Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DH v R [2022] NSWCCA 200 Hearing dates: 18 November 2022 Date of orders: 21 December 2022 Decision date: 21 December 2022 Before: Harrison J at [1] Fagan J at [56] Yehia J at [57] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – 17 counts of child sexual offences committed against nine victims over 28 years – 10 Form 1 offences taken into account – where applicant sentenced to 30 years' imprisonment with a non-parole period of 20 years – whether sentencing judge erred in assessment of objective seriousness of individual counts – whether trial judge erred in failing to indicate where on the scale of seriousness each of the offences fell – whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), ss 61M(2), 66A, 66C(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 54A, 54B Cases Cited: BR v R [2021] NSWCCA 279 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 Lyons v R [2017] NSWCCA 204 McIntosh v R [2015] NSWCCA 184 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Cattell [2019] NSWCCA 297 R v Dawson [2022] NSWSC 1632 R v Dodd (1991) 57 A Crim R 349 R v JJ [2019] NSWCCA 148 Ryan v R [2019] NSWCCA 200 Sivell v R [2009] NSWCCA 286 Sponberg v R [2017] NSWCCA 120 Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: DH (Applicant) Rex (Respondent) Representation: Counsel: A Moutasallem (Applicant) E Wilkins SC (Respondent) Solicitors: Adam Jones Solicitor (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2018/213874 Publication restriction: Statutory prohibition on publication of material identifying the complainants Decision under appeal Court or tribunal: District Court of NSW at Sydney Jurisdiction: Criminal Date of Decision: 07 May 2021 Before: Huggett DCJ File Number(s): 2018/213874 Headnote [This headnote is not to be read as part of the judgment] The applicant, DH, pleaded guilty in the District Court to 17 child sex offences committed between 1990 and 2018 against nine children. He was sentenced by Huggett DCJ to an aggregate sentence of 30 years with a 20 year non-parole period. Ten additional offences admitted by DH were taken into account on sentence. Two of the victims were DH's biological daughters. A third victim was his cousin. The remaining victims were friends of his daughters. DH was taken into custody on 11 July 2018. He was never granted bail. DH did not enter his pleas at the first available opportunity. He appeals against the aggregate sentence imposed on him. The principal issues before this Court were: whether the sentencing judge erred in her assessment of the objective seriousness of the individual counts; and whether the sentence imposed upon DH both as to the head sentence and the non-parole period were in all the circumstances manifestly excessive. Held by the Court, granting leave to appeal and dismissing the appeal: Per Harrison J (Fagan J and Yehia J agreeing): 1. A sentencing judge is not obliged to indicate where on the scale of seriousness each offence falls when dealing with an offence which carries a standard non-parole period. Whereas it would not be an error for a judge to adopt such an approach, a failure to do so does not indicate error. Her Honour's remarks on sentence are both orthodox and correct. Her Honour's reference to the inference that arises from the difference between the indicative sentences is also instructive: at [33], [58]-[59], [62]. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Tepania v R [2018] NSWCCA 247 applied. Lyons v R [2017] NSWCCA 204; McIntosh v R [2015] NSWCCA 184; R v Cattell [2019] NSWCCA 297; Sivell v R [2009] NSWCCA 286 considered. 1. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even if not apparent from the reasons of the sentencing judge, or where the sentence is so different to the range in similar cases that there must have been error. The nature of DH's offending, the age of the victims, the circumstances where and in which it occurred and the length of time over which it was perpetrated all combine to produce offending of a most reprehensible kind. DH's sentence is not manifestly excessive: at [49]-[53]. Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 applied. Ryan v R [2019] NSWCCA 200 discussed with approval. Judgment 1. HARRISON J: On 7 May 2021, following pleas of guilty to 17 child sex offences committed between 1990 and 2018 against nine children, DH was sentenced by Huggett DCJ to an aggregate sentence of 30 years with a 20 year non-parole period. Ten additional offences admitted by DH were taken into account on sentence. Two of the victims were DH's biological daughters. A third victim was his cousin. The remaining victims were friends of his daughters. 2. DH was taken into custody on 11 July 2018. He was never granted bail. DH did not enter his pleas at the first available opportunity. DH appeals to this Court on the following grounds: Ground 1: The sentencing judge erred in her assessment of the objective seriousness of the individual counts. Ground 2: The sentence imposed upon DH both as to the head sentence and the non-parole period were in all the circumstances manifestly excessive. The offences and indicative sentences 1. DH was sentenced as follows: Count Offence Discount Maximum SNPP Indicative Sentence Penalty 19-23 Indecent assault of person under the age of 16 (AH) 4Y 19 Section 61M(2) Crimes Act 1900 10% 10 years 8 years 2Y9M NPP Offence on form 1: indecent assault of person under age of 16 Indecent assault of person under the age of 16 (BW) 4Y6M 20 Section 61M(2) Crimes Act 1900 10% 10 years 8 years 3Y NPP Offence on form 1: indecent assault of person under age of 16 21 Indecent assault of person under the age of 16 (BW) 10% 10 years 8 years 4Y6M Section 61M(2) Crimes Act 1900 3Y NPP 22 Indecent assault of person under the age of 16 (BW) 10% 10 years 8 years 3Y8M Section 61M(2) Crimes Act 1900 2Y2M NPP 23 Indecent assault of person under the age of 16 (FW) 10% 10 years 8 years 3Y2M Section 61M(2) Crimes Act 1900 2Y NPP 1-12 1 Sexual intercourse with person under the age of 10 (VW) 10% 20 years NA 8Y Section 66A Crimes Act 1900 Indecent assault of person under the age of 16 (EH) 1.2.03-31.12.07 6Y4M 2 Section 61M(2) Crimes Act 1900 10% 10 years 5 years Prior to 1.2.03 NA 4Y8M NPP Offence on form 1: indecent assault of person under age of 10 3 Sexual intercourse with person under the age of 10 (EH) 10% 25 years NA 12Y Section 66A Crimes Act 1900 Sexual intercourse with person under the age of 10 (EH) 12Y2M 4 Section 66A Crimes Act 1900 10% 25 years NA 8YNPP Form 1 offence: attempted aggravated sexual intercourse on a person above 10 but under 14 Sexual intercourse with person under the age of 14 and above age of 10 (EH) 5 Section 66C(1) Crimes Act 1900 10% 16 years NA 8Y 2 counts on form 1 being indecent assaults under the age of 16 6 Sexual intercourse with person under the age of 14 and above age of 10 (EH) 10% 16 years NA 8Y Section 66C(1) Crimes Act 1900 7 Indecent assault of person under the age of 16 (KO) 10% 10 years 5 years 3Y11M Section 61M(2) Crimes Act 1900 2Y8M NPP Indecent assault of person under the age of 16 (TB) 4Y 8 Section 61M(2) Crimes Act 1900 10% 10 years 8 years 2Y8M NPP Offence on form 1: indecent assault of person under age of 16 Indecent assault of person under the age of 16 (CQ) 4Y 9 Section 61M(2) Crimes Act 1900 10% 10 years 8 years 2Y9M NPP Offence on form 1: indecent assault of person under age of 16 Sexual intercourse with child under 10 years (HH) 9Y6M 10 Section 66A(1) Crimes Act 1900 5% Life 15 years 6Y10M NPP Offence on form 1: aggravated (under authority) indecent assault of person under age of 16 Sexual intercourse with child under 10 years (HH) 9Y6M 11 Section 66A(1) Crimes Act 1900 5% Life 15 years 6Y10M NPP Offence on form 1: aggravated (under authority) indecent assault of person under age of 16 12 Indecent assault of person under the age of 16 (HH) 5% 10 years 8 years 4Y Section 61M(2) Crimes Act 1900 2Y9M NPP 1. Her Honour thoroughly summarised the facts in her remarks on sentence, which had been agreed for the purposes of the sentencing exercise. 2. Count 19 related to AH who was born in November 2007. AH was friends with HH and would visit HH in DH's home on occasions. The facts read that on about two occasions (Count 19 and the Form 1 count) at around Christmas of 2017, DH touched AH on the vagina in the garage at the family home. 3. Counts 20 to 22 related to BW who was born in June 2007. BW was the sister of FW born in July 2005, another victim in this matter. Count 20 occurred while BW was having a sleepover with HH when DH put his hands inside BW's underpants and rubbed her on the outside of the vagina. On another occasion, when BW was visiting HH, DH asked BW to sit on his lap. He then proceeded to place his hands underneath her clothing and touch her vagina (Form 1 offence attached to Count 20). These offences were said to have occurred between June 2013 and March 2015. 4. Count 21 involved a further allegation of DH touching BW on the vagina during a sleepover. This offence was said to have occurred between June 2013 and March 2015. 5. Count 22 was said to have occurred on 6 July 2018. Arrangements were made for FW and BW to spend the last week of the holidays with DH's family. One night, BW woke to find DH touching her vagina over her underpants. BW said "stop, it's inappropriate, I'll tell Tammy". BW woke up HH and told her what had happened. 6. Count 23 was said to have occurred during the same holiday week. This offence involved FW. DH used his hands to rub FW on the outside of her vagina. 7. The following day, HH, FW and BW were playing in the park and began to discuss what DH had done. BW and FW told Tamara, DH's wife, what had occurred. Tamara then told DH, "you have 30 minutes to get out of this house. Pack your things and go." A complaint was then made to Port Macquarie Police. BW and FW participated in police interviews on 11 July 2018. DH was arrested on 11 July 2018. Further investigation by the police led to additional charges. 8. Count 1 related to DH's cousin, VW. This offence was said to have occurred in April or May 1990. At the time, VW was 7 and DH was 21. On one evening, DH was babysitting VW. He began to talk to her about kissing, he then put his fingers inside her vagina. VW felt pain. DH then said, "don't tell your mother or anyone". 9. Counts 2 to 6 related to DH's daughter EH. EH was born in August 1998. EH spent several periods in foster care. In about 2002 or 2003 at a time when EH lived with DH in a caravan, DH rubbed her vagina on the inside and outside of her underpants while telling her that his actions were normal father-daughter activity (Count 2). DH also told EH not to tell anyone else. On another occasion, DH touched EH on the vagina and called her "juicy" (Form 1 attached to Count 2). 10. In about 2004, EH and the family moved to Armidale. On one occasion, DH told her he would give her a really good birthday party if she let him touch her. DH then lay on a bed with EH and performed cunnilingus on her while he masturbated (Count 3). On about 27 September 2004, DH performed cunnilingus on EH in Armidale while he masturbated (Count 4). EH saw him ejaculate. In about 2008, DH rubbed EH's vagina and tried to put his finger in it (Form 1 attached to Count 4). In or about 2009 or 2010, EH was living in care with her aunt. Arrangements were made for EH to visit her paternal grandmother. While there, DH also visited with his wife, Tammy. EH was awoken from sleep to find that DH was playing with her breasts, nipples and vagina. He then placed his finger inside her vagina and masturbated to ejaculation (Count 5 and the two Form 1 offences attached to Count 5). DH then licked EH's vagina (Count 6). 11. Count 7 related to KO who was born in 1999. In or about 2006 during a sleepover she woke to find DH touching her on the outside of her vagina. 12. Count 8 related to TB. In about May 2009, when TB was 11, she had a sleepover at EH's home. TB woke to find DH touching her on the outside of her vagina inside of her underpants. When this occurred, TB rolled onto her stomach. DH then rolled her onto her back and began to touch and lick her breasts. 13. Count 9 related to CQ, TB's sister. In about May 2009 during a sleepover, DH moved his hand up CQ's leg and rubbed her vagina with his fingers. CQ shoved him away and told him to stop. DH then rolled CQ over and touched her breasts. CQ told him to stop and pushed him away (Form 1 offence attached to Count 8). 14. Counts 10 to 12 related to DH's daughter HH. She was born in June 2007. DH began sexually assaulting HH in about 2016 or 2017. On the first occasion, DH went into HH's bedroom and used his hand to touch her vagina. Part of DH's hand went into HH's vagina (Count 10). HH told him to stop. HH was told not to tell anyone about what had occurred and that if she did, DH would go to gaol, and it would be her fault. On another occasion shortly after her 10th birthday while alone at home with HH, DH told her not to say anything to anyone otherwise DH would go to gaol. DH called HH "yummy" and touched her on her bottom outside her clothing (Form 1 offence attached to Count 10). 15. On a further occasion when HH was about 10, DH came into HH's room while she was sleeping which caused her to wake up. DH started licking HH's vagina (Count 11). HH told him to stop, and he left. 16. There was a further incident where DH called HH into his room. He started to rub her on the vagina and told her to have sex with him. HH refused and this angered DH (Form 1 offence attached to Count 11). 17. The final time DH assaulted HH was in about June or July 2018 when she was 11. HH woke to find DH rubbing her vagina on the outside of her underpants while calling her "sexy" and "yummy" (Count 12). HH complained to her mother at the same time that BW and FW did so. HH participated in an interview with police and said that the incidents that she recalled were not isolated. Remarks on sentence 1. Her Honour dealt with the seriousness of the offending at some length in her remarks on sentence as follows: "In sentencing an offender for offending whether it has or has not got a legislative guidepost in the form of a standard non-parole period, it is necessary to assess the objective gravity of each offence. Johnson J in Tepania v R [2018] NSWCCA 247 [110]-[120] clarified the proper approach to this task. A number of factors and features bear upon the assessment of the offences before this Court. Many are common to most or all of the offences while some are particular to certain offences. Age is an element of each offence and must not be double counted. I note the relevant age thresholds differ across the offences. Where a victim was particularly young and further removed from the upper age threshold for an offence, that is a matter that can properly increase the objective seriousness of that offence (R v BJW (2000) 112 A Crim R 1 [20]-[21]). This is a particular feature of Counts 2, 3 and 4 on Indictment 19.1 and Counts 20 and 21 on Indictment 7.1. Conversely, the closer in age the victim is to the upper age threshold, that can reduce objective seriousness. Save for Counts 5, 6 and 11 on Indictment 19.1 for which 'under authority' is an element and has not been double counted, to varying extents each victim was under the offender's authority. That arose either because he was her father or because he was caring or supervising her in the context of babysitting or because she was a guest in his home sleeping over and/or playing with his daughter. Some offences were committed in a victim's own home and/or bedroom. Such features are matters of aggravation. Overlapping the feature of 'under authority' is that of a 'breach of trust'. The offender was clearly in an important position of trust in relation to his daughters and perhaps less so, his cousin. In relation to the remaining victims, the offender had been entrusted by her parents or guardians to care for her when she was in his home. By placing his desire for sexual gratification above their welfare, the offender grossly abused and exploited that trust. Before leaving this issue, I appreciate the courts acknowledge a degree of overlap between the concepts of 'breach of trust' and 'under authority' and care has been exercised not to double count given this overlap. There is no fixed hierarchy as to the seriousness of different acts that are capable of constituting an indecent assault or indeed an act of sexual intercourse. Much will depend on the surrounding circumstances. That said, some observations can be made. For offences of sexual intercourse, digital sexual intercourse upon a child has the potential to involve a degree of physical pain. Cunnilingus on the other hand, may, depending on the child's maturity and perception, be perceived as being particularly intimate and humiliating and arguably more emotionally distressing. For offences of indecent assault, contact with the genitalia is generally more serious than other forms of bodily contact and skin-to-skin contact is generally more serious than contact through clothing. For some of the offences the offender stopped when asked. For the offences committed upon his daughters, the offender used threats and/or enticements. During the first offence upon [EH] for which he is to be sentenced (Count 2, Indictment 19.1), he told [EH] that what he was doing was normal and was what all fathers and daughters do. At the time of Count 3 (Indictment 19.1) he told [EH] that he would give her a really good birthday party if she allowed him to touch her. During the first offence upon [HH] for which he is to be sentenced (Count 10, Indictment 19.1), the offender told [HH] she was not to tell anyone otherwise he would go to gaol and it would be her fault. Such conduct by a father to his daughter has the potential to cause significant and long-lasting emotional and psychological harm. Unsurprisingly, very few victims attribute any particular time duration to the offender's conduct. While I appreciate that lengthy offending might in certain cases represent a matter of aggravation, for offences of the present type, focusing on the duration of the offending has the potential to ignore or at least undermine the profound and deleterious effects such offending can have, even if it be brief, infrequent or isolated. For a number of victims, the offending was not isolated but occurred as part of a course of conduct. For others it was a one-off offence. I have afforded little weight to this factor however because the number of offences committed by this offender upon so many victims over so many years makes any claim to isolated offending nonsense. In any event, I make clear that I have not found any aggravation in the fact there was a multiplicity of victims nor that an offence was part of a series of criminal acts. Insofar as some of the offences were committed in the presence of another child, there is no evidence such other child was aware of that offending. Rather she appears to have been merely present. In those circumstances I do not consider this properly constitutes a matter of aggravation. Considerations of planning are relevant to the objective seriousness – the rationale being the more planned the offence, the less impulsive and arguably the more serious it be. For sexual offences committed upon children where an offender has access to children because he is a trusted adult, considerations of planning assume less significance. This offender clearly had access to his own daughters and cousin by virtue of the family relationship. His other victims were friends of his own children who attended their home for sleepovers and play dates. On some occasions he sought to disguise his offending as being normal and/or fun. On some occasions he said things to secure silence (which of itself would allow his offending to continue). On some occasions he was told by a victim that what he was doing was inappropriate and/or wrong and that she was going to tell someone yet he continued to offend stopping only when his wife confronted him and effectively told him to leave the house and police were contacted. The offences were not spontaneous or opportunistic but represent systematic and deliberate exploitation of each victim. That said, I make clear I am not saying there is present evidence of planning involving a level of organisation or sophistication that would constitute a matter of aggravation under the Crimes (Sentencing Procedure) Act 1999 (NSW). Insofar as it was submitted that the offender did not use threats, physical force or violence in the commission of any offence, that is accepted. However, it can hardly be seen as a matter of mitigation given the context in which the offences occurred. Each victim was a child and was, in reality, powerless. As stated by McCallum J, in R v BA [2014] NSWCCA 148 at paragraph [33]: 'An aspect of the seriousness of sexual offences committed against young children is that their youth and inexperience deprives them of the capacity to resist or protect themselves. The fact that an adult entrusted with the care of a child is able to prey upon the child's trust and vulnerability to commit sexual offences without resort to the use of force is hardly a mitigating factor. It speaks of a pernicious abuse of trust'." 1. Her Honour then proceeded to outline the features of the particular offences before saying this: "I have outlined particular features relevant to the objective seriousness of the present offences. Given the number of offences committed by the offender – all of which are undoubtedly serious offences – nothing can be gainfully achieved by any further assessment of their relative seriousness. Simply put, the offences committed by this offender are to varying degrees appalling and abhorrent – some being objectively more serious than others. The degree to which this is so will be apparent by the different indicative sentences in relation to each offence." Ground 1 1. It is conceded in this appeal by DH that her Honour made findings in the passages from her remarks on sentence relevant to objective seriousness quoted at [21] above. However, he complains that her Honour did not indicate where on the scale of seriousness each of the offences fell and that her approach is erroneous. This is said to be so in particular with respect to those offences that carried a standard non-parole period. DH submitted that in such cases her Honour was obliged to utilise the concept of mid-range offending and assess where on a scale of seriousness the offending for those offences lay. 2. DH relied upon the remarks of Fullerton J in Sivell v R [2009] NSWCCA 286 at [32] as follows: "[32] A sentencing judge is obliged to utilise the concept of mid range offending, and customarily appoints positions within or outside that range as a standard or measure against which to assess objective seriousness, when sentencing for offences where a standard non-parole period applies under Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act. This is in accordance with the approach mandated by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168. However, it is neither necessary nor in most cases desirable for sentencing judges to make an assessment of the objective criminality in respect of offences not governed by a standard non-parole period with that same degree of nuance. I do not intend by that observation to suggest that there are not cases where particularity in the appointment of offending within a mid-range of offending will not be warranted in order to ensure that the reasons for the imposition of a particular sentence achieve the objectives of clarity and transparency. When sentencing co-offenders it is often necessary to differentiate in this way in recognition of the need to ensure parity in the sentences imposed. In many cases, however, it is sufficient for a sentencing judge to make an assessment of objective criminality by reference to the maximum penalty, and to those other features of the particular offending that bear upon the gravity of the offence having regard to the circumstances of its commission, on a broad gradient of seriousness." 1. DH also drew attention to what was said by Ierace J in BR v R [2021] NSWCCA 279 at [151]: "[151] The sentencing judge made findings as to where in the range of objective seriousness each of the offences lay. Although it was unnecessary for his Honour to make a scaled assessment of objective seriousness, except in respect of count 13 because it had a standard non-parole period (Sivell v R [2009] NSWCCA 286 at [32]), it is helpful that his Honour has done so … ." 1. DH also referred to Lyons v R [2017] NSWCCA 204 in which Davies J, with whom Simpson JA and I agreed, cited with approval at [50] the following passages in the judgment of Macfarlan JA from Sponberg v R [2017] NSWCCA 120 at [23]-[26]: "[23] As Simpson J said in R v Campbell [2014] NSWCCA 102 at 27, '[t]he assessment of objective seriousness is, and has always been, a critical component of the sentencing process'. This remains the position notwithstanding the High Court decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. [24] As Latham J said in R v Cage [2006] NSWCCA 304 at [17], '[a] bare recitation of the facts constituting the offences and a reference to the "objective features of the offences" does not satisfy the requirements of sentencing' (see also R v Van Ryn [2016] NSWCCA 1 at [129]). Where an offence is 'not so grave as to warrant the imposition of the maximum prescribed penalty', a sentencing judge 'is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called' (R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at [19]; and see Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at 452). As R A Hulme J said in Van Ryn, '[i]t is one thing to refer to the general proposition that child sexual assault is a serious crime; it is another to identify the relative seriousness of the case at hand' (at [137]). This observation can be applied outside of the sexual crime context in which it was made. [25] In the present case, the sentencing judge did not indicate where the applicant's Count 1 offence lay in the spectrum of offences, nor did he make any assessment at all of its objective seriousness (see Van Ryn at [133]). As indicated in [20] above, his Honour was recorded as saying 'Charge 1 is a very serious, large amount of drugs involved'. It is possible that his Honour was intending to make a statement in that sentence about the seriousness of the applicant's offending. Nevertheless, this Court can do no more than act upon the words recorded which, read literally, relate to the amount of drugs involved, and not to an assessment of the objective seriousness of the offence. Whilst the weight of the drug involved is a relevant factor in assessing the objective seriousness of an offence, it is not the only, or even chief, factor (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[70]). The language that the sentencing judge used in relation to the Count 1 offence is to be contrasted with the language he used in relation to the Count 2 offence, which he described as 'near the bottom of seriousness for these type of offences' ([20] above). [26] It is to be expected that there will be infelicities of expression in judgments given by judges who are subject to the demands and pressures of busy lists, and the focus of this Court should be on substance rather than form (as to the latter proposition see Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]). Nonetheless, the inescapable conclusion in the present case is that his Honour's sentencing judgment does not contain an assessment of the objective seriousness of the Count 1 offence, either relative to other offences of its type or at all." [My emphasis] 1. Finally, DH referred to R v Cattell [2019] NSWCCA 297 at [123] as follows: "[123] When fixing a sentence for an old child sexual offence which falls within s 25AA, a sentencing judge should: (a) Take into account the sentencing pattern which exists at the time of sentence where such a pattern is able to be discerned; (b) Determine the facts as now available to the court; (c) Pay regard to the maximum penalty and standard non-parole period (if any) that applied at the time of the offence; (d) Identify where the offence falls in the range of objective gravity of that offence; (e) Take into account any relevant aggravating factors and mitigating factors in s 21A(2) and (3) of the CSP Act; (f) Set a non-parole period in accordance with s 44 of the CSP Act as it operates at the time of sentence, and (g) Fix the balance of the term of the sentence." 1. DH's submission distilled into the single proposition that her Honour was required to assess where on the scale of seriousness all of the standard non-parole period offences lay and that she erred in not doing so. Consideration 1. The manner in which sentences for standard non-parole offences are to be assessed was explained in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29]: "[29] A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to 'mak[ing] a record of its reasons for increasing or reducing the standard non-parole period' is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences." 1. Sivell was decided before Muldrock. As the Crown's submissions emphasise, Sivell does not in any event mandate the classification of objective seriousness on a scale referable to the standard non-parole period. Rather, it refers to the fact that a sentencing judge "customarily appoints positions within or outside that range as a standard or measure against which to assess objective seriousness". In Lyons, the criticism of the sentencing judge was that no assessment was made at all of the objective seriousness of the offence in question. 2. I made reference in R v Dawson [2022] NSWSC 1632 at [10] to the need for a sentencing judge to make plain the conclusion that he or she has reached concerning the objective seriousness of the offence being considered: "[10] Assessing the objective seriousness of a crime is a synthesis or amalgamation of relevant factors touching and concerning the circumstances of its commission undertaken with the benefit of judicial experience. Reasonable minds may differ as to the conclusion. Murder is uncontroversially a serious crime. In my opinion, the murder of Lynette Dawson is an objectively very serious crime. Despite some evident misunderstanding, it is not necessary in dealing with this issue to state or to describe where on some hypothetical scale of seriousness a particular offence falls. Indeed, references to where, when compared to the oft cited middle of the range of objective seriousness, a particular offence falls are ironically so replete with potentially subjective judicial idiosyncrasies that verbalising the conclusion is usually less helpful than might be hoped. It is the responsibility of a judge passing sentence to indicate clearly his or her view of the objective seriousness of the offence being considered. It is in my view preferable when doing so, and sufficient for me in this case, to say what factors support my conclusion that the murder of Lynette Dawson is an objectively very serious offence." 1. Following Muldrock, the relevant legislation was amended to clarify how the standard non-parole provisions were to be considered and applied in sentencing. Section 54B(6) of the Crimes (Sentencing Procedure) Act 1999, effective from 29 October 2013, provides that: 54B Consideration of standard non-parole period in sentencing (6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable. 1. References in the cases to a "scaled assessment" are not to be read as requiring a sentencing judge to recite some mantra invoking comparisons about where the sentence being considered falls on some hypothetical arithmetical or geometrical continuum of seriousness. Whereas it would not be an error for a judge to adopt such an approach, a failure to do so does not indicate error. Her Honour's remarks cited above at [22] are in my view both orthodox and correct. Her remarks on sentence must be read as a whole and in context. Her Honour's reference to the inference that arises from the difference between the indicative sentences is also instructive. There can be no confusion that, as her Honour said in terms, all of DH's offences are undoubtedly serious, and nothing can be gained by any further assessment of their relative seriousness. 2. Her Honour specifically referred to the need to assess the objective gravity of each offence, whether or not it specified a standard non-parole period. Her Honour referred to the proper approach to that task identified in Tepania v R [2018] NSWCCA 247 at [110]-[120]. 3. The Crown submitted that, coupled with her Honour's detailed analysis of all aggravating and mitigating factors relevant to the assessment of the objective seriousness of each offence, her Honour more than satisfied the requirement to make clear what her findings were and how she arrived at them. I agree. 4. Her Honour's findings as to the objective seriousness of each of the offences leaves no room for doubt. DH does not suggest that her Honour mistook the relevant facts or otherwise erred in the exercise of her sentencing discretion in respect of this issue. 5. Ground 1 is not made out. Ground 2 1. DH conceded, clearly uncontroversially, that his offending was serious and warranted an appropriate sentence. However, he contended that the aggregate sentence of 30 years with a non-parole period of 20 years upon a man aged 51 who pleaded guilty, who had shown remorse, who was unlikely to reoffend, who had been sexually abused as a child and sexually assaulted in custody, and who had significant physical and mental health issues was plainly unjust. DH does not complain that her Honour misconceived or overlooked any of the subjective matters upon which he places considerable reliance in this Court. Indeed, her Honour referred to the matters in some considerable detail in her remarks on sentence between pages 28 and 32. It is unnecessary to recite those remarks here. However, DH posed the rhetorical inquiry about whether her Honour in fact could have given any practical or appropriate consideration to these significant mitigating factors in the circumstances where the head sentence after a discount for his pleas remained so high. DH submitted that there was an inexplicable inconsistency between her Honour's findings that were favourable to him and the sentence that was imposed, to the point that the former were not reflected in the latter. 2. DH contended that the sentence imposed upon him was crushing. However, her Honour had specific regard to the issue of totality and related matters, as appears from the following remarks: "I am required to have regard to totality which requires that the effective aggregate sentence imposed reflects the proper period of incarceration for the total criminality involved. It is necessary to ensure that appropriate regard is had to the fact that there are nine separate victims and that while some offences occurred within the one criminal episode, that is not so for all of them. Where a sentence for one offence can comprehend and reflect the criminality involved in another offence, the sentences should be served concurrently. If not there should be at least partial accumulation to reflect the fact that there were separate and discrete criminal acts. Quantifying the degree of partial accumulation as opposed to complete concurrency is difficult. On the one hand, I must be cautious in unduly accumulating sentences because of the compounding impact of long sentences. Each year in gaol has a greater impact on a person than the preceding year. Sentences should not crush any hope or desire for rehabilitation. On the other hand, the impression should never be given that there is some kind of discount for multiple offending. As the Court said in R v Hamid [2006] NSWCCA 302, a paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct. In sentencing the offender I have had proper regard to his current age and the fact that as he ages, his health issues may increase and/or new ones develop. This is his first time in custody. I am mindful that to his victims these factors might be irrelevant but it must be borne in mind that the severity of a gaol sentence is not simply proportionate to its length. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301, [306], 'A sentence of 5 years is more than 5 times as severe as a sentence of 1 year'." 1. DH also provided an extensive schedule of comparable sentences described as the Public Defender's Sentencing Table for Child Sexual Offences for sentences above 20 years, imposed either at first instance or by this Court on appeal. Only 3 out of a total of 24 matters in the schedule involved the imposition of higher sentences upon conclusion of the legal proceedings than DH. 2. The Crown submitted that the aggregate sentence was not unreasonable or plainly unjust. 3. The maximum penalties and standard non-parole periods are the two relevant legislative guideposts for each offence. They demonstrate the seriousness with which the community and Parliament view offences of child sexual assault, particularly in the context of a family environment. In addition, as Simpson AJA said in Ryan v R [2019] NSWCCA 200 at [3], "[a]lso not to be ignored are the progressive increases in the prescribed maximum penalties for offences of this nature, the most recent to imprisonment for life. There can be no doubt that sentencing judges are enjoined to treat sexual offences against children as amongst the most serious known to the criminal law". The Crown referred as well to R v JJ [2019] NSWCCA 148 at [44]-[46], stressing the vulnerability of the child victim. 4. In the present case, some of the offending was perpetrated against DH's daughters who were members of his household. The Crimes (Sentencing Procedure) Act recognises harm to the victim as an example of harm to the community: s 3A(g). DH's daughters were young and powerless and were left living in an ongoing and unsafe home environment. Sentences for such offences reflect both the short and long term harm suffered by victims in similar circumstances: see, for example, ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132. 5. The Crown also emphasised that the vulnerability of child victims means that both general and specific deterrence are of particular importance. DH's pleas of guilty were not offered at the first available opportunity. 6. In all there was a total of 27 offences, including those taken into account on various Forms 1 against nine victims between 1990 and 2018. The offending conduct took place over an extended period. 7. The Crown submitted that it followed from the multiplicity and seriousness of the offences, and the number of victims, that there needed to be a considerable degree of nominal accumulation of indicative terms when fixing the aggregate sentence. It was submitted that the weight that could be given to DH's character was reduced by reason of the seriousness, scale and duration of the offending. 8. DH received the benefit of special circumstances based upon his first experience in custody and his physical health and psychological concerns. Consideration 1. The Public Defender's Sentencing Table for Child Sexual Offences referred to earlier is appended to these reasons. The comparable cases listed in that table do not appear to me to support a conclusion that DH's sentence was enigmatic or out of step with current sentencing practices in cognate matters. Indeed, quite the opposite is true. That seems to me to be especially so having regard to the fact that several of the decisions are relatively old, a matter tending to suggest that they were decided in a less severe sentencing atmosphere. 2. However, reliance upon comparable cases is without more neither conclusive of error in general nor decisive of this appeal in particular. Attention must principally be directed to the question of whether her Honour's decision is unreasonable or plainly unjust. As the authorities demonstrate, appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even if not apparent from the reasons of the sentencing judge, or where the sentence is so different to the range in similar cases that there must have been error: see Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. 3. There does not seem to be a dispute that the sentence imposed upon DH is a stern sentence. Having acknowledged as much, the nature of the offending, the age of the victims, the circumstances where and in which it occurred and the length of time over which it was perpetrated all combine to produce offending of a most reprehensible kind. The sexual assault of one's own daughters is particularly abhorrent. No less so is the taking advantage of other children whose overnight presence in the home one might reasonably anticipate would be safe and without incident. 4. The summary of the offences that is included in these reasons provides no more than a sketch or outline of DH's offending. A full and comprehensive recitation of what occurred is to be found at pages 7 to 17 of her Honour's remarks on sentence. It is instructive to refer to only part of that agreed description of DH's offending to give a flavour of the seriousness of the abuse in question. For example, her Honour described the sexual assault of HH commencing on page 16 of her remarks: "The first time HH recalled the offender sexually assaulting her was when she was 8 or 9, being 2016 or 2017. It was a school night and she was asleep in bed. The offender came into the room and said, 'Do you want to play?' She replied, 'What does that mean?' He said, 'It's okay. Just don't tell anyone else, not even your mother.' He then used his hand to touch HH's vagina underneath her clothing. Part of his hand went inside HH's vagina. HH told the offender to stop. The offender said, 'Don't tell anyone otherwise I'll go to gaol and it will be your fault.' HH recalls another occasion not long after her 10th birthday when she was at home sitting at the computer. Her mother and brother were out of the house at the shops. The offender approached and said, 'You know if you tell mum you'll be in lots of trouble.' HH said, 'I don't care. I'm going to tell her sooner or later.' The offender said, 'Don't otherwise I'll go to gaol' and told HH that she looked, 'yummy'. He then started rubbing his hand against her bottom on the outside of her clothing. HH told the offender to go away. On another occasion when HH was about 10, she was in bed asleep when the offender came into the room which caused her to awaken. HH was wearing grey pants and the offender started licking her vagina on the inside of her clothes. HH told the offender to stop and he left. The next occasion HH can recall occurred close to her 11th birthday. She was about to go to bed when the offender called her into his room. He was lying dressed on the bed. HH lay down next to him whereupon the offender used his hand to rub her vagina on the outside of her underpants and said, 'Let's have sex.' HH said, 'No.' The offender kept saying, 'Please, please.' When HH refused the offender became angry and said, 'Oh fine. Go then.' HH then went to bed. The last incident HH can recall occurred in late June or early July 2018 when she was 11. It was night time and she was in bed asleep wearing tracksuit pants. She awoke to find the offender rubbing up and down on her vagina on the outside of her underpants while calling her 'sexy' and 'yummy'. HH told him to stop and he left the room. In July 2018, HH complained to her mother Tamara around the same time BW and FW had made complaints about the offender touching them. HH participated in recorded interviews with police where she disclosed the above offences and said they were not isolated." 1. This material suggests that DH's daughter, who was undoubtedly not yet out of primary school at the times described, was drawn into her father's abusive conduct in an almost normalised context, and unfairly threatened with the consequences for her of his acknowledged crimes. Appreciation of that awful dynamic gives substance to the term "abuse" clearly extending beyond the acts of physical violation. Her Honour recognised this in her remarks on sentence when dealing with DH's breaches of trust and abuse of his authority, while carefully recognising the risk of double counting. 2. I am unable in the circumstances of this case to conclude that DH's sentence is manifestly excessive. 3. Ground 2 is not made out. Orders 1. I consider that the following orders should be made: 1. Grant leave to appeal. 2. Dismiss the appeal. 1. FAGAN J: I agree with Harrison J and with the additional remarks of Yehia J. In particular concerning ground 1, I consider that Muldrock v The Queen at [29], s 54A(6) of the Crimes (Sentencing Procedure) Act and Tepania v R at [110](d) constitute sufficient authority to establish that a sentencing judge is not required to nominate where, on a hypothetical scale of gravity, a particular instance of offending should be located. Rather, the learned judge was required to take into account, with respect to each count, all features that contributed to or mitigated objective seriousness. Her Honour did so, explicitly. With respect to ground 2, a significant reason for the aggregate sentence being so substantial is that it necessarily involves considerable notional accumulation to reflect that the applicant perpetrated his sexual offences against nine separate victims, aged between about 5 years and about 12 years, causing incalculable harm that may be expected to affect each of them for life. The aggregate is not manifestly excessive. 2. YEHIA J: I have had the considerable benefit of reading the draft judgment of Harrison J. With these additional remarks in respect of Ground 1, I agree with the proposed orders and his Honour's reasons. 3. Some degree of confusion remains as to whether a sentencing judge is obliged to indicate "where on the scale of seriousness each offence falls" when dealing with an offence which carries a standard non-parole period. The applicant submitted that the sentencing judge was obliged to utilise the concept of mid- range offending [emphasis added] and assess where on the scale of seriousness the offending for the offences which carried a standard non-parole period lay. [1] 4. To be clear, there is no such obligation or requirement. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [29] the High Court said that the standard non-parole period legislation: "is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formulation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed". 1. The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as "low end of the middle of the range", "upper end of the middle of the range" or, "just below or above the midpoint" add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence. 2. In Tepania v The Queen [2018] NSWCCA 247; (2018) 275 A Crim R 233, Johnson J addressed the issue as to how the 2013 amendments to ss 54A and 54B of the Crimes (Sentencing Procedure) Act leave the sentencing task with respect to standard non-parole period offences. In answer to that question, his Honour set out a number of propositions, at [110]: "(a) s 54B applies wherever a court imposes a sentence of imprisonment for a standard non-parole period offence and s 54B must be read as a whole: Muldrock v The Queen at [26]; (b) the standard non-parole period is a matter to be taken into account by a court as part of a single-stage (and not two-stage) process "in determining the appropriate sentence for an offender", without limiting the matters that are otherwise required or permitted to be taken into account in the process of instinctive synthesis: s 54B(2); Muldrock v The Queen at [26]; (c) the concept of a standard non-parole period, as explained in s 54A(2), is an abstract one — it includes only "the objective factors affecting the relative seriousness of that offence" and "is in the middle of the range of seriousness"; (d) in construing s 54B as a whole, it is important to keep in mind the new s 54B(6) — a sentencing court is not required to identify the extent to which the seriousness of the offence in question differs from the abstract, notional or theoretical offence referred to in s 54A(2) — a process of comparing and contrasting the actual offence with the abstract one is not necessary; (e) an assessment of the objective gravity of the offence is necessary as required at common law (see [107]-[108] above), but the sentencing judge is not required to undertake a process of identifying features of the offence which were taken into account (or not taken into account) in considering the role of the standard non-parole period in the particular case; (f) the task of the sentencing court is to take into account all factors which bear upon the process of instinctive synthesis in the particular case (s 54B(2)) including the two legislative guideposts constituted by the maximum penalty and the standard non-parole period: Muldrock v The Queen at [27]." 1. The applicant relied upon the cases of Lyons v R [2017] NSWCCA 204, McIntosh v R [2015] NSWCCA 184 and R v Cattell [2019] NSWCCA 297, in support of the contention that this Court, following Muldrock and the 2013 amendments, has reiterated the requirement that a sentencing judge is obliged to indicate where an offence lies on a scale of seriousness by reference to a notional mid- range. I do not understand these authorities to be mandating such an approach. While to do so would not amount to error, a failure to do so does not, of itself, constitute error. ********** Public Defender's Sentencing Table for Child Sexual Offences Name Offence Plea Total effective sentence Appeal Record Involvement & summary (age if known) TO s 61D 27y (29) 9 x s 61J VG NPP 20y AD Broke into flats and sexually assaulted 4 complainants – one complainant a 12 y girl – threatened some complainants with knife [2002] NSWCCA 252 MSK 22y AD 13.7.2002 (23) NPP 16y 6m Crown AA Involved in group sexual assault on 16y and 17y females – one complainant physically restrained by MMK – MSK slapped her face and produced a knife, and mentioned a gun – threat to kill – forced penile/vaginal intercourse three times – threatened death if complainant went to police – principal / accessorial liability [2004] NSWSC 319 Sully J 9 x s 61JA VG 14y 20y 24.6.2002 [2005] NSWCCA 369 4 x s 61J VG NPP 10y NPP 12y Dishonesty 14y female accompanied brothers to house – became intoxicated – forced penile and digital penetration by MAK in company of MSK – MSK forced penile penetration – sexually assaulted by third man in company of MSK [2006] NSWSC 237 s 61J PG Total: Total: 14.7.2002 Hidden J 26y 32y 13y complainant had consensual intercourse with MMK – subsequently sexually assaulted by MSK – threats of violence (2006) 167 A Crim R 159 NPP 22y NPP 24y Emigrated to Australia from Pakistan while relatively young – lack of parental supervision – refusal to accept any wrongdoing – poor rehabilitation prospects [2006] NSWCCA 381 MMK 13.7.2002 (16) 9 x s 61JA 16y and 17y females accompanied offenders to – had previously spent night unharmed – S was physically retrained by MMK – MSK slapped her face and produced a knife – forced into a bedroom – MSK entered with another knife – produced some bullets and mentioned a gun – threat to kill – forced penile/vaginal intercourse three times – MAK entered room – forced vaginal/penile intercourse on – threatened her with death if she went to the police – G taken to different bedroom – MMK entered room carrying long bladed kitchen knife – forced G to fellate him and twice forced penile/vaginal intercourse – subjected to further sexual assault by RS – Principal/ Accessorial liability [2004] NSWSC 319 Sully J s 66C(1) VG 22y Crown AD 14.7.2002 [2005] NSWCCA 369 Sched: PG NPP 13y Crown AD nil Consensual intercourse with 13 y complainant when aged 15 years [2006] NSWSC 237 Ind ass 12m (concurrent) 24.11.2001 Hidden J Assault Took 14y female to bedroom – squeezed breast and slapped her across face Emigrated to Australia from Pakistan while relatively young – lack of parental supervision – refusal to accept any wrongdoing – poor rehabilitation prospects s 61M(1) s 61M(2) 5 x s 91G(1) 7 x s 66A SGJ s 61O(1) PG 22y AA (40-1) Sched: (20-25%) NPP 15y Same effective sentence imposed Minor Husband and wife – sexually abused young children over 10 month period – abuse of trust – seven female complainants aged younger than 12 y – cunnilingus, fellatio, digital penetration vagina and anus, penile penetration – rubbing of vagina and breasts – took photographs – some complainants never identified – breach of trust SGJ – male – little insight into offending – anti-social personality disorder – prospects of re-offending KU 18 offences PG 22y AA Nil KU – female – parity issue (40-41) s 61M(2) (20-25%) NPP 15y 20y [2008] NSWCCA 258 5 x s 91G(1) NPP 13y 7 x s 66A s 61O(1) Sched: 16 offences 2 x s 61E(1) 3 x s61E(1A) McIntosh 2 x s 78Q(1) (21-22/ 33-35 2 x AOABH 53 at sentence) 12 x s61M(1) VG 32y Committed similar offences in 1985-6 – offences in 1991-2 committed while on parole (1977-1983) – sexually abused teenage boys in Inverell [2011] NSWDC 160 8 x s 81 NPP 20y (1991-1992) – sexually abused teenage boys while leading cadets in private school in Sydney. Gave gifts to complainants and ingratiated himself with families – dominated lives of complainants – indecent touching, simulated intercourse and anal intercourse – engaged in sexual humiliation – physical assaults included smacking on naked backsides with electric cord, belt and wooden paddle – unrepentant paedophile – enjoyed inflicting pain Finnane DCJ 4 x assault 6 x s 79 4 x s 78K 3 x s 61L 9 x s 76 2 x s 61D(1) 3 x s 61E(1) LJS s 76A 21y 3 m AA (68) s 61M(1) PG NPP 17y 3m 21y Offences took place from mid-1970s – mid 1980s and one in 2002. 12 child complainants – complainants were daughters of friend, children who boarded in same residence as offender and children of offender's partner – representative charges – cunnilingus – digital/vaginal penetration – penile/anal intercourse – penile/vaginal intercourse – rubbing of genitals – fellatio while masturbating [2015] NSWCCA 47 s 67 NPP 15y s 81 s 79 s 73 2 x s 78Q 2 x s 59 (1977-1983) – sexually abused three young teenage males – knew families of complainants McIntosh 16 x s61M(1) 32y AA (1990-1991) – as teacher at private school sexually abused 15-16y male student in cadet unit [2015] NSWCCA 184 4 x s 78K VG NPP 20y 24y Sexual offences between two periods of offending Offending included kissing – indecent touching – anal penetration – physical beating – penetration with physical objects – forced masturbation 8 x s 81 NPP18y Early twenties for first period of offending and not in position of authority – aged 53 at time of sentence 4 x s 61 6 x s 79 2 x s 66A(2) s 66C(1) s 66C(2) 4 x s 61M(2) s 61N(1) BR s 61O(1) 23y (52) s 61O(2) PG (25%) NPP 17y AD AOABH Offences occurred over seven month period from July 2011 to February 2012 – complainants aged 5-12y – female complainants and offender's young son – part of community organisation – abused children of families that trusted him as a friend – cunnilingus, fellatio, digital penetration, penile-vaginal penetration [2015] NSWCCA 255 s 61O(2A) 2 x s66EB(3) 2xs91G(1)(a) 2 x s 91H(2) Sched: 23 further offences Bravo 5 x s 61M(2) 22y Abused 9-11y step- daughter over two years – kissing – squeezing bottom – penile/vaginal and penile/anus intercourse – digital penetration of vagina and anus – penile contact with vaginal area [2015] NSWCCA 302 2 x s 66A VG NPP 16y AD Minor Breach of trust 4 x s 66C(2) 3 x s 61J(1) s 61 JA(1) s 61M(2) Ford s 61O(2A) PG 21y (44) s 66EB(3) (25%) NPP 15y AD Act of indecency; 3 x acts of indecency with aggravation Paedophile network extending throughout Australia and overseas – nine counts of sexual offending against five children – offender committed sexual offences against 12y son and 11y daughter of co-offenders, 4y female, 11y male and 15y male – videos depicting sexual abuse – offender and co-offenders at "hub" of network, creating websites for sharing of child pornography – number of offenders arrested in UK – offences entailed unfathomable degree of cruelty and depravity [2016] NSWCCA 69 2 x s 80G s 66A(2) Sched: 44 offences 4 x s 79 Denham 43 x s 81 24y (72) 6 x s 61E PG NPP 19y 5m AD (1968-1986) – Former Catholic priest and schoolteacher – large number of child sexual assault offences – 57 complainants – aged around 12y onwards – systematic exploitation using guise as a priest – breach of trust and position of authority – many sexual assaults accompanied by deliberate infliction of pain, such as using cane as both disciplinary tool and instrument of sexual gratification – invited into people's homes and interfered with boys when parents not looking – used occasions when could administer discipline to sexually assault complainants – brutal threats to keep activities secret – not spontaneous or opportunistic – targeted most vulnerable boys who generally came from difficult family backgrounds [2016] NSWCCA 309 S 61E(1A) (25% / 10%) 9d Sched: 55 offences s 66A s 66A(2) Franklin 6 x s 66C(2) PG 27y AA Sexually abused 7-13y niece – escalating behaviour – touching – digital and penile penetration – use of vibrator (29-35) 9 x s 61M(2) (25%) NPP 18y 24y Minor Disclosure of unknown offences [2016] NSWCCA 319 s 91G(1)(a) NPP 18y Sched: 3 offences ZA 7 x s 66A(2) PG 26y Sexually abused natural daughter aged 8-9y over 18 months – fellatio/object in anus/ cunnilingus/ penile-anal intercourse – showed daughter child pornography – filmed several occasions – found in possession of 44 videos and 67 images of child pornography (36-37) 2xs91G(1)(a) (25%) NPP 18y AD Assault offences No error in approach to totality [2017] NSWCCA 132 s 91H(2) 9 x s 81 Stanton s 80 PG 23y (1980-1981) – Catholic teaching brother – sexually assaulted three male students aged 10-11y over 18m – abuse included touching, fellatio, buggery and digital penetration – each student isolated and subjected to misconduct – one student struck with strap for failure to comply (25-26 at offences – 61 at sentence) 2 x s 79 (15%) NPP 13y 9m AD Nil Health issues – had undertaken substantial counselling over long period [2017] NSWCCA 250 Sched: 7 offences 7 x s 61J 3 x s 66C(1) s 66D s 66C(4) 4 x s 61M(1) 3 x s 61M(2) Davies s 61O(1) PG 24y AD (2001-2013) Owner of dance studio committed offences on eight girls and one boy over thirteen years [2019] NSWCCA 45 s 66EB (12.5%) NPP 18y s 91G(2)(b) 3 x s 91H(2) – produce 2xs91G(1)(b) s 91H(2) – possess Sched: 19 offences 7 x s 61J(1) Sivell 2xs91G(1)(a) Aggregate (51) 3 x s 61M(2) VG 21y 6m AD Similar offences: child sexual offences and child pornography (2006-2007) – 19 sexual offences against 2 female complainants aged 12-14y and 8-9y – befriended mother of complainants – used pretext of photographing complainants for modelling – digital penetration – attempted penile penetration – fellatio – cunnilingus – invited a friend who assaulted one of the complainants. [2019] NSWCCA 77 s 61N(1) NPP 16y Poor rehabilitation prospects 2 x s 66A(1) 4 x s 61M(2) Gibbons (A pseudonym) 2 x s 66A(2) Aggregate: (36 at offence, Sched: VG 30y Indecent assaults on child – aggravated indecent assaults on child 1 November 2011 – 19 January 2012 – sexually abused 4y son – fellatio, anal intercourse. History of sexual offending against children – aware name on Child Protection Register and not permitted to live with children, including complainant 41 at sentence) 2 offences NPP 22y 6m [2019] NSWCCA 150 RO 3 x s 61J(1) AA (26 at time of offences, 5 x s 66C(2) PG Aggregate Backdated by 8m (2011-2015) – female complainant aged 10-14y – offender in relationship with complainant's mother – vaginal intercourse and fellatio – mid-range objective seriousness – vaginal intercourse involved complainant being dragged from room and held down by complainant's mother – high end of range of objective seriousness 32 at sentence) Sched: (15%) 21y Aggregate Affray, assault (of complainant) Limited intellect – drug and alcohol issues [2019] NSWCCA 183 6 offences NPP 14y 21y NPP 14y Cabezuela 3 x s 67 (79) s 63 VG Aggregate 28y AD (1966-1981) Assaulted 4 nieces aged 3-13y – offender aged 27-42y – penile/vaginal, anal and oral intercourse – touched vagina and breasts – extremely young children – repeated abuse – deliberate – complainants suffered physical pain. [2020] NSWCCA 107 2 x s 79 NPP 18y Age – ill-health 21 x s 76 16 x s 66A 2 x s 66C(2) 42 x s 61J(1) Aggregate WG 7 x s 66C(4) VG 48y AD (1988-2011) 73 offences against daughter aged 5-19y – acts often accompanied by extreme violence – spouse and mother of complainant acted as co-accused – offences took place in a shed on family property – family heavily involved in athletics – WG acted as coach for the complainant and her sisters [2020] NSWCCA 155 2 x s 61M(1) NPP 36y s 61O(1) 2 x s 61N(1) s 86(2)(b) Hill 7 x s 61J PG Aggregate Very limited criminal history; Abducted 11y female complainant in park walking to school – held complainant captive for five hours – raped complainant at park; bound complainant to a tree by restraints to hands and neck – forced complainant into the back of his car driving to two separate areas of remote bush/forest; raped complainant at each location – released complainant near railway station – serious violence, death threats, multiple acts of forced sexual intercourse including fellatio, digital vaginal, digital anal, penile vaginal, penile anal intercourse – 271 unrelated child abuse images located on phone. (49) s 86(2)(b) (10%) 23y 6m Crown AD 15 year break from criminality Major depressive illness – substance use disorder [2020] NSWCCA 197 s 91H(2) NPP 17y 2 x s 61M(2) 3 x s66EB(3) s 86(2)(b) – kidnapping (2016-2017) Knew first female complainant aged 12y – touched breasts and attempted to touch vagina through swimwear – on separate occasions showed complainant pornography and exposed penis – offences aggravated by breach of trust and being committed in home of complainant Johnson s 33B(1)(a) – use weapon to commit offence PG Aggregate: AA (2017) grabbed 11y female stranger walking to school at knifepoint – bound hands and feet and tied to tree – threatened to rape – licked breast – forced fellatio – took photos – detained for one hour – well above mid-range – use of violence and weapon – threat of violence – youth of complainant – planning [2021] NSWCCA 13 s 61J (15%) 28y 24y Nil No remorse – some prospects of rehabilitation found on appeal s 61N(1) NPP 21 y NPP 18y On appeal: erroneously took into account aggravating factor on count one s 91H(2) produce child pornography Sched: 8 offences 5 x s 66A 6 x s 66C(2) Aggregate: AA (1991-1996; 2010) – 10 offences against daughter; 2 against step-daughter; 1 against step- granddaughter – complainants aged from 4-12 years – fellatio, digital, vaginal penetration. BR s 61M(1) PG 30y Aggregate: Relatively extensive Remorse – alcohol and drug abuse. [2021] NSWCCA 279 s 61M(2) (5%) NPP 22y 6m 28y CCA: sentence manifestly excessive in light of continued classification as prisoner in protective custody Sched: NPP 20y 10 offences 3 x s 66A(2) s 66C(1) DR s 66C(2) PG Aggregate (April 2005 - Nov 2015) offences against two female complainants aged 11-15y and 8-9y – complainant 1: in relationship with older sister, digital, penile intercourse, cunnilingus, violence and threats – complainant 2: own daughter, digital intercourse. (44) s 61M(2) (5%) 20y 10m AD Yes Deprived background with physical violence, sexual abuse and substance abuse – no evidence of causal link between disadvantaged upbringing and offences; disadvantage given full weight (Bugmy) – anti-social personality disorder and amphetamine use disorder [2022] NSWCCA 151 s 66C(4) NPP 15y 6m Sched: 2 offences 12 x s61M(2) 26 x s 66C(2) s 73(1) TS 7 x s 66C(4) VG/PG Aggregate: Sexual offences committed primarily against stepdaughter on monthly basis over 4 years – on many occasions sedated and filmed complainant – committed two indecent offences against younger stepdaughter and five administer intoxicating substance against mother of complainants – appalling breach of trust. (50 at appeal) 54 x s 61J (15%) 32y AD Nil No insight or remorse – poor health [2022] NSWCCA 222 26 x s 38(a) NPP 24y On appeal: erroneously referred to SNPP not in force at time of offences – no lesser aggregate sentence warranted 2 x s 91H(2) s 91G(1)(a) s 91G(2)(a) Endnote 1. AWS at [51] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2023