Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Melville v R [2023] NSWCCA 284 Hearing dates: 29 September 2023 Decision date: 17 November 2023 Before: Leeming JA at [1] Davies J at [15] Wilson J at [16] Decision: (1) Leave to appeal against the sentence imposed on 16 December 2022 granted; (2) Appeal dismissed. Catchwords: CRIME – appeal against sentence – serious sexual offending against teenage step-daughters – offences a small part of broader course of conduct interstate – earlier convictions and sentences interstate – totality – question of extra-curial punishment – question of manifest excess Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code 1913 (WA) Sentence Administration Act 1995 (WA) Sentence Administration Act 2003 (WA) Sentencing Legislation Amendment and Repeal Act 2003 (WA) Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 AK v R [2016] NSWCCA 238 DPP v Ellis (2005) 11 VR 287; [2005] VSCA 105 Kenny v R [2010] NSWCCA 6 Mill v R (1983) 166 CLR 59; [1988] HCA 70 MJL v R [2007] NSWCCA 261 R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 R v Dodd (unreported, 4 March 1991, NSWCCA) R v Geddes (1936) SR (NSW) 554 R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Reyes [2005] NSWCCA 218 Rushby [1977] 1 NSWLR 594 Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 The Queen v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 Todd v R [1982] 2 NSWLR 517 VIM v The State of Western Australia [2005] WASCA 223 Category: Principal judgment Parties: Victor Melville (Applicant) Rex (Respondent) Representation: Counsel: T Kent with M Voleynik (Applicant) V L Garrity (Respondent) Solicitors: P Williams & Company Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2017/125397 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 16 September 2022 Before: Judge Smith SC File Number(s): 2017/125397 HEADNOTE [This headnote is not to be read as part of the judgment] Mr Melville sought leave to appeal against an aggregate sentence imposed in the District Court on 16 December 2022 by Judge Smith SC for several sexual offences against two children. Three days before his trial was due to commence in Sydney, he pleaded guilty to 2 of the 6 counts, being count 3, carnal knowledge by a stepfather of a girl aged between 10 and 17 years contrary to s 73 of the Crimes Act 1900 (NSW), and count 6, sexual intercourse without consent contrary to s 61D(1) of the Crimes Act. The remaining 4 counts of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act were taken into account on two Form 1 documents. The issues arising on the appeal were: 1. In assessing the objective seriousness of Counts 3 and 6, the sentencing judge impermissibly treated separate offending (being offences committed in Western Australia and/or the offences on the Form 1 documents) as an aggravating feature. 2. The sentencing judge erred by finding that the applicant had not been subjected to extra-curial punishment. 3. The sentence imposed was manifestly excessive. The Court held (granting leave to appeal; dismissing the appeal): As to issue (i), per Wilson J (Leeming JA and Davies J agreeing): 1. Although the sentencing judge referred to the wider course of sexual abuse against the complainants as "aggravating" the offending in a single sentence in the remarks on sentence, it is clear from the whole of the judgment that his Honour was not referring to the Western Australian offending, or the offences on the two Form 1 documents as a feature relevant to the determination of the gravity of the charged offences. Rather, the court had regard to other criminal conduct as a matter that negated any suggestion of opportunism in the commission of the charged offences, and which called for amelioration of the sentence to be imposed, having regard to the sentence served interstate: [71], [74] – [76] per Wilson J; [1] per Leeming JA; [15] per Davies J. As to issue (ii), per Wilson J (Leeming JA and Davies J agreeing): 2. The sentencing judge was not in error to reject the evidence advanced as "extra-curial punishment" as warranting a reduction in the sentence to be imposed. The public denunciation that frequently follows the commission of crime will not be, without more, extra-curial punishment. Nor will the ordinary disruption to the life of an offender that follows the commencement of criminal proceedings be regarded as extra-curial punishment. Only some serious detriment will constitute extra-curial punishment: per Wilson J at [79] – [87]; per Leeming JA at [1]; per Davies J at [15]. R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 at 411; Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593; Kenny v R [2010] NSWCCA 6 applied. As to issue (iii), per Wilson J (Leeming JA in separate reasons; Davies J agreeing): 3. The sentence imposed, far from being unfair or unjust, was significantly ameliorated to take into account the punishment previously imposed in Western Australia for similar offending against the same complainants. The sentence reflected a principled approach that properly assessed the totality of the offending and imposed a much reduced sentence to reflect the total offending: per Leeming JA at [9] – [11]; per Wilson J [90] – [97]; [15] per Davies J. Mill v R (1983) 166 CLR 59; [1988] HCA 70; Todd v R [1982] 2 NSWLR 517 applied. JUDGMENT 1. LEEMING JA: I have had the considerable advantage of reading the reasons for judgment of Wilson J in draft. I agree with her Honour that while there should be a grant of leave, the appeal against sentence must be dismissed. I agree with her Honour's reasons in relation to grounds 1 and 2. I shall express my own reasons for dismissing ground 3, which complains that the sentence was manifestly excessive. Although this ground was far from the forefront of the submissions advanced on appeal it has a number of unusual aspects. What follows assumes familiarity with the factual and procedural background contained in Wilson J's judgment. 2. This appeal is sought to be brought from an aggregate sentence of three years imprisonment with a non-parole period of two years, for two counts of serious sexual offending with each of the applicant's stepdaughters, together with four other counts of sexual intercourse without consent on two "Form 1" documents taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The convictions followed late pleas of guilty from an offender of otherwise good character and who built a successful business but whom the sentencing judge described as a man who "shows no remorse or insight into the suffering he has inflicted [upon his stepdaughters]". At first blush the sentence is well removed from one which is manifestly excessive. 3. As Wilson J explains, the offending which took place in around 1983-1984 in relation to the older stepdaughter, and around 1987 in relation to the younger stepdaughter, was contrary to provisions of the Crimes Act now repealed but which carried maximum penalties of 14 years and 7 years imprisonment. It was part of a pattern of offending which very substantially took place in Western Australia, over many years. The applicant was sentenced, unduly leniently, following trial when he was found guilty of 20 counts of rape and indecent assault contrary to the Criminal Code 1913 (WA) in relation to the older stepdaughter, and 11 counts of rape, indecent assault and sexual penetration without consent in relation to the younger stepdaughter. The Court of Appeal allowed a Crown appeal and imposed 31 individual sentences which resulted in an aggregate term of ten years imprisonment, and ordered that he be eligible for parole: VIM v State of Western Australia (2005) 31 WAR 1; [2005] WASCA 233. 4. The impact of the sentence imposed by the Western Australian Court of Appeal was, properly, at the forefront of the submissions in this Court. It was obviously necessary to have regard to it in order to address totality, in accordance with the principles in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. Two things need to be borne in mind when considering that sentence. 5. The first is that the administration of sentences in Western Australia at relevant times was different from New South Wales. The applicant advised this Court without objection from the Crown that between August 2012 and February 2013 he was in the community on a work release order, and in his submissions to the District Court it was said that "he was subsequently granted work release on 2 August 2012 and parole in February 2013". Work release orders could be made under Part 4 of the Sentence Administration Act 1995 (WA). They could be made prior to the grant of parole. They bear some resemblance to a community corrections order, and required the offender to do the prescribed number of hours of community corrections activities and seek or engage in training or employment (see s 51). Section 51(c) provided that the prisoner must not leave the State. Work release orders were repealed after the commencement of the Sentence Administration Act 2003 (WA) (which created what appears to be a broadly similar notion of "Re-entry release orders"), however the former provisions were preserved in respect of persons sentenced under the earlier regime: see cl 7 of Schedule 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), and it would seem likely that the backdated sentence imposed by the Western Australian Court of Appeal in 2005 was treated as engaging that transitional provision. The consequence was that, according to the applicant's own submissions, he was in prison for the first 7½ years of the sentence. Those submissions proceeded on the basis that the result of the Western Australian sentence and the two year non-parole period imposed by the District Court of New South Wales would result in his "having spent at least 9 years 6 months in full time custody". I shall proceed on the same basis. 6. The second is that the joint judgment of the Western Australian Court of Appeal noted at [326] that the sentence imposed was "somewhat less" than the sentence that would properly have been imposed at first instance, bearing in mind it was a Crown appeal, and reiterated at [328] that the sentence imposed would "still accommodate the constraints on resentencing following a State appeal". That is consistent with the principle stated by Callaway JA in DPP v Ellis (2005) 11 VR 287; [2005] VSCA 105 at [26] that "When the Crown successfully appeals against a sentence, the offender is entitled to a discount for double jeopardy because, through no fault of the offender's, he or she must stand for sentence all over again". The same principle applied in New South Wales at the time: see for example R v Reyes [2005] NSWCCA 218 at [77]. But that principle was abolished in 2009 by s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), as was confirmed in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [96]-[98]. 7. In short, the earlier sentence may be treated as one involving 7½ years full time imprisonment with a total term of 10 years, and was – explicitly – a sentence which was less than the sentence which should have been imposed at first instance, because of considerations of double jeopardy which have been abolished by statute in this State. 8. The difficulties in the present case principally come about because the offending took place in Western Australia and New South Wales, and the latter was prosecuted only after the applicant had served the entirety of the sentence for the Western Australian offending. But the primary judge was acutely conscious of the principles applicable in such cases as identified in Mill v The Queen and imposed a sentence which his Honour acknowledged would be "a wholly inadequate response to the seriousness of these offences, but reflects a significant level of leniency only to account for" the Western Australian sentences. 9. The applicant submitted that "[i]n the unusual circumstances of this matter, it is submitted that it was unreasonable to find that there was no appropriate penalty other than imprisonment". Once the matters referred to above are borne in mind, this submission cannot be accepted. On no view was it unreasonable to find that there should be no period of imprisonment for separate offending which was not incorporated into the Western Australian sentences which were, explicitly, "somewhat less" than the sentence which should properly have been imposed. 10. Similarly, it was submitted that "[h]ad these offences been dealt with together with the Western Australian matters, it is exceedingly unlikely they would have warranted an increase of three years to that sentence". That submission proceeds on the implicit premise that the Western Australian sentences were appropriate. But they were not. They were, as the Western Australian Court of Appeal acknowledged, "somewhat less" than the sentences that should properly have been imposed. 11. It is difficult to avoid the conclusion that the real complaint underlying these submissions is that the applicant, unlike many offenders who were sentenced unduly leniently and were subject to a successful Crown appeal, is unable to retain the benefit of the leniency that formally accompanied resentencing in Crown appeals. But that has only come about because the offending has taken place in two jurisdictions and has been the subject of separate prosecutions and sentencing. Nothing in Mill v The Queen means that the leniency which formerly accompanied resentencing following a Crown appeal is to be recognised as a discount upon totality. 12. Separately from the above, it was submitted that the significant delay between first being charged and the sentence imposed by the District Court indicated that the sentence was manifestly excessive. As Wilson J observes, a deal of that delay was attributable to the applicant's forensic decisions, and while it was asserted that the New South Wales proceedings could have commenced earlier than 2017, no details were provided to establish how that could have been done before the conclusion of the Western Australian sentences. It was also submitted that there was a patent error in not having regard to the previous period of incarceration when finding special circumstances such as to warrant a further reduction in the non-parole period. That submission cannot withstand scrutiny having regard to the significant reduction in the entirety of the sentence because of the applicant's previous imprisonment. 13. For those reasons, I would grant leave to appeal on ground 3, but dismiss the appeal. 14. So far as I can see, there is no basis to prevent the disclosure of the applicant's name, and indeed the proceedings in the District Court and this Court have proceeded on that basis. However, because this Court's judgment necessarily refers to the decision of the Western Australian Court of Appeal which remains anonymised, the parties have been given an opportunity to be heard as to whether the applicant should be identified in this Court's reasons for judgment. They have confirmed that they do not oppose that occurring. 15. DAVIES J: I agree with Wilson J. 16. WILSON J: By Notice filed on 28 June 2023 the applicant, Victor Melville, seeks leave to appeal against an aggregate sentence imposed upon him on 16 December 2022 by Judge Smith SC, sitting in the District Court of NSW. The sentence was a term of 3 years imprisonment with a non-parole period ("NPP") of 2 years, reflecting a number of offences of child sexual abuse. Although the complainants the subject of the charges have consented to their identification, obviating the operation of s 578A of the Crimes Act 1900 (NSW) and s 15A(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW), I have chosen to refer to them in this judgment by pseudonyms. 17. The applicant stood charged with six counts on indictment, reflecting historic sexual assault offences committed against LM and JM, the applicant's stepdaughters. The offences occurred between 1983 and 1988 at times when the family, who lived in Western Australia, was on holidays in New South Wales. The applicant was previously convicted in Western Australia of multiple sexual offences against the same children, occurring in broadly the same period. He served a term of imprisonment imposed in that State. 18. Three days before his trial was due to commence in Sydney, the applicant pleaded guilty to 2 of the 6 counts, being count 3, carnal knowledge by a stepfather of a girl aged between 10 and 17 years contrary to s 73 of the Crimes Act, and count 6, sexual intercourse without consent contrary to s 61D(1) of the Crimes Act. The remaining 4 counts of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act were taken into account on two Form 1 documents. 19. Both ss 73 and 61D(1) of the Crimes Act have now been repealed, but at the relevant time, count 3 carried a maximum penalty of 14 years imprisonment, whilst s 61D(1) carried a maximum penalty of 7 years imprisonment. No standard non-parole period applied to either offence. The indicative sentence specified for the carnal knowledge offence, count 3, was a term of imprisonment for 2 years and 4 months; for count 6, the indicated term was one of 11 months imprisonment. The indicative sentences reflected a 5% discount to recognise the very late pleas of guilty. 20. The applicant proposes three grounds of appeal: "(1) In assessing the objective seriousness of Counts 3 and 6, the sentencing judge impermissibly treated separate offending (being offences committed in Western Australia and/or the offences on the Form 1s) as an aggravating feature. (2) The sentencing judge erred by finding that the applicant had not been subjected to extra-curial punishment. (3) The sentence imposed was manifestly excessive." The Western Australia Offences 1. As the offences committed by the applicant in Western Australia constitute the essential background to this application, it is necessary to set out the history of those proceedings before turning to those in this State. 2. In 1995, LM and subsequently JM disclosed to family members the years of sexual abuse each had been subjected to by the applicant. Formal complaint to police was made in 2000. The applicant was charged in Western Australia with 44 sexual offences against LM and JM in that State between 1979 and 1989. Having entered pleas of not guilty to all charges, the applicant stood trial in January 2005. The jury that heard the trial in the District Court of Western Australia returned verdicts of guilty with respect to 31 [1] of the 44 offences, being 10 counts of rape contrary to s 325 of the Criminal Code 1913 (WA), and 10 counts of indecent assault contrary to s 328 of the Criminal Code, with respect to LM; and 1 count of rape, 3 counts of indecent assault, and 7 counts of sexual penetration without consent contrary to s 324D of the Criminal Code, with respect to JM. 3. The sentencing judge characterised the offending against LM as a continuing and abusive sexual relationship that lasted for a period of 4 years, beginning when LM was approximately 14 years old and the applicant was about 26 years old. The sexual abuse ended only when LM turned 18 years old and left the family home. It was at this time that the sexual abuse of JM began, when she was aged 14 years. It too lasted for a period of approximately 4 years, ending only when JM turned 18 and moved away. 4. The applicant was sentenced at first instance to an aggregate term of 6 years imprisonment with a NPP of 4 years. The applicant appealed against the convictions whilst the Crown appealed against the sentence imposed. The Western Australian Court of Appeal heard and determined the appeals jointly, dismissing the conviction appeal and allowing the Crown appeal against sentence: VIM v The State of Western Australia [2005] WASCA 223. The Court of Appeal concluded that the sentence imposed at first instance had failed to adequately reflect the seriousness of the offences and failed to properly reflect the requirement for general deterrence and the need for the protection of children in the community. The applicant was resentenced by the appellate court to an aggregate term of 10 years imprisonment to date from 2 February 2005. He entered a work release order in August 2012 and was released to parole in February 2013; the overall sentence expired on 1 February 2015. 5. Although both LM and JM had referred in their respective statements and evidence in Western Australia to sexual assaults that had occurred outside the state, it does not appear that the allegations were referred to NSW authorities. In 2014, the complainants made formal complaints to NSW police. On 21 October 2017, the applicant was charged in Western Australia with the offences committed against LM and JM in this State. He was extradited to NSW in November 2017. 6. The Proceedings in the District Court of NSW 7. On 11 January 2019, the applicant was committed for trial before the District Court. An indictment was presented against him, and a trial date of 11 November 2019 was subsequently fixed. 8. On 2 March 2019, the applicant unsuccessfully made a submission to the Director of Public Prosecutions ("DPP") asking the DPP to order that there be no further proceedings against him. He next sought a permanent stay of the prosecution, filing a Notice of Motion in the District Court seeking such an order on 4 June 2019. The application was heard on 16 June 2019 by Robison DCJ and refused. A second application was made by the applicant to the DPP, again submitting that there should be no further proceedings on the indictment brought against him. That application was also rejected, on 28 October 2023. 9. On 5 November 2019, the applicant's trial date was vacated at the applicant's request. The matter was relisted some nine months later, with a trial date of Monday 17 August 2020 fixed. On Friday 14 August 2020 the applicant entered pleas of guilty to counts 3 and 6, acknowledging his guilt of the balance of the offences charged against him, and asking the sentencing court to take the 4 remaining charges into account, on two Form 1 documents. The sentence hearing was adjourned to 17 December 2020. 10. On 15 December 2020, the applicant sought leave to withdraw his pleas of guilty. The application was heard and refused by Abadee DCJ on 15 March 2022, and a further date for sentence hearing, 30 June 2022 was fixed. That date too was vacated, again at the request of the applicant, with a fresh date of 30 September 2022 fixed. The applicant filed an application to this Court challenging the refusal to allow him to withdraw his pleas of guilty, but abandoned the application days before the hearing. 11. After much delay, the sentence proceedings commenced before the District Court on 30 September 2022, almost five years after the charges were preferred against the applicant. The Crown Case 1. The Crown tendered a statement of agreed facts; the applicant's criminal histories from NSW, Western Australia and Tasmania; the sentencing remarks of the District Court of Western Australia; the judgment of the Western Australian Court of Appeal; and the judgment of the District Court of NSW in relation to the application to vacate the pleas of guilty. Victim Impact Statements from LM and JM were read to the sentencing court. Two Form 1 documents, each of which contained two counts of sexual intercourse without consent to be taken into account when sentence was imposed for counts 3 and 6 respectively were before the court. The Facts of the Offending 1. The statement of facts, with which the applicant agreed, was accepted by the sentencing judge as establishing the facts of the offences. The following summary is derived from that document. 2. LM and JM are sisters. The applicant commenced a relationship with their mother in 1976, when LM was 9 years old, and JM was 4 or 5 years old. The complainants were encouraged by their mother to accept the applicant as their father and to call him "dad". The applicant and the complainants' mother later married and had a son, SM, together. Offences against LM – Counts 1 to 3 1. The sexual abuse of LM began in Western Australia when LM was aged 14 years old. In the summer of 1983 to 1984, when LM was 16, the family drove across the Nullarbor Plain to holiday on the East Coast, staying in Melbourne, Thredbo, and then a small town near Taree, where the complainants' maternal grandparents lived on a farm. Count 1, the first offence of sexual intercourse without consent contrary to s 61D(1), occurred when the family was staying at a self-contained log cabin in Thredbo. LM lay on the applicant and her mother's bed whilst her mother showered. The applicant lay naked under the doona and forced LM to perform oral sex, pushing the back of her head down onto his penis until she gagged and made choking noises. Count 2, the second offence of sexual intercourse without consent, also occurred at Thredbo. The applicant followed LM into the cabin where she had gone to get a jumper. Standing with his back pushed up against the front door, the applicant kissed LM and told her to "suck it". LM bent over and sucked the applicant's penis, standing up when she felt as if she could not breathe. 2. Count 3, the offence on indictment of carnal knowledge of a girl aged between 10 and 17 years, with respect to which counts 1 and 2 were taken into account on sentence, occurred at Krambach, the family's next destination on the same holiday. The applicant took LM on a hike up Mount Krambach, poking her in the bottom as they walked. When they reached the top of the mountain, LM sat on a large rock facing the applicant. The applicant spat on his hands and touched her vagina inside her underpants, before turning her around, bending her over the rock, and inserting his penis into her vagina. Offences against JM – Counts 4-6 1. The family returned to Krambach multiple times over the following years. On one occasion between 1986 and 1988, the applicant took 16 year old JM, who had already endured years of abuse in Western Australia, on a hike up Mount Krambach. The applicant walked behind JM, pinching and tapping her bottom as they ascended the mountain. Counts 4-6, the remaining 3 counts of sexual intercourse without consent, occurred when they reached a plateau overlooking the farm. The applicant removed his pants, pushed JM's head down, and inserted his penis into her mouth. JM tried to stop the applicant as he thrust his penis in and out of her mouth (count 4). The applicant held the back of JM's head so she could not resist. The applicant then spat on his fingers and rubbed the outside of JM's vagina before inserting his fingers into her vagina (count 5). He removed JM's shorts and, as she attempted to cover herself with her hands, he turned her around, bent her over a boulder and inserted his penis into her vagina. JM attempted to turn around to stop the applicant. After some time, the applicant instructed JM to lie on her back on the ground. Despite JM's attempts to resist the offender by pushing her legs together, the applicant inserted his penis into her vagina until he ejaculated (count 6). He then handed JM tissues or toilet paper to clean herself, before they both dressed and returned down the mountain. Counts 4 and 5 were before the sentencing court on a Form 1 document and taken into account when sentence was imposed for count 6. Other material in the Crown Case 1. The criminal histories before the court showed that, other than the sexual offending against LM and JM, the applicant had incurred relatively minor traffic infringements in Western Australia and Tasmania. He had no criminal convictions in New South Wales. 2. In the sentencing judgment of the District Court of Western Australia, French DCJ described the offences for which sentence was imposed as counts representative of an ongoing course of conduct that had commenced when each girl reached puberty, initially with comments about their developing bodies, followed by touching, followed by the serious sexual offending of which the applicant was found guilty. 3. In dealing with the Crown's appeal against the sentence imposed at first instance, the Western Australian Court of Appeal concluded that the exercise of the sentencing discretion had miscarried, both in the application of principle by the sentencing judge and in the aggregate sentence imposed. The term fixed by the Western Australian District Court was regarded as one which "manifestly fails to reflect [the applicant's] overall criminality constituted by this series of offences" (at [324]). The court concluded (at [325]) that a greater penalty was required to address "persistent offending over a period of at least 8 years against two separate complainants, each of which involved a gross abuse of trust". The court moved to re-exercise the sentencing discretion, noting that: "In doing that, however, it is necessary to allow for the fact that this is a re-sentencing following a State appeal, by imposing sentences somewhat less than would properly have been imposed at first instance" (at [326]). 1. Thus, the applicant was leniently dealt with in Western Australia, the Court of Appeal imposing a lesser sentence than that which it judged otherwise appropriate because the sentence was imposed as a consequence of a successful Crown appeal. 2. The Victim Impact Statements that were before the NSW sentencing court are both harrowing accounts of the pain and trauma of the abuse perpetrated upon LM and JM by the applicant, and of the life-long damage that the abuse has occasioned. LM described 35 years of stress and anxiety which had had an impact upon every aspect of her life following her childhood experiences. In particular, she referred to the damaged relationships in the wake of the applicant's crimes, including the loss of contact with her mother after she broke the family secrecy surrounding the offending. JM too described the broken family relationships caused by the abuse she had endured, and the feelings of guilt and fear that governed her life, at the time of the abuse and later. Both LM and JM continue to struggle with the bleak legacy of abuse. The Applicant's Case 1. The applicant did not give evidence before the sentencing court. He tendered, without objection, a psychiatric report of Dr Olav Nielssen dated 26 October 2022; four letters from Neel Le Roux, a clinical psychologist (though only one of which purported to have been provided in a professional capacity); three letters from general practitioners at St Francis Medical in Western Australia; an affidavit of Marcus L'Estrange affirmed 13 October 2022; and a letter from his son, SM. 2. Dr Nielssen interviewed the applicant on 7 September 2022 via an audio-visual link to his home in Western Australia. In preparing a report for use on sentence, Dr Nielssen had access to the agreed facts and Form 1 documents, the applicant's criminal histories, the sentencing remarks of French DCJ in respect of the Western Australian offences, the four letters from Neel Le Roux, and the three letters from general practitioners at St Francis Medical. 3. The applicant told Dr Nielssen that he was raised by a single mother, whom he described as "magnificent", in difficult circumstances. He described his father as a physically abusive man who had a problem with alcohol, and who abandoned his mother when he was an infant; he did not have another father figure. He grew up in a Housing Department estate in North Innerloo in Perth and attended school until the age of 15. 4. The applicant's sexual development was unremarkable. He was not subject to child sexual abuse. His first sexual experience was at the age of 17 with his girlfriend of 3 years, the only serious romantic partner the applicant had before meeting and marrying the complainants' mother. The applicant denied having any interest in prepubescent female children or a particular attraction to teenagers or younger women; his only preference was for "quite voluptuous" women. He told Dr Nielssen he had been born in the "wrong era" for pornography, having had limited exposure to the internet before first being incarcerated in Western Australia. 5. The applicant told Dr Nielssen that he met the complainants' mother shortly after his own mother had died, and that he had felt compelled to care and provide for her upon learning that she had two young daughters who had been abandoned by their father. Contrary to the information contained in the statement of agreed facts, the applicant told Dr Nielssen that the complainants were aged 8 and 11 years old at this time. Though he himself was only 21 years of age, he viewed it as "an opportunity to do some good by another family after my mother never had the opportunity to have anyone look after her". He told Dr Nielssen that he had sacrificed an opportunity to play for Richmond Football Club in the semi-professional Victorian Football League to maintain his relationship with the complainants and their mother, and that "for all intents and purposes I assumed the role of father and sole provider and tended to all things including their [LM & JM] private schooling." The applicant said that he attempted to treat LM and JM equally after SM, his first natural child, was born. He claimed to have continued to provide financial and emotional support to both LM and JM into adulthood, and after they had left the family home. 6. The applicant told Dr Nielssen that he founded a very successful financial services group following his retirement from the AFL at the age of 26. He stated that, at its peak, his company controlled hundreds of millions of dollars and had 21 offices across Australia, London and New York, leading Dr Nielssen to opine that the applicant's intelligence was in the higher part of the normal range. The applicant founded another company in the mining industry after his release from custody in Western Australia, although he was forced to step down from any public role because, he complained, anyone associated with himself or his company, including his son SM, was subject to "harassment from the complainants". It was the psychological effects of this "extraordinary campaign of harassment" and it being the context in which the NSW offences were laid, that the applicant told Dr Nielssen he wished to focus upon in preparing the report for use on sentence. 7. The applicant said that he was released on parole to live with his brother in 2013. However, he was "forced" to move when his brother's wife, the headmistress of a private school, appeared on the front page of a Perth newspaper as an alleged supporter of paedophilia. He was again "forced" to move houses when camera crews from what he said were three Perth television stations attended his home. He believed this resulted from a tracking device having been placed in his car. He also reported that false Facebook accounts were created to harass anyone affiliated with him or his businesses. Despite the complainants' mother having supported her daughters throughout the first trial in Western Australia, the applicant claimed that the complainants' campaign of harassment "destroyed their mother's business and drove her out of Australia", causing her to now support the applicant and SM instead. [Although this in part would appear to be a legal judgment well outside his area of expertise] Dr Nielssen opined that "if confirmed, that campaign would amount to a form of extra curial punishment of a kind that would be expected to cause any person to experience symptoms of anxiety and depression." Despite that, Dr Nielssen noted that the applicant did not report pervasive depression, nor did he appear severely depressed; his mood was assessed as proportionate to his circumstances. 8. Dr Nielssen found that the applicant did not suffer from any psychiatric disorder, although he did provide overly elaborate answers throughout the interview. A paraphilic disorder, heterosexual paedophilia, was considered and rejected on the basis that the complainants were postpubescent teenagers at the time of the offending, and that the applicant has reportedly maintained four long term relationships with women of his own age. He was assessed as presenting a low risk of further offending as the offences occurred over 30 years ago in circumstances that are unlikely to be repeated. The applicant was reported to consume alcohol "sparingly" and never to have used illegal drugs. Several chronic health issues related to his age and weight were noted. 9. Neel Le Roux, a clinical psychologist, provided four letters in support of the applicant, the first being a "Psychological Report" dated 31 October 2019. He referred to consultations had with the applicant to "assist him with the trauma associated with incarceration" and noted the deterioration of the applicant's physical and mental health due to what he described as "the cumulative impact of current and past psycho-social stressors". A document titled "Psychological Commentary" dated 10 August 2020 clarified that Mr Le Roux's relationship with the applicant had transformed into a business relationship but, notwithstanding, Mr Le Roux continued to comment on the applicant's mental and physical health in the context of his legal affairs. Further untitled letters dated 3 December 2020 and 4 July 2022 were placed before the sentencing court in which Mr Le Roux noted that the applicant was a friend and business partner, not a patient. Despite that, the letters contained Mr Le Roux's observations of the applicant's health for the attention of the sentencing court. Mr Le Roux went so far as to recommend a non-custodial sentence within the body of his final "report". Mr Le Roux was required for cross-examination on sentence and confirmed that the applicant had never attended his consulting rooms or paid for his psychological services, but rather, their first "consult" was arranged by a mutual friend and occurred in a café. Their relationship was one of friendship and business association. Although Mr Le Roux maintained that he was capable of providing a "report" that was independent of his personal relationship with the applicant, and impartial, he conceded that he had a personal interest in the outcome of the sentencing proceedings in that, if the applicant received a custodial sentence, Mr Le Roux would be financially disadvantaged. 10. The documentation from the St Francis Medical Centre certified that the applicant suffers from Type 2 Diabetes, bronchiectasis (a chronic lung condition that was stable), hypertension, and fatty liver disease. 11. An affidavit of Marcus L'Estrange affirmed on 13 October 2022 was read before the sentencing court. Mr L'Estrange described himself as a friend and business associate of the applicant, with whom he operated a company. The deponent described what he said was "a campaign of attacks" upon the applicant between November 2012 and September 2020 which had "prevented him from re-establishing himself in society" following his incarceration in Western Australia. Mr L'Estrange said that "attacks" that had taken place via e-mail, social media platforms, or the media had been reported to local authorities, and investigated by police. At the conclusion of the investigation, a senior detective in the Western Australian Police told Mr L'Estrange that no police action would be taken. Mr L'Estrange received an undertaking from JM in June 2014 that she would not approach or contact him or his businesses. An application for restraining orders did not proceed once mutual undertakings were executed. 12. Of the harassment of the applicant, Mr L'Estrange said that, after the applicant was released to parole, moving to live with a family member who was the principal of a private girls school, there had been press attention highlighting his family member's employment with children. The applicant re-located but was obliged to move again because of public attention drawn to him by publicity, or the delivery of "flyers" to neighbouring properties exposing his criminal record. Despite the hardship caused to the applicant by this "campaign" Mr L'Estrange deposed that the applicant had been successful in creating wealth and jobs through a number of companies he established. A schedule of the "attacks" of which Mr L'Estrange complained referred in a general way to these attacks continuing "unabated" over the years. It listed the applicant and Mr L'Estrange's company and various individuals "targeted". The nature of the attacks is not specified, although an email to Mr L'Estrange of 1 May 2013 is annexed to his affidavit, and details of "malicious emails" sent to persons associated with the applicant's company are set out. The May 2013 email outlined the convictions against the applicant and the custodial sentence imposed upon him by the appellate court. 13. Mr L'Estrange was also required at the sentence hearing for cross-examination. He accepted that he could only guess the identity of the person or persons responsible for any "attacks" against the applicant that occurred after June 2014. He agreed he had no direct knowledge of their source. 14. The applicant's son, SM, wrote to the sentencing court outlining the applicant's endeavours to establish a foundation to address drug abuse in Mexico, something which did not proceed because the applicant was charged with these matters. SM told the court that his father was a generous and giving man who had helped many people and paid a high price for what had occurred. SM asked the court to impose a non-custodial sentence, describing anything else as "a travesty of justice". The Remarks on Sentence 1. Having set out the offences, applicable maximum penalties, and the facts of the applicant's crimes, the sentencing judge concluded that each of the offences involved the humiliation of the victims, and required some level of force to overcome their resistance, the victims being made more vulnerable by the isolated area in which the offences on indictment took place. The sentencing judge noted that the offences were not isolated but involved an ongoing course of conduct, and the impact of the overall offending has been "significant and long-lasting". 2. With respect to the subjective case, the sentencing judge noted that the applicant was a 67 year old man at the time of sentence who suffered from a number of health conditions for which he was medicated. He did not suffer from any psychiatric disorder. His Honour observed that, although without formal education, the applicant had built a number of successful businesses, and had supported his wife and family over the years. 3. The sentencing judge was not impressed by the evidence of Mr Le Roux, which he gave little weight. His Honour concluded that nothing in Mr Le Roux's account of the applicant suggested any acceptance of responsibility for what he had done, in his home state or in NSW. Indeed, it was Mr Le Roux's evidence that the applicant had pleaded guilty only on the understanding that he would receive a non-custodial sentence in NSW. His Honour was of the view that the witness also failed to appreciate the gravity of the applicant's crimes, and his (glowing) assessments of the applicant's character were of little value, particularly since his evidence could not be objective having regard to the financial relationship between he and the applicant. 4. Of the "campaign of harassment" described by Mr L'Estrange, his Honour noted that there appeared to have been nothing directed to the witness since 2014, and there was no current information concerning the applicant. 5. His Honour observed that in his letter SM could have, but did not, refer to the impact of the applicant's offending on SM's half-sisters, and his letter was thus a "rather lop-sided view of a convicted and self-confessed sex offender". 6. The sentencing judge said: "The overall picture of the offender is complex. On the one hand he is a well-respected man of business and father to his son who has spent over six years in custody for offences that formed part of the ongoing sexual abuse of his step-daughters in Western Australia. He has not offended again and there is little risk that he will ever do so. He has now pleaded guilty to further offences against the same victims, but shows no remorse or insight into the suffering he has inflicted on them. His prior good character was something that enabled him to take advantage of their vulnerability and so can be given little weight. He has a number of health conditions that are likely to make any time in custody more difficult, however, I do not include any depression amongst those, as that appears to be the ordinary consequence of facing punishment for his offending. Before I engage in the synthesis of these personal matters with objective seriousness of the offending and the balancing of the varying purposes of sentencing found in s 3A of the Crime (Sentencing Procedure) Act, I must deal with four key issues. The offender relies on a combination of these to support the contention that there should be no further term of imprisonment imposed on the offender in spite of the seriousness of the offences. The first issue is the offender's submission that he has already been punished for these offences. The second is the application of the principle of totality. The third is the issue of extra-curial punishment and the final issue is the question of the discount to be applied to recognise the utility of the plea of guilty." 1. His Honour next turned to what he had referred to as the "four key issues" relied upon by the applicant to contend that a non-custodial sentence should be imposed: that punishment for the offending was imposed as part of the Western Australia sentence; the principle of totality; the "extra-curial punishment" he claimed to have suffered; and the discount for the plea of guilty. 2. With respect to the applicant's argument that the punishment imposed upon him in Western Australia took into account a course of offending conduct that included the NSW offending, his Honour considered both the remarks of French DCJ and the judgment of the Court of Appeal when re-sentencing the applicant. His Honour was not persuaded that the specifics of the NSW offences formed any part of the penalty imposed in Western Australia. In relation to the operation of the principle of totality, his Honour referred to Todd v R [1982] 2 NSWLR 517 at [519]-[520] and Mill v R (1988) 166 CLR 59; [1988] HCA 70 for the principle to be applied with respect to delayed sentencing where there has been an earlier interstate sentence imposed. As to the claimed extra-curial punishment, the sentencing judge was not satisfied that the principles relevant to such a feature were enlivened in the applicant's circumstances. The extent of the discount on sentence to recognise the pleas of guilty entered by the applicant was determined by his Honour in accordance with the principles in The Queen v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32], with the principal consideration being the timing of the entry of the plea. A discount of 5% on sentence was allowed. 3. His Honour noted that: "The appropriate sentence must be determined by having regard to the statutory guidelines provided by the maximum penalties for each of the offences. Here, those are 14 years and 7 years imprisonment respectively. In addition, I must have regard to the objective seriousness of the offending and the subjective matters I have outlined. The most important factor here is the fact that the offender had already served a significant term of imprisonment for a number of offences relating to the victims of the index offences, albeit in a different State. I must give significant weight to the fact of his rehabilitation as a consequence of that punishment and the time that has passed as a result. Nevertheless, I must still have regard to the other purposes of sentencing articulated in s 3A of the Crimes (Sentencing Procedure) Act." 1. Having announced the indicative and aggregate sentences, his Honour said: "It should be made plain that, alone, this sentence would represent a wholly inadequate response to the seriousness of these offences, but reflects a significant level of leniency only to account for the impact of a sentence imposed in respect of the Western Australian offences." 1. The statutory ratio of sentence was varied favourably to the applicant because of his health issues, which the sentencing judge concluded constituted "special circumstances". The Application to this Court 1. In advancing ground one the applicant relies upon part of what the sentencing judge said in the context of making an assessment of the objective gravity of the offences. His Honour noted that there was a substantial age difference between the applicant and his two victims, and a relationship of trust in the context of a familial setting. He referred to the isolated location in which the offences took place, and to the fact that some force was involved to overcome the resistance of the victims. His Honour continued: "These offences were not isolated events, but part of ongoing conduct by the offender against each of his stepdaughters. That much is evident from the matters in each of the Forms 1. That, together with the fact that he was sentenced to, and served a term of imprisonment in Western Australia in relation to sexual offences against these women, are very important aspects of this sentencing procedure. I will consider that in some detail later in these reasons. For present purposes, it suffices to note that the fact that they were not isolated events reveals that these offences were not merely opportunistic or spontaneous and is an aggravating feature of the offending." 1. The applicant contends that it was not open to the sentencing judge to conclude that the "offences were not merely opportunistic or spontaneous", that being "an aggravating feature of the offending". Referring to R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466, MJL v R [2007] NSWCCA 261, and AK v R [2016] NSWCCA 238, the applicant contends that the fact that the offences formed part of a broader course of conduct (which included the offences on the Form 1 documents) could not be regarded as a feature aggravating the objective gravity of the crimes; nor was it open to conclude that the offending was planned. Further, he submits that, as he had already been punished for the "broader course of conduct", to treat that background as an aggravating feature amounted to double punishment. 2. Had his Honour treated the broader course of abusive conduct against both complainants as a feature increasing, or "aggravating", the objective gravity of the two offences before the court for sentence, error would have been made out. However, careful consideration of what his Honour said in the whole of the sentencing judgment, rather than in an impugned sentence in an extracted paragraph, does not support a conclusion that that was the approach taken by the sentencing court. 3. It is important to remember that the sentencing remarks were delivered orally, to inform the applicant and others present in court with an interest in the case, as well as the public more broadly of the matters taken into consideration by the court in determining the sentence to be imposed. Necessarily, remarks delivered in that way cannot be categorised and sub-categorised by the use of headings or other distinguishing formatting, as is frequently done in written judgments. 4. Bearing that in mind it is nevertheless reasonably plain from the overall structure and nature of his Honour's remarks that, in the impugned paragraph extracted by the applicant, his Honour was not referring to the broader course of abusive conduct as a feature relevant to the determination of the gravity of the charged offences, but rather, as a feature that negated any suggestion of opportunism in the commission of the charged offences, and otherwise as one to which careful attention must be given because of the earlier sentence that the applicant had served. 5. His Honour first set out the facts of the offences. Commencing his assessment of the gravity of the crimes by observing that "any sexual offence against a child is serious", he went on to refer to the features relevant to his assessment of the seriousness of the offences. His Honour pointed to the respective age differences between the applicant and his victims, the abuse of trust relevant to the offence against LM, the humiliation occasioned to each victim by the offences, the use of some force to overcome the resistance of each, and finally to the selection by the applicant of an isolated location in which to assault his victims. 6. The sentencing judge then commented that the offences for which sentence was to be imposed were not isolated but were part of an ongoing course of conduct. He noted that the earlier sentence imposed upon the applicant was a "very important" aspect of the sentencing process, and one to which detailed attention must be given. It was in that context that his Honour commented that the offences for sentence "were not merely opportunistic or spontaneous and is an aggravating feature of the offending". 7. Whilst the use of the word "aggravating" may be accepted to be infelicitous and unhelpful in achieving clarity, it is apparent that, in referring to the broader context of offending in which the sentence offences were committed, his Honour was intending only to set aside any suggestion that the offences were committed opportunistically, a conclusion that may have applied on the facts of the crimes in the absence of the context of broader offending. It is clear from the whole of the remarks that his Honour very carefully considered the role of the course of conduct in the sentencing exercise, and was astute to avoid using the Western Australia offending as elevating the gravity of the NSW crimes, as opposed to providing their proper context. He specifically referred elsewhere in his judgment to the importance of the principle that "a person should not be punished twice for what is substantially the same act" and distinguished the NSW offences from those that had been before the Western Australian courts for sentence. His Honour also recorded in his remarks the feature of the sentence of imprisonment already served by the applicant as a "most important factor" which required the court to give "significant weight to the fact of his rehabilitation as a consequence of that punishment and the time that has passed as a result". It is readily apparent that the sentence imposed upon the applicant was mitigated, and significantly so, because of the interstate sentence, comprehending as it did the "course of conduct". 8. Further, there is nothing in his Honour's remarks to support the conclusion that he allowed the offences that were before the court on the two Form 1 documents to wrongly elevate the gravity of the offences for sentence, other than as part of the course of conduct that deprived the sentence offences from having the character of isolated or opportunistic offences. His Honour properly referred to the Form 1 documents as demanding some increase in the penalty to be imposed for the principal offences, that ordinarily being the appropriate means by which such matters are addressed: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413. 9. Taking the remarks as a whole, and considering the impugned paragraph in the context of that whole, it can be readily concluded that the sentence imposed for the offences before the sentencing court was not wrongly inflated by reference to the wider course of abuse beyond the charged offences. On the contrary, because of that feature and the associated sentence imposed in Western Australia, the sentencing judge considerably ameliorated the sentence imposed. 10. Because of the opacity occasioned by his Honour's misplaced use of the word "aggravating" in the impugned paragraph, I would grant leave to advance this ground. It should, however, be dismissed. 11. By ground two the applicant complains that the sentencing judge erred in concluding that the applicant was not subject to extra-curial punishment, and thus in not mitigating the sentence imposed to take it into account. 12. It is important in determining this ground to be clear as to what may constitute extra-curial punishment and, conversely, what will not. Extra-curial punishment is "some serious loss or detriment" suffered by an offender as a punishment upon him or her for committing the offence or offences, other than the punishment imposed by a court of law: R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 at 411; Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 at [29]. It is not the public condemnation that follows conviction for serious crime. 13. Where there has been "serious detriment" it is a feature relevant to sentence. In Daetz, James J reviewed a number of decisions that dealt with extra-curial punishment and, at [62]: "… concluded from this examination of the authorities cited to the Court and especially Allpass, Clampitt-Wotten and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight." 1. Whilst each individual case falls to be assessed on its particular facts, the courts have generally resisted a conclusion that the public denunciation that often follows conviction and sentence for criminal conduct of itself may be properly regarded as extra-curial punishment. In Kenny v R [2010] NSWCCA 6 Howie J observed, at [49], that "public humiliation that arises from the commission of the offence should not alone give rise to a mitigation of sentence without more". 2. In considering the matters advanced as extra-curial punishment, the sentencing judge referred to the relevant principles and concluded that there was no evidence of the sort of public opprobrium and "pillorying" in the media that might enliven considerations of extra-curial punishment. He observed: "The conduct complained of here […] effectively ceased in 2013 or 2014 after undertakings were given to the Court in Perth by the two main protagonists. In any event, when the conduct is examined in any detail, and in light of the references given in support of the offender in these proceedings, I do not accept that there was anything that enlivened the relevant principle." 1. The evidence of "extra-curial punishment" in the applicant's case was limited and related to the offences dealt with in Western Australia. The applicant himself gave no evidence of any detriment he had suffered by way of extra-curial punishment, relying instead on the account of Mr L'Estrange. The period of what was described by Mr L'Estrange as "a campaign of harassment" seems to have been confined to 2013 and 2014 and was, on his evidence, directed at informing others of the applicant's crimes in Western Australia. Whilst Mr L'Estrange suggested that what had occurred had "prevented" the applicant from "establishing himself" after his release to parole, that is not borne out by other material in the applicant's case which, to the contrary, referred to the life and businesses the applicant successfully established, and the useful undertakings he involved himself in upon release. It is apparent from the evidence of Mr L'Estrange, Mr Le Roux, and SM that the applicant had returned to the business world on his release from prison in 2013, and "created wealth" for himself and others in the mining industry. He had established a home with his wife and continued to consult for the businesses with which he was involved. Others continued to regard the applicant favourably and to have been willing to trust him with their financial well-being. 2. The applicant contended that the disruption to his efforts to establish a charitable enterprise in Mexico caused by his arrest in 2020 amounted to "additional and significant extra-curial punishment", but that mistakes the ordinary consequences of the commission of crime for a punishment that goes beyond that of the imposition of sentence. Any accused person who is arrested and charged with a criminal offence will experience some immediate personal consequences of the commencement of a prosecution, even more so where the individual is held on remand. Those consequences frequently include the loss of employment and accommodation, the diminution of reputation, and the disapproval or rejection of friends and associates. Such matters may be of significance as part of the subjective case to the determination of the sentence to be imposed upon an offender, and particularly so where there has been delay between offence and charging such that an offender's rehabilitation may have been disrupted. However, these consequences do not amount to extra-curial punishment; they are merely the occasional consequences for an offender caught up in the operation of the criminal justice system. 3. Other than a press article in 2020, Mr L'Estrange could offer the sentencing court no direct knowledge of any detriment suffered by the applicant after 2014, or which reflected the NSW offending. None of the emails, flyers or other information distributed by persons concerned with the matter have any relationship with the NSW proceedings, from which those actions are remote in time. The 2020 newspaper report, which reported the charges against the applicant in this State, could not reasonably be described as extra-curial punishment, even if it was distributed to households neighbouring the applicant's then place of residence. The article is no more than a press report in which the writer reported on and raised a matter of legitimate public interest and comment – whether a person who has entered pleas of guilty to serious sexual offending should be given conditional liberty in the community. There is nothing of a punitive nature about the article; it is legitimate reportage. 4. It is not unusual for sexual offending, and particularly sexual offending against young people, to be reported and sometimes reported widely in the media. That phenomenon is even more pronounced with the advent of social media. Even widespread reporting or information dissemination cannot of itself be regarded axiomatically as extra-curial punishment. The work of the criminal courts is ordinarily open to the scrutiny of the public, and the media plays a role in facilitating that scrutiny by reporting on cases before the courts or, as here, on an issue of community concern. That a sex offender will be named as such in press reports is an ordinary consequence of the commission of crime in an age of electronic media. It does not, without more, constitute extra-curial punishment. 5. The applicant's assertion in submission to this Court that the evidence supported an inference of significant personal distress and professional disadvantage should be rejected. 6. His Honour's rejection of the evidence advanced as evidence of extra-curial punishment was correct in my conclusion, and there was no error concerning this aspect of the applicant's case. 7. Ground three contends that the sentence imposed upon the applicant was manifestly excessive. In support of this ground the applicant points to the overall sentence imposed upon him because of the separate Western Australian and New South Wales criminal proceedings as unfair. For 31 sexual offences in the former jurisdiction, and 2 sexual offences with 4 more taken into account in the latter, the applicant contends that he has received an effective sentence of 13 years imprisonment, with an effective NPP of 9 years and 6 months, that being a sentence that is crushing and unjust. He submits that that is particularly so in circumstances where the delay in bringing the NSW proceedings halted his attempts to rehabilitate himself in the community and frustrated his endeavours to establish and pursue his business and philanthropic interests. 8. There can be no reasonable suggestion that the crimes committed in this State were in some way comprehended by the sentence imposed in Western Australia. Whilst the Court of Appeal in that state referred to the subject of offences committed outside Western Australia, the reference was in the context of the applicant's appeal against conviction in that State, and was not considered in the context of the determination of a proper sentence. 9. Nor can it be suggested that the sentencing judge was not aware of or misunderstood the principles that apply to the exercise of the sentencing discretion relevant to an offender facing separate sentence proceedings for related conduct in different jurisdictions, where there has been delay. His Honour observed: "The principle of totality is easy to state and difficult to apply. Generally speaking, when a case of multiple offending comes before a court, it requires the court to look at the totality of criminal behaviour and then to determine the appropriate sentence for all offences." 1. The sentencing judge referred to the principle set out in Todd v R at 519-520, and then noted: "In Mill v R (1983) 166 CLR 59 the High Court explained, at 66, that the proper approach for the sentencing judge is to ask what would have been the likely effective head sentence imposed if the prisoner had committed all of the relevant offences in one jurisdiction and had been sentenced at one time. It further explained that, where there is no statutory authority to backdate the sentence, the only course open to the second sentencing court is so adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. That is so even though it means that the head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed." 1. The sentencing judge was aware of the principles to be applied, and he had regard to them. He correctly noted that the task of the court was to impose a sentence that, when coupled with the earlier sentence imposed upon the applicant, was an appropriate reflection of the total criminality, even if that meant imposing a sentence that would, in other circumstances, be inadequate. His Honour specifically recorded in his remarks the means by which he addressed the need to recognise the sentence already served by the applicant, stating (as extracted at [65] above) that a significant level of leniency had been afforded the applicant, to the extent where the sentence imposed by the court would otherwise be inadequate. 2. His Honour regarded the sentence imposed as lenient, that being a deliberate and intended outcome. The assessment is one with which I agree. 3. The offences before the sentencing court reflected grave sexual offending separate from, if connected to, the applicant's crimes in Western Australia. The family had come to NSW for a holiday, where the young women the subject of the offences might have hoped to enjoy a change of routine as well as scenery. Instead, the applicant brought the routine of the daily lives of the complainants to this State. These were serious sexual crimes against 16 year old girls who had been so habituated to forced intercourse by the applicant that each was unable to do more than offer some small physical resistance to what was done to them. In each case, a level of force was engaged to overcome that resistance. With respect to count 3, the applicant physically turned LM into a humiliating position bent over a rock which facilitated penile-vaginal intercourse. He did this despite her clear unwillingness. In committing count 6 the applicant disregarded JM's resistance to removing her clothes, and physically pulled down her shorts. He ignored her embarrassment and attempt to cover herself and turned her such that she was positioned over a boulder that was rough against her exposed skin, penetrating her vagina with his penis despite her wish that such a thing should not occur. In both cases the applicant had a familial relationship with his victims; he exploited that relationship to gain access to LM and JM, and he breached the trust inherent in it. 4. The applicant has never shown any regret or remorse for his conduct. His pleas of guilty were entered on the last business day before his trial, and were promptly followed by an application to vacate them. The applicant (falsely) told others that he had only pleaded guilty after being promised a non-custodial sentence. The sentence hearing was thereafter delayed as the applicant pursued an appeal to this Court against the refusal to allow the vacation of the pleas. That application was abandoned only days before it was due to be heard. Rather than accepting that his predicament in this State was the consequence of his own criminal conduct, the applicant appears to blame LM and JM for making a complaint against him. He continues to show no insight into the seriousness of his crimes. There was little in the applicant's case that could have ameliorated the sentence imposed upon him, other than the earlier proceedings and the lapse of time between those proceedings and the NSW prosecution. 5. A total effective sentence of 13 years imprisonment with a total effective NPP of 9 years and 6 months cannot be regarded as disproportionate to the long term sequential sexual abuse of two children by a man in the position of a parent to each. Only the fact of the sentence already served by the applicant, and the detriment occasioned to him by the delay in bringing the NSW prosecution, could justify the sentence imposed upon the applicant in this State for such grave conduct. Without the background that applied in this case, an aggregate sentence of 3 years with a NPP of 2 years could not reflect the gravity of 2 counts of sexual intercourse without consent, taking into account 4 more such offences. It is only by reference to the earlier proceedings and the overall history of the matter that a minimum term of 2 years could be properly imposed. The sentence imposed is consistent with the principle to which the sentencing judge referred, from R v Todd, at 519 - 520: […] where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner. 1. However, his Honour was also obliged to give effect to the principle of proportionality, now reflected by s 3A(a) of the Crimes (Sentencing Procedure Act 1999 (NSW), a principle of which sentencing courts cannot lose sight. There must be reasonable proportionality between the sentence imposed and the circumstances of the crime, with the former adequately reflecting the gravity of the latter: R v Geddes (1936) SR (NSW) 554; R v Dodd (unreported, 4 March 1991, NSWCCA). 2. The applicant's subjective case, principally the sentence served in Western Australia and the delay in bringing the NSW proceedings, with all the consequential disadvantage to the applicant that brought, was given prominent weight by the sentencing judge, mitigating the sentence imposed to the greatest extent possible. Any lesser sentence would, contrary to authority, have paid inadequate attention to the gravity of the applicant's crimes: Rushby [1977] 1 NSWLR 594. 3. I would dismiss this ground. Whilst I would grant leave to advance it, I would also dismiss the appeal. Proposed Orders 1. The orders I propose are: 1. Leave to appeal against the sentence imposed on 16 December 2022 granted; 2. Appeal dismissed. ********** Endnote 1. The material before this Court both refers to the applicant's conviction for 31 of the 44 offences, and for 33 counts. It is clear from the judgments of the sentencing court in Western Australia and the Western Australia Court of Appeal that convictions were recorded for 31 counts. Amendments 17 November 2023 - Typographical error amended on coversheet. 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: 17 November 2023