Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BB v R [2024] NSWCCA 13 Hearing dates: 1 February 2024 Date of orders: 19 February 2024 Decision date: 19 February 2024 Before: Davies J (at [1]) Huggett J (at [2]) R A Hulme AJ (at [3]) Decision: (1) Leave to appeal against sentence granted. (2) Appeal dismissed Catchwords: CRIME – Appeal against sentence – aggregate sentence - child sex offences – sentencing judge erred in finding that some counts were a "serious children's indictable offence" within s 3 of the Children (Criminal Proceedings) Act 1987 – sentencing discretion unaffected by error –sentencing judge did not err in failing to take into account the lost opportunity of a different sentencing regime that would have been available had the applicant been prosecuted earlier - sentence not manifestly excessive. Legislation Cited: Children (Criminal Proceedings) Act 1987(NSW), ss 3, 33(1)(g), Pt 2, Div 4; Pt 3, Div 4 Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 66A, 66C(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1) Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 BM v R [2019] NSWCCA 223 BP v R [2010] NSWCCA 51 BT v R [2012] NSWCCA 276 GP v R [2021] NSWCCA 180 Hornhardt v R [2017] NSWCCA 186 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Millwood v R [2012] NSWCCA 2 Newman v R [2019] NSWCCA 157 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 PD v R [2012] NSWCCA 242 R v AA [2017] NSWCCA 84 R v GDP (1991) 53 A Crim R 112 R v JDB [2005] NSWCCA 102; (2005) 153 A Crim R 164 R v RM [2015] NSWCCA 4 SHR v R [2014] NSWCCA 94 TC v R [2016] NSWCCA 3 Young v R [2022] NSWCCA 111; (2022) 298 A Crim R 468 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: BB (Applicant) Rex (Crown) Representation: Counsel: N Broadbent and M Davies (Applicant) J Styles (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2021/186463 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 19 August 2022 Before: DCJ Grant File Number(s): 2021/186463 HEADNOTE [This headnote is not part of the judgment] Leave to appeal was sought in respect of an aggregate sentence of 5 years' imprisonment, with a non-parole period of 3 years, which was imposed for eight offences contrary to the Crimes Act 1900 (NSW) which were committed when the applicant was aged under 18: one of sexual intercourse with a child aged under 10 years, one of sexual intercourse with a child aged 10-13 years, four of sexual intercourse without consent in circumstances of aggravation with a person aged under 16 years and two of indecent assault upon a person aged under 16 years. The applicant sought leave to appeal on three grounds: 1. The sentencing judge erred in finding that offences of aggravated sexual intercourse without consent were "serious children's indictable offences" within the meaning of s 3 of the Children (Criminal Proceedings) Act 1987 (NSW). 2. The sentencing judge erred in failing to take into account that had the applicant been prosecuted when he was under the age of 21 (he was 24), for seven of the eight offences there was a sentencing regime available under Pt 3, Div 4 of the Children (Criminal Proceedings) Act. 3. The sentence was manifestly excessive. The Court held (R A Hulme AJ, Davies and Huggett JJ agreeing) granting leave to appeal but dismissing all three grounds. As to ground 1 Except in respect of Count 1, the sentencing judge erred in stating that Counts 1, 3, 4, 6 and 7 were serious children's indictable offences that were to be dealt with according to law [66]. However, Pt 2, Div 4 of the Children (Criminal Proceedings) Act, which is concerned with how indictable offences are to be dealt with, did not apply to the applicant. The applicant did not meet the prerequisite of being under the age of 21 years when charged before the court and had to be dealt with according to law nonetheless. It followed that the sentencing discretion was not vitiated or affected by the erroneous statement that these counts concerned a "serious children's indictable offence" [68]-[75]. Kentwell v The Queen (2014) 252 CLR 601 at [42]; Newman v R [2019] NSWCCA 157 at [12] applied. As to ground 2 In the District Court the applicant expressly disavowed relying upon this as a mitigating feature. There was no miscarriage of justice warranting intervention by this Court as the supposed ameliorative effect of the lost opportunity for the applicant to be dealt with under a different and more lenient sentencing regime was theoretical or hypothetical at most. Even if the offences had been prosecuted under the age of 21 and the question of whether to deal with some counts according to law or in accordance with Pt 3, Div 4 was enlivened, each of the offences were serious examples of their type. It was not practically possible that the offences would be dealt with other than according to law. [105]-[107]. Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [82]; and Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2] and [10] cited. Young v R [2022] NSWCCA 111; (2022) 298 A Crim R 468; PD v R [2012] NSWCCA 242; and BT v R [2012] NSWCCA 276 referred to. As to ground 3 Having regard to the gravity of the offences while giving full weight to the variety of subjective factors necessarily to be taken into account, the aggregate sentence was not unreasonable or plainly unjust [112] – [120]. Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] applied. JUDGMENT 1. DAVIES J: I agree with R A Hulme AJ. 2. HUGGETT J: I agree with R A Hulme AJ. 3. R A HULME AJ: This is an application for leave to appeal against an aggregate sentence of imprisonment for 5 years with a non-parole period of 3 years imposed by his Honour Judge Grant in the District Court on 19 August 2022. 4. The crimes were sexual assaults and the applicant and the victim (his sister) were both under the age of 18 at the relevant times. There are statutory prohibitions upon identifying each of them. [1] 5. Each offence was contrary to a provision of the Crimes Act 1900 (NSW). The sentences assessed for each were discounted by 10% because of the applicant's pleas of guilty. The details are set out in the following table. Count Offence Provision and maximum penalty Indicative sentence 1 Sexual intercourse with child aged under 10 years s 66A 18 months Max: 25 years 2 Sexual intercourse with child aged 10-13 years s 66C(1) 12 months Max: 16 years 3 Sexual intercourse without consent in circumstances of aggravation (person under 16 years) s 61J 16 months Max: 20 years 4 Sexual intercourse without consent in circumstances of aggravation (person under 16 years) s 61J 24 months Max: 20 years 5 Indecent assault upon person aged under 16 years s 61M(2) 6 months Max: 10 years 6 Sexual intercourse without consent in circumstances of aggravation (person under 16 years s 61J 13 months Max: 20 years 7 Sexual intercourse without consent in circumstances of aggravation (person under 16 years) s 61J 30 months Max: 20 years 8 Indecent assault upon person aged under 16 years s 61M(2) 6 months Max: 10 years 1. The applicant asked the judge to take into account a further offence listed on a Form 1 document of indecent assault upon a person aged under 16 years (s 61M(2)). That was initially intended to be taken into account in relation to Count 8 but was amended at the outset of the sentence hearing to Count 1. [2] 2. Leave is sought to appeal against the aggregate sentence upon the following grounds: (1) The sentencing judge erred in finding that Counts 3, 4, 6 and 7 on the indictment were "serious children's indictable offences" within the meaning of section 3 of the Children (Criminal Proceedings) Act 1987. (2) The sentencing judge erred in failing to take into account that, had the applicant been prosecuted earlier in respect of counts 2–8 on the indictment, there was a sentencing regime available under Division 4 of Part 3, Children (Criminal Proceedings) Act. (3) The sentence is manifestly excessive. The offences 1. There was a statement of agreed facts from which the following has been drawn. 2. The applicant was born in April 1996. He was aged 14 to 19 during the period of offending and was 26 at the time of sentencing. 3. The victim was born in January 2003 and was aged 7 to 11 during the period of the offending. 4. It was accepted at the sentence hearing that the applicant should be sentenced on the basis of him being at the lower end of the relevant age range for each offence. [3] This is consistent with what was said in BM v R [2019] NSWCCA 223 at [18]. Accordingly for Count 1 that was the age of 14 and for Counts 2-8 it was the age of 16. Uncharged acts 1. The offending commenced when the victim was aged 4 and the applicant was 11. She recalled that in the summer of 2007 he put his hand inside her underwear and rubbed her vagina. In March the following year, he removed her dress and started kissing her body. No charges were preferred in respect of these incidents because of the applicant's age. Count 1 – s 66A – sexual intercourse with person under the age of 10 years 1. At some time in the two years from January 2011 to January 2013 when the victim was aged 8 or 9 years and the applicant was aged 14, 15 or 16 years, the victim walked down the hallway of the family home past the applicant's bedroom. He called her into the room, removed his pants exposing his penis, grabbed her wrists and pulled her towards him. He told her she was going to "do a favour" for him. She tried to pull away and said she wanted to leave. He said, "You're not leaving until you perform this favour … I want you to suck my cock". She said, "No" and began crying. He said, "You're not leaving until you do". 2. The victim got down to her knees, placed his penis into her mouth and performed fellatio on him. She attempted to move away a number of times but each time he pushed her head back down onto his penis. This continued for about two to three minutes. 3. At some point the victim was able to get away. He called after her, "You haven't finished". She ran outside. 4. The sentencing judge found this offence was "serious but below the midrange". [4] Count 2 – s 66C(1) – sexual intercourse with person aged 10 to 13 years 1. Counts 2 to 8 all occurred in the family home between January 2013 and January 2014 when the victim was aged 10 or 11 and the applicant was aged 16 or 17. 2. The offences in Counts 2 and 3 occurred in sequence. One afternoon the applicant took the victim by the hand and walked her from the kitchen to her bedroom. She lay on the bed assuming she and the applicant were just going to talk. He lay next to her. 3. The applicant started to remove her shorts and she asked what he was doing. He replied, "You know what I want". She did not say anything but looked at him and shook her head. He removed her underwear so that she was naked from the waist down. He then licked her vagina for about two minutes. She was not a willing participant. 4. The judge found this offence was "serious but below the midrange". [5] Count 3 – s 61J(1) – sexual intercourse without consent with person under 16 years 1. As the victim was getting dressed the applicant said, "No, you need to do the same to me because you just enjoyed that". He removed his pants and lay on the bed. She told him "No" and asked, "Will you leave if I do it?" He said, "If you don't do this then I'll do something worse". 2. The victim performed fellatio as she was scared he would assault her if she refused. She tried not to put her mouth completely over his penis but he grabbed the back of her head and forced her head quickly back and forth over his penis. He did this for about five minutes before he ejaculated into her mouth. The victim did not consent to this intercourse. 3. The victim felt sick and was crying. She began to vomit and told him to leave. She then went to the laundry where she got some towels to clean up the vomit in her room. 4. The judge described this offence as "more serious than count 1". [6] Count 4 – s 61J(1) – sexual intercourse without consent with person under 16 years 1. On a subsequent occasion the victim and the applicant were lying on a bed in their nan's bedroom watching television. They often did this after school while lying under the covers. The applicant grabbed her wrist and she froze. He began removing her shorts and underwear and then removed his own shorts. 2. The applicant rubbed his penis along the victim's buttocks for about a minute as he was breathing heavily. She felt his penis coming from behind towards her vagina. She attempted to move away from him but he pulled her back towards him by her waist. He inserted his penis into her vagina, causing her pain. This was her first experience of penile/vaginal intercourse. 3. The applicant kept his hands on her hips and moved his body back and forth for approximately 10 minutes. She remained frozen and was crying silently at first but started to sob loudly as he continued to have sex with her. She could not recall if he ejaculated. 4. The victim did not consent to the intercourse. When the applicant stopped he lay next to her for about 20 minutes before leaving the room. 5. The judge described this as "a serious form of offending with penile-vaginal intercourse" and assessed it as "slightly below the midrange". [7] Count 5 – s 61M(2) – indecent assault upon person under 16 years 1. About a week later the victim was again watching television in her nan's bedroom after school. The applicant came into the room and got under the bed covers beside her. She was lying on her side and he was lying behind her. He grabbed her by the waist and she froze. He removed her shorts and underwear and his own shorts. He rubbed his penis between her legs near her vagina back and forwards for about 10 minutes. He forcibly turned her head so that she was looking at him. He then kissed her on the mouth, at some point inserting his tongue, as he continued rubbing his penis between her legs. The victim pulled away and fell off the bed. She then left the room. 2. The judge said this offence was "below the midrange". [8] Count 6 – s 61J(1) – sexual intercourse without consent with person under 16 years 1. About two weeks later as the victim was walking past the applicant's bedroom he called to her, "Come here". She replied, "I'm fine" but he called out again in a stern manner, "Come here now". This scared her so she entered his bedroom. Within about 20 seconds he removed his erect penis from his shorts and began to masturbate in front of her. He grabbed her wrist with his other hand and pushed her to the ground, grabbed her head and forced his penis into her mouth. He pushed her head backwards and forwards on his penis for about five minutes before ejaculating into her mouth. He then left the room. 2. The victim did not consent to this intercourse. She went to the toilet and spat out the ejaculate before vomiting. 3. The judge said this was "a serious form of offending but below the midrange". [9] Count 7 – s 61J(1) – sexual intercourse without consent with person under 16 years 1. On a day shortly after Count 6 the victim was again watching television in her nan's bedroom and the applicant came and lay behind her on the bed. After about an hour he started to pull her pants down. She tried to pull them back up but he forced them down. He then rubbed his penis against her buttocks before inserting his penis into her anus. He proceeded to have anal intercourse with her for more than 20 minutes. (She was watching a clock on the bedside table.) 2. The victim did not consent to this. Once the offender stopped the victim left, went to her bedroom, lay on the bed, and cried. She did not eat dinner that night and did not go to school the next day. 3. The judge described this as "the most serious form of offending". It was "an escalation". It was "midrange". [10] Count 8 – s 61M(2) – indecent assault upon person under 16 years 1. About a month later the victim was watching television in her nan's bedroom on a weekend morning. The applicant came in and climbed into bed, lying behind her. He put his hands up her skirt and started to pull her underwear down. She immediately pulled them back up. She said, "Stop I don't want to do this today, just stop". He said, "Please". 2. The applicant again put his hands under her skirt and removed her underwear. She pulled them back up but he pulled them down again. He put a hand on top of her vagina and she froze. He then forced his hand between her legs and used the knuckle area to rub the top of her vagina for about a minute. He stopped when their mother walked into the room. (The agreed facts do not say whether the mother saw anything untoward.) 3. The judge said this was "a serious form of indecent assault, but below the midrange". [11] Form 1 in relation to Count 1 – s 61M(2) – indecent assault upon person under 16 years 1. The additional offence the judge was asked to take into account occurred in about December 2015. At that time, the applicant was aged 19 and the victim was aged 12. The victim was in the lounge room with the applicant watching television. He commented to her that she would soon need to start shaving her legs and he said he could teach her how to do this. They went to the bathroom where she sat on a stool. He put lotion on her legs and started to shave them. He then stopped and ran his hand underneath her shorts and underwear and ran his palm along her buttocks. It had been some time since the applicant had done anything of a sexual nature and the victim froze. He walked away and she got into the shower. Complaint and investigation 1. The victim first disclosed the offending to a family friend in May 2016. She told the friend she was struggling to cope, stating that the abuse was playing over and over in her mind every day. 2. In October 2019 she disclosed the offending to a school counsellor and the matter was referred to police. A telephone interception warrant was obtained in respect of the applicant's phone. He made limited admissions to the victim. He was warned by his mother and stepfather that she may be recording his calls and trying to "set him up". 3. The applicant was arrested on 1 September 2020. When interviewed, he either denied the allegations or claimed that he had no memory of performing any sexual acts upon his sister. Victim impact statement 1. A detailed victim impact statement was tendered and read to the court. It described many enduring ways in which she has been traumatised by the applicant's offending and the multiple negative impacts it had on her life. It is an eloquent and poignant description of the substantial harm that offending of this type can cause. The applicant 1. Information about the applicant was available in report by a psychologist, Mr Peter Watt. 2. The applicant lived with his family in a rural area. He identified as Aboriginal. His parents separated when he was around 17 years of age when his mother left the family home followed by his younger sisters. He remained at home with his father. 3. An 18-year-old babysitter sexually abused the applicant when he was about 4 years of age. 4. He was slow in developing, physically and academically. He was sent to a speech therapist in Years 3 and 4. He was subjected to bullying and name-calling throughout his schooling. He completed his Higher School Certificate and then obtained employment. At the time of sentencing he was living with his fiancée and was working full-time in a supermarket. 5. His father was an alcoholic and a drug addict. Any savings the applicant had during his childhood would be taken by his father to pay for his habits. This caused of a lot of resentment towards his father but despite this, when he died in 2021 at the age of 47, the applicant felt a sense of loss. 6. The applicant commenced using cannabis at the age of 13, methamphetamine at the age of 17, and he used other drugs as well. He made an attempt on his life by taking an overdose of pills when he was about 21. 7. Mr Watt thought the applicant demonstrated remorse for his actions against his sister although he had little insight into the psychological effect of the abuse upon her. 8. The description of the family home indicated there was little supervision of the children or parental guidance regarding growing up and puberty. 9. During the period of the offending the applicant met the diagnostic criteria for Acute Stress Disorder; Unspecified Disruptive, Impulse-Control and Conduct Disorder; Unspecified Communication Disorder; Substance-Induced Anxiety Disorder; and Cannabis Use Disorder. He was sent to a counsellor when he was aged around 17. As the offending appeared to stop at around the age of 16 to 18, Mr Watt did not consider that the applicant met the criteria for paedophilic or any other paraphilic disorder. 10. At the time of assessment the applicant met the diagnostic criteria for Persistent Depressive Disorder (Dysthymia); Cannabis Use Disorder; and Unspecified Mild Neurocognitive Disorder. 11. Static and dynamic risk assessment tools indicated a below average risk of re-offending. 12. In summary, Mr Watt described the applicant thus: [He] is a 26-year-old man, who has a mental health condition, namely dysthymia, and he has been found to have a cognitive impairment in processing speed and coding skills. He likely has an underlying complex post-traumatic stress disorder and experienced acute stress events during his childhood during the period of offending. He experienced a difficult and emotionally volatile childhood with little supervision or guidance from his parents. He engaged in poly-substance abuse from a young age until he was around 23 years old. He has been in a stable relationship and engaged since that time, as well as stable employment for the past 12 months. 1. The applicant had no prior or subsequent criminal history. 2. The sentencing judge referred to and implicitly accepted a concession by the Crown that "the Bugmy principles have been enlivened and that the moral culpability of the offender has been reduced". [12] 3. His Honour accepted that the applicant was genuinely remorseful and had good prospects of rehabilitation. He referred to the principles concerning sentencing for offences committed by a child which he said he took into account. He accepted the applicant's "youth and immaturity mitigated his moral culpability and the extent to which he should be punished". He accepted that rehabilitation was a significant consideration. [13] 4. The judge also expressly took into account the various hardships experienced by prison inmates as a result of COVID-19 restrictions. [14] 5. Special circumstances were found to reduce the length of the non-parole period: the applicant's age at the time of the offending; his current age; it being his first time in custody; and his need for treatment upon release for reintegration into society. [15] Ground 1 – error in finding Counts 3, 4, 6 and 7 were "serious children's indictable offences" 1. A "serious children's indictable offence" is defined in s 3 of the Children (Criminal Proceedings) Act 1987 as follows: serious children's indictable offence means— (a) homicide, (b) an offence punishable by imprisonment for life or for 25 years, (c) an offence arising under section 61J (otherwise than in circumstances referred to in subsection (2) (d) of that section) or 61K of the Crimes Act 1900 (or under section 61B of that Act before the commencement of Schedule 1 (2) to the Crimes (Amendment) Act 1989), (c1) an offence under the Firearms Act 1996 relating to the manufacture or sale of firearms that is punishable by imprisonment for 20 years, (d) the offence of attempting to commit an offence arising under section 61J (otherwise than in circumstances referred to in subsection (2) (d) of that section) or 61K of the Crimes Act 1900 (or under section 61B of that Act before the commencement of Schedule 1 (2) to the Crimes (Amendment) Act 1989), or (e) an indictable offence prescribed by the regulations as a serious children's indictable offence for the purposes of this Act. 1. Count 1 concerned an offence against s 66A for which there was at the relevant time a maximum penalty of imprisonment for 25 years. There is no doubt it was a "serious children's indictable offence". 2. Counts 3, 4, 6 and 7 concerned offences against s 61J(1) for which the maximum penalty is imprisonment for 20 years. The circumstance of aggravation in sub-s (2) relied upon was (d) "the alleged victim is under the age of 16 years". Accordingly, these were not a "serious children's indictable offence". 3. It follows that, except in respect of Count 1, the sentencing judge erred in stating: [16] He was under 18 at the time of the offending. He was a young person. He is now 26 years of age. Counts 1, 3, 4, 6 and 7 are serious children's indictable offences and are to be dealt with according to law. 1. The judge was led into this error. While the Crown's written submissions in the District Court asserted only that Count 1 was a "serious children's indictable offence", the representative of the Crown told the judge in oral submissions that Counts 1, 3, 4, 6 and 7 were of that quality. [17] 2. That an offence is a "serious children's indictable offence" can be relevant under the Children (Criminal Proceedings) Act in a number of ways. Part 2, Division 4 (comprising sections 16 to 21) is concerned with how indictable offences are to be dealt with. For present purposes, its relevant provisions are: 16 Application This Division applies to a person— (a) who has pleaded guilty to an indictable offence in, or has been found guilty or convicted of an indictable offence by, a court other than the Children's Court, (b) who was a child when the offence was committed, and (c) who was under the age of 21 years when charged before the court with the offence. 17 Serious children's indictable offences A person to whom this Division applies shall, in relation to a serious children's indictable offence, be dealt with according to law. 18 Other indictable offences (1) A person to whom this Division applies shall, in relation to an indictable offence other than a serious children's indictable offence, be dealt with— (a) according to law, or (b) in accordance with Division 4 of Part 3. (1A) In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters— (a) the seriousness of the indictable offence concerned, (b) the nature of the indictable offence concerned, (c) the age and maturity of the person at the time of the offence and at the time of sentencing, (d) the seriousness, nature and number of any prior offences committed by the person, (e) such other matters as the court considers relevant. 1. If it had been the case that Pt 2, Div 4 applied, the fact that the indictable offences in Counts 3, 4, 6 and 7 were not "serious children's indictable offences" would mean that a court would have to decide pursuant to s 18(1) whether to deal with them according to law or in accordance with Pt 3, Div 4. 2. Part 3, Division 4 makes provisions for the penalties that may be imposed under the Children (Criminal Proceedings) Act as opposed to those which may be imposed when a matter is dealt with "according to law". They are more benign. The starkest illustration of this is that the longest full-time custodial option for a single offence is to make a control order under s 33(1)(g) for up to 2 years whereas if dealt with "according to law" the person may be sentenced to imprisonment up to the maximum period prescribed by the offence-making provision. As has been noted, for Counts 3, 4, 6 and 7 against s 61J(1) of the Crimes Act, the maximum penalty is imprisonment for 20 years. Further, where there are multiple control orders to which a person is sentenced, the maximum continuous period is limited to 3 years whereas if dealt with according to law there is no constraint upon the extent by which sentences can be accumulated (aside from the principle of totality). 3. Part 2, Div 4 did not, of course, apply because not all of the prerequisites in s 16 were satisfied. The applicant was not "under the age of 21 years when charged before the court with the offence"; he was charged on 1 September 2020 when he was aged 24. Counts 3, 4, 6 and 7, as well as the other counts (2, 5 and 8), all had to be dealt with according to law regardless of them not being "serious children's indictable offences". 4. What follows from the fact the judge erred? 5. Basten JA in Newman v R [2019] NSWCCA 157 at [12] referred to the famous passage in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]: When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh …. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion. (Citation of authority omitted) Basten JA explained: The first limb of the passage states that this Court does not assess, as a matter of fact, whether the error has influenced the outcome; what it does assess is the capacity of the error to have such an effect. An extraneous factor which does not "guide or affect the determination" involves no miscarriage. 1. This was the approach each member of the Court adopted in GP v R [2021] NSWCCA 180 at [1] (Brereton JA), [7] (N Adams J) and [58]-[59] (Cavanagh J). 2. In the present case the judge gave a reason for having to deal with Counts 3, 4, 6 and 7 according to law that was incorrect but he was required to deal with them according to law nonetheless. As the Crown submitted (correctly), the judge had no power to sentence the applicant as a child, rather than at law; and no different form of sentence could have been imposed. [18] The sentencing discretion was not vitiated or affected by the erroneous statement that these counts concerned a "serious children's indictable offence". 3. At the outset of submissions at the hearing, counsel for the applicant was asked about the merit of this ground on its own. He conceded that if he were successful only on Ground 1 it would lead nowhere. [19] 4. Ground 1 must be rejected but the substance of it remains relevant to the consideration of Ground 2. Ground 2 – error in failing to take into account that had the applicant been prosecuted earlier in respect of Counts 2-8 there was a sentencing regime available under Pt 3, Div 4 of the Children (Criminal Proceedings) Act 1. The lost chance of being dealt with under the Pt 3, Div 4 regime was briefly raised at the sentence hearing. Counsel for the applicant made submissions which included an acceptance that the offences were serious: "The offending conduct on children, even by teenagers, is very serious and the defence accepts that proposition". It was conceded that, "the threshold has been passed". [20] 2. The reference to "the threshold" was clearly to the provision in s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that "a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate". 3. At the conclusion of the submissions, the judge asked if counsel wished to say anything "about the loss of opportunity in regard to these matters not being able to be dealt with in the Children's Court". Counsel responded: Well, yes. Sorry, I shouldn't have skipped over that. That is raised. If these were detected at an early age and if adults in the family environment had acted responsibly, they would have … certainly they would've been dealt with in the Children's Court, your Honour. And indeed, there's some significant suggestion that if adults who were in loco parentis to both the victim and the accused acted promptly, that many of the offences would've been headed off before they … (not transcribable). So, that is something that the Court should take into account, not only – and I should have emphasised this, I do apologise, your Honour, … because if this had happened, or the legal mechanisms had been engaged as they should have been, he would've been dealt with in the Children's Court. Thank you, your Honour. 1. Submissions were then made by the Crown Prosecutor including the erroneous statement that "Counts 1, 3, 4, 6 and 7 are all serious children's indictable offences". A detention application was made which was not opposed. In giving brief reasons for granting the application the judge referred to the defence concession that the s 5 threshold had been crossed as "an appropriate and sensible concession". [21] 2. Counsel for the applicant subsequently returned to the s 18 issue: [22] [COUNSEL]: … I apologise, by your Honour's indication, about whether he could be sentenced in the Children's Court. I'd come to that view months ago that it couldn't have been dealt with in the Children's Court. I'd forgotten about that. Sorry, your Honour. HIS HONOUR: No, I understand that now, because we've gone through the fact that some of them are serious children's indictable offences. [COUNSEL]: I shouldn't have gone down that rabbit hole, your Honour, sorry. HIS HONOUR: No, it's all right. 1. In his remarks on sentence the judge said nothing about a determination under s 18 or a lost chance of being dealt with under Pt 3, Div 4. Submissions 1. In this Court, the applicant accepted that it was not possible for the sentencing judge to decide under s 18 to deal with Counts 2-8 in accordance with Pt 3, Div 4 because he was not under the age of 21 years when charged. [23] However, it was open to the judge to consider that if the applicant had been charged at such an earlier time he might have been dealt with for those matters under a different and more lenient sentencing regime. However, the sentencing judge erroneously excluded Counts 3, 4, 6 and 7 from the possibility of such consideration and simply failed to mention it in respect of Counts 2, 5 and 8. It was submitted that "the lost opportunity to be dealt with under [Pt 3, Div 4] should be a substantially ameliorating factor". [24] 2. Reference was made by both parties to cases in this Court in which not being afforded the opportunity of being dealt with under a more lenient sentencing regime in the Children (Criminal Proceedings) Act has been held to be a potentially relevant factor: SHR v R [2014] NSWCCA 94; TC v R [2016] NSWCCA 3; R v AA [2017] NSWCCA 84; Hornhardt v R [2017] NSWCCA 186; Young v R [2022] NSWCCA 111; (2022) 298 A Crim R 468. [25] 3. Despite the seriousness of the offences, the applicant maintained that dealing with Counts 2-8 under Pt 3, Div 4 was "not merely theoretical" because sentencing statistics from the Judicial Commission of NSW demonstrated that the Children's Court has sentenced offenders for multiple s 61J(1) offences. However, this submission fell away when it was conceded at the hearing that the statistics did not support the proposition. [26] 4. While the Crown accepted that the lost opportunity for sentencing under Pt 3, Div 4 was potentially ameliorative, reference was made to cases concerning the determination under s 18 as to whether an indictable offence should be dealt with under one regime or the other: PD v R [2012] NSWCCA 242; BT v R [2012] NSWCCA 276. 5. PD v R was a sentence appeal by an offender who was aged 16 years at the time of committing four offences within a period of about an hour one morning in 2010. He was arrested then and was sentenced the following year when he was aged 17 years. Count 1 was an offence of being carried in a conveyance which had been taken without the owner's consent; Count 2 was a specially aggravated break, enter and steal; Count 3 was a break, enter and steal; and Count 4 was recklessly wounding a police officer acting in the execution of his duty. The offences were not related to one another but were committed within a course of conduct over a brief period of time. (Beech-Jones J described it as a "criminal rampage" (at [60]). 6. Count 2 was a "serious children's indictable offence". Submissions were made on the offender's behalf that Counts 1, 3 and 4 should be dealt with under the regime in Pt 3, Div 4 of the Children (Criminal Proceedings) Act but, despite the offender's lack of criminal history, the sentencing judge determined to deal with the three offences according to law because of their objective seriousness. He assessed indicative sentences of 6 months, 6 years, 2 years and 3 months, and 2 years respectively and imposed an aggregate sentence of imprisonment for 6 years. 7. Grounds of appeal included that the sentencing judge erred in dealing with Counts 3 and 4 according to law. At [50], Beech-Jones J summarised the offender's complaint as being that because the indicative sentences for those counts exceeded the 2-year maximum that could be imposed as a control order, he lost the advantage of more lenient treatment on those counts because of the judge's refusal to deal with him in accordance with Pt 3, Div 4. He contended that the judge's decision was unreasonable or plainly unjust. He also contended that the decision referred to in s 18 of the Children (Criminal Proceedings) Act is restricted to a consideration of the offence in question and could not include consideration of other offences that were part of the same course of conduct: Beech-Jones J at [52]-[53]. 8. These contentions were each rejected. It was open to the judge to consider that each of the offences were serious. As to consideration of the entire criminal conduct when addressing the exercise of discretion conferred by s 18(1) in relation to a particular offence, Beech-Jones J said (at [62]): In my view it is clearly open to a sentencing judge to consider the entirety of the criminal conduct of the juvenile offender when addressing the exercise of the discretion conferred by s 18(1) in relation to a particular offence or offences. This is particularly the case when one of the offences is a "serious children's indictable offence" which must be dealt with according to law. In such a case, to deal with the other offences under Div 4 of Pt 3 of the CCP Act would involve the simultaneous application of two different sentencing regimes to an offender. This is not impermissible, but a sentencing judge should not be restricted to considering individual offences divorced from their context in determining the approach they will adopt. 1. In BT v R the offender was under the age of 18 when he was involved with co-offenders in the commission of four armed robberies and he was under the age of 21 at the time of sentencing. The offences were not "serious children's indictable offences" but the sentencing judge did not expressly state a determination to deal with the matters according to law as opposed to under the Pt 3, Div 4 regime. 2. Basten JA (Adams J and I agreeing) rejected a contention that there was a failure to consider the issue raised by s 18. He said: [21] The fact that the applicant was sentenced according to law demonstrates that a choice was made. It might be possible to infer in some circumstances that a judge had been unaware of, or had not adverted to, the need to make a choice, or had thought that such a choice was simply unavailable: such a conclusion might involve a true failure to exercise an available power in circumstances where there was an obligation to make the choice. However, where the operation of the Children (Criminal Proceedings) Act was very much in the Court's mind, and in circumstances where it was common ground that it applied to the particular offender, the more plausible explanation (which should be accepted) was that the sentencing judge failed to advert to s 18 because he did not think there was, in any practical sense, an issue to be resolved. In the course of submissions, counsel for the applicant conceded that, had the judge turned his mind to s 18, it was almost inevitable that he would have sentenced according to law. Counsel also conceded that the judge was not asked to consider the operation of s 18, nor was his attention directed to the factors identified for consideration: CCA Tcpt, p 5(35)-(43). On the previous occasion on which a sentence had been imposed, the applicant had been sentenced for a serious children's indictable offence, in respect of which no choice was available. [22] While it may be accepted that the sentencing judge did not in terms refer to s 18 or its considerations, he did identify armed robbery as a "serious criminal offence", noted the maximum penalty of 20 years imprisonment, further described it as not solely concerned with property but involving "a crime of violence" and noted that it tended to create "an atmosphere of fear and a perception of lawlessness in the community at large". He concluded (p 1): "Full time custody for offences of this type is almost inevitable, even if there is only one offence." [23] That statement included an express rejection of the availability of any lesser form of sentence, which would have included forms of sentence available under Pt 3, Div 4. The nature of the indictable offence concerned was a mandatory consideration under s 18(1A)(b); in the absence of any submission that other factors militated in favour of a different view, it cannot be said that the sentencing process miscarried. Ground 1 must be rejected. 1. The Crown submitted that it was similarly the case here in that it was inevitable, even if the sentencing occurred when the applicant was under the age of 21, that a full-time custodial sentence would be imposed. [27] 2. The Crown supported this argument by reference to four factors: [28] 1. The Count 1 sentence (which had to be imposed according to law) was inevitably going to result in a sentence of full-time custody. 2. The applicant's contention concerning a lost chance to be dealt with as a child is founded on a premise that an earlier court would hold that Counts 2-8 should be dealt with under the Pt 3, Div 4 regime; a premise which should be rejected. That possibility was foreclosed by a consideration of a series of factors: (a) The overall context of the offending had to be considered (per PD v R at [62]). It compelled sentencing as an adult. (b) One of the offences (Count 1) necessarily had to be dealt with according to law. (c) The offences were common in type and victim. (d) The delay was unremarkable given the notorious reluctance of victims to come forward: Hornhardt v R [2017] NSWCCA 186 at [55]. (e) Imposing separate penalties under separate regimes, while jurisdictionally open (PD v R at [62]) is generally impractical. There were no factual matters suggesting that Counts 2-8 deserved different treatment to Count 1. (f) The offending occurred over many years and involved repeated acts. (g) The offences in Counts 2-7 represented an escalation of the offending from Count 1. (h) The "serious children's indictable offence" in Count 1 was committed at a younger age. The offences in Counts 2-8 were committed at a point where the applicant's moral culpability was greater because he was older. 3. The multiplicity of offences overall meant that the only condign punishment on any sentence date was a sentence of full-time custody. 4. Full-time custody was conceded by the applicant in the Court below. 1. In oral submissions the Crown contended that there might be circumstances in which it could be appropriate to sentence for some offences under Pt 3, Div 4 whilst dealing with others according to law. It suggested this might occur, for example, where later offences when the offender was older were serious children's indictable offences while earlier offences were of lesser seriousness. However it was the opposite in the present case in which the first offence was a serious children's indictable offence which had to be dealt with according to law and the later offences included some which were of escalating gravity which militated in favour of all being dealt with according to law. [29] 2. The Crown submitted that "the abstract consideration of the exercise of alternative jurisdiction for some part of the sentence cannot amount to an error warranting appellate intervention". [30] Determination 1. There was no requirement for the sentencing judge to make any determination under s 18 as to whether he should deal with the offences according to law or in accordance with Pt 3, Div 4. As indicated earlier, because the applicant was not under the age of 21 years when charged, s 18 and the other provisions of Pt 2, Div 4 did not apply. 2. The issue raised by the applicant is whether the judge failed to take into account "the ameliorative effect" of the lost opportunity for the applicant to be dealt with under Pt 3, Div 4. He contends the judge failed to take this into account, or to engage with a consideration of the principle and give reasons for not applying it. [31] 3. There was ample authority referred to by the parties as to it being open to a sentencing court to take into account that an offender has lost an opportunity to be dealt with under Pt 3, Div 4. For example, in Young v R the applicant was sentenced in 2021 in respect of three sexual offences against his niece committed in about 2003-4. Each offence had a maximum penalty of imprisonment for 8 years. [32] The sentencing judge said that because none of the offences was a serious children's indictable offence it was possible that if they had come to light at the time they occurred it was probable they would have been dealt with in the Children's Court. The Crown accepted that the lost opportunity for this to occur was an ameliorating factor on sentence. [33] N Adams J set out several ways in which an offender could be disadvantaged as a result of the lost opportunity. An issue in the present case is whether the applicant did in fact lose the opportunity. 4. The judge was specifically told that the applicant disavowed any reliance upon this as a matter in mitigation. No authority was cited for a proposition that a judge is required to discuss and give reasons for declining to provide mitigation for a factor that the judge is expressly told is not relied upon. 5. It was submitted that the concession by counsel who appeared for the applicant was "made plainly erroneously". [34] It can sometimes occur that a judge fails to deal with an issue because it has been overlooked or an incorrect approach is taken by counsel. Pertinent to this is the following in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [82] (Johnson J): [C]riminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance. 1. The flexibility of a Court of Criminal Appeal to act to avoid a miscarriage of justice was recognised by the High Court, albeit in the context of an issue of receiving "new" evidence, in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2] and [10]. 2. There could be a "miscarriage of justice, or a serious injustice" if some matter of substance that could have had a bearing upon sentence was not considered. However, the supposed ameliorative effect of the lost opportunity for the applicant to be dealt with under Pt 3, Div 4 is theoretical or hypothetical at most. Even if the offences had been the subject of a prosecution initiated when the applicant was under the age of 21 and the question whether to deal with Counts 2-8 according to law or in accordance with Pt 3, Div 4 was enlivened, there is no practical possibility that a bifurcated approach would have been adopted. 3. Each of the offences in Counts 2-8 were serious examples of their type. Four of them involved maximum penalties of 20 years' imprisonment, one a maximum penalty of 16 years' imprisonment and two a maximum penalty of 10 years' imprisonment. 4. The acts of intercourse comprised oral, vaginal, and anal penetration. Each offence was aggravated by being committed in the victim's home. Some were further aggravated by the use of oral compulsion and physical force and/or by the extended time during which they occurred. There was ejaculation into the victim's mouth, she vomited and she sobbed loudly. 5. The fact that Counts 2-8 did not involve "serious children's indictable offences" was of no practical significance in the circumstances of this case. There was no possibility of dealing with any of the offences other than according to law. 6. There was no error in the judge failing to consider whether the applicant had lost an opportunity to be dealt with under a more lenient sentencing regime as a result of the prosecution not commencing while he was under the age of 21. Counsel for the applicant adopted a sensible, practical, and realistic approach in conceding that this was not a mitigating factor. There was no miscarriage of justice. 7. Ground 2 should be rejected. Ground 3 – manifestly excessive sentence 1. The applicant contended that the aggregate sentence was manifestly excessive in the sense that it was unreasonable or plainly unjust for eight reasons. 1. Counts 2-8 were not serious children's indictable offences. 2. The possibility of lost opportunity to have been sentenced under Pt 3, Div 4 of the Children (Criminal Proceedings) Act was an ameliorating factor. 3. The sentencing judge considered that a discount of 10% was appropriate. 4. While the sentencing judge adverted to the principles of sentencing young offenders, his Honour did not engage with the impact of those principles on general or specific deterrence. 5. The offender's deprived background which the judge determined enlivened the application of Bugmy principles reduced his moral culpability and the need for general and specific deterrence. 6. The applicant had no criminal record. There had been no repetition of the offending conduct. He was found to have good prospects of rehabilitation, he was in employment, and in a relationship. Between the offences and sentencing there had been substantial rehabilitation including the apparent cessation of poly-substance abuse at age 23 [sic]. (The psychological report indicates the applicant engaged in such abuse from age 17 to 24 and that he had continued daily cannabis use.) [35] 7. The psychologist listed a number of conditions which the applicant was suffering at the time of the offending. This moderated his moral culpability. 8. Sentences imposed in "comparable cases" involved substantially lighter sentences. 1. The principles concerning the determination of a ground of appeal contending that a sentence is manifestly excessive are well known. They were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]: * Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. * Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. * It is not to the point that this Court might have exercised the sentencing discretion differently. * There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. * It is for the applicant to establish that the sentence was unreasonable or plainly unjust. 1. Dealing with the applicant's reasons in turn, the fact that Counts 2-8 were not "serious children's indictable offences" must be accepted. However, as discussed in relation to Ground 2, there was no lost opportunity of being sentenced under Pt 3, Div 4 and therefore no ameliorating factor. 2. The fact that a 10% discount was allowed for the applicant's late pleas of guilty simply means that his delayed acceptance of criminal responsibility for his actions denied him the opportunity of further leniency that would have been the response to early pleas of guilty. 3. The contention that the judge did not engage with the impact of the principles of sentencing young offenders upon general or specific deterrence was not the subject of a substantive ground of appeal asserting any patent error in this respect. The judge adverted to the principles enunciated in four cases which he cited, R v GDP (1991) 53 A Crim R 112 [36] ; KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 and BP v R [2010] NSWCCA 51; and Millwood v R [2012] NSWCCA 2. He summarised some of the significant ones without purporting to engage in an exhaustive jurisprudential essay on them. He said enough to indicate that he was well aware of the relevant principles and applied them to the task at hand. 4. That aspect, as well as the other subjective matters referred to in the applicant's submissions in support of this ground were all taken into account. A comparison of the indicative sentences for each offence, ranging from 6 months to 30 months, against the far more substantial maximum penalties applicable to them, tends to confirm that appropriate leniency was extended as a result. 5. The comparable cases relied upon by the applicant do not assist him. Counsel conceded in oral submissions that they "are not on all fours patently with this case". It was submitted that they demonstrated how cases involving a multiplicity of offending were dealt with, some when the offender was young and could be dealt with prior to turning 21. [37] 6. In each of the five cases there were matters of significance that differentiated them to the point of them not being comparable at all. They each involved offenders who received 25% discounts for their early pleas of guilty. In four of them the offences occurred, or began, when the offender was aged 13. In one of the cases, BM v R at [18], the Court (Payne JA, Fullerton and Bellew JJ) observed in relation to the assessment of the objective seriousness of such offences that "there will usually be a considerable difference between a young male offender aged 13 and a young male offender aged 15". I respectfully agree. 7. In a case that was said to be "of particular note", R v JDB [2005] NSWCCA 102; (2005) 153 A Crim R 164, the offender was aged 13. He engaged in serious abuse of his 8-year-old step-sister involving anal and vaginal penetration but this was on only three occasions. It is also of note that the case was almost 20 years ago. 8. Another case, R v RM [2015] NSWCCA 4, involved a Crown appeal against non-full-time custodial sentences for offences which were not of the severity of those in the present case. The majority would have upheld the appeal but exercised the residual discretion to decline to do so for assorted reasons. Even with a discount of 25% for early pleas of guilty, they indicated (at [159]) that "an overall sentence involving imprisonment for something in the order of three years" would have been appropriate. 9. Having regard to the gravity of the offences, and even giving full weight to the variety of subjective factors necessarily to be taken into account, I am not persuaded that the aggregate sentence is unreasonable or plainly unjust. 10. Ground 3 should be rejected. Orders 1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. ********** Endnotes 1. s 15A of the Child (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW). 2. Proceedings on sentence (POS) 1.39 3. Crown written submissions in the District Court at [3]; defence submissions at POS 4.23; Remarks on sentence (ROS) 2. 4. ROS 5 5. ROS 6 6. ROS 7 7. ROS 8 8. ROS 9 9. ROS 9-10 10. ROS 10 11. ROS 11 12. ROS 14 13. ROS 14-15 14. ROS 15-16 15. ROS 15 16. ROS 2 17. POS 5.30 18. Crown written submissions (CWS) [38]. 19. CCA 1.2.24, T3.23. 20. POS 4.20, 4.49. 21. Judgment on bail detention application, 15.8.22, p1. 22. POS 7.13. 23. CCA 1.2.24, T6.40. 24. Applicant's written submissions (AWS) [22]-[25]. 25. AWS [26]-[27]. 26. CCA 1.2.24, T8.41. 27. CWS [62]; CCA 1.2.24, T15.43. 28. CWS [63]-[66]. 29. CCA 1.2.24, T16.9. 30. CWS [67]. 31. Applicant's written submissions in reply (AWSR) [6]. 32. Young v R at [4]. 33. Young v R at [36]-[37]. 34. CCA 1.2.24, T11.10. 35. Report of Mr Watt, [10.1], [10.4] 36. His Honour provided the medium neutral citation for KT v R in respect of this case but there appears no doubt he correctly understood the principles for which R v GDP stood. 37. CCA 1.2.24, T8.43; similarly at T14.46-15.5. 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: 19 February 2024