Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v MJ [2023] NSWCCA 306 Hearing dates: 18 September 2023 Date of orders: 30 November 2023 Decision date: 30 November 2023 Before: Simpson AJA at [1]; Price J at [18]; Davies J at [150] Decision: (1) Director's appeal allowed. (2) The sentence imposed by Grant DCJ in the District Court of New South Wales on 19 May 2023 is quashed. (3) In lieu thereof, the respondent is sentenced to 6 years' imprisonment consisting of a non-parole period of 4 years commencing on 21 December 2023 and expiring on 20 December 2027 with a balance of term of 2 years commencing on 21 December 2027 and expiring on 20 December 2029. (4) The earliest date that the respondent will be eligible to be released on parole is 20 December 2027. Catchwords: CRIMINAL LAW – Crown appeal – sexual intercourse with a 10 year old child – offence on Form 1 – respondent serving an aggregate sentence for domestic violence offences – concession by respondent that sentence was manifestly inadequate when the degree of concurrence with existing sentence was taken into account – whether sentence for the offence was manifestly inadequate – whether sentencing judge had taken into account specific deterrence, protection of society and denunciation – whether error in consideration of JIRS statistics – whether error in consideration of JIRS starting date of sentence – residual discretion – resentence – assessment of objective seriousness – consideration of moral culpability – respondent's deprived background – whether causal link between deprived background and offending – whether causal link necessary – mental health – approach to totality – appeal allowed Legislation Cited: Crimes Act 1900 (NSW), ss 66C(1), 66DD(a) Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA(3) Criminal Appeal Act 1912 (NSW), s 5D Mental Health Act 2007 (NSW) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518 Bugmy v The Queen (2013) 249 CLR 571; 87 ALJR 1022; 302 ALR 192; 229 A Crim R 337; [2013] HCA 37 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 CMB v Attorney General for New South Wales (2015) CLR 346; [2015] HCA 9 DR v R [2022] NSWCCA 151 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v R; Jones v R (2010) 242 CLR 250; [2010] HCA 45 Hoskins v R [2021] NSWCCA 169 Lloyd v R [2022] NSWCCA 18 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Perkins v R [2018] NSWCCA 62 Postiglione v R (1997) 189 CLR 295 at 307-308; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397; [1997] HCA 26; R v Fisher (1989) 40 A Crim R 442 R v Irwin [2019] NSWCCA 133 R v JVP (Unreported, NSWCCA, Gleeson CJ, Abadee and Dowd JJ, 6 November 1995) R v Lao [2003] NSWCCA 315 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 181 R v Millwood [2012] NSWCCA 2 Ross v R [2012] NSWCCA 161 Scrimshaw v R [2021] NSWCCA 81 Skocic v R [2014] NSWCCA 225 The Queen v Pham (2015) 256 CLR 550; 90 ALJR 13; 325 ALR 400; [2015] HCA 39 Veen v The Queen (No 2) (1988) 164 CLR 465; 62 ALJR 224; 77 ALR 385; 33 A Crim R 230; [1988] HCA 14 Category: Principal judgment Parties: Rex (Applicant) MJ (Respondent) Representation: Counsel: E Nicholson (Applicant) P Coady (Respondent) Solicitors: Office of the Director of Public Prosecutions (NSW) (Applicant) Aboriginal Legal Service NSW/ACT (Respondent) File Number(s): 2022/70576 Publication restriction: Publication of name and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/A Date of Decision: 19 May 2023 Before: Grant DCJ File Number(s): 2022/70576 HEADNOTE [This headnote is not to be read as part of the judgment] On 19 May 2023, MJ ("the respondent") was sentenced in the District Court to a term of 3 years' imprisonment with a non-parole period of 2 years in respect of one count of sexual intercourse with a child between the ages of 10 and 16, namely 10, contrary to s 66C(1) of the Crimes Act 1900 (NSW). A further offence contrary to s 66DD(a) of the Crimes Act was taken into account on a Form 1. This sentence accounted for a 25% discount for the respondent's early guilty plea. The sentence commenced on 11 September 2022. The offending occurred on 21 February 2022 against the respondent's partner's daughter who was 10 years old at the time. He was arrested that same day in relation to unrelated domestic violence offences committed against his partner. In respect of those offences, the respondent had been sentenced in the Local Court to 40 months' imprisonment with a non-parole period of 22 months, commencing on 21 February 2022. The Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), appealed against the sentence on the sole ground that the sentence was manifestly inadequate. Counsel for the respondent accepted that the sentence was manifestly inadequate when considering the degree of concurrency with the unrelated domestic violence offences, but did not concede that the sentence itself was manifestly inadequate. The Court of Criminal Appeal unanimously found that the sentence was manifestly inadequate and allowed the Director's appeal. The sentence imposed in the District Court on 19 May 2023 was quashed and the respondent was re-sentenced to 6 years' imprisonment consisting of a non-parole period of 4 years commencing on 21 December 2023 and expiring on 20 December 2027, with a balance of term of 2 years commencing on 21 December 2027 and expiring on 20 December 2029. Held (1) Whilst it was open to the sentencing judge to find that the respondent's "early social and economic deprivations" reduced the respondent's moral culpability and moderated the weight to be given to general deterrence, it did not follow that specific deterrence, denunciation and protection of the community were to be overlooked. Nor did it follow that no weight was to be given to general deterrence: [81] (Price J); [1] (Simpson AJA); [150] (Davies J). (2) In considering the principle of totality, the sentencing judge overlooked the fundamental obligation of ensuring that the sentence imposed was "a just and appropriate measure of the criminality involved". Before accepting the respondent's counsel's submission as to the commencement date of the sentence, the sentencing judge should have stepped back and taken time to review what would be the total effective sentence: [93]-[104] (Price J); [1] (Simpson AJA); [150] (Davies J). Bugmy v The Queen (2013) 249 CLR 571; 87 ALJR 1022; 302 ALR 192; 229 A Crim R 337; [2013] HCA 37; R v Millwood [2012] NSWCCA 2; DR v R [2022] NSWCCA 151; Scrimshaw v R [2021] NSWCCA 81; Skocic v R [2014] NSWCCA 225; The Queen v Pham (2015) 256 CLR 550; 90 ALJR 13; 325 ALR 400; [2015] HCA 39, referred to. As to the residual discretion: The Court found that the Director had demonstrated that the residual discretion to decline to intervene should not be exercised: [105]-[107] (Price J); [1] (Simpson AJA); [150] (Davies J). Re-sentence: In re-sentencing the respondent, the objective seriousness of the offence was assessed to be above the mid-range; taking into account the matter on the Form 1, greater weight was given to specific deterrence and retribution; a causal link had been established on the evidence between the respondent's deprived background and the offence; the respondent's reduced moral culpability and mental health moderated the weight to be given to general deterrence; the appropriate starting point of the sentence was 21 December 2023; a total effective sentence of 7 years 10 months with a non-parole period of 5 years 10 months was a just and appropriate measure of the total criminality involved: [126]-[149] (Price J); [1], [16]-[17] (Simpson AJA); [150] (Davies J). Per Simpson AJA [2]-[15]: The question of whether a link needs to be established between childhood deprivation and disadvantage and the commission of the offence is apt to mislead. To discount the effect of childhood disadvantage because no causal connection is established is to ignore the subtleties and nuances of the considerations that the plurality in Bugmy recognised. Katsis v R [2018] NSWCCA 9; Perkins v R [2018] NSWCCA 62; R v Irwin [2019] NSWCCA 133; DR v R [2022] NSWCCA 151, referred to. JUDGMENT 1. SIMPSON AJA: I have read in draft the judgment of Price J. I agree with the orders his Honour proposes, and, subject to what follows, with his Honour's reasons. 2. I wish to comment briefly on the application of what have come to be known as "Bugmy principles": Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy"). Price J has discussed some of the authorities in which the question of whether a causal link needs to be established between childhood deprivation and disadvantage and the commission of the offence for which sentence is to be passed has been raised. 3. In my opinion that question is apt to mislead. Where profound childhood deprivation and disadvantage has been established, to require that a causal link be established between that background and the commission of the offence is to misunderstand and undermine the "Bugmy principles". It is only necessary to go to the joint judgment (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in Bugmy to make the point. At [40] their Honours said: "The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way." 1. Their Honours then accepted a submission made by the Director of Public Prosecutions that (contrary to the decision of this Court from which the appeal was brought) the effects of profound deprivation do not diminish over time and are to be given full weight in the determination of the appropriate sentence in every case. Their Honours explained that by adding (at [43]): "The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending." 1. Implicit in those observations is recognition that a childhood or adolescence marked by profound disadvantage may have an inhibitory effect on the development of values, on the acquisition of a moral compass, and on the capacity to make behavioural decisions in accordance with prevailing social norms. The relevant causal connection is between the dysfunctional background and the offender's impaired socialisation and adjustment to, and conduct in accordance with, those social norms. To search for a causal connection between the dysfunctional background and the offence in question is to bypass the larger issue and to focus too narrowly on the offence. It ignores the compromise of the "capacity to mature and to learn from experience": Bugmy at [43]. The plurality in the High Court were, as I understand [40] and [43] of the judgment, acknowledging the pervasive effect of profound deprivation, which is not confined to the commission of a single offence (or series of offences). 2. In DR v R [2022] NSWCCA 151 ("DR"), to which Price J has referred, Bellew J extracted [43] and [44] of the joint judgment in Bugmy and highlighted one sentence at [44], which reads as follows: "An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced." His Honour took this sentence to support the proposition: "…that in order to find that an offender's disadvantaged upbringing operates to reduce his or her moral culpability, there must be some established nexus between that upbringing and the relevant offending." 1. His Honour went on to say that that approach has been adopted on numerous occasions by this Court. As support for the proposition Bellew J cited the decisions in Katsis v R [2018] NSWCCA 9 at [108] (Hoeben CJ at CL) ("Katsis"), Perkins v R [2018] NSWCCA 62 at [82]-[83] (White JA) ("Perkins"), and R v Irwin [2019] NSWCCA 133 at [116] (Walton J) ("Irwin"). 2. I accept that the reasons of Hoeben CJ at CL at [108] of Katsis support the proposition. There his Honour said: "The applicant has failed to link the commission of the offences to the unfortunate events in his upbringing. That upbringing itself when compared to the circumstances in the cases upon which the applicant relies was significantly better. Even if the applicant's difficulties at home were taken at their highest, it is difficult to see why his moral culpability for beating, raping and strangling the deceased into unconsciousness and then leaving her to die after setting fire to her unit, should be reduced by anything arising from his childhood nor could his upbringing excuse this behaviour." 1. Six months later, in Perkins, Hoeben CJ at CL said, at [42]: "On my reading of Bugmy v R it is not sufficient to simply establish some elements of a deprived upbringing and/or the presence of domestic violence unless there is evidence or it can be properly inferred that such exposure 'may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced.' (Bugmy at [44])." 1. The proposition was not, however, endorsed by White JA or Fullerton J, the other members of the Court in Perkins. White JA considered the question at some length. His Honour extracted [40] of Bugmy and said: "74. This language is inconsistent with its always being the case that a background of serious social deprivation will be a factor in mitigation of sentence. The focus rather is on whether such a background lessens the moral culpability of the offender. Clearly it could do so if there is a causal link between the background of social deprivation and the offending. But the High Court did not say that that was the only circumstance in which the background of profound social deprivation could be relevant. … 77. In Bugmy the High Court neither endorsed Mr Bugmy's submission (at 581) that no causal connection between the offender's aboriginality and the commission of the offence was needed, nor the submission of the Crown (at 579) that for systemic factors establishing profound social deprivation to diminish the moral blameworthiness of a particular offence, they must be causally linked. The plurality … said that if an offender seeks to rely on his or her background of deprivation in mitigation of sentence, he or she needs to point to material tending to establish that background (at [41]) but did not say that if such background of deprivation is established it will (as distinct from may) be a mitigating factor. Nor did the plurality say that if such a background of deprivation is established it will only be a mitigating factor if a causal link between the background of deprivation and the offence is established. Gageler J said (at [56]) that 'The weight to be afforded to the effects of social deprivation in an offender's youth and background is in each case a matter for individual assessment.'" 1. In that case, White JA found as a fact (at [82]) that there was no causal connection between the offender's exposure to domestic violence and his offending, and added (at [83]): "It does not follow that the applicant's exposure to the domestic violence suffered at least by his mother is irrelevant." His Honour concluded, however, (concurring with Hoeben CJ at CL) that in that case the exposure to domestic violence did not lessen the offender's culpability. 1. Fullerton J said: "99. First, the insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented. Recognition of these effects and their potential for lasting harm has found expression and application in a range of academic and forensic disciplines. In curial contexts, where the safety and welfare of a child is the court's primary concern, in particular where placement outside the family home is under consideration, the need to give full weight to the harm associated with family and domestic violence and the direct and indirect impact of that harm on a child is obvious. The potential impact of exposure to family and domestic violence is no less obvious when the subjective circumstances of an offender are assessed for sentencing purposes, irrespective of the age of the offender. The decision of the High Court in [Bugmy] is authority for that approach. … 100. In these cases exposure to family violence was recognised as one of the systemic factors which evidenced a level of social deprivation with the potential to sound in mitigation of sentence. As White JA noted at [77], the plurality in Bugmy did not say that deprivation will only be a mitigating factor lessening the moral culpability of the offender if it is causally linked to the offending but, rather, to adopt the approach of Gageler J at [56], the effects of social deprivation and its weight in the sentencing exercise is a matter for individual assessment." 1. In Irwin Walton J also considered the question at length, by reference to numerous authorities, including the judgments of White JA and Fullerton J in Perkins. In that case the sentencing judge had declined, in the face of clear evidence of a background of disadvantage and deprivation, to apply Bugmy principles on the ground that "the circumstances are not so compelling as to be a relevant factor" and that the offender "had not established the 'very essential causal link' between [his] dysfunctional upbringing and the nature of the offending for which he is now being sentenced". Walton J found error in that approach, saying, inter alia: "116. …the sentencing judge accepted as a factual conclusion that the respondent had established a background of deprivation. The social deprivation and abuse suffered by the respondent was recognised by [a psychologist and a psychiatrist] and contributed to their diagnoses of the psychological conditions suffered by [the offender]. It was unnecessary in those circumstances to require, as a necessary condition to permit mitigation of sentence, a causal link between that background and the offending." 1. In DR itself, while R A Hulme J agreed with the orders proposed by Bellew J, he made his own observations about the ground of appeal that complained of the approach taken by the sentencing judge to the offender's deprived upbringing and social circumstances. R A Hulme J said: "4. Whether profound childhood deprivation, in whatever form it occurred, is taken into account by way of reduction of moral culpability, or more broadly as part of an offender's subjective case is largely a matter for the evaluative assessment of the sentencing judge. Identifying whether there is a 'causal link' is not always straightforward as there are often subtleties and nuances. The existence of such a link might be arguable but reasonable minds may differ. In the end, the effect upon the actual sentence imposed may not be significant. 5. A ground of appeal asserting a failure to find reduced moral culpability risks being nothing more than a contention about whether the judge ticked the correct box when it is apparent that the offender's profound childhood deprivation was taken into account in any event." 1. To discount the effect of childhood disadvantage because no causal connection with the offence for which sentence is to be imposed is established is to ignore the subtleties and nuances of the considerations that the plurality in the High Court in Bugmy recognised. To ask whether there is a causal connection between a dysfunctional background and the offence for which sentence is to be passed is to ask the wrong question and potentially to mislead and distract from the essential question, which is the assessment of the offender's moral culpability. 2. I agree with Price J, that, in any event, the evidence in this case demonstrated that the applicant's dysfunctional background is "a feature of [his] makeup" and warrants reduction (to a degree) of his moral culpability. It is also important, of course, not to lose sight of other sentencing considerations, including recognising the effect of the offending on the victim, expression of the community's disapproval of, and indeed (as in this case) abhorrence of, the nature of the offending, and both general and specific deterrence: see Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]. 3. In my opinion the sentence proposed by Price J adequately reflects a proper balance of these inter-related considerations. 4. PRICE J: This is a Crown appeal brought by the Director of Public Prosecutions ("the Director") pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on MJ ("the respondent") by Grant DCJ ("the judge") on 19 May 2023. The notice of appeal was filed on 16 June 2023. 5. The sole ground of appeal advanced by the Director is that the sentence is manifestly inadequate. 6. The respondent pleaded guilty in the Local Court to one count of having sexual intercourse with a child between 10 and 14 years of age contrary to s 66C(1) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 16 years' imprisonment with a standard non-parole period of 7 years' imprisonment. He adhered to his plea before the judge. 7. The respondent asked the judge to take into account on a Form 1 an offence of intentionally carrying out a sexual act with or towards a child between 10 and 16 years of age contrary to s 66DD(a) of the Crimes Act. The maximum penalty for this offence is 2 years' imprisonment. 8. Each of these offences took place on 21 February 2022 and the victim was 10 years old at the time of the offending. 9. Taking into account the offence on the Form 1, the judge sentenced the respondent to imprisonment for 3 years, commencing on 11 September 2022 and expiring on 10 September 2025 with a non-parole period of 2 years. 10. His Honour had discounted the respondent's sentence by 25% for his plea of guilty. Accordingly, the undiscounted starting point of the respondent's sentence is 4 years' imprisonment. 11. When the respondent was sentenced by the judge, he was serving an aggregate sentence of 40 months' imprisonment commencing on 21 February 2022 and expiring on 20 June 2025 with an aggregate non-parole period of 22 months commencing on 21 February 2022 and expiring on 20 December 2023. This sentence had been imposed in the Local Court at Deniliquin for offences of common assault, assault occasioning actual bodily harm, contravention of a prohibition in a domestic apprehended violence order and stalking and intimidate with the intention to cause fear ("the domestic violence offences"). 12. One of the Director's complaints about the inadequacy of the sentence imposed by the judge is that by backdating the commencement date of the respondent's sentence to 11 September 2022, the respondent will serve a period of 8 months and 20 days which is solely referable to the s 66C(1) offence. 13. Ms Nicholson, who appeared for the Director in this Court, pointed out that the overall effective sentence to be served by the respondent for all of the offending, including the sentences imposed for the domestic violence offences is 3 years, 6 months and 20 days. The overall effective non-parole period is 2 years, 6 months and 20 days. As presently sentenced, the respondent is eligible to apply for release to parole on 11 September 2024. 14. Mr Coady, who appeared for the respondent, conceded that the sentence imposed by the judge was manifestly inadequate when the degree of concurrence with the existing aggregate sentence was taken into account. However, Mr Coady did not concede that the sentence of imprisonment of 3 years with a non-parole period of 2 years for the s 66C(1) offence was manifestly inadequate but submitted that sentence was open to the judge. 15. The Director's appeal was not confined to the degree of concurrency. The Director also contended that the sentence itself was manifestly inadequate. 16. This Court is obliged to determine this issue before considering whether the Director has satisfied the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised. Factual background 1. At the time of the offending, the respondent was in a relationship with the victim's mother, CC. He lived on-and-off with CC and her two daughters at their house in a town in southern NSW ("the house"). The respondent was 38 years old and the victim was 10 years old. Form 1 offence 1. On the morning of 21 February 2022, the respondent, CC, the victim, and her sister were all in the house. The victim was in CC's bedroom, while CC was asleep on the couch. The respondent entered the bedroom and locked the door. He proceeded to pull down his pants and lie on the bed next to the victim, exposing his erect penis. Shortly afterwards, the respondent was interrupted by the victim's sister calling out for her. The s 66C(1) offence 1. Later that morning, the respondent took the victim with him to a service station approximately 450 metres away to buy cigarettes. The respondent walked, while the victim rode a scooter. The respondent did not have enough money to pay for the cigarettes, so they went home briefly before returning to the service station about 20 minutes later. 2. The respondent asked for the key to use the service station toilet, which he was provided with. The respondent and the victim entered the bathroom and went into the first cubicle, which did not have a toilet. The respondent pushed the victim onto her knees and pulled her pants down. He then sprayed lubricant on the victim's anus and engaged in penile/anal intercourse with her. He eventually removed his penis and ejaculated onto the victim's back. 3. The respondent returned the key, then returned to the house with the victim. 4. At about 3pm the same day, the respondent was arrested and refused bail for unrelated domestic violence offences towards the victim's mother arising from the night before. Police phoned the victim's mother to inform her of the arrest. The victim then disclosed to her mother that the respondent had sexually abused her that morning. The respondent was arrested for these offences on 11 March 2022. He declined to participate in a record of interview with police. 5. The respondent's semen was detected in the following locations: on the floor of the toilet cubicle; on the lower crotch area of the victim's swimwear bottoms (which she was wearing prior to the offence); inside the rear of the victim's jacket; on the lower rear frill area of the victim's swimwear top; and on the victim's shirt towards the waist area near the hem. The fingerprints of the respondent and the victim were also identified on the cubicle door. The respondent's subjective circumstances 1. The respondent is a 40-year-old Aboriginal Australian. He was born and raised in the town where the offence was committed. His mother choked to death in her sleep in an alcohol-related incident when he was three years old. He was raised by his maternal grandmother and has seven half-siblings. 2. In his ex-tempore sentencing remarks, the judge referred at length to the report of a forensic psychologist Mr Patrick Sheehan. Mr Sheehan reported that the respondent had lived in town but spent a lot of time on the local Mission, some 30 kilometres out of town. He saw his father regularly each year and they maintained a favourable relationship. The respondent was always fed, had clean clothes, and was provided appropriate equipment for sports and school excursions. 3. Mr Sheehan reported that the respondent had an anti-social uncle who lived in the home, who was violent and exposed him to early drug use. His uncle's behaviour would often result in police attending the home. The respondent denied being sexually abused as a child. He told Mr Sheehan that substance abuse and crime were widespread in his greater family. His own behaviour became anti-social in his mid-teens, with his criminal convictions commencing from the age of 15 years. He lived full-time on the Mission when he was 17. 4. The respondent told Mr Sheehan that his uncle gave him a bong and showed him how to smoke cannabis when he was seven years old. He started smoking cannabis regularly from the age of 13. He reported early psychotic experiences related to cannabis abuse. 5. The respondent told Mr Sheehan that he was affected by methamphetamine when he committed the current offence. The respondent has six children to four different parties. At the time of Mr Sheehan's report, those children were aged between 15 and 19 years. Mr Sheehan reported that the respondent acknowledged a history of partner violence but could not explain his current offending behaviour. The respondent told Mr Sheehan in regard to his offending that "[i]t just came out of the blue. I don't know why I did it. I shouldn't have done it. I ruined the girl's life by doing it." 6. The judge noted that Mr Sheehan concluded that the criteria for paraphilic disorder were not met. Mr Sheehan opined that there were clear indicators of personality disorder with the evidence supporting a diagnosis of anti-social personality disorder. His Honour also noted that Mr Sheehan assessed the respondent's risk of sexual re-offending as being in the average range on standard actuarial measures (Static-99R). Mr Sheehan reported that the evidence pointed towards an opportunistic offence rather than a pattern of deviant sexual interest in children. 7. The material placed before the judge in the respondent's case included letters dated 12 September 2017 and 26 September 2017 from the psychiatric registrar and consultant psychiatrist of Wagga Wagga Rural Referral Hospital to the members of the Mental Health Tribunal. The respondent had initially presented to the local hospital in August 2017 seeking assistance with regard to his mental health and illicit drug use. 8. The doctors in each letter opined that the respondent had been suffering from untreated psychosis on a background of illicit drug abuse. He was suffering from symptoms of psychosis, with a disorganisation of thought form and delusions, along with poor insight into his symptoms. They concluded that the respondent was "currently mentally ill as defined by the Mental Health Act with the presence of delusions". [1] The respondent's prior criminal history 1. The respondent's prior criminal history in New South Wales as an adult includes convictions for offences of dishonesty, supply of prohibited drugs, possession of unauthorised firearms, assault police, and the domestic violence offences above (see [25]). He had been previously sentenced to terms of imprisonment. 2. His prior criminal history in Victoria included offences of recklessly causing injury, aggravated assault, and aggravated burglary. His Honour noted that the longest custodial sentence the respondent had served was in Victoria, during which he had participated in a violent offender program. 3. The judge observed that the respondent's long criminal history did not entitle him to leniency. His Honour had earlier noted that the respondent did not have any prior sexual offences. Some findings by the judge 1. The judge found that the offence fell within the "broad mid-range". His Honour stated that in assessing objective seriousness, he had taken into account the victim's age of 10 years which was at the lowest range of the offence; the respondent's age of 38 years; the respondent's breach of trust; the anal sexual intercourse that was followed by ejaculation on the victim's back which was degrading; and a degree of premeditation as the respondent brought lubricant which was used in penetrating the victim. 2. His Honour observed that the Form 1 offence occurred on the same morning as the substantive offence. The respondent's act of lying on the victim's bed and exposing his penis occurred in the victim's home and constituted a breach of trust. 3. His Honour referred to the submission of the respondent's counsel that the respondent presented a subjective case of significant childhood deprivation. He accepted the submission "that the offender's early social and economic deprivations bring into play the principles enunciated in Bugmy v The Queen". [2] His Honour went on to say: "It appears to me that what Justice Simpson said in Millwood [3] is appropriate in this case. The moral culpability of the offender is reduced, which moderates the weight to be given to general deterrence." [4] 1. The judge found that the respondent's early guilty plea was indicative of some remorse. His Honour said that what the respondent told Mr Sheehan about his offending coming "out of the blue" was at odds with having brought lubricant with him. 2. His Honour said that he was guarded about the respondent's prospects of rehabilitation. He was unable to conclude that the respondent would not be before a court again. 3. The judge recounted that the respondent had been classified as an SMAP (Special Management Area Placement) prisoner and had not had any outside contact either in person, by telephone, or mail since his arrest. He had been in custody since 21 February 2022 in respect the offence and the domestic violence offences committed against the victim's mother. His Honour took into account the respondent's hardship in custody in determining an appropriate sentence. 4. In finding special circumstances, the judge said that the respondent would need extensive supervision for his re-integration to the community due to his drug and mental health issues. 5. In considering the commencement date of the sentence, his Honour referred to submissions made by the respondent's counsel that when regard is made to the principle of totality, there should be a generous backdating of the commencement date to 11 September 2022. His Honour further referred to the Crown not proposing a commencement date or otherwise providing assistance with regard to such a date. His Honour said the commencement date was a discretionary matter which would be 11 September 2022. 6. The judge then referred to s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act") and stated that the Court was mindful that child sex offences have profound and deleterious effects upon victims and that child sexual abuse will inevitably give rise to psychological damage and long term serious harm to children. 7. His Honour referred to the Judicial Commission's Judicial Information Research System ("JIRS") statistics put before him by the respondent's counsel, which his Honour said: "…indicate in relation to cases of a plea of guilty with prior record of a different type, 54% of sentences were 36 months or less, with 60% of sentences with a non-parole period being 24 months or less." [5] 1. The sentence detailed at [23] above was then imposed by the judge. Submissions The Director 1. As the respondent conceded that the sentence imposed by the judge was manifestly inadequate when the degree of concurrence with the existing aggregate sentence was taken into account, the principal matter of contention is the sentence itself. 2. The Director submitted that the respondent's offending was a particularly grave example of a s 66C(1) offence. Ms Nicholson referred to the nature of the sexual intercourse being penile/anal intercourse; the victim being at the lowest end of the spectrum of ages encompassed by the section; the aggravation of the offence by the breach of trust; the degree of premeditation involved; and the element of degradation by the respondent ejaculating on the victim's back. 3. In written submissions, the Director mentioned that "it may be thought that the assessment of the sentencing judge that the offence fell within the broad mid-range of the objective seriousness was an unduly generous finding in favour of the applicant". 4. In oral argument in this Court, Ms Nicholson said that the Director did not challenge the judge's assessment but submitted that it was very generous and this Court would not be bound by that assessment if it came to re-sentence. 5. The Director's argument was that the sentence did not fit in with the judge's assessment of objective seriousness; that there was a substantial disconnect between the characterisation of objective seriousness and the imposed sentence (which also required the Form 1 offence to be taken into account). The undiscounted starting point of the sentence was 4 years, against a maximum penalty of 16 years and a standard non-parole period of 7 years. 6. The Director's submission was not that the assessment of objective seriousness should be a discernible mathematical equivalence to those guideposts, but rather that it was necessary that the sentence properly reflects the assessment of objective criminality and addresses the criminality involved in the offending. 7. The Director argued that the respondent's subjective case was not overwhelmingly compelling. Whilst the Director pointed out that the judge did not consider whether there was a causal link between the respondent's background and the commission of the offence, the Director recognised that the Crown in the sentencing proceedings had conceded that the principles in Bugmy applied. The Director did not seek to interfere with the judge's finding that the respondent's moral culpability was reduced. However, Ms Nicholson submitted that if this Court proceeded to re-sentence, the Court would not make the same finding on re-sentence. 8. The Director submitted that where there was no causal link established, his Honour's finding was unduly generous to the respondent. The Director referred to the judge's lack of attention to the purposes of sentencing and the lack of any reference to the need for specific deterrence. 9. Another argument focussed on the principle of totality. The Director's submission was that the sentence imposed was not appropriate for all the offences. The Director contended that the degree to which the existing Local Court sentence could comprehend the criminality of the s 66C(1) offence was extremely limited. Furthermore, the Director contended that the judge provided no explanation for the commencement date of the sentence aside from outlining the submissions of the parties and stating that the commencement date was a discretionary matter. 10. The Director was critical of his Honour's reference to JIRS statistics. 11. The Director raised a number of what were said to be "comparative cases". The Director submitted that the present case bears closest similarity with the offending in DR and Scrimshaw (a pseudonym) v R. [6] 12. The Director acknowledged the limited use of comparative cases but submitted they demonstrate the manifest inadequacy of the respondent's sentence. The respondent 1. Mr Coady accepted that the sentence was manifestly inadequate when the degree of concurrence was taken into account but argued that the sentence itself was not manifestly inadequate. 2. The respondent referred to the submissions made to the judge which included his early exposure to alcohol and other drug abuse, and contended that there were compelling subjective factors which the judge was obliged to apply in the sentencing process. 3. The respondent contended that these factors operated to lower the respondent's moral culpability and lessened the emphasis to be placed on deterrence. Furthermore, they increased his hardship in custody. The respondent accepted that in the absence of these factors, the sentence was manifestly lenient. However, the respondent submitted that their presence meant that the judge had to recognise the effects of social and economic disadvantage that meant a reduction in his moral culpability. 4. Mr Coady argued that whilst Mr Sheehan did not isolate the basis for the respondent's offending, it was the respondent's methamphetamine use. He submitted that the offence would be properly understood "as a relatively impulsive outburst of erratic and extremely damaging behaviour". [7] 5. Mr Coady submitted that all of the judge's findings could be safely made. He contended that there was a need for significant special circumstances to deal with the issues of disadvantage, drug use, and the potential presence of a delusional disorder. 6. The respondent pointed out that the Director did not seek to appeal the judge's finding of objective seriousness; that taking into account all relevant factors, the sentence itself (other than the commencement date) could not be said to be "unreasonable or plainly unjust". 7. The respondent acknowledged the leniency of the sentence itself but submitted the sentence properly reflects the principles arising from cases such as Bugmy and Millwood. Consideration 1. In my respectful opinion, the sentence of 3 years' imprisonment with a non-parole period of 2 years was manifestly inadequate, as was the degree of concurrence with the aggregate sentence for the domestic violence offences. This Court has emphasised for many years the seriousness of sexual assaults upon young children. [8] 2. The respondent had penile/anal intercourse with the victim who was 10 years old at the time and with whom he stood in a position of trust. This evil conduct occurred on the same morning that the respondent exposed his erect penis to the young child and was premeditated. 3. Whilst it was open to his Honour to find that the respondent's "early social and economic deprivations" reduced the respondent's moral culpability and moderated the weight to be given to general deterrence, it did not follow that specific deterrence, denunciation and protection of the community were to be overlooked. Nor did it follow that no weight was to be given to general deterrence. All of these sentencing principles are relevant to cases of sexual assault upon young children. As the High Court explained in Bugmy: "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult." (Emphasis added, footnotes omitted). 1. In referring to Millwood in the passage quoted at [51] above, his Honour appears to have had in mind what was said by Simpson J ( as her Honour then was) at [69]: "I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood." 1. There is nothing in Simpson J's remarks which would suggest that other relevant sentencing principles are not to be given any weight. In fact, her Honour's observation that it should not be taken "that such a person bears no moral responsibility" applies to the respondent. 2. Although I am mindful that the judge's sentencing remarks were delivered immediately following oral argument and a degree of latitude is to be afforded, no mention was made of these sentencing principles by his Honour. 3. The respondent's lengthy criminal history, his unsatisfactory explanation to Mr Sheehan that "it just came out of the blue" which was inconsistent with his use of a lubricant, and his Honour's guarded assessment about the respondent's prospects of rehabilitation meant that specific deterrence and the protection of the community were significant issues. 4. Denunciation of the respondent's conduct remains an important principle. There is a need to denounce the conduct of those who sexually assault children. 5. Another troubling aspect of the judge's sentencing remarks was his reference to the JIRS statistics provided by the respondent's counsel. His Honour noted in the passage quoted at [58] above that 54% of the sentences were "36 months or less", with 60% of non-parole periods being "24 months or less". His Honour did not refer to any other sentences outside the range of sentences that he had quoted. Furthermore, he made no mention of the limited use that could be made of the JIRS statistics. The sentence imposed, that almost immediately followed the reference to the JIRS statistics, was 3 years (36 months) with a 2-year (24 months) non-parole period. 6. The limited use that might be made of Judicial Commission statistics has long been recognised. [9] As Bellew J observed in Skocic v R at [19]-[20]: "This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were…" [10] 1. His Honour was required to take a careful approach to the sentencing statistics placed before him, which could only "stand as a yardstick against which to examine a proposed sentence". [11] 2. The sentencing statistics placed before the judge did not identify the age of the victims (other than being between 10 and 14) and the nature and circumstances of the sexual intercourse. Nor did the statistics identify the prior criminal histories (other than a different type) and did not include sentences where matters on a Form 1 were taken into account. The protean nature of a s 66C(1) offence undermines the significance that may be attributed to the statistics. 3. It would have been helpful if the judge had explained how the JIRS statistics had been used in determining the sentence that was imposed. 4. Mr Coady, in this Court, correctly conceded that the degree of concurrence of the sentence with the domestic violence offences was manifestly inadequate. During the proceedings on sentence, the judge discussed with counsel when the sentence should commence. The respondent's counsel submitted that the sentence should commence at "half" of the existing non-parole period of 22 months, which his Honour calculated to be 11 September 2022. In his sentencing remarks, the judge gave no reason for accepting the respondent's submission that the sentence was to commence on 11 September 2022. 5. His Honour was plainly aware of the principle of totality. However, in my respectful opinion, he appears to have overlooked the fundamental obligation of ensuring that the sentence imposed was "a just and appropriate measure of the criminality involved". [12] 6. It is apparent that his Honour did not consider the extent to which the existing sentence for the domestic violence offences against CC could comprehend and reflect the criminality of the sexual assault upon a child of 10 years with whom he stood in a position of trust and was a separate victim. 7. In my view, the degree to which the existing sentence for the domestic violence offences could comprehend the criminality of the sexual assault was significantly limited. The domestic violence offences were discrete and independent criminal acts against a separate victim. The only common factor was that each of the victims lived in the same home. The sharing of a residential environment, in my view, could play very little, if any, part in assessing the extent to which a sentence for domestic violence offences could comprehend the criminality of the serious sexual offending. 8. I do not wish to appear unduly critical of the judge, who has a large criminal caseload and is hardworking. His Honour is to be lauded for his efforts in delivering ex tempore sentencing remarks. However, the task of sentencing the respondent was complicated by the existing sentence. In my respectful opinion, before accepting the submission as to the commencement date of the sentence, his Honour should have stepped back and taken time to review what would be the total effective sentence and consider whether it was "just and appropriate" if it was to commence on 11 September 2022. 9. The comparative cases raised by the Director included DR and Scrimshaw. In DR, the offender was sentenced to an aggregate sentence for 7 counts of sexual offending against young victims. Count 3 was an offence contrary to s 66C(1) of the Crimes Act. The victim was 11 or 12 years old at the time when the offender had penile/vaginal intercourse with her. The offender's disadvantaged background was taken into account by the sentencing judge. There was a 5% discount for the offender's late guilty plea. 10. In indicating the sentence for count 3, the sentencing judge took into account an offence on a Form 1 which was an act of cunnilingus. The indicative sentence for count 3 was imprisonment for 11 years and 4 months. 11. The offender's appeal against an aggregate sentence of imprisonment for 20 years and 10 months with a non-parole period of 15 years and 6 months was dismissed. 12. In Scrimshaw, the offender was sentenced for four offences contrary to s 66C(1). All of the offending was against the offender's natural daughter who was 10 years old at the time. The intercourse involved digital penetration, fellatio, and penile/vaginal intercourse during which he ejaculated on the victim. The offender's sentence had been discounted by 20% for his guilty plea. There was some premeditation and a breach of trust. The sentencing judge imposed "cascading" head sentences, three of which were for 5 years and one head sentence of 7 years. The total head sentence was 11 years, with a total non-parole period of 7 years. 13. In The Queen v Pham, the plurality (French CJ, Keane and Nettle JJ) said at [28]: "(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle." (Footnotes omitted). [13] 1. The plurality further observed at [29] that: "…in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as "yardsticks" that may serve to illustrate (although not define) the possible range of sentences available". (Footnotes omitted). [14] 1. There is a further limitation in the utility of the s 66C(1) sentence in DR. The sentence was an indicative sentence which itself was not amenable to appeal, although it may have provided a guide as to whether there was error in the aggregate sentence. 2. Having considered all relevant sentencing factors, I am of the view that the total effective overall sentence of 3 years 6 months and 21 days fell far short of reflecting the totality of the respondent's criminal behaviour. Manifest inadequacy is further evidenced by a non-parole period of 8 months and 20 days which is solely referrable to the s 66C(1) offence, which included the matter on the Form 1. The Director has established that the judge imposed a sentence that was well below the range of sentences that could justly be imposed for the respondent's offending consistent with sentencing standards. Residual discretion 1. The question remains whether this Court should intervene and re-sentence the respondent. There is a residual discretion to decline to intervene even though the sentence is manifestly inadequate. The Director is obliged to satisfy the Court that the residual discretion should not be exercised. [15] 2. In Green v The Queen; Quinn v The Queen, the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". Their Honours described the primary purpose of laying down principles as a "limiting purpose" and said at [36]: "It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion." [16] 1. Their Honours observed that other circumstances may combine to produce injustice if a Crown appeal is allowed. Their Honours said at [43]: "They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual." Submissions 1. The Director submitted that the significant disparity between the sentence imposed and what is necessary to reflect the objective seriousness of the offences is such that the residual discretion should not be exercised. The Director argued that the need for denunciation, punishment, and recognising the harm to the victim would be undermined by allowing a manifestly inadequate sentence to stand. 2. The Director contended that this case allows the Court to provide guidance to sentencing courts in relation to appropriate sentences for serious examples of offences against s 66C(1) of the Crimes Act. Furthermore, important guidance may be provided to judges concerning the approach to totality when accumulating a sentence upon an existing sentence imposed upon another court for unrelated offending. 3. The Director submitted that there had been no delay in the institution of the appeal and the imposition of the manifestly inadequate sentence was not caused by the Crown who appeared in the sentencing proceedings before the judge. 4. The respondent submitted that where the judge had made a finding that the principles from Bugmy and Millwood were relevant to the respondent and the respondent had demonstrated some insight, this Court should not re-sentence the respondent. 5. The respondent accepted that the Director had promptly filed the appeal. No argument was advanced that the Director had contributed to the manifest inadequacy of the sentence. Consideration 1. In my opinion, the Director has established that the residual discretion to decline to intervene should not be exercised. The Director has not contributed to the manifest inadequacy of the sentence nor delayed the appeal. Guidance to judges that may be provided by this decision includes sentencing for offences against s 66C(1) of the Crimes Act and for the proper approach to the totality principle when accumulating a sentence upon an existing sentence. 2. Furthermore, I am satisfied that public confidence in the justice system would not be served by allowing such a manifestly inadequate sentence to stand. Affidavits on re-sentence 1. In an affidavit affirmed on 8 September 2023, the respondent stated that he was in SMAP until July 2023. He explained that meant he was in a wing with other SMAP inmates and kept away from other mainstream inmates. He is now within minimum security and shares a 'two-out' cell. 2. The respondent stated that he has been working in the kitchen since June 2023. Prior to that, he worked as a sweeper. 3. The respondent stated that he is not visited by family or friends and does not receive mail. He does not have contact with his children. He had started the EQUIPS five-week addiction program and had been informed that the EQUIPS Domestics Violence Program would commence after that. 4. The respondent stated that he had not been using drugs and felt better as a result. He was taking Olanzapine and had spoken to a psychologist once last year. Since being back on Olanzapine, he had not heard voices or been paranoid. 5. The respondent's solicitor, attached to his affidavit affirmed on 8 September 2023, the respondent's case notes and work assignments, which confirmed what had been stated in the respondent's affidavit about his employment in custody and the EQUIPS programs. They further related that the respondent is polite, follows directions and interacts well with others in his unit. There are no issues or concerns raised about the respondent. Submissions on re-sentence 1. The Director's submissions on re-sentence have been articulated in the Director's contentions about the manifest inadequacy of the sentence. However, in oral argument, Ms Nicholson's position was that this Court was neither obliged to follow the judge's assessment of objective seriousness nor his assessment of moral culpability. 2. There was some discussion about whether a causal connection had been established between the respondent's deprived background and the offence. Nevertheless, Ms Nicholson accepted that the respondent's background would weigh heavily in the consideration of the respondent's subjective case. 3. Mr Coady submitted that if this Court came to re-sentence, the finding of the judge as to objective seriousness would be open to this Court. He referred to the broad range of offences contained within the s 66C(1) offences, and in this case the victim was not groomed. There was no repeated abuse. 4. Mr Coady placed emphasis on the respondent's subjective case and submitted that all the findings of the judge as to the respondent's subjective case could be made, which included the reduction in moral culpability. He said that the respondent's offending was difficult to understand "without the overlay of methylamphetamine use on top of it". [17] 5. A further submission was that a finding of special circumstances was required to deal with the issues of disadvantage, drug use, and the presence of a delusional disorder. Mr Coady referred to the respondent's prison records which showed the respondent's work, good behaviour, and absence of drug use in custody. 6. As to the extent of accumulation on the existing sentence, Mr Coady referred to the expiration of the existing non-parole period on 20 December 2023 and argued that there could be a significant period of accumulation on re-sentence. Re-sentence 1. The maximum penalty of 16 years imprisonment and standard non-parole period of 7 years are legislative guideposts to be borne in mind when considering the appropriate sentence, having regard to the objective seriousness of the offence and the subjective circumstances of the respondent. [18] The standard non-parole period does not have determinative significance in sentencing the respondent, nor is it a "starting point" for the sentence, nor does it directly apply as the respondent has pleaded guilty. [19] 2. Mr Coady's submission that this Court would take into account in assessing the objective seriousness of the offence the lack of grooming is misconceived. The respondent was in a relationship with CC and lived from time to time with CC and her daughters in their house. He was well known to the victim, a 10-year-old child. 3. The respondent abused that close relationship by taking her into a service station toilet where she was subjected to penile/anal intercourse and the respondent's ejaculate on her back. In these reasons, I have emphasised the gravity of the respondent's offending which was pre-meditated and in breach of this position of trust. 4. I assess the objective seriousness of the offence to be above the mid-range. 5. The respondent told Mr Sheehan that at the time he committed the offence, he was affected by methamphetamine. The respondent's consumption of methamphetamine neither mitigates nor aggravates the offence. 6. I take into account the matter on the Form 1 by giving greater weight to specific deterrence and retribution. [20] 7. I stated at [81] above that it was open to the judge to find that the respondent's "early social and economic deprivations" reduced the respondent's moral culpability and moderated the weight to be given to general deterrence. Ms Nicholson submitted that this Court was not obliged to make the same finding, as there was no evidence that the respondent's background was causally linked to the offence. Ms Nicholson cited DR at [37], in which Bellew J (with whom Ward P and R A Hulme J agreed) said: "There are two particular principles which emerge from these authorities. The first, is that the existence of a causal link between an offender's disadvantaged background and the offending will inevitably support a finding that such offender's moral culpability is reduced. The second, is that even where there is no such causal link, and thus no reduction in moral culpability, an offender's disadvantaged background remains a factor which must be given full weight in the process of instinctive synthesis which is applied in determining an appropriate sentence. It is by reference to these principles that the present ground of appeal must be considered and determined." [21] 1. At first blush, the approach in DR may appear to differ from a number of decisions of this Court which have held that a causal link between an offender's deprived background and the offending is not required for it to be taken into account as a mitigating factor. In Hoskins v R, Brereton JA (with whom Basten JA and Beech-Jones J agreed) observed at [57]: "However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending." [22] 1. In Lloyd v R, McCallum J (as her Honour then was) (Hamill and Cavanagh JJ agreeing) stated at [27]: "The prevailing view appears to be that it is not necessary to establish the existence of a causal connection with the offending before having regard to Bugmy factors…" [23] 1. However, this Court in DR did not find that Bugmy factors are not to be taken into account unless a causal link has been established. The focus of the Court was on the assessment of moral culpability and Bellew J explained that an offender's disadvantaged background "must be given full weight" in determining an appropriate sentence even though no causal link had been established. R A Hulme J observed at [4]: "The existence of such a link might be arguable but reasonable minds may differ. In the end, the effect upon the actual sentence imposed may not be significant." [24] 1. In any event, I consider that a causal link has been established on the evidence. The respondent was exposed to violence and drug use by his uncle. He was shown how to smoke cannabis when he was 7 years old, which became a regular habit from the age of 13. His drug use progressed to methamphetamines. His engagement with antisocial peers increased in his teenage years and his education did not extend beyond Year 9. His criminal history reveals offences of violence and damage to property when he was 15. 2. The respondent's loss of his mother at the age of 3, the time spent on the local Mission, and his exposure to violence and drug use during his formative years are circumstances of profound disadvantage which permit me to find (particularly given that the circumstances of sexual offending involved drug use) that the respondent's moral culpability is reduced. This does not mean he bears no moral culpability for the offence, nor does it mean that his drug use has been taken into account as a mitigating factor: see [130] above. 3. The respondent did not submit either in this Court or before the judge that there was a causal relationship between his mental health and his offending behaviour. The submission was confined to his subjective case. 4. I take into account the respondent's age and mental health. He was born on 20 July 1983 and is now 40 years old. The material placed before the judge (see [44]-[45] above) disclosed that in 2017, he had been suffering from untreated psychosis on a background of illicit drug use. Mr Sheehan opined that whilst "somewhat unclear", the evidence supported a diagnosis of Drug Induced Psychosis (in partial remission), with a possible diagnosis of Schizophrenia (in partial remission). Mr Sheehan expressed the opinion that the criteria for paraphilic disorder was not met but the evidence supported a diagnosis of Antisocial Personality Disorder. Whilst serving his sentence, the respondent has been taking Olanzapine and has neither heard voices nor been paranoid. 5. The respondent's reduced moral culpability and mental health moderates the weight that I give to general deterrence. 6. The respondent's prior criminal history does not entitle him to leniency, but it does not increase the objective seriousness of the offence. In view of the respondent's prior record, I give more weight to specific deterrence and protection of society than otherwise would have been the case. [25] 7. The judge's findings on remorse, rehabilitation, the respondent's hardship in custody and special circumstances were not challenged on appeal and I intend to adopt them. Although I remain guarded about his prospects of rehabilitation, the positive steps taken by him in custody and his good behaviour support my taking a more optimistic view. 8. Furthermore, the 25% discount for his plea of guilty in the Local Court will be applied on re-sentence. 9. I have had regard to the JIRS statistics and comparative sentences as "yardsticks" in my consideration of the appropriate sentence. 10. I also bear in mind s 25AA(3) of the CSP Act. 11. The approach to the principle of totality has been discussed at [77]-[80] above. I am also mindful to avoid a "crushing sentence". 12. Having applied the discount of 25% and found special circumstances, I consider that the appropriate sentence for the offence (including the matter on the Form 1) is 6 years, with a non-parole period of 4 years. For clarity, the undiscounted starting point of the sentence is 8 years' imprisonment. The commencement date of the sentence will be 21 December 2023 when the respondent would have otherwise been eligible for release on parole. 13. The total effective sentence will be 7 years 10 months with a non-parole period of 5 years 10 months which in my view is a just and appropriate measure of the total criminality involved. 14. Accordingly, I propose the following orders: 1. Director's appeal allowed. 2. The sentence imposed by Grant DCJ in the District Court of New South Wales on 19 May 2023 is quashed. 3. In lieu thereof, the respondent is sentenced to 6 years' imprisonment consisting of a non-parole period of 4 years commencing on 21 December 2023 and expiring on 20 December 2027 with a balance of term of 2 years commencing on 21 December 2027 and expiring on 20 December 2029. 4. The earliest date that the respondent will be eligible to be released on parole is 20 December 2027. 1. DAVIES J: I agree with Price J. ********** Endnotes 1. Exhibit B, Letter of Dr Paul Hetman, 26/9/17. 2. Tcpt, 19 May 2023 ("Sentencing Judgment"), p 7(14); Bugmy v The Queen (2013) 249 CLR 571; 87 ALJR 1022; 302 ALR 192; 229 A Crim R 337; [2013] HCA 37 ("Bugmy"). 3. R v Millwood [2012] NSWCCA 2. 4. Sentencing Judgment, p 7(16). 5. Sentencing Judgment, p 10(8). 6. DR v R [2022] NSWCCA 151 ("DR"); Scrimshaw v R [2021] NSWCCA 81 ("Scrimshaw"). 7. Tcpt, 18 September 2023, p 8(48). 8. See, for example, R v Fisher (1989) 40 A Crim R 442; R v JVP (Unreported, NSWCCA, Gleeson CJ, Abadee and Dowd JJ, 6 November 1995) 9. Ross v R [2012] NSWCCA 161 at [19]; R v Lao [2003] NSWCCA 315; Hili v R; Jones v R (2010) 242 CLR 250; [2010] HCA 45 ("Hili") at [48]-[49]. 10. Skocic v R [2014] NSWCCA 225 ("Skocic"). 11. Ibid at [19]. 12. Postiglione v R (1997) 189 CLR 295 at 307-308; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397; [1997] HCA 26; R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 181 at [15]; Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]. 13. The Queen v Pham (2015) 256 CLR 550 at 550; 90 ALJR 13; 325 ALR 400; [2015] HCA 39 at [28]. 14. Ibid at [29]. 15. CMB v Attorney General for New South Wales (2015) CLR 346; [2015] HCA 9. 16. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [36]. 17. Tcpt, 18 September 2023, p 9(26). 18. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 ("Muldrock"). 19. Ibid at [31]. 20. Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518. 21. DR at [37]. 22. Hoskins v R [2021] NSWCCA 169 at [57]. 23. Lloyd v R [2022] NSWCCA 18 at [27]. 24. DR at [4]. 25. Veen v The Queen (No 2) (1988) 164 CLR 465; 62 ALJR 224; 77 ALR 385; 33 A Crim R 230; [1988] HCA 14. 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: 30 November 2023