Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Younan v R [2023] NSWCCA 124 Hearing dates: 24 May 2023 Date of orders: 09 June 2023 Decision date: 09 June 2023 Before: Hamill J at [1] Lonergan J at [2] Ierace J at [45] Decision: (1) Grant leave to appeal on sentence. (2) Appeal dismissed. Catchwords: CRIME – appeals – appeal against sentence – whether sentencing judge was in error in her finding regarding specific deterrence – whether sentence manifestly excessive – no error – not manifestly excessive – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: AK v R [2016] NSWCCA 238 Aslan v R [2014] NSWCCA 114 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 House v King (1936) 55 CLR 499; [1936] HCA 40 Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 Category: Principal judgment Parties: Ray Younan (Applicant) Rex (Respondent) Representation: Counsel: Mr A Parsons (Applicant) Ms M Swift (Respondent) Solicitors: M Zhou & Co. (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2019/00390821 Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits the publication of anything that would identify the victim. Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of anything that would identify the victim of sexual offence proceedings. A non-publication order is made in relation to the initials of VL, IS and CY, to ensure there is no inadvertent identification of the victim. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/A Date of Decision: 18 August 2022 Before: Shead SC DCJ File Number(s): 2019/00390821 JUDGMENT 1. HAMILL J: I agree with Lonergan J. 2. LONERGAN J: The applicant seeks leave to appeal against the sentence imposed upon him in the District Court Sydney on 18 August 2022 in respect of seventeen counts of sexual offending committed by him against a child in his care on various occasions in the second half of 2019. Also taken into account were twelve offences set out on Form 1 certificates that occurred in the same period, involving the same child, of a similar nature to the other offending. 3. The sentencing judge, Shead SC DCJ, imposed an aggregate term of imprisonment of 6 years and 6 months, with a non-parole period of 4 years and 3 months. 4. The applicant was arrested on 11 December 2019. He pleaded guilty in the Local Court on 27 August 2020 to Counts 1 to 5, but not guilty to the remaining counts. Those remaining twelve counts were committed for trial with a pre-recorded hearing of the complainant's evidence listed for 18 February 2021, however the applicant served an offer to plead guilty to the remaining counts on 1 February 2021 and the hearing was vacated. 5. The sentencing proceedings took place over four separate dates, the last date being 21 July 2022. Her Honour's comprehensive sentencing remarks were delivered on 18 August 2022. 6. The offences, corresponding maximum penalties, the relevant discount in recognition of the guilty pleas and their timing, the sentencing judge's findings of objective seriousness and the indicative sentences specified by her Honour are set out in the following table: Count Offence Maximum penalty Discount Finding of objective seriousness Indicative sentence 1. Intentionally sexually touch child 10 years or older and under 16 years 10 years 25% Approaches the mid-range 3 years, 6 months S 66DB(a) Crimes Act 2. Intentionally sexually touch child 10 years or older and under 16 years 10 years 25% Below the mid-range but not at the low end 2 years, 4 months S 66DB(a) Crimes Act 3. Intentionally sexually touch child 10 years or older and under 16 years 10 years 25% Approaches but just below mid-range 3 years, 4 months S 66DB(a) Crimes Act 4. Intentionally sexually touch child 10 years or older and under 16 years 10 years 25% Below the mid-range but not at the low end 2 years, 9 months S 66DB(a) Crimes Act 5. Intentionally sexually touch child 10 years or older and under 16 years 10 years 25% At the mid-range 3 years, 10 months S 66DB(a) Crimes Act 6. Intentionally sexually touch child 10 years or older and under 16 years 10 years 10% At the mid-range 5 years, 1 month S 66DB(a) Crimes Act 7. Intentionally incite child 10 years or older and under 16 years to sexually touch the person 10 years 10% At the mid-range 5 years, 4 months S 66DB(b) Crimes Act 8. Intentionally incite child 10 years or older and under 16 years to sexually touch the person 10 years 10% At the mid-range 5 years, 6 months S 66DB(b) Crimes Act 9. Intentionally sexually touch child 10 years or older and under 16 years 10 years 10% At the mid-range 4 years, 7 months S 66DB(a) Crimes Act 10. Intentionally incite child 10 years or older and under 16 years to sexually touch the person 10 years 10% At the mid-range 4 years, 7 months S 66DB(b) Crimes Act 11. Intentionally incite child 10 years or older and under 16 years to sexually touch the person 10 years 10% Just above mid-range 5 years, 5 months S 66DB(b) Crimes Act 12. Intentionally sexually touch child 10 years or older and under 16 years 10 years 10% At the mid-range 5 years, 4 months S 66DB(a) Crimes Act 13. Intentionally incite child 10 years or older and under 16 years to sexually touch the person 10 years 10% Below mid-range but not at the low range 4 years, 2 months S 66DB(b) Crimes Act 14. Intentionally sexually touch child 10 years or older and under 16 years 10 years 10% At the mid-range 4 years, 10 months S 66DB(a) Crimes Act 15. Intentionally incite child 10 years or older and under 16 years to sexually touch the person 10 years 10% Below the mid-range but not in the low range 3 years, 11 months S 66DB(b) Crimes Act 16. Intentionally incite child 10 years or older and under 16 years to sexually touch the person 10 years 10% Approaches mid-range 4 years, 10 months S 66DB(b) Crimes Act 17. Intentionally incite child 10 years or older and under 16 years to sexually touch the person 10 years 10% Approaches mid-range 4 years, 5 months S 66DB(b) Crimes Act 1. The offences taken into account on Form 1 certificates were as follows: Relevant count Offence Maximum penalty Intentionally sexually touch child 10 years or older and under 16 years Taken into account on Count 1 S 66DB(a) Crimes Act 10 years Seq 1 Intentionally sexually touch child 10 years or older and under 16 years Taken into account on Count 3 S 66DB(a) Crimes Act 10 years Seq 6 2 x Intentionally sexually touch child 10 years or older and under 16 years Taken into account on Count 5 S 66DB(a) Crimes Act 10 years Seqs 11 and 19 Intentionally sexually touch child 10 years or older and under 16 years Taken into account on Count 6 S 66DB(a) Crimes Act 10 years Seq 14 Intentionally sexually touch child 10 years or older and under 16 years Taken into account on Count 8 S 66DB(a) Crimes Act 10 years Seq 17 Intentionally sexually touch child 10 years or older and under 16 years Count 11 S 66DB(a) Crimes Act 10 years Seq 26 Intentionally sexually touch child 10 years or older and under 16 years Taken into account on Count 12 S 66DB(a) Crimes Act 10 years Seq 28 Intentionally sexually touch child 10 years or older and under 16 years Taken into account on Count 13 S 66DB(a) Crimes Act 10 years Seq 31 Intentionally sexually touch child 10 years or older and under 16 years Taken into account on Count 14 S 66DB(a) Crimes Act 10 years Seq 33 2 x Intentionally sexually touch child 10 years or older and under 16 years Taken into account ton Count 16 S 66DB(a) Crimes Act 10 years Seqs 37 and 38 1. I agree with and adopt the observations of Beech-Jones CJ at CL in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 ("DPP v TH") at [23] regarding the role of Form 1 offences in the sentencing exercise: [23] First, the Form 1 offences can be taken into account on sentencing as demonstrating an "additional need for personal deterrence and retribution" in respect of the substantive offences on the indictment (Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [23] (Bathurst CJ); see also [64] (Basten JA), [104] (Hoeben CJ at CL) and [154] (Garling J); "Abbas" and Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]; "Attorney General's Application"). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter (Attorney General's Application at [18]). 1. These observations are consistent with the approach the sentencing judge took to this issue: "[266] Forms 1 have the effect of increasing the sentence that would otherwise be imposed for the principal offences. The increase operates to recognise the need for personal deterrence and the community's entitlement to retribution for the Form 1 offences, although the focus remains on the primary offence. I have taken these offences into account and I have carefully considered s 33 of the Crimes (Sentencing Procedure) Act and the judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002, of which the Crown referred to in their submissions. [267] I indicate that I am satisfied that it is appropriate in all of the circumstances to take the Form 1 offences into account in accordance with s 33(2)(b). [268] I note that my assessment of the objective seriousness of each of the offences was undertaken without reference to the accompanying Form 1 offences. Instead, the Form 1 offences were considered as only demonstrating an "additional need for personal deterrence and retribution." In this case, that "additional need" is not insubstantial." The facts of the offending 1. The facts of the offences were the subject of a Statement of Agreed Facts and were set out in the sentencing judge's remarks as follows: "[16] The victim, VL, was born on 17 October 2007 and at the time of each of the offences was 11 or 12 years of age. The offender was born on 14 September 1948. At the time of each of the offences, he was 71 or 72 years of age. [17] The offender was VL's tennis coach. VL had played tennis since she was five years old and had had coaching lessons since she was young. The offender began coaching her in about October 2017. VL's parents paid the offender $12,000 a year to coach her. [18] The offender was a tennis coach for about 40 years. In 2019, he was coaching part-time. He coached about eight children at that time. [19] In 2018, VL began playing in tennis tournaments. In the first half of 2018, she only played in tournaments in Sydney. In July 2018, VL played in a tournament in Canberra. Her mother travelled with her, the offender and another young male player and they all stayed in the same accommodation. VL and her mother stayed in one room, and the offender and the other player stayed in the other. [20] In 2018, VL travelled to other tennis tournaments with the offender and other young tennis players. VL's parents deposited money for accommodation into the offender's account. [21] In 2019, VL attended a combination of private and group lessons, five days per week, with the offender. VL also attended a number of tennis tournaments with the offender that year. Macarthur tournament [22] Between 13 July 2019 and 16 July 2019, VL went to a tennis tournament in Macarthur. VL, the offender, and a 13 year old male tennis player, IS, stayed at nearby accommodation. VL and the offender stayed in one room and IS stayed in another. VL and the offender had their own bathroom. VL asked the offender why she could not have her own room or bed, and the offender said that the accommodation could not provide it. Incident 1 [23] On Saturday 13 July 2019, the offender put a towel on the bed in the bedroom he was sharing with VL, for the purpose of massaging her. The offender told IS to go to McDonalds to get food and that he needed to go, as VL was injured. [24] VL was wearing her tennis clothes and the offender told her to "strip off". When she was in her bra and underpants, he told her to "strip off more". VL took all of her clothes off and she was naked. [25] VL laid down on the bed, on her stomach. The offender massaged her back and legs. The offender used baby oil and pain and inflammation cream. The offender insisted that he had to massage VL's chest and groin to prevent injuries to those places, saying that her muscles would tear. VL understood her groin to be on each side of her vagina. [26] IS opened the door when he returned and saw that VL was on the bed being massaged by the offender. He saw that the massage was not just on her back and that VL had oil all over her. IS did not see the VL naked. [27] This was the only time the offender used oil or cream when massaging VL. The offender had gone to a pharmacy earlier with IS to purchase those products. Form 1 offence (Sequence 1) to Count 1: Sexual touching [28] VL turned over so that she was on her back. The offender began massaging her breasts and started caressing them. He made jokes that he was like a vampire and that he had to suck her blood. He put his mouth on her breasts. This lasted for about 10 seconds and made VL feel uncomfortable. Count 1: Sexual touching [29] The offender began to massage VL's groin; he touched her on the outside of her vagina and played with her pubic hair. He asked how she had so much pubic hair and said that some girls would shave it. He said, "You've got such long pubic hair", and suggested that she cut it off. The offender took his shirt off during this incident. [30] Afterwards, VL showered and got into her pyjamas. She slept on the right side of the queen bed and the offender slept on the other side. Incident 2 [31] The next morning, Sunday 14 July 2019, the offender again massaged VL. The offender made VL strip off her clothes so that she was naked. She laid on a towel on their bed. Count 2: Sexual touching [32] The offender massaged VL's back before she turned over. He started "playing" with her, by massaging her breasts and putting his mouth on her breasts. The incident lasted about 30 minutes. The offender had his shirt off but his pants on. Afterwards, VL had a shower, put her tennis clothes on and went off to play. Incident 3 [33] After they all ate dinner that day, the offender again massaged VL. He told her that it was preparation for her match, so that she didn't get distracted. The offender put a towel on the bed and VL laid down on it. Form 1 offence (Sequence 6) to Count 3: Sexual touching [34] The offender massaged VL's back and legs. Then VL turned over and the offender massaged and caressed her breasts. Count 3: Sexual touching [35] The offender massaged VL's groin. VL described it as the offender tickling her vagina on the outside. A few seconds after this started, VL said, "Stop doing it". The offender stopped. VL showered, got into her pyjamas and went to sleep. [36] In relation to the Form 1 offence and Count 3, VL did not know what he was doing and did not say anything because she didn't know what to do. Incident 4 [37] The next morning, Monday 15 July 2019, the offender again massaged VL on their bed. The offender said that it was preparation for her match and that she had to impress her parents, who were coming to watch her that day. VL felt really uncomfortable. She wanted to get to her match as tennis was the only distraction from what was going on. Count 4: Sexual touching [38] VL was naked. The offender massaged VL's groin near her vagina and also touched VL on the outside of her vagina. [39] After the massage, VL went to play her match. Afterwards, VL's parents went to the apartment. VL's mother thought it was odd that there was only one bed and asked about it. The offender said, "Due to the room availability, this was the best we could get. We share the bed, but don't worry, we have pillows down the middle". [40] VL was having back pains and she put a towel down on the living room floor. Her mother gave her a bit of a massage on her back. The offender said, "Oh yeah, she has had the back pain, I've been giving her massages" and "I've been using oils to help with her back pain". The offender gave VL's mother instructions on how to massage, which made her feel strange. [41] On 19 July 2019, following the tournament, VL got physiotherapy for her back pain. The physiotherapist advised VL that she needed to build up muscles on her glutes and legs. He said that back massages would be good. [42] Consequently, VL's mother, at times, would massage her back and the back of her legs. During these massages, VL would be clothed but would pull her shirt up. VL's father also massaged her on about three occasions. She was always fully clothed. VL never complained about any problems with her groin area. Gloucester tournament [43] The next tournament took place between Friday 4 October and Monday 7 October 2019, in Gloucester. VL did not play in this tournament, but travelled with the offender, IS, and CY, another young male player coached by the offender. [44] Prior to the tournament, VL's parents bought her a massage gun, so that she could massage herself. [45] The four of them stayed in a house nearby. There were three bedrooms and one bathroom. The offender asked VL, "Do you want your own room?" When VL said that she did, he replied, "I don't think your mum would pay for it". However, IS' father had in fact booked and paid for the use of the whole house. VL and the offender shared a room, and the two teenage boys shared another room. [46] During this tournament, the offender offered IS and VL alcohol. They both declined, despite the offender continuing to ask them. Incident 5 [47] On the first occasion the offender massaged VL, he placed a towel on the bed. He used eucalyptus oil and told VL that it was better. The offender told VL to strip off. VL no longer questioned what the offender was doing; she thought he may be right and that maybe he was doing it for her own good. Form 1 offence (Sequence 11) to Count 5: Sexual touching [48] Once VL was naked, she laid on the towel on her stomach. The offender massaged her back and legs. The offender was also naked. He told VL he was naked as he didn't want oil on his clothes. VL turned over and the offender caressed her breasts, "squishing them around". Form 1 offence (Sequence 19) to Count 5: Sexual touching [49] The offender kissed VL on the lips, telling her that it was a new "distraction" for her to prepare for her match. This was the first time he had kissed her on the lips. He also blew in her ear, telling her it was to blow all the cobwebs out. Count 5: Sexual touching [50] The offender also massaged VL's groin area. He touched the outside of her vagina and VL quickly covered her vagina to block him. The offender asked, "Why are you doing that?", and VL replied that she was sensitive there. VL felt really uncomfortable. When the offender asked if she wanted her groin massaged, she said, "No". He replied, "Suit yourself". After the offender finished, VL dressed quickly, went to the bathroom and showered, as she felt dirty. Incident 6 [51] VL woke up the next morning to the offender caressing her bottom. He said, "Oops". Form 1 offence (Sequence 14) to Count 6: Sexual touching [52] On an occasion in Gloucester, the offender massaged VL while she was on her stomach. She turned over. The offender was naked. She told him to move his penis away and he said, "Why?" He told her that it was nothing, that it was "Just like a piece of meat". The offender played with VL's breasts and nipples. Count 6: Sexual touching [53] The offender then got on top of VL so that his penis was close to her vagina. She put her hands there to protect herself. He asked, "Why are you doing that?", and she said "No, what if it goes in?". The offender replied, "It never go in". Count 7: Incite sexual touching [54] After he finished massaging VL, the offender told VL that he needed to be paid for the massages and he had been doing it as a favour. He said she needed to massage his penis as payment. VL moved her hand up and down on the offender's penis and it became erect. The offender ejaculated. He told VL that she was massaging his groin and that it felt good. Afterwards, VL quickly washed her hands very thoroughly. [55] VL estimated that in Gloucester, there were approximately nine to 10 "massage" sessions. At one stage, VL asked the offender, "Hey what if we had sex?", but the offender said, "Oh, you know I'm not going to rape you, you know" (the parties agreed that VL was there asking the offender whether they would have sex and was not asking the offender to have sex with her). The offender asked VL if she trusted him and she said that she did. Following that, the offender started caressing VL more, instead of massaging her. Newcastle tournament [56] VL travelled with the others straight to the next tournament, which was in Newcastle between Tuesday 8 October and Friday 11 October 2019. They stayed at an executive apartment. There were two bedrooms and two bathrooms. IS and CY stayed in one bedroom and the offender and VL had the other. The offender and VL had one bed in their room. Incident 7 Form 1 offence (Sequence 17) to Count 8: Sexual touching [57] On the first night, the offender massaged VL. He used eucalyptus oil. During the massage the offender kissed VL and did so more than on previous occasions; he kissed her all over her body, although not on her genitals, more on her upper body. The offender told VL that it was going to be very hot the next day and encouraged her to sleep nearly naked. VL slept in her underwear. Incident 8 [58] VL woke up early the next morning, to warm up with CY. The offender also woke up early and massaged VL. This occurred on their bed. Count 8: Incite sexual touching [59] The offender used massage oil again and massaged VL, although she later described it as "more like playing around" rather than massaging. As he usually did, the offender told her that this was for preparation. VL then "massaged" the offender's penis. VL felt it get harder. The offender began playing with VL's breasts again. He also played with her stomach, saying it was "cute". Once this ended, VL washed her hands. There was no discharge. [60] VL estimated that these "sessions" occurred about 10 times during the Newcastle tournament. Cessnock tournament [61] After the Newcastle tournament, the same group travelled to Cessnock for another tournament between Saturday 12 October and Monday 14 October 2019. They stayed at an old house. There were three bedrooms. IS' parents were going to come and stay with them. VL understood that they were going to save the third bedroom for them, and the offender told her that he didn't want her to mess up that bed. IS and CY shared a room that had two sets of bunkbeds; that is, four beds in total. IS told the offender that VL could stay in their room, but the offender said that she should sleep with him. Incident 9 [62] The offender and VL were both naked on the first occasion that the offender massaged her. VL lay on the bed on a towel. VL wanted a massage on her legs to be able to play tennis well. Count 9: Sexual touching [63] During the session, the offender got on top of VL. He told her that it was a "body massage". His penis was close to her vagina. VL covered her vagina, trying to block him. The offender tried to reassure her by saying, "It's not going to go in". The offender moved so that both his and VL's stomachs rubbed against each other. He told her that it was a "body massage". Count 10: Incite sexual touching [64] VL also "massaged" the offender's penis. The offender ejaculated. VL washed her hands straight away, as she felt dirty. [65] Similar "sessions" occurred a few more times at Cessnock, approximately eight in total. During the sessions, the offender also occasionally lightly bit VL's body parts, including her breasts. This made her uncomfortable and confused. It did not hurt or leave any marks. Training at Lindfield [66] After the tournament in Cessnock, VL returned home and trained for the next five to six weeks, between 15 October and 5 December 2019, before the next tournament. VL turned 12 years old on 17 October 2019. On one occasion, the offender told VL to, "Open your chest up so I can see your tits". He told VL to take her bra off to make her play better. VL went to the clubhouse and took her bra off before returning and serving. The offender said, "Yeah, that's better now. It's not holding you back". CY was present for this. Incident 10 [67] On an occasion when both VL and CY were training, the offender made CY run laps as punishment. When CY was doing that, the offender took VL into the clubhouse and made her massage his penis. Count 11: Incite sexual touching [68] The offender told VL that if she did not massage his penis, he would stop coaching her and he would not massage her again. VL believed that if she did not get a massage, her muscles would tear. She also believed that if he didn't coach her, she would be stripped of the privilege of playing tennis on tour. [69] The offender sat down, kept his pants on but moved his underpants and pants aside for VL to massage his penis. VL massaged his penis for a short period and the offender ejaculated. Form 1 offence (Sequence 26) to Count 11: Sexual touching [70] The offender reached under VL's shirt and played with her breasts. [71] These incidents occurred several times over that period of training. They did not occur when there was group training. On Tuesday mornings, VL would be left alone with the offender at the end of training, and on those occasions VL would usually have to massage the offender's penis. On Thursdays, VL would train with CY and when CY was made to run laps, the offender touched VL and told her to massage his penis. On Saturdays, VL would arrive early so that it was just her and the offender. VL would massage the offender's penis. Shoalhaven tournament [72] The offender and VL drove with IS and CY to a tournament in Shoalhaven on 6 December. The tournament was held between 7 December and 9 December 2019. About a week before the tournament, the offender had spoken with VL's mother. She said had she been trying to get VL to do exercises to strengthen her core muscles. The offender told her that she also needed to massage near the vagina area. He used a word for the area that she could not remember, but that was unfamiliar to her. [73] They checked into a Motel in Bomaderry. IS and CY each had a bed in an open room and VL and the offender had their own room, again sharing a bed. At some point on the first day, CY and IS went off by themselves and the offender and VL went to the bedroom. Incident 11 Count 12: Sexual touching [74] On the first evening, the offender massaged VL. He used oil. VL was naked. She was lying on the bed, on a towel. She was face down and he started massaging her back and legs. He did this very quickly and then turned her to the front. He was naked. The offender put his body on top of VL, telling her that it was a "body massage" and he moved his body up and down. The offender's stomach was on top of VL's stomach, and his penis was against her legs. VL put her hand over her vagina. The offender massaged her groin area. He told her that other girls would shave their pubic hair. Form 1 offence (Sequence 28) to Count 12: Sexual touching [75] The offender caressed VL, including touching her breast. He kissed her breasts and her lips. The offender used his tongue to force open her lips, saying it was preparation for her match. The offender said, "Okay, no more", and VL showered. The offender walked in on her in the shower and said, "VL get out of the shower in 10 minutes". This was witnessed by IS, who recalled the offender being in the shower room for a good 20 seconds. Incident 12 Form 1 offence (Sequence 31) to Count 13: Sexual touching [76] When they went to bed, the offender told VL to sleep nearly naked as it would make her feel better. VL slept in her underwear. The offender was naked. During the night, the offender touched and caressed parts of her body, especially her breasts. He also squeezed her bottom and massaged her back. Count 13: Incite sexual touching [77] At some point during the night, the offender told VL to massage him. She massaged his groin area and, as soon as she got up in the morning, washed her hands, after putting on her pyjamas. Incident 13 Form 1 offence (Sequence 33) to Count 14: Sexual touching [78] On Saturday morning, the offender massaged VL. VL was naked and lying on towels on the bed. The offender was also naked. The offender massaged her back, legs, bottom, and breasts. The offender commenced kissing her all over and blowing in her ear, insisting it was preparation for her match. Count 14: Sexual touching [79] The offender massaged VL's groin, including on the outside of her vagina, and made jokes about her pubic hair. He told her that it looked like a billy goat beard or moustache. When he touched her near her vagina, he told her that he was massaging her groin. Count 15: Incite sexual touching [80] At some point, VL massaged the offender's groin. There was no discharge when she did. He said, "That was it", and VL showered. Incident 14: Shoalhaven Form 1 offence (Sequence 37) to Count 16: Sexual touching [81] VL was naked and the offender was massaging her on the bed. The offender had earlier told IS and CY to go to McDonalds. When they returned, IS was holding an ice cream that they had bought for VL. He opened the door to the bedroom. VL was on her stomach. IS saw VL on the bed. The offender shouted, "Get out", and "Hey, VL's undressed", and closed the door. The offender was not naked. After IS left, the offender said to VL, "That was close". [82] IS went outside and called his parents for five to 10 minutes. The offender came out and got mad at IS, asking why he called his parents. He also questioned CY as to why IS was spending so much time talking to his parents. The offender went back to his room and slammed the door. [83] The offender then kept "playing" with VL. He started kissing VL all over. He kissed her on the lips and asked, "Why are you closing your lips? Open them up". VL opened her lips as she felt like if she did not, she would have to stay in the bedroom. The offender forced her to kiss him properly by opening her lips. He also kissed her on the breasts. Form 1 offence (Sequence 38) to Count 16: Sexual touching [84] The offender massaged VL's groin, including on the outside of her vagina. Count 16: Incite sexual touching [85] The offender then told VL to massage him again, which she did. She massaged his groin, including his penis. The offender gave her further instructions and told her to move her hand up and down. The offender ejaculated. Count 17: Sexual touching [86] The offender then got on top of VL to give her a "body massage". VL cupped her hands over her vagina. VL then quickly dressed and showered. [87] That night, the offender offered beer to VL and IS. The offender told VL that it would "clean out your mouth … clean out your system". Both the victim and IS drank the beer. VL drank about one fifth of a glass that the offender poured for her. The offender told her that it would make her sleep better. [88] They drove back to Sydney at the end of the tournament. VL was in the front passenger seat and IS and CY were in the back seat. The offender put his hand on VL's lap and VL held his hand. VL was dropped off at her grandmother's house." 1. The circumstances of the investigation and comments the offender made to investigating police were also set out in the Statement of Agreed Facts and recited relevantly by the sentencing judge as follows: [89] Following the tournament, IS told his parents that he had seen VL naked. They, in turn, contacted VL's parents. VL's mother spoke with VL, who started crying straight away. VL's mother asked several questions about the offender. VL said that she did not know what he was doing was wrong. [90] VL saw a doctor on 10 December 2019. From there, VL and her mother went to the Sydney Children's Hospital, where police from the Child Abuse Unit attended. VL later spoke with detectives from the Child Abuse Unit, and this was recorded. IS and CY were also interviewed. Both IS and CY said that they had never been massaged by the offender. [91] On 11 December 2019, the offender participated in a lengthy electronically recorded interview and initially said the following, in part: '… she sleeps in my room because we couldn't find another room for her 'cause I do kids takeaways… Could you massage me with oil? I said, That's fine. It's not going to go on your clothes what do you want to do? I'll take it off I said, Listen, if I touch you in the wrong different manner tell me I will, I, it's not properly for me to do these things…' '… And then she, she did my back a little bit and that was it and my, and my legs so they were hurting down the back and I did, I said… we did that a number of times. There was no sex, ar, thinking, harassment or any of that kind.' [92] The offender said that he thought that VL was 12 or 13 years old at the time of the interview. He said that the massages started in Canberra when VL's mother was present and that this was due to her legs tightening up. [93] In relation to sleeping arrangements, he said: '… and the boys don't want her to sleep with them… Sometime I put her with the boys 'cause I don't want anyone with me. I snore… the boys kicked her out she come to my room. I said to her, I don't want you in here.' [94] In relation to the reason for the massages, he said: '… and I told her mother, I said, "You need to oil the groin 'cause I looked it up on the internet where you should be grinding down the groin here to loosen up the muscles and everything. … I said, "Look, I'm not, I don't want to do this". I told her many times.' [95] The offender also said: (1) that the boys were also massaged, not just once but many times; (2) it was VL's idea to close the door, as she didn't want the other boys watching; (3) VL stripped naked as she didn't want oil on her and knew it was going to be used from her neck down; (4) when asked if VL had pubic hair, he said, "Yes she's got hair… like a Billy Goat", and confirmed that he had also said that to VL; (5) that it was the boys who told her to sleep with no top on, because she would sleep better; (6) that he told her many times that he didn't want to massage her; (7) that it was like massaging his daughter and that it meant nothing to him; (8) that he blew on her belly button when they were together at Campbelltown; (9) that he massaged VL in Gloucester on several occasions, usually at night; (10) that he stripped down to underwear in Gloucester as he was getting oil on his clothes, but that he asked VL if she minded if he took his clothes off beforehand and she said no; (11) when asked if he removed his underpants in Gloucester, he said, "No. No. The only time I told her I'm removing my underpants at the other place be, I got oil on it"; (12) that VL did see his penis in Gloucester and also at another place when he got oil on his underpants, and he took them off; (13) that he said to her during a conversation when the boys were present, "I'll never rape you, you trust, that's called trust"; (14) when asked if he got on top of her when he was naked, he said that it was when he "bashed her up" a number of times when she would kick him "in the balls" and that it was "… not really bash up, you know, just, sort of, wake up it's time to get up and go"; (15) that he massaged her about four times in Newcastle; (16) that he massaged her breasts but did not kiss them; (17) that he asked her to massage his groin and back and that he took his underpants off as they got oil on them prior to massaging his groin; (18) that the last time he got an erection was about four to five months ago but said that it still gets hard when he gets up to go to the toilet; (19) that his last relationship ended about five months prior to the interview; (20) that he massaged her in Cessnock; (21) that it was VL's idea to stay with the offender rather than moving into the third bedroom; (22) when asked if he got on top of VL and rubbed his body against her, he replied, "Nuh. I was massaging her sideways"; (23) that he pleaded with the boys to let VL sleep in their room, but that VL did not want to; (24) that he did massage her during training in Lindfield; (25) that he did tell her to take her bra off as "the thing is so tight"; (26) that he massaged her in Shoalhaven; (27) that he took his underpants off during the massage as he had oil on them; (28) after he took his underpants off, VL massaged his "left and right and my groin"; (29) that he kissed her on the lips once when they were watching TV, telling her that she had "a big fat mouth, maybe someone should take that air out of your stomach"; and (30) that VL was always holding his hand when he was driving. 1. The comments made by the applicant to police set out at [95] of her Honour's remarks on sentence are important because they indicate an understanding that he needed to "cover his tracks" regarding his offending conduct and to attempt to manufacture innocent explanations for his conduct, in particular statements 1 to 3, 5 to 7, 10 to 11 and 21 to 23. 2. Her Honour concluded that whilst VL had some muscular issues in her legs and lower back that required massaging, she was: "[103]… satisfied beyond reasonable doubt on all of the evidence that there was no legitimate or therapeutic reason for the offender to touch or massage the victim to her breasts or genital areas, nor did she have injuries to those areas of her body. I am so satisfied because the "massages" the offender did were ultimately sexual in nature; I find they were performed in furtherance of the offender's depraved desire for sexual gratification. That is evident from the fact that the offender instructed the victim to completely "strip off" for the massages (for example, prior to Count 1) in circumstances where there was no need for her to be naked, and the fact that for some of the offences he was also naked; I reject any notion that he took off his clothes in order to avoid getting oil on his clothes. 1. Her Honour also concluded the "massage" technique was a "ruse" to have VL undress, so that the applicant could access her body and "habituate her to what the offender knew was entirely inappropriate sexual contact by him" [1] . Her Honour concluded that there was pre-planning in the purchase of massage oil [2] and callous manipulation in telling VL that what he was doing was assisting her to perform well playing tennis. [3] 2. The victim impact statement was referred to as a demonstration of the devastating effect of the sexual abuse upon VL. Findings on the subjective case 1. Her Honour then addressed the applicant's subjective case. The applicant was born in Lebanon and is the seventh of eight children. He came to Australia with his family at approximately five years of age and settled in Lindfield. He learned to play tennis as a child. He was not an especially successful tennis player; he became a coach and worked in that capacity for 47 years. Dr Nielssen, Psychiatrist, interviewed the applicant in March 2021 and assessed him as around the bottom of normal range of intelligence. 2. Reference was made to the various character references tendered that focussed on the referees' opinions of his character and skill as a tennis coach. A number of the references pre-dated the offending by some years. 3. Her Honour dealt in extensive and appropriate detail with the evidence regarding the applicant's physical and mental health. Suggestions in the evidence that he may have suffered a "behaviour change" after a heart attack in 2018 were canvassed, as was an incident in March 2021 where he was assessed at Royal North Shore Hospital after an illness. 4. Dr Nielssen had examined various medical records and evaluated a possible brain injury from hypoxia associated with a 2018 heart attack, a non-specific childhood illness, a fall in 2005, and an assault in custody in December 2019. 5. Under the heading "Mental Health", her Honour analysed Dr Nielssen's assessments and conclusions set out in his reports, followed by an outline of the effect of answers given by him in cross-examination that to an extent modified some of his opinions. Dr Nielssen agreed that the applicant's presentation (on his review of him in March 2021) could well be the product of "emerging dementia". Some factors, including the applicant's participation in a clinical trial, could be consistent with no impairment of cognitive function. The applicant's presentation was consistent with very insidious onset of Alzheimer's dementia over "some years". Dr Nielssen maintained the view it was "quite probable" that the offender suffered a hypoxic brain injury at the time of his cardiac arrest in 2018. 6. Her Honour noted the effect of Dr Nielssen's evidence as follows: "[203] Dr Nielssen confirmed that he knew the offender lied to the police about the commission of the offences and agreed that this demonstrated some understanding of the wrongfulness of his offending. The Crown queried whether this was inconsistent with a gross impairment of social judgment; Dr Nielssen said he did not think so but this depends on how things are defined. Dr Nielssen said that wanting to commit the offence itself showed a great impairment in social judgment, so he did not think this was inconsistent with impairment. He said that not being able to estimate how harmful the offending was, community opprobrium and the potential consequences to himself, showed a gross impairment in the offender's judgement. Dr Nielssen observed that the offender tried to justify the offending and opined that this demonstrated a complete unawareness of how others might view the offending but acknowledged that the offender was impaired by the time he assessed him." 1. Having then noted the evidence, submissions and principles relevant to moral culpability, her Honour carefully evaluated the combination of expert and other evidence in reaching her conclusions as to the applicant's moral culpability for the offending, and the relevant role and weighting of specific and general deterrence: "[222] Given Dr Nielssen's opinion that the offender has obvious frontal lobe impairment which explains the offender's behaviour, particularly given his age and the relatively late onset of offending, I am satisfied on the balance of probabilities that the offender's mental state, whether because he was suffering from the after effects of a hypoxic brain injury in 2018 (which pre-dated the offending) or dementia, had a causative role in his offending and contributed, to a degree, to the commission of the offences. I accept that, to a degree, his judgement and reasoning capacity were impaired. Accordingly, the offender's moral culpability is somewhat reduced. I have also taken into account the offender's generally low level of intellectual functioning. [223] The need to denounce the offences is also thereby somewhat reduced. The offender is consequently also not an appropriate vehicle for the full expression of general deterrence. However, general deterrence remains an important factor to consider on sentence. [224] This, however, is a question of degree. For the reasons enumerated by the Crown, I am not persuaded that the contribution of the offender's mental condition contributed to the commission of the offences in a significantly material way, or that the causative role is the sole or principal reason for the offending. [225] I find that the offender principally acted in furtherance of a desire to gratify his sexual desires and that he knew that what he was doing to the victim was criminally wrong. This is not a case where the offender's mental health status was such that his capacity to appreciate the wrongfulness of his acts was fundamentally compromised, nor did he fail to understand the need to cover up his actions. The offender took multiple steps to plan his offending and conceal it; this demonstrates that he well understood that what he was doing was wrong. [226] The offender told the victim lies about why she could not have her own room and I find that he did so in order to have ready and more private access to her because he had planned to sexually offend against her (the Macarthur Tournament, the Gloucester Tournament, the Cessnock Tournament); he sent other children away for what I find was the purpose of being alone with the victim in order to sexually offend against her (the Macarthur tournament and training at Lindfield); the offender told the victim that he needed to massage her to prevent injuries, prepare her for her matches, and assist her tennis playing (the Macarthur tournament, the Gloucester tournament, the Newcastle tournament, the Cessnock tournament, the Shoalhaven tournament); he had pre-purchased oils and creams in order to "massage" her (the Macarthur tournament); he made up an excuse to justify, to the victim, why he was naked (the Gloucester tournament); the offender also manipulated the victim, telling her that she had to pay him, by masturbating him (the Gloucester tournament) and said that if she did not massage him, he would stop coaching her (training at Lindfield). [227] A further telling piece of evidence was the offender's reaction to IS coming into the room when he was "massaging" the victim on the bed at the Shoalhaven Tournament; he shouted to him to get out and said, "that was close". I find that when he said "that was close" that the offender was referring to nearly being caught. Those words and actions demonstrate, beyond reasonable doubt, that the offender knew what he was doing was wrong. He actively took steps to conceal what he was doing; his judgement was not so impaired that he did not understand the nature of his acts or that there would be consequences if he was caught. [228] The offender's motive was a sexual one. He was repeatedly gaining sexual gratification, including to the point of ejaculation; I readily find that he knew this was wrong. [229] The offender also offered the children alcohol (the Gloucester tournament and the Shoalhaven tournament) and whilst this may demonstrate a lack of judgement, it is also consistent with a desire to curry favour with the victim and lower her inhibitions. [230] The offender also repeatedly lied to the police in what I find was an attempt to cover up his crimes and deny his offences, he claimed that: (1) the victim was the one who asked to take her own clothes off; (2) the boys kicked her out of their room and that was why she came to his room; (3) he did not want to massage her groin and had told her this many times; (4) the boys were also massaged; (5) the boys had told her to sleep with no top on; (6) it was like massaging his daughter and it meant nothing to him; (7) it was her idea to stay with him rather than moving into another bedroom (in Cessnock); and (8) he pleaded with the boys to let the victim sleep in their room, but she did not want to. [231] The offender's deliberate and persistent lies demonstrate that he knew what he had done was criminally and morally wrong. [232] Whilst there may have been some diminution in his judgement and capacity to reason, I find, in all of the circumstances that this did not play a major role in the offending; rather, the offender deliberately chose to offend, time and time again, in the way that he did, for the depraved purpose of sexual gratification. [233] I am satisfied that a custodial sentence will weigh more heavily on the offender given his mental health conditions. Because the sentence will be more onerous, the penalty has been somewhat reduced. [234] Given the persistent, repeated, and lengthy duration of the offending, I am unable to conclude that the offender's mental health conditions reduce the need for specific deterrence." 1. These paragraphs comprise a series of nuanced and subtle findings with evidence-based and transparent reasoning. A key finding by her Honour is contained in [231]. Whatever his presentation approximately 18 months after the offending when Dr Nielssen assessed the applicant, her Honour concluded that at the time the applicant offended, and shortly after when he was interviewed by police, he told focussed lies, all of which demonstrated that he knew what he had done to VL was wrong. This appeal 1. The applicant appeals his sentence on two grounds: 1. Her Honour erred in finding that the need for specific deterrence was not reduced as it was not open to make such a finding by reasons of her Honour's related findings and the preponderance of evidence on the issue. 2. The aggregate sentence imposed upon the applicant is manifestly excessive, both with respect to the minimum and maximum terms. Ground 1: Her Honour erred in finding that the need for specific deterrence was not reduced as it was not open to make such a finding by reason of her Honour's related findings and the preponderance of evidence bearing on the issue. Principles 1. On the question of the proper approach to sentencing offenders where they have a mental illness or intellectual disability, the following elucidation by Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114 at [33] to [34] of the principles set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("De La Rosa") by McCellan CJ at CL at [177], is instructive: "[33] This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: "[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ... [Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ... [Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ... [Principle 4] It may reduce or eliminate the significance of specific deterrence ... [Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ..." (internal citations omitted, italics added) [34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for." 1. In relation to the role of specific deterrence in child sexual assault cases, Johnson J in AK v R [2016] NSWCCA 238 noted the following: "[102] Where a person commits serious sexual offences against children, an assessment of the risk of reoffending and the need for specific deterrence, will involve an examination of not just a formulaic expression of remorse to a psychologist, but the degree of insight the offender has demonstrated into what he did, and why he did it…." The applicant's submissions 1. The applicant's position was that it was "simply not open" to the sentencing judge to find that the need for specific deterrence was not reduced, given the "related findings on the issue" and the "preponderance of evidence". The "related findings" were identified as her Honour's conclusion that the 2018 brain injury/dementia had a causative role in the offending "to a degree", that his moral culpability was "somewhat reduced", as was the need to denounce his offending, and that he was not an appropriate vehicle for the "full expression of general deterrence". (My emphasis). 2. It was submitted that the assault in custody in December 2019 would function as a "considerable specific deterrent", although no evidence was cited as to why this was so, or whether the applicant understood it was "retribution for the offending", as counsel for the applicant on this appeal submitted it was. 3. It was argued that her Honour's finding that the applicant was unlikely to reoffend was inconsistent with her finding at [234] that the offender's mental health condition does not reduce the need for specific deterrence. The Crown's submissions 1. The Crown submitted that general deterrence and specific deterrence are not shackled, as demonstrated by the distinct treatment of them in De La Rosa. They are separate moving parts of the instinctive synthesis process, and different concerns and considerations affect each. 2. The sentencing judge did not reject the argument that mental impairment had a role in the offending, acknowledging that the applicant's judgment and reason were impaired "to a degree, and so his moral culpability was somewhat reduced": [222]. There is no presumption that an offender's mental illness has a particular consequence in sentencing. It was within the sentencing judge's discretion to assess how the applicant's mental health condition related to each of the principles in De La Rosa and it was open for her to arrive at different findings for each. 3. Clear reasons were given as to why and how her Honour treated the distinct roles of specific and general deterrence and it was open to her Honour to deal with those distinct aspects in the way that she did. The need for specific deterrence was not reduced given the "persistent, repeated and lengthy duration of the offending". 4. The assault in custody was ventilated at the sentence hearing and was characterised as extra-curial punishment, not as a matter relevant to specific deterrence. Consideration of Ground 1 1. There is no obligation to make a reduction in sentence on the basis that the role of specific deterrence is less important, where as here, the evidence demonstrates that the offender clearly knew at the time of his offending that what he did was wrong. This was demonstrated by his calculated lies to police, as well as the lies he told to VL to secure her compliance. There is no evidence that suggests that he is now unable to understand that fact, or that he now, due to a mental condition or deterioration, cannot understand his sentence or cannot understand that he is being punished by the Court for his offending, or cannot understand that he must be deterred from that offending. 2. The sentencing judge thoroughly examined the expert evidence and evaluated what it demonstrated about the applicant in the context of the offending. Her consideration of each aspect was transparent and consistent with principle. 3. I am not persuaded by the applicant's submissions. As the Crown correctly submitted, general and specific deterrence are not shackled. Her Honour's conclusions regarding specific deterrence were open to her on the evidence and there was no error. 4. Ground 1 must be rejected. Ground 2: The aggregate sentence imposed is manifestly excessive, both with respect to the minimum and maximum terms 1. This Court may only intervene where there has been some misapplication of principle, even if its precise manifestation cannot be identified or determined: House v King (1936) 55 CLR 499; [1936] HCA 40. 2. As stated by Hamill J in Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [82]: "…Sentencing is an instinctive and intuitive process and there is no single, correct outcome. Intermediate courts of appeal pay real deference to the role of the judge at first instance and sentencing judges are afforded a deal of flexibility in determining the appropriate punishment…" 1. I reject the submission that the sentence was manifestly excessive. A 71-year-old man repeatedly sexually abused an 11 to 12-year-old child in his care over a period of six months. He used his authority and access to her, in the context of trips away from her home for a sport she loved, in his sole care, and in a position of trust, to lie to her and manipulate her to accept what he was doing to her body was appropriate and "good for her tennis game". These assaults were repeated, involved skin to skin contact with his mouth, hands and penis, and were sought for his sexual gratification. 2. There were seventeen separate sexual offences on the indictment to which the applicant pleaded guilty as well as twelve others taken into account on Form 1 certificates. As observed by the sentencing judge, all offences contrary to s 66DB of the Crimes Act 1900 (NSW) are inherently serious. There were calculated lies and planning involved, sending the other children away, telling VL's mother he was in fact massaging her for sports injuries, and lying to VL about why he was doing what he did. The applicant told VL that he would stop his tennis coaching of her if she did not cooperate with his demands. He tricked her into thinking her masturbating his penis was a "groin massage". She was too young, vulnerable and inexperienced to understand the betrayal of her trust, although she knows that now, as set out in her victim impact statement. This was serious offending. 3. Her Honour made an appropriate finding of special circumstances given the applicant's mental health, consistent with principle 3 of De La Rosa extracted at [25] above. Neither the minimum nor maximum term is manifestly excessive. 4. This ground should also be dismissed. Conclusion and proposed orders: 1. I would grant leave to appeal but dismiss the appeal. 2. IERACE J: I agree with Lonergan J that the grounds are without merit and concur with the orders she has proposed. ********** Endnotes 1. Remarks on Sentence, 18 August 2022 at [106] 2. Remarks on Sentence, 18 August 2022 at [108] 3. Remarks on Sentence, 18 August 2022 at [107] 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 June 2023