Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Doig v R [2023] NSWCCA 76 Hearing dates: 09 March 2023 Date of orders: 5 April 2023 Decision date: 05 April 2023 Before: Beech-Jones CJ at CL at [1] Garling J at [12] Yehia J at [13] Decision: (1) Leave to appeal is granted (2) The appeal is allowed (3) The sentence imposed on the applicant in the District Court on 17 December 2021 is set aside, and in lieu thereof: (a) impose an aggregate sentence of 7 years and 6 months imprisonment to commence on 3 December 2021 and expire on 2 June 2029; (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 4 years and 6 months imprisonment; (c) specify that the earliest date the applicant will be eligible for parole is 2 June 2026; and (d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows: (i) sequence 1 – imprisonment for 4 years; (ii) sequence 3 – imprisonment for 2 years 9 months; (iii) sequence 4 – imprisonment for 6 years; and (iv) sequence 5 – imprisonment for 3 years Catchwords: CRIME — APPEALS — Appeal against sentence —Procuring child to engage in sexual activity outside Australia — Persistent sexual abuse of child outside Australia — Whether the sentencing Judge erred in the imposition of a manifestly excessive aggregate sentence — Whether the disproportionately high starting point for the indicative sentence for one offence inflated the aggregate sentence ultimately imposed —Leave to appeal granted — Appeal allowed — Applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2A), 53A(2)(b) Crimes Act 1914 (Cth), Div 2 Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 Criminal Code Act 1899 (Qld), s 228D Criminal Code Act 1995 (Cth), ss 272.11, 272.11(1), 272.22(1)(a), 272.11(1)(b), 272.11(1)(c), 272.14(1), 272.8(1), 272.8(2), 272.9(1), 272.9(2), 272.19(1), 474.19(1), 474.22(1)(a)(i), 474.22A(1), Div 272, Subdiv B Cases Cited: Baden v R [2020] NSWCCA 23 Baker v R [2022] NSWCCA 195 Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Bugmy v The Queen (1990) 169 CLR 525; 47 A Crim R 433 Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 DS v R; DM v R [2022] NSWCCA 156 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Power v The Queen (1974) 131 CLR 623 R v Dodd (1991) 57 A Crim R 349 R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A Crim R 1; [2021] QCA 279 R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A Crim R 1; [2021] QCA 279 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 SB v R [2022] NSWCCA 164 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Category: Principal judgment Parties: Jonathan Peter Doig (Applicant) Rex (Respondent) Representation: Counsel: S Hall SC (Applicant) R Ranken (Respondent) Solicitors: Blaxland Criminal Law (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2020/00170933 Decision under appeal Court or tribunal: District Court at Sydney Jurisdiction: Criminal Date of Decision: 17 December 2021 Before: O'Rourke SC DCJ File Number(s): 2020/00170933 headnote [This headnote is not to be read as part of the judgment] The applicant, Jonathan Peter Doig, pleaded guilty in the Local Court to the following four offences: 1. one count of procuring a child to engage in sexual activity outside Australia, contrary to s 272.14(1) of the Criminal Code Act 1995 (Cth) (Criminal Code) (Sequence 1); 2. one count of possess or control child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Sequence 3); 3. one count of persistent sexual abuse of a child outside Australia, contrary to s 272.11(1)(c) of the Criminal Code (Sequence 4); and 4. one count of cause child abuse material to be transmitted using a carriage service, contrary to s 474.22(1)(a)(i) of the Criminal Code (Sequence 5). On 17 December 2021, O'Rourke SC DCJ (the sentencing Judge) imposed an aggregate term of imprisonment of 9 years, commencing on 3 December 2021 and expiring on 2 December 2030, with a non-parole period of 5 years and 6 months imprisonment, commencing on 2 December 2021 and expiring on 2 June 2027. Between 23 August 2019 and 9 June 2020, the applicant transferred various sums of money to a 13-year-old Filipina child, MT, and two other people associated with MT. From 23 December 2019, the applicant communicated with MT using Facebook Messenger, with the intention of procuring MT to engage in sexual activity. The payments to MT were expressly sought for providing the applicant with sexual videos or images of MT. Between 2 April 2020 and 3 April 2020, the applicant used his mobile phone to conduct, and record, video calls with MT. During this time, MT engaged in sexual activity while the applicant watched in real-time. Between 28 January 2020 and 9 June 2020, MT sent the applicant several video and image files. The images focused on her genital region or depicted her involved in a sexual act. MT also sent videos of herself dancing in a sexualised manner, constituting child abuse material. A further 18 files of child abuse material were found on the applicant's mobile phone, including an image of the victim playing with her breasts, and a further 28 images of other unidentified children. The applicant relied on a single ground of appeal against his sentence, namely, that the sentence imposed was manifestly excessive. The applicant submitted that error arose because of the high starting point, namely, 10 years imprisonment, adopted for the indicative sentence for sequence 4. The applicant contended that this led to the inflation of the aggregate sentence imposed. The Court held (per Yehia J, Beech-Jones CJ at CL and Garling J agreeing) granting leave to appeal against the sentence, allowing the appeal and re-sentencing the applicant to a lesser term of imprisonment: 1. A starting point of 10 years imprisonment for the indicative sentence on sequence 4 was excessive and operated to inflate the aggregate sentence. The aggregate sentence imposed, both in terms of the head sentence and the non-parole period, was manifestly excessive (per Yehia J at [69], Beech-Jones CJ at CL at [11] and Garling J at [12] agreeing). Baden v R [2020] NSWCCA 23; Baker v R [2022] NSWCCA 195; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39; R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A Crim R 1; [2021] QCA 27; SB v R [2022] NSWCCA 164; Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301, considered. 1. In re-sentencing the applicant, Yehia J reached the same view as the sentencing Judge regarding the indicative sentences of sequences 1, 3 and 5. However, having regard to the objective factors and the applicant's subjective case, Yehia J held that the indicative discounted sentence of sequence 4 should be 6 years imprisonment. The Court set aside the sentence imposed and re-sentenced the applicant to an aggregate term of imprisonment of 7 years and 6 months, with a non-parole period of 4 years and 6 months imprisonment (per Yehia J at [75], [79], Beech-Jones CJ at CL at [11] Garling J at [12] agreeing). Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited. JUDGMENT 1. BEECH-JONES CJ at CL: The background to this application for leave to appeal against sentence is set out in the judgment of Yehia J. The focus of the appeal concerned the length of the indicative sentence for the offence under s 272.11 of the Criminal Code Act 1995 (Cth) ("Criminal Code"). This is not surprising given that sentence was clearly the major contributor to the aggregate sentence. That said, to succeed on the single ground of appeal the applicant had to demonstrate the aggregate sentence was manifestly excessive and specifically address whether the aggregate sentence reflected the totality of the criminality involved (JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J (as her Honour then was) agreed at [1] and [107]). For the reasons given by Yehia J, but subject to the three points that follow, I am satisfied that is so. 2. First, one difficulty for the applicant in attacking the indicative sentence for the offence under s 272.11 is the lack of published sentences for offences under that provision. The absence of such decisions makes it difficult to establish and then rely on some appropriate range for such sentences. Understandably, the parties referred to the decision of this Court in Baden v R [2020] NSWCCA 23 ("Baden") and its discussion of the various factors affecting an assessment of the objective seriousness of an offence under s 272.11 (at [27]). 3. Some support for the applicant's argument can be derived from the terms of s 272.11(1) of the Criminal Code, which provides: "272.11 Persistent sexual abuse of child outside Australia (1) A person commits an offence against this section if the person commits an offence (the underlying offence) against one or more of the following provisions in relation to the same person (the child) on 2 or more separate occasions during any period: (a) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia); (b) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia); (c) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia); (d) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia). Penalty: Imprisonment for 30 years." 1. One factor bearing upon an assessment of the objective seriousness of an offence under s 272.11 is the type (and seriousness) of the underlying offence which engages the provision. This is reflected in the different maximum sentences for the underlying offences, which currently is imprisonment for 25 years for offences under ss 272.8(1) and 272.8(2) and imprisonment for 20 years for offences under ss 272.9(1) and 272.9(2). Further, depending on the circumstances, whether the sexual intercourse was engaged in in the presence of the defendant or not may reflect on the objective seriousness of the offence. 2. The appalling conduct of the applicant in this case involved an underlying offence under s 272.9(1), that is, it involved engaging in sexual activity other than sexual intercourse with a child outside Australia and was not engaged in the presence of the defendant outside Australia. The underlying offences in Baden also appear to have been offences under s 272.9(1) (see Baden at [5]). Both Baden and this case involved the offender causing the child to engage in the relevant sexual conduct over an internet-based platform. 3. In considering a contention that a sentence for a federal offence is manifestly inadequate or excessive, this Court should have regard to sentences imposed by courts of other states or territories, especially an intermediate Court of Appeal (Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53] and [57]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]−[41])). In R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A Crim R 1; [2021] QCA 279 ("Harrison"), the conduct of the offender that amounted to an offence under s 272.11 involved him travelling to the Philippines on a number of occasions and paying to have various forms of sex with a girl aged between 14 and 15 as well as engaging in "highly sexualised and graphic communications" with her from Australia (at [8]−[18] and [66]). This conduct appears to fall within s 272.11(1)(b); that is, the underlying offence was under s 272.8(2) (causing a child to engage in sexual intercourse in the presence of the defendant outside Australia). In Harrison, the offender was sentenced at first instance to 6 years and 6 months imprisonment for the offence under s 272.11(1) and resentenced on appeal to 7 years imprisonment. In Harrison, the Queensland Court of Appeal observed that the offending in Baden was worse than the offending before it (at [69]). With respect, I am doubtful of that conclusion given that the offender in Harrison travelled to the Philippines and had sex with his victim, although the victims who engaged in sexual acts over the internet in Baden were much younger. Leaving that aside, the sentence imposed in Harrison (and Baden) supports the applicant's argument in this case. 4. Second, Yehia J is critical of a submission by the Crown that compares the maximum sentence imposed to an assessment of the objective seriousness of an offence measured by its position in some hypothetical range of offences. Her Honour expresses a concern that such a submission tends to elevate the objective seriousness of an offence to become the only, or primary, measure by which to test the appropriateness of a sentence and masks the relevance and importance of other factors relevant to an instinctive synthesis. 5. Although there is no requirement for an assessment of objective seriousness to be undertaken by reference to some hypothetical range of offending, the assessment is nevertheless a critical aspect of the sentencing process (see DS v R; DM v R [2022] NSWCCA 156). At least one aspect of the significance of determining the objective seriousness of an offence is that it engages the proportionality principle; that principle precludes the imposition of a sentence that exceeds that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354). However, at least in the case of serious crimes of the kind usually considered by this Court, such as this one, it has a significance beyond that. Thus, in R v Dodd (1991) 57 A Crim R 349 at 354, Gleeson CJ, Lee CJ at CL and Hunt J observed: "[T]here ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity …" 1. It follows that a submission that compares the objective seriousness of an offence to the maximum penalty has utility, although it needs to be understood in a context whereby it is not determinative of a claim of manifest excess or inadequacy. 2. Third, in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [156], Spigelman CJ (with whom Mason P, Barr J, Bell J and McClellan J agreed) observed that the "reasoning in Hoare appears to me to necessarily involve separate consideration of the sentence appropriate to the objective circumstances of the offence" and added that "[a]lthough expressed as an upper limit – a sentence cannot be greater than the objective circumstance suggest – it has been applied to create a lower limit – a sentence should not be less than the objective circumstances require" (at [156]; "Whyte"). It is not clear whether this statement purported to state a principle or simply recorded the effect of other cases. If it was the former, then a question arises as to whether reliance on the proportionality principle to create in effect a minimum sentence for an offence of a particular level of objective seriousness is consistent with Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. I do not consider it is necessary to resolve that question. The above points are not meant to be an endorsement of this aspect of Whyte nor a disapproval of it. 3. I agree with the orders proposed by Yehia J. 4. GARLING J: I agree with the orders proposed by Yehia J and with her Honour's reasons. 5. YEHIA J: Jonathan Peter Doig (the applicant) seeks leave to appeal against the aggregate sentence of imprisonment imposed upon him by her Honour Judge O'Rourke SC (the sentencing Judge) in the District Court at Sydney on 17 December 2021 for four offences against the Criminal Code Act 1995 (Cth) (Criminal Code). 6. The applicant pleaded guilty to the offences when the matter was before the Local Court on 27 July 2021 and was committed to Sydney District Court for sentence. Having regard to the early plea, her Honour applied a 25% discount to the indicative sentences. 7. Her Honour imposed an aggregate term of imprisonment of 9 years, commencing on 3 December 2021 and expiring on 2 December 2030, with a non-parole period of 5 years and 6 months imprisonment, commencing on 2 December 2021 and expiring on 2 June 2027. 8. The offences, the applicable maximum penalty, and the indicative sentences that her Honour otherwise would have imposed are summarised as follows: Sequence Date Offence Maximum Penalty Indicative Sentence 1 Between about 23 August 2019 and about 9 June 2020. Procure child for sexual activity outside Australia. 15 years imprisonment. 4 years imprisonment. Criminal Code s 272.14(1). 3 9 June 2020. Possess or control child abuse material obtained or accessed using a carriage service. 15 years imprisonment. 2 years and 9 months imprisonment. Criminal Code s 474.22A(1). 4 Between 2 April 2020 and 3 April 2020. Engage in persistent sexual abuse of a child outside Australia. 25 years imprisonment. 7 years and 6 months imprisonment. Criminal Code s 272.11(1)(c). 5 Between about 28 January 2020 and about 9 June 2020. Cause child abuse material to be transmitted using a carriage service. 15 years imprisonment. 3 years imprisonment. Criminal Code s 474.22(1)(a)(i). 1. The applicant relied on a single ground of appeal, namely, that the sentence imposed was manifestly excessive. For the reasons explained below, leave to appeal should be granted, the appeal allowed, and the applicant should be re-sentenced to a lesser term of imprisonment. 2. It is appropriate to note that the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 amended the Criminal Code to include a list of child sexual offences now subject to the imposition of a mandatory minimum sentence. The Bill was passed on 16 June 2020 and assented on 22 June 2020. One of the offences for which the applicant was sentenced (sequence 4 – s 272.11(c) of the Criminal Code), is now subject to a mandatory minimum term of 7 years imprisonment. 3. However, the new mandatory minimum regime does not apply to this case. It follows that the determination of this appeal is based on the penalties that applied at the time. The Offending 1. Over a period between 23 August 2019 and 9 June 2020, the applicant engaged in conduct that included arranging for the transfer of various sums of money to MT (the victim), who was a 13-year-old Filipina child, and two other people associated with MT. From 23 December 2019, the applicant communicated with the victim using the Facebook Messenger application on his mobile telephone, with the intention of procuring her to engage in sexual activity (sequence 1). 2. In relation to sequence 1, there was a dispute regarding the commencement date of the offence. The Crown submitted that the offending commenced on 23 August 2019, when the payments to MT commenced. The applicant argued that while his first payment to MT was on 23 August 2019, he did not communicate with her until approximately four months later. The applicant submitted that in the circumstances, there was nothing to suggest that the 21 payments made during that four-month period were related to unlawful activity. 3. Her Honour rejected the suggestion that the 21 payments were for "charitable purposes". There is no challenge to her Honour's findings that the offending, the subject of sequence 1, commenced on 23 August 2019. 4. During the period between 23 August 2019 to 9 June 2020, the applicant received messages from MT asking for money for a variety of purposes, including school-related expenses, the internet, medical expenses, and the cost-of-living necessities. The applicant also sent MT money to purchase a bikini, which was said to be a gift. A total of 34 payments were made via WorldRemit marked for "Maribel CP". The last of the transactions was on 6 June 2020. 5. In addition, the applicant made 21 transactions using WorldRemit to "Vilma" at the request of MT. Those payments took place between 25 January 2020 and 28 May 2020. Between 11 April 2020 and 7 June 2020, the applicant made 12 further transactions using WorldRemit to "Nestor Fradi" at the request of MT. 6. Although for a period, the applicant initially responded minimally to the suggestive messages from the victim, he engaged more regularly with her from 18 January 2020. The conduct, constituting sequence 1, was comprised of the transactions set out above and communications between the applicant and MT. Her Honour found that the payments to the victim were expressly sought for providing the applicant with sexual videos or images of herself. 7. Sequence 5 had a degree of overlap with sequence 1. Some of the communications and payments in the period between approximately 28 January 2020 and 9 June 2020, resulted in the victim sending the applicant several video and image files. The images focused on her genital region or depicted her involved in a sexual act (for example, simulating masturbation or oral sex). The communications included a "secret conversation" between 21 May 2020 and 7 June 2020. This resulted in the victim sending videos of herself dancing in a sexualised manner, constituting child abuse material (category 2). A further 18 files of child abuse material (category 2) were found on the applicant's Samsung mobile phone. 8. Sequence 4 related to three separate occasions between 2 April 2020 and 3 April 2020, when the applicant used his Samsung mobile phone to conduct video calls with the victim via Facebook Messenger, during each of which, the victim engaged in sexual activity while the applicant watched in real-time (sequence 4). Her Honour noted that: "During the course of each video call, [MT] engages in sexual activity whilst the offender watched in real-time. On multiple occasions the offender used either words, actions and/or speech to direct what he wanted her to do." 1. Her Honour summarised the contents of the video calls. One went for seven minutes and four seconds, which was a video of MT fully naked, dancing provocatively for the applicant in a bathroom. During that video, the applicant appears to be talking and his lips are moving. The applicant is making a "come closer" gesture with his hands and directing the victim to lift her leg. The applicant performed a licking motion multiple times. 2. The second video had a duration of four minutes and 42 seconds. It depicts MT topless and focuses on her breasts. The third video had a duration of three minutes and 35 seconds, depicting MT with her breasts exposed, and appeared to be a continuation of the second video. MT was dancing provocatively and removes her shorts to reveal her underwear. The fourth video had a duration of three minutes and 15 seconds. MT is completely naked, dancing and moving provocatively while the applicant appears to be talking to her. The video also depicted MT masturbating, sucking her finger, and moving back and forth. 3. On 9 June 2020, the Australian Federal Police (AFP) executed a search warrant at the applicant's home. The applicant directed the police to his phone and provided his PIN code for the device. An examination of the phone identified that it contained 26 video files depicting the victim, four of which were the recordings of the video calls, the subject of sequence 4. A further four of the video files were the videos that the applicant received because of the "secret conversation", which is part of the offending that is the subject of sequence 5. The remaining 18 video files, which were also received as part of the offending that is the subject of sequence 5, ranged in duration from one minute to two minutes and 11 seconds. They depicted the victim engaging in sexual acts, classified as category 2. There was also an image of the victim playing with her breasts, and a further 28 images of other unidentified children, assessed as categories 1 and 2. This is the offending that constituted sequence 3. Remarks on Sentence 1. The exploitative nature of the offences was noted, her Honour referring to the victim being: "[A] female child of 13 years who lives with socio-economic disadvantage and is clearly struggling to financially survive. The offender is an educated older man with familial support, private school education and employment. He was fully aware of the polar extremes between his own privileged life and that of a young child to whom he was providing money." 1. In relation to the nature and circumstances of the offending, relevant to assessing the objective seriousness of sequences 1 and 4, her Honour referred to the factors identified in Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 (Beattie) at [127]. Overall, her Honour concluded as follows: "I note for all of the offending the offender acted alone and was solely culpable for each offence. There exists a significant age gap between the victim, a 13-year-old child, and the offender, at the time 57 years of age. The offender clearly and abhorrently exploited the vulnerability of the child and her impoverished circumstances in the Philippines. She was clearly vulnerable and in desperate need of money for the basic necessities of life - food, shelter, medical fees and education. He manipulated and used her vulnerability to satisfy his own pathetic and disgraceful sexual desires. I note it ceased only upon his arrest. Taking into account all the relevant considerations, I have determined the objective seriousness for each particular sequence is as follows: sequence 1 mid-range, sequence 3 between low and mid-range, sequence 4 towards mid-range, and sequence 5 between low and mid-range." 1. Her Honour found that the applicant's conduct was opportunistic and sustained. It was not systematic, elaborate, or overly sophisticated. The simplicity of the offending demonstrated the ease with which the offences occurred, and the importance of general and specific deterrence. 2. As to the applicant's subjective case, her Honour noted that the applicant was 59 years old at the time of sentence, and 57 years old at the time of the offending. He obtained a scholarship to Sydney Grammar School. He was academically gifted. He enrolled in a Bachelor of Arts degree at the University of New South Wales (UNSW) and eventually converted to a science degree. He worked as a software engineer and was employed at UNSW. He had been involved in political activism for 30 years, and, in 2019, ran against Scott Morrison as a Greens candidate. 3. The applicant did not suffer from major psychiatric disturbance beyond his paedophilia behaviour. The applicant reported symptoms of depression and anxiety due to the sentence proceedings, which were exacerbated due to his marriage breaking down, his relationship with his daughter deteriorating, and the significant media interest. 4. Her Honour referred to the expert reports tendered on behalf of the applicant. The applicant had consistently expressed remorse for his offending to the psychologists and to those who provided character testimonials. The applicant had completed 27 sessions of treatment with Dr Milic and commenced a sex offender treatment program on 4 June 2021, completing 19 sessions. Dr Seidler reported progress in the program after the applicant initially came across as defensive, abrasive, dismissive, and disrespectful. 5. It was observed that the applicant tended to be quite easily overwhelmed and dysregulated in the context of strong emotion. His level of engagement increased, and he actively participated in the program, demonstrating some insight into his patterns of sexualised coping and intimacy. Both factors contributed contextually to his offending behaviour. 6. Mr Watson-Munro reported that the applicant initially attempted to rationalise his conduct. However, the applicant did acknowledge the wrongfulness of his actions. In relation to the risk of reoffending, Dr Milic opined that the applicant had good prospects of rehabilitation. Mr Watson-Munro was of the view that there were several protective factors, including the applicant's strong commitment to treatment and his work history, which would operate to reduce the likelihood of reoffending. 7. Her Honour accepted that the applicant was contrite. In respect of his prospects of rehabilitation, her Honour noted: "He has no prior convictions of significance". "…[He] was gainfully employed and there are no known physical or mental issues". Although, "initially, at least, [he] expressed some defensiveness and denial of his actions to at least two of the experts that were concerned enough to include that in their reports, but they both conclude that progress has been made…[and] he has demonstrated a strong desire for assistance and that must bode well for his prospects of rehabilitation." 1. The applicant endured the loss of his marriage, employment, reputation, and, in addition, intense media attention. Her Honour concluded that these matters constituted "a degree of extra curial punishment." 2. In considering the issue of accumulation and concurrency, her Honour had regard to the differing criminality involved in the offences, but also considered that there was significant overlap in sequences 3 and 5, and a general overlap between all of the offences. Her Honour also considered, and applied, the principles of totality and proportionality. 3. The applicant does not challenge any of the findings made by the sentencing Judge. The Appeal 1. The applicant relied on a single ground of manifest excess. The applicant submitted that error arose because of the high starting point, namely, 10 years imprisonment, adopted for the indicative sentence for sequence 4. The applicant contended that this had led to the inflation of the aggregate sentence ultimately imposed. 2. In support of that contention, the applicant referred to Baden v R [2020] NSWCCA 23 (Baden), contrasting the factors relevant to the assessment of objective seriousness in the respective case. The applicant submitted that the factors evident in Baden involved a higher degree of objective seriousness. The applicant submitted that it is difficult to ascertain how the starting point for the sentence indicated in relation to sequence 4 could have been higher than the starting point in Baden, in circumstances where it involved the same offending conduct in respect of sequence 3 in that case. The starting point in respect of sequence 3 in Baden was approximately 8 years and 11 months imprisonment. 3. The respondent submitted that the difficulty with the applicant's contention is that it elevates the sentence imposed in Baden to the status of a marker. Against which, the sentence in this matter is to be assessed, and then to determine whether it is unreasonable or plainly unjust. The respondent also conducted a comparison between the relevant objective factors in this case and in Baden, concluding that the aggregate sentence imposed was not unreasonable or plainly unjust. Was the sentence imposed manifestly excessive? 1. The applicable principles are well-known and were conveniently summarised in Baker v R [2022] NSWCCA 195 at [117]-[119] by N Adams J: "The principles to be applied when considering an allegation of manifest excess are well-established and have been frequently stated in this Court. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and I agreed) summarised the relevant principles as follows at [443]: 'When it is contended that a sentence is manifestly excessive, it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: 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 though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish the sentence was unreasonable or plainly unjust'". 1. At present, there is not a sufficient body of intermediate appellate cases concerning offences against s 272.11(1) of the Criminal Code that might provide comparative cases from which to determine a discernible sentencing pattern and possibly a range of sentences against which to examine a proposed or impugned sentence: see The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [50]. 2. The absence of sufficient comparable cases does not, however, mean that manifest excess cannot be demonstrated. Manifest excess may be shown by a consideration of all the relevant features of the case. The task of determining whether a sentence is unreasonable or plainly unjust is an evaluative one. As Wilson J (with whom Beech-Jones CJ at CL and Garling J agreed) stated in SB v R [2022] NSWCCA 164 at [55]: "The process of considering the applicant's proposed ground must be, to a degree, an instinctive one, as is the procedure for determining sentence at first instance. Just as there is no single or mathematically correct sentence that should be imposed by a sentencing court, there is no mathematical equation by which an intermediate appellate court can conclude that a sentence is manifestly excessive or inadequate. The Court may be informed by considering sentencing statistics and other decided cases, or by conjecturing as to the level of notional concurrence or accumulation that may underlie an aggregate sentence, but questions of the excessive or inadequate nature of a sentence are matters for evaluative judgment. Considering all of the facts and circumstances that apply in a particular case, and having regard to the applicable principles of law, is the sentence imposed so far outside the acceptable range of sentence that it is erroneous?" 1. Clearly, the sentence imposed in Baden does not provide guidance in respect of numerical equivalence. However, the case provides some assistance, insofar as it adopts the 14 factors of relevance to an assessment of objective seriousness for offences against ss 272.8(2) and 272.9(2) of the Criminal Code, as were identified in Beattie at [127]. 2. What must be remembered is that Division 272, Subdivision B of the Criminal Code, encompasses a range of offending conduct which includes sexual intercourse outside of Australia: see ss 272.8(1) and 272.11(1)(a). All other things being equal, an offence that involves engaging in sexual intercourse with a child outside of Australia will be more objectively serious than engaging in sexual activity, which does not include sexual intercourse. 3. To the extent that a comparison of the objective factors in this case and in Baden is useful, Mr Baden committed offences against two children. The elder child was aged between 6 and 11 years and 9 and 10 years, respectively. The younger child was between the ages of 2 and 7 years at the time of the offences. 4. The overall offending occurred over a period of approximately four years, with the conduct constituting the offence of engaging in persistent sexual abuse of a child outside Australia, taking place over a period of two months. 5. Mr Baden pleaded guilty on the first day of trial. A discount of 10% was applied to reflect the utilitarian value of his plea. The undiscounted indicative sentence for the offence of engaging in persistent sexual abuse of a child outside Australia, (count 3) was approximately 8 years and 11 months imprisonment. 6. The respondent has brought to the Court's attention the decision in R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A Crim R 1; [2021] QCA 279 (Harrison). In Harrison, the Supreme Court of Queensland dealt with a Crown appeal against a sentence imposed on the respondent in respect of five counts involving sexual misconduct, including persistent sexual abuse of a child outside of Australia. The offences were as follows: 1. persistent sexual abuse of a child outside Australia, contrary to s 272.11(1) of the Criminal Code (count 1); 2. using a carriage service to transmit child pornography, contrary to s 474.19(1) of the Criminal Code (counts 2 and 4); 3. possessing child exploitation material, contrary to s 228D of the Criminal Code Act 1899 (Qld) (count 7); and 4. encouraging child sex offences outside of Australia, contrary to s 272.19(1) of the Criminal Code (count 5). 1. Counts 1, 5 and 7 related to victim R. Count 1 involved the respondent engaging in sexual intercourse with R, a Filipina girl aged between 14 and 15 years, on three separate occasions and over a period of approximately nine months. The sexual intercourse involved both digital and penile-vaginal penetration. The respondent paid the victim a small sum of money at the conclusion of each act and was sentenced on the basis that he exploited the victim, a girl who, by reason of her age and economic circumstances, was vulnerable to his predations. 2. The overall sexual misconduct involved three victims. The offending constituting count 2 involved another Filipina child, B, whose age was undetermined. This offending occurred over a relatively extended period. The respondent used a combination of inducements, threats, and emotional manipulation to coerce the victim into taking pornographic images of herself according to the respondent's specific instructions, including images of her defecating. 3. As to count 4, the respondent sent an image of child pornography material to another person via Facebook Messenger. The image depicted a naked pubescent female child, M, sitting on her knees on a bed, leaning back. The respondent informed the recipient that M was only 16 years of age. 4. The respondent was aged between 62 and 63 years at the time of the offending. He pleaded guilty on the first scheduled day of his trial. The total effective sentence that was imposed by the sentencing Judge was 6 years and 6 months imprisonment with a non-parole period of 2 years and 6 months imprisonment. In respect of count 1, the proposed sentence was 6 years imprisonment, prior to the addition of 6 months imprisonment to reflect some accumulation. 5. In upholding the Crown appeal and re-sentencing the respondent, a sentence of 7 years imprisonment was indicated in respect of count 1, being the sentence that would have been imposed, before considering questions of concurrency, accumulation, and totality. Following re-sentencing, the total effective sentence was 8 years imprisonment, with a non-parole period of 5 years imprisonment. 6. The applicant in the present case engaged in predatory conduct that involved the exploitation of a 13-year-old child. Her Honour was correct, with respect, to describe the victim as clearly vulnerable and in desperate need of money for the basic necessities of life. There was a degree of control exercised by the applicant, including directing the victim while she was being recorded. The applicant manipulated and used her vulnerability to satisfy his own sexual desires. 7. The applicant's overall criminal conduct was very serious, warranting as it did the imposition of full-time imprisonment. The offending in respect of sequence 4 did not, however, involve multiple children, cruelty, or physical harm. The applicant's conduct was opportunistic and sustained, although not systematic, elaborate, or overly sophisticated. 8. The sexual offence was viewed live by the applicant only, as opposed to being viewed by several persons or live-streamed to others. There is no evidence that the applicant had an intention to disseminate the recordings to other persons or to receive any payment or material benefit from them. Although the overall criminal conduct lasted for approximately eight months, the behaviour constituting the offence of engaging in persistent sexual abuse of a child outside of Australia (sequence 4), took place over a period between 2 April 2020 and 3 April 2020. 9. Specific and general deterrence, denunciation, punishment, and the protection of the community are very important sentencing considerations in offences such as this. There is a public interest in denouncing the corruption and sexual exploitation of children and promoting their protection. 10. Considering the objective factors correctly identified by the sentencing Judge, her Honour's assessment of the objective seriousness for each offence was entirely appropriate. No complaint is made with respect to the assessment of objective seriousness. In relation to sequence 4, her Honour found that the objective seriousness was "towards mid-range". 11. It is difficult, however, to ascertain how her Honour settled on a starting point of 10 years imprisonment for sequence 4. Insofar as any comparison with the facts in Baden and Harrison assist, the objective factors in those cases, were more grave than the objective factors in the present case. 12. The applicant's subjective case is a compelling one. He pleaded guilty at an early opportunity and was found to be contrite, having "consistently expressed remorse for his offending". The applicant engaged in counselling before his incarceration and was willing to continue with the treatment. He demonstrated a strong desire for assistance, which bodes well for his prospects of rehabilitation. He had no prior convictions of significance and had been gainfully employed for decades before being taken into custody. 13. Her Honour considered several matters in concluding that there was a degree of "extra-curial punishment". Overall, these were powerful subjective factors relevant to the formulation of the indicative sentences and the aggregate term of imprisonment. 14. When considering an appeal against manifest excess, the appeal is against the aggregate sentence, as opposed to the indicative sentences recorded. However, in the present case, a starting point of 10 years imprisonment for the indicative sentence on sequence 4 was excessive and operated, in my view, to inflate the aggregate sentence. But even putting the indicative sentence for sequence 4 to one side, I am satisfied that the applicant has made good his claim that the aggregate sentence imposed, both in terms of the head sentence and the non-parole period, is manifestly excessive. 15. Before I turn to the issue of re-sentencing, it is important to note an observation with respect to the respondent's written submissions. The use of an arithmetic approach to test the appropriateness or otherwise of an indicative or aggregate sentence by reference only to the objective seriousness of an offence tends to ignore the requirement that a sentencing Judge engage in a process of instinctive synthesis, taking into account all relevant factors. The respondent submitted: "… that neither the aggregate sentence imposed, nor the indicative sentences, in the present case was unreasonable or plainly unjust. In particular, the indicative sentence for sequence 4 (7 years 6 months), was 30% of the maximum sentence, and represented a pre-discount starting point (10 years) that was 40% of the maximum penalty for an offence against s 272.11(1)(c) and was appropriate for an offence assessed to be 'towards the mid-range'. The aggregate sentence ultimately imposed for all offences (9 years) was itself well below 50% of the maximum penalty for Sequence 1." 1. This submission seeks to demonstrate the appropriateness of the indicative sentence by way of an arithmetic calculation of the percentage of the maximum penalty, having regard to the description of the offence as "towards the mid-range". Such a submission tends to elevate the objective seriousness of an offence as the only, or primary, measure by which to test the appropriateness of a sentence (whether that be the indicative or aggregate sentence). Such an approach masks the relevance and importance of other factors relevant to an instinctive synthesis approach to sentencing, namely, matters subjective to an offender. Re-sentence 1. As manifest excess has been established, the Court must exercise the sentencing discretion afresh: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. There was no challenge to any of the findings made by her Honour as described above. 2. The affidavit, deposed by the applicant (dated 6 March 2023), was read in this Court on the "usual basis": see Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]. In his affidavit, the applicant stated that he has been employed as a clerk in textiles. He has maintained his employment during his period in custody. 3. The applicant has made numerous attempts to enrol in further tertiary education. Dr Seema Sandhu supported his application to enrol in a Master's Degree in Environment and Climate Emergencies at Curtin University. The application to enrol in this degree was not supported by Mr Burkitt, who had the responsibility of arranging inmate education. The enrolment was not supported because of a lack of resources to facilitate the applicant's participation in the course. The applicant has written to the Governor of the Metropolitan Special Programs Centre (MSPC) requesting further consideration of his application. 4. In re-sentencing the applicant, I reach the same view as the sentencing Judge concerning the indicative sentences with respect to sequences 1, 3 and 5. However, having regard to the objective factors and the applicant's subjective case, I am of the view that the indicative discounted sentence in respect of sequence 4 should be 6 years imprisonment. 5. In determining the length of the aggregate sentence, I have had regard to the principle of totality. There will be partial accumulation reflected in the aggregate sentence. However, the extent of accumulation is tempered, having regard to the degree of overlap between some of the offences. 6. The applicant is being sentenced for federal offences, and therefore, special circumstances is not a relevant consideration. The non-parole period must reflect the minimum time that justice requires that the applicant must serve, having regard to all the circumstances of the offences: see Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525; 47 A Crim R 433. 7. The structure of the proposed sentence will reflect a similar ratio between the head sentence and the non-parole period as intended by the sentencing Judge. Proposed Orders 1. Accordingly, I would propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on the applicant in the District Court on 17 December 2021 is set aside, and in lieu thereof: 1. impose an aggregate sentence of 7 years and 6 months imprisonment to commence on 3 December 2021 and expire on 2 June 2029; 2. pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 4 years and 6 months imprisonment; 3. specify that the earliest date the applicant will be eligible to be released on parole is 2 June 2026; and 4. pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows: 1. sequence 1 – imprisonment for 4 years; 2. sequence 3 – imprisonment for 2 years 9 months; 3. sequence 4 – imprisonment for 6 years; and 4. sequence 5 – imprisonment for 3 years. Amendments 04 August 2023 - Coversheet – corrected representation. 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: 04 August 2023