" for her Honour's observations regarding the applicant's narcissistic personality traits.
2. It was submitted that there were many subjective matters which suggested positive prospects of rehabilitation including: that the applicant had no relevant criminal history; that he had been consistently employed, including while in custody; that he gave evidence that he intended to be extremely cautious in choosing a partner in future; that he had no drug or alcohol issues; that he had no mental health issues; and that the sentencing judge concluded that he was to be sentenced on the basis that he had an honest but not reasonable belief as to the victims' ages.
3. Counsel for the applicant noted the sentencing judge's observations of the applicant's narcissistic personality traits (extracted above at [186]) and submitted that there was no evidence to support this view and it was contrary to the evidence about the applicant's intelligence and accomplishments.
4. It was further submitted that the applicant's right to defend the charges should not have precluded a finding of positive prospects of rehabilitation and that her Honour's finding was contrary to the preponderance of the evidence.

Crown submissions

1. The Crown submitted that an offender's prospects of rehabilitation are a question of fact to be determined by the sentencing judge. It requires a weighing of the evidence before the sentencing judge. It was submitted that to succeed on this ground of appeal, the applicant would have to establish that the finding was not open to the sentencing judge.
2. The Crown noted the list of factors relied upon by the applicant in support of the contention that the finding was erroneous and addressed them individually. I have adopted some of those submissions in my consideration below.

Consideration: Ground 2

1. Her Honour spent some time addressing the submissions made on the applicant's behalf as to his good prospects of rehabilitation but was unable to accept them. As for the submission that his prospects of rehabilitation were good because he had no drug and alcohol issues, her Honour stated at [127]: "I regard that fact as irrelevant given that he committed these offences over a long period of time and at a time when he also had no drug or alcohol issues".
2. That was a finding well open to her Honour. Although the evidence at trial was that the applicant would buy alcohol for HS, there was no evidence at trial that he ever consumed alcohol with her. Although drugs or alcohol may be a risk factor for offending generally, the question her Honour was considering was the applicant's prospects of rehabilitation in relation to sexual offending against children, in respect of which alcohol or drugs never played any part.
3. Her Honour considered a further submission as to prospects of rehabilitation as follows at [129]: "His counsel submits that so far his prospects of rehabilitation are concerned, the fact that he is an intelligent and capable person is relevant and that it is likely that he is going to be older and wiser on release than he was when he committed these offences. However, in my view, his intelligence does not seem to be the kind of emotional intelligence that is required to obtain acceptance and insight into his offending. Acceptance of what he has done and insight into why he did it are always the first steps to rehabilitation. Despite being now aged nearly 40, despite having spent many months in custody after his finding of guilt by a jury, and despite his work with the Salvation Army chaplain together with the course that he has done over a number of weeks, he shows no signs of either."
4. Again, this finding was open to her Honour. The fact that the applicant is intelligent and capable, as shown by his professional success, is not a factor that necessarily supported good prospects of rehabilitation in light of the applicant's risk factors. On the contrary, as her Honour found, he was able to use his professional success as part of the grooming behaviour. Her Honour was entitled to find that the applicant's emotional intelligence was low given his somewhat bizarre evidence that he would not save a woman in a car crash in case she made a false complaint about him. As for the applicant's employment history, it plainly did not prevent him from engaging in the offences and, as observed by the sentencing judge at [144] he exploited his success to impress the victims.

Ground 4: manifest excess

1. Given that error has been established, it is not necessary to consider whether the aggregate sentence imposed was unreasonable. Error having been established in the sentencing process, the Court is required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act by an independent exercise of the sentencing discretion: Kentwell at [43]. The parties' submissions on ground 4 are nonetheless relevant to the question of re-sentence and I have considered them below from [298].

Factual findings

1. In re-sentencing the applicant the Crown submitted that I would adopt all of the findings made by the sentencing judge with one exception: it was submitted that this Court would be satisfied beyond reasonable doubt that the applicant knew that the victims were under the age of 16 years and would sentence him on that basis. It was submitted that that it would be open to this Court to accept the evidence of the victims and accordingly find that the applicant did not honestly believe the victims to be 16 years of age or older.
2. Counsel for the applicant, on the other hand, submitted that the sentencing judge was best placed to make this factual finding having observed all the witnesses during the trial. It was submitted that this placed her Honour in a better position to make the relevant assessment as she was able to judge the presentation of witnesses including the victims and their apparent age, noting however that the trial occurred some five years after the alleged offences.
3. It was not submitted on behalf of the applicant that this Court could not revisit the finding as to his relevant knowledge for the purpose of re-sentencing; only that in the exercise of this Court's re-sentencing discretion it would not.
4. Before turning to consider the evidence relevant to such a finding, it is pertinent to first address the relevant authorities on this question.

What is the relevant test?

1. In Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 ("Carroll"), an appeal decided two years before Kentwell, the High Court considered an appeal brought by an offender whose sentence was increased in this Court on a Crown appeal. One of the particulars of error relied upon by the Crown in this Court in support of its contention of manifest inadequacy was that the sentencing judge "gave too much weight to the [present appellant's] subjective circumstances and failed to appreciate the objective seriousness of the offence" (at [9]). In upholding the Crown appeal this Court made a different finding of objective seriousness but in doing so ignored some of the factual findings made by the sentencing judge. In that context the Court (Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed the following at [24]: "In deciding whether the sentence passed by the primary judge was manifestly inadequate it was open to the Court of Criminal Appeal to consider how the appellant's offending was properly to be characterised. In particular, it was open to the Court of Criminal Appeal to form a view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood. But in the absence of any challenge to the primary judge's findings of fact, it was not open to the Court of Criminal Appeal to evaluate the adequacy of the sentence by discarding reference to why the appellant had acted as he had, or by attributing to him the ability to foresee that his conduct could cause not just serious injury, but severe injury or the possibility of death. Both these steps being erroneous, the majority of the Court of Criminal Appeal erred in reasoning to the conclusion that the sentence passed was manifestly inadequate. The appeal to this Court must then be allowed."
2. Thus it was held that in the absence of any challenge to the primary judge's findings of fact, it was not open to an intermediate appellate court to discard factual findings made by the primary judge.
3. In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 ("Betts"), the High Court considered the question of whether an offender should be permitted to put a different case on re-sentence to that put at first instance based on material that was available at the time of the initial sentence but not put before the sentencing court. In that context the Court, (French CJ, Kiefel, Bell, Gageler and Gordon JJ) observed the following at [14]: "Forensic choices are made in the conduct of the offender's case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge's discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct."

The evidence as to the applicant's knowledge

1. As stated above, the Crown case at trial was run on an alternate basis: its primary case was that the applicant knew that the two victims were not aged 16 years or over. This was based on the evidence of the victims as to what they told him about their respective ages. The Crown also put an alternative case, namely, that the applicant honestly but mistakenly believed the two victims to be aged 16 years or over and that such a belief was not reasonable in the circumstances. Her Honour was satisfied that the jury's verdict was consistent with either of the two cases.
2. Although Brereton JA has recounted the evidence in some detail above for the purpose of consideration of the ground that the verdicts were unreasonable, it is necessary for me to do so again here in order to assess the Crown contention that the applicant should be sentenced on a different factual basis to that found by the sentencing judge.
3. The evidence as to the applicant's knowledge of DA's age comprised the following: 1. DA's evidence was that she first met the applicant after he sent her a friend request on her Facebook account. DA's evidence was that her Facebook profile was public which meant that her date of birth was visible; 2. DA's evidence was that she told the applicant over Facebook chat, before they first met, that she was 14 years of age and in Year 8 at school; 3. In response the applicant lied about his age and told her that he was 22 (the same age as her brother) when he was in fact aged 30 or 31; 4. The first time DA met the applicant she was dressed in her school uniform after school and the applicant told her that she looked cute in her uniform. She was accompanied by a friend who was also wearing her school uniform; 5. After meeting in a park several times the applicant kissed DA on the lips and asked her if she would be his girlfriend. He then told her that they would have to wait until she turned 16 before they could tell anyone that they were together; 6. DA's evidence was that the first time he persuaded her to go to a hotel the applicant told her, "your mum won't find out".
4. The evidence as to the applicant's knowledge of HS' age comprised the following: 1. Unlike DA, HS could not recall whether she had her age on her Facebook profile. It was she who first contacted the applicant; 2. The first time she met the applicant she was with her friend. They got into his blue Hummer and drove around. Her evidence was that she initially lied to the applicant about her age, telling him that she was 15 years old. Her friend told him that she was 16 years old. In fact they were aged 13 and 15 respectively. In her police statement HS had initially told police that she said she was 15 "or 16" but her evidence at trial was that she initially told him she was 15; 3. Shortly after count 3 occurred and shortly before she turned 14, the victim told the applicant that her true age was 13. When she told him this he was upset that she had lied to him. She then asked his age and he said that he was 24. This was a lie; he was in fact 32 years old. On her evidence, after she disclosed that she was 13 and not 15 the two of them had sexual intercourse; 4. It was after the victim told the applicant that she was 13 years old that the applicant asked her to be his girlfriend.

Conclusion

1. Having regard to all of these matters I am satisfied beyond reasonable doubt in respect of counts 1-2 and 4-16 that both victims told the applicant their respective ages and he thus knew how old they were at the time of the commission of the offences. In arriving at that conclusion, I have deferred to the advantage enjoyed by the trial judge in seeing and hearing the relevant witnesses, in particular the two victims and the applicant. It is to be accepted that the credibility of these three witnesses was a significant factor at trial. It is also to be accepted, as Brereton JA has noted at that it was open to the jury to accept some and reject other parts of the victims' testimony. Despite this, and for the reasons I have set out above, I am satisfied beyond reasonable doubt that the applicant knew that the victims were under the age of 16 years. He stands to be re-sentenced on that basis.
2. I have come to a different conclusion for count 3. HS' evidence was that she told the applicant she was 15 years old prior to that count and it was only after count 3 that she told him the truth: she was only 13 years old. The jury's verdict on that count was consistent with them being satisfied beyond reasonable doubt that the applicant knew or should reasonably have known that HS was aged under 14 at the time of count 3. Unlike counts 1-2 and 4-16, however, there is no clear evidence indicating that the applicant had actual knowledge of HS' age at the time of count 3. Accordingly, in relation to count 3 only I would give the applicant the benefit of the doubt and re-sentence him on the same basis as the trial judge did.
3. Given my conclusion that in relation to all counts except count 3 the applicant is to be sentenced on the basis that he knew the victims were aged under 16 years, it follows that my assessment of the objective seriousness of the offences is higher than that found by the sentencing judge. The sentencing judge found that the offending in relation to counts 1 to 16 was "below the mid-range" of objective seriousness, although not significantly so. Given that no SNPPs applied at the time of the offending, there is no requirement to make any finding of where the objective seriousness lies on a continuum of offending. Despite this, in order to reflect the fact that I have assessed the objective seriousness to be higher than that of the sentencing judge, I indicate that I would assess the objective seriousness of each offence to be well along the range of offences that could be classed as mid-range for offences of this nature.

Subjective factors

1. No additional evidence was tendered on re-sentence. I have thus made the relevant findings based on the material before the sentencing judge.
2. I have already summarised the applicant's subjective case. The favourable factors included that he had no prior convictions and a positive employment history. His fall from grace was significant and there can be no doubt that he has suffered emotionally and financially following his apprehension. The fact that the custodial environment has triggered latent trauma symptoms means that the custodial environment is more onerous for him.
3. The applicant submitted that the offences involved consensual relationships, without violence or force and there was no position of authority or trust. Counsel for the applicant relied on the applicant's "favourable" subjective case and lack of criminal history. It was further contended that this Court would make more favourable findings about the applicant's subjective case and prospects of rehabilitation than the sentencing judge did.
4. Counsel for the applicant relied on his evidence in the proceedings on sentence (extracted above at [163]-[172]) in which he denied a sexual interest in girls aged 16 or under and stated that he would avoid them "like the plague" in case they "throw charges at [him]". It was submitted that this was merely an inarticulate way of stating that he would not put himself in a similar situation in future.
5. I have already found under ground 2 that no error is disclosed in her Honour's finding that the applicant has "almost no prospects" of rehabilitation. Despite this I would make a slightly more favourable finding. It seems to me that his opportunity to offend will be reduced once he is released given that he will not be able to use his successful career to groom potential victims and it will be more difficult for him to lie about his age as he will be significantly older by the time he is released.
6. The applicant's risk factors for offending remain unclear. They have never been identified or addressed. The applicant has shown no remorse or insight into his offending. I would find special circumstances, as her Honour did, on the basis of the applicant's PTSD.
7. The applicant is to be re-sentenced for 22 serious offences: 16 offences of sexual intercourse with a child and 6 offences involving the production or possession of child abuse material. The offences were not opportunistic; they involved planning, forethought and grooming behaviour. The criminal behaviour spanned several years and two separate victims over distinct periods of time.

Endnotes

1. T110.26-29.
2. T112.37.
3. T113.44 - 114.14.
4. T117.30.
5. T115.25.
6. T116.15.
7. T116.10.
8. T115.50.
9. T117.18.
10. T402.43-50.
11. T116.38.
12. T117.12-13.
13. T403.03.
14. T118.15-16.
15. T118.45-46.
16. T132.42-43.
17. T119.25-35.
18. T119.41-50.
19. T120.13-15.
20. T120.19-21.
21. T120.50.
22. T120.45.
23. T121.45.
24. T122.20.
25. T125.33
26. T125.50.
27. T125.35-36.
28. T126.10.
29. T126.25.
30. T126.20.
31. T127.17-34.
32. T505.32.
33. T506.14-15.
34. T508.29-34.
35. T564.30.
36. T511.25.
37. T510.11-40.
38. T571.38.
39. T518.39.
40. T516.22-24.
41. T519.16.
42. T163.01.
43. T164.39.
44. T166.26.
45. T167.01, T224.10-226.39.
46. T167.01-09.
47. T166.38.
48. T225.08.
49. T225.22-226.01.
50. T167.20.
51. T248.15.
52. T167.30.
53. T177.48-178.05.
54. T170.44 - 171.08.
55. T171.25.
56. T171.32.
57. T233.30.
58. T172.27.
59. T172.50 - 173.12.
60. T173.39.
61. T229.44.
62. T173.16 - 47.
63. T174.05, T231.03.
64. T174.12.
65. T175.33.
66. T176.09.
67. T177.18.
68. T176.31-177.21.
69. T177.26-35.
70. T178.50.
71. T180.50 - 181.01.
72. T189.42.