Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Carey [2024] NSWCCA 90 Hearing dates: 17 May 2024 Date of orders: 7 June 2024 Decision date: 07 June 2024 Before: Harrison CJ at CL at [1]; Hamill J at [7]; N Adams J at [85] Decision: (1) Allow the appeal. (2) Quash the sentence imposed by Williams DCJ on 15 December 2023. (3) In lieu thereof sentence the respondent to an aggregate sentence of 5 years and 9 months to commence on 25 March 2022 and expire on 24 December 2027. The non-parole period of 3 years and 6 months is to commence on 25 March 2022 and expire on 24 September 2025. Catchwords: CRIMINAL LAW – sentencing – prosecution appeal – child sexual offences – whether aggregate sentence was manifestly inadequate – objective gravity of the crime – whether Court should exercise residual discretion not to intervene Legislation Cited: Crimes Act 1900 (NSW), ss 61M(1), 66C(2) Crimes (Appeal and Review) Act 2001 (NSW), s 68A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 21B, 21B(1), 25AA, 25AA(3), 44(2), 53A(2)(b), 54A, 54D Criminal Appeal Act 1912 (NSW), s 5D(1) Cases Cited: Baker v R [2022] NSWCCA 195; (2022) 302 A Crim R 60 Carr v R [2020] NSWCCA 214 CMB v Attorney General of New South Wales (2015) 256 CLR 346; [2015] HCA 9 Dawkins v R [2018] NSWCCA 278 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 FB v R; R v FB [2011] NSWCCA 217 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 MC v R [2017] NSWCCA 316; (2017) 271 A Crim R 83 O'Brien v R [2013] NSWCCA 197 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v AA [2006] NSWCCA 55 R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556 R v Hookey [2018] NSWCCA 147 R v Hovell [2021] NSWDC 326 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Khoury [2018] NSWCCA 223 R v Kijurina [2017] NSWCCA 117 R v Malloy [2018] NSWDC 477 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 R v Primmer [2020] NSWCCA 50 R v Toma [2018] NSWCCA 45 R v Tuhakaraina [2016] NSWCCA 81 SB v R [2022] NSWCCA 164 The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 Category: Principal judgment Parties: Rex (Appellant) Mark Anthony Carey (Respondent) Representation: Counsel: A Bonnor (Appellant) N Funnell and M Hunter (Respondent) Solicitors: Director of Public Prosecutions (Appellant) Legal Aid NSW (Respondent) File Number(s): 2021/00144222 Publication restriction: Statutory prohibition over the names of the victim or anything tending to identify her, pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW). Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: N/A Date of Decision: 15 December 2023 Before: M L Williams SC DCJ File Number(s): 2021/00144222 HEADNOTE [This headnote is not to be read as part of the judgment] On 15 December 2023 the respondent was sentenced in the District Court having been found guilty by a jury of four counts of sexual intercourse with a child between 10 and 16 under authority, and two counts of aggravated indecent assault on the same child. The offences occurred between June 1997 and June 1998 and were committed against a child between the ages of 12 and 13. The victim and her mother had become close friends with the respondent who ran a local business they frequented. He became a kind of father figure to the child, who had not met her biological father. The objective criminality of the offences was grave, involving a significant abuse of trust and manipulation, with two offences occurring in the victim's home while her mother was present. Mr Carey was sentenced to an aggregate sentence of 4 years and 4 months imprisonment, with a non-parole period of 2 years and 6 months. The Director of Public Prosecutions appealed against the aggregate sentence on the ground that the aggregate sentence was manifestly inadequate. The issues before the Court were: (1) Whether the sentence was manifestly inadequate; and (2) If so, whether the Court's "residual" discretion not to intervene should be applied. As to (1) Hamill J (Harrison CJ at CL and N Adams J agreeing) held that the indicative sentences were very lenient and the indicative sentence nominated for the fifth count was manifestly inadequate. When combined with the modest degree of notional accumulation for what were, in most instances, separate and distinct offences, the aggregate sentence and non-parole period were manifestly inadequate and did not reflect the objective gravity of the crime: [54]-[55], [60], [62]. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 applied. FB v R; R v FB [2011] NSWCCA 217, O'Brien v R [2013] NSWCCA 197, R v Malloy [2018] NSWDC 477, Dawkins v R [2018] NSWCCA 278, Carr v R [2020] NSWCCA 214 and R v Hovell [2021] NSWDC 326 considered. As to (2), per N Adams J at [89]-[91] (Harrison CJ at CL agreeing, Hamill J dissenting): The Director had discharged its onus and the Court should re-sentence the respondent. The imminence of the respondent's release date was just one factor and there was a need for guidance to sentencing judges to achieve a higher level of consistency in sentencing for such offences. A number of factors of the offending also led to the conclusion that the Court's intervention was required including the age and vulnerability of the child, the respondent's knowledge of the child's vulnerability, letters the respondent sent to the child including declarations of love, the lack of insight demonstrated by the respondent, and the impact of the offending on the child who was left physically, psychologically and emotionally scarred by the respondent's behaviour. Despite the positive findings made by the sentencing Judge, and the imminence of his release date, the Director had satisfied the Court that the sentence must be increased. While an offender is not to be punished for pleading not guilty, the respondent's conduct demonstrated a lack of insight and remorse. Baker v R [2022] NSWCCA 195; (2022) 302 A Crim R 60 and Baker v R [2022] NSWCCA 195; (2022) 302 A Crim R 60 applied. Per Harrison CJ at CL at [5]: The Court's recognition of the inadequacy of Mr Carey's sentence would carry no weight and would be deprived of meaningful effect in terms of punishment, retribution and deterrence if the residual discretion were exercised: at [5]. Hamill J (dissenting) at [64]-[82]: The imminence of the respondent's release date, the unexplained delay in charging him, his rehabilitation in the 25 years since the offending occurred and the difficulties he faced in custody led to the conclusion that the respondent should not be re-sentenced. The purposes of a prosecution appeal were satisfied by the clear statement that the aggregate sentence was inadequate, the discussion of relevant sentencing provisions and the warning that the nomination of lenient indicative sentences combined with a modest degree of notional accumulation may lead to an aggregate sentence that is manifestly inadequate and unjust. Declining to impose an increased sentence so close to the respondent's release date would not constitute an affront to the administration of justice. CMB v Attorney General of New South Wales (2015) 256 CLR 346; [2015] HCA 9; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 applied. JUDGMENT 1. HARRISON CJ at CL: I have had the considerable advantage of reading in draft the respective judgments of Hamill J and N Adams J. I am grateful to Hamill J for his detailed and comprehensive recitation of the uncontroversial factual background to this appeal, as well as the particular subjective circumstances of Mr Carey. His Honour's analysis is a forceful and persuasive collocation of reasons both why the Crown appeal should succeed as well as of his Honour's view of why this Court should decline to exercise its residual discretion notwithstanding. I am untroubled by the former. I respectfully disagree with the latter. 2. Because I agree with N Adams J's reasons for why this Court should not exercise the residual discretion, I will state my own reasons for doing so only briefly. They are in effect little more than an endorsement of the matters summarised by her Honour at [90] below. 3. The child who is the victim of Mr Carey's offending was aged between 12 and 13 years at the time. She was presumably still in primary school or no further advanced than her first year of high school. It is accepted that she turned to Mr Carey for support from him as a father figure having regard to the absence of any such support from her own father. That fact was both the framework within which Mr Carey exploited her vulnerability and the reason why it was so reprehensible. Mr Carey's opportunity to commit the offences was a function of that vulnerability. The associated breach of trust is not therefore some theoretical legal construct but a cynical manipulation of circumstances that were already troubling for her. Mr Carey's behaviour was predicated upon misleading and deceiving a child who he knew and understood was looking to him for support. 4. Mr Carey pleaded not guilty, as he was entitled to do. That fact obviously cannot increase the seriousness of his offending. It does, however, suggest that Mr Carey has no insight into his offending which serves to inform his absence of remorse. Mr Carey's description of the victim as "precocious and provocative", as reported to the author of the SAR report, could fairly be described as victim blaming, consistently with the absence of insight or remorse. 5. The Crown bears the onus of satisfying this Court why the residual discretion should not be exercised. I am satisfied that it has done so. I consider that this Court's acceptance of the Crown's submissions and its consequent recognition of the inadequacy of Mr Carey's sentence would carry no weight and would be deprived of meaningful effect in terms of punishment, retribution and deterrence if the residual discretion were exercised. 6. I agree with the orders proposed by N Adams J. 7. HAMILL J: The Director of Public Prosecutions appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the asserted inadequacy of a sentence imposed on Mark Anthony Carey in the District Court on 15 December 2023. 8. Mr Carey (to whom I will sometimes refer as the respondent) was sentenced in relation to six sexual offences committed against a child who was aged between 11 and 13 years during the period May 1996 to June 1998. Those were the dates referred to in the indictment but, on sentence, it was agreed the offending occurred between 13 June 1997 and 30 June 1998 when the child was aged between 12 and 13 years. There are statutory prohibitions on the publication of information that might lead to identification of the child and this judgment will omit certain details of the facts in order that she not be identified. 9. Mr Carey pleaded not guilty but was convicted following his trial before Judge Williams and a jury. He was sentenced to an aggregate term of imprisonment of 4 years and 4 months with a non-parole period of 2 years and 6 months. The sentence commenced on 25 March 2022, the day he was taken into custody for the offences. He is eligible for release to parole on 24 September 2024. [1] By notice of appeal filed 9 January 2024 the Director raises a single ground of appeal, namely that "the aggregate sentence is manifestly inadequate." 10. The imminence of the expiration of the aggregate non-parole period means that this judgment was prepared quickly and is necessarily quite brief. The charges, facts, maximum penalties and indicative sentences for the individual offences 1. The trial transcript was not before this Court and the facts were derived from a document styled "Facts on Sentence" which was part of the prosecution bundle tendered at the sentencing hearing on 13 December 2023. Putting aside that the respondent continued to deny that the offences occurred at all, there was no dispute as to the facts and Judge Williams recounted them in his judgment or remarks on sentence. 2. The victim was born in October 1984 and was aged between 12 and 13 during the period of offending. The respondent was born in 1962 and was in his mid-thirties when he committed the offences. The victim's mother attended a local sporting academy which was owned and operated by the respondent. Over time she and the victim became close personal friends of the respondent and he, on his own admission, became a kind of father figure to the young girl. The victim had not met her biological father and the respondent acknowledged at the trial that she was vulnerable. The six charges for which the respondent was sentenced 1. The first count on the indictment was an offence of sexual intercourse with a child aged between 10 and 16 while the victim was under the respondent's authority. While the respondent was supervising the child at his sporting academy, and she was sitting on his lap, the offender turned her face towards him and kissed her. She said this was "sloppy" and "disgusting". He then fondled the child's vagina, rubbed her clitoris and tried to put his finger in her vagina. He told her "this is what dads do and this is how I show you that I love you." The respondent's finger went a "little way" into the victim's vagina, and she said that it was "really painful". She asked him to stop but he kept trying to put it in until the pain was too much for the child and the respondent finally stopped. This offence carried a maximum penalty of 10 years imprisonment. [2] For the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"), the sentencing Judge set an indicative sentence of two years and six months. 2. The second and third counts occurred when the victim and her mother stayed at the respondent's residence which was part of the sporting academy. Mr Carey, the victim and her mother were lying on a mattress with the respondent in the middle "effectively spooning" the child. He used his finger "to circle" her clitoris and inserted the finger into her vagina (count two). The child said this was a lot rougher than the first time and that he used his hands to spread her legs. He gave her a "sloppy" kiss and his tongue went into her mouth. He grabbed her hand and made her stroke his erect penis, holding her hand while this happened (count three). The maximum penalty for the second count was 10 years, [3] and for the third count (charged as aggravated indecent assault) was 7 years. [4] Judge Williams nominated indicative sentences of 2 years and 6 months for count two and 20 months for count three. 3. The fourth count was committed in Mr Carey's Mitsubishi van which he purchased in November 1996. The victim was sitting on the respondent's lap in the car while he allowed her to drive. The respondent began to kiss the victim and put his hands down her pants. He started to fondle her vagina and clitoris roughly, put his finger in and out of her vagina, and was grinding against her. He told the victim repeatedly that she was a "good girl", said "this is how fathers show affection", and told her to "spread your legs like froggy" which was a nickname he gave to her. This count was charged under s 66C(2) and carried a maximum penalty of 10 years imprisonment. An indicative sentence of 2 years and 6 months was nominated. 4. The fifth and seventh counts occurred on an occasion when Mr Carey stayed overnight at the home of the victim and her mother. The victim, her mother and the respondent were watching a movie in the mother's bed. As with the second count, the respondent was positioned in the middle. There was a doona covering them. The respondent touched the victim's stomach, then moved his hand beneath her pyjamas (the victim was not wearing underwear at the time). The respondent circled the victim's clitoris with minimal movement for what the victim described as "a long time". This was count five, another charge of sexual intercourse with a child under authority, carrying a maximum penalty of 10 years. An indicative sentence of 2 years and 3 months was nominated. After the movie ended the respondent told the victim to come into the room in which he was staying after her mother fell asleep. When she complied, the respondent put her hand down his pants and manipulated her hand to stroke his erect penis. This was count seven, an offence of aggravated indecent assault which exposed the respondent to a maximum penalty of 7 years imprisonment. An indicative sentence of 20 months was nominated. Count six (an indecent assault) was an alternative to count five upon which no verdict was required when the guilty verdict was returned on the sexual intercourse count. Uncharged acts 1. Evidence was led at the trial of a number of other acts committed by the respondent on the victim. This showed that the six counts were not isolated incidents. 2. Count four was not a unique occasion of sexualised conduct in the van. Similar conduct occurred on a number of other occasions and the victim said that being allowed to drive the van afterwards felt "almost like a reward" for enduring the respondent's conduct. There was another incident where the victim sat on the respondent's lap while he had an erection and was made to demonstrate various horse-riding movements such as trotting and cantering. On another occasion, the victim and the respondent were naked in the bath together and the respondent made the victim stroke his penis until he ejaculated. 3. The respondent also wrote various letters to the victim which included protestations of love such as "I love you desperately", "All that I know is that I love you like crazy", "I'll always love you like my own daughter", "I love you intensely", "I love you eternally", "Love you 4 ever" and "God I miss you! My favourite froggy!" He also made sexually explicit comments like "How are they hangen" (referring to the victim's breasts) and "Got a recka" and "Here comes a reckie" (alluding to his erect penis). He also referred to kissing the victim, writing "Wow what a kisser" and "I guess a little kiss and cuddle from time to time won't hurt as long as it's low key and no one else gets upset." These things were written to a child of around 12 years of age. Disclosure and arrest 1. In June 1998 the victim's mother stopped attending the respondent's academy and contact between the victim and the respondent came to an end. Around 20 years later, in April 2019, the victim reported the matter to police, and there was an investigation into the offences. There was a significant and unexplained delay, and the respondent was arrested in March 2022 and has been in gaol since 25 March 2022. The sentencing Judge's assessment of the objective gravity of the offence 1. The sentencing Judge accepted a submission that none of the offences were "above the midrange of objective seriousness" because they were of relatively short duration, did not involve threats of violence or gratuitous cruelty, and did not result in substantial injury to the victim. However, his Honour found the two indecent assault offences (counts three and seven) to be serious examples as they involved skin to skin contact. Further the sentencing Judge held that these two offences "involved an abuse of a position of trust or authority" and that this was an aggravating factor. The fact that counts five and seven occurred in the victim's home "where she was entitled to feel safe" was held to be an aggravating factor. Other relevant factors identified by the sentencing Judge included the "extent to which the offender is seen to have exploited the youth of the victim", and the "significant age difference between the two." The impact on the victim of the respondent's contact 1. The victim made a statement in which she set out the devastating impact that Mr Carey's conduct has had on her life. She said, even after 28 years, the trauma of the abuse still haunted her and affected her relationships. She described the distance between her and her mother when she was a child and her feeling that "finally someone cared about me" when the respondent started paying her attention. She now realises that she was "groomed" and appreciates the breach of trust and abusive nature of the respondent's actions. 2. She said she was left "physically, psychologically and emotionally scarred." She felt isolated and alone and had nobody to whom to turn. "The abuse stole [her] childhood innocence" and she spent many years unable to settle during which she would "self-sabotage" close relationships because she was afraid she would be hurt or abandoned. Her judgment of men was affected, and she found herself attracted to abusive partners. She had trust issues and problems with intimacy. Even at the time of the trial, her current relationship was impacted by these problems. 3. Her current career has led her to a greater understanding of the extent to which the abuse impacted on her psychological development and she is now in a position to help others who have had similar experiences. 4. The "initial elation of the guilty verdict" proved to be transient, and she still wonders how she will navigate the years ahead. However, now that her voice has been heard she will continue to rebuild herself by putting these things behind her. 5. It is a brave and moving statement of the impact of these terrible and abusive crimes. The respondent's personal circumstances and mitigating circumstances 1. The respondent was 61 years old when he stood for sentence and has no criminal history apart from the present offences. Significantly, there is no evidence of the respondent offending against any other children in the 25 years since he committed these offences. 2. A sentencing assessment report ("SAR") noted there were no indications of historical anti-social behaviour, that Mr Carey has five children of his current relationship and seven other children from previous relationships. He was undergoing relationship counselling with his previous partner. The author of the report noted the respondent was assessed to have a "below average risk of sexual [re-offending]" and that he had a "medium/low risk of re-offending". However, there are some quite concerning aspects of the SAR. For example, apart from his continued denial of the offences, the respondent described the victim's behaviour as "precocious and provocative", a troubling form of what might be termed "victim blaming". Any remorse the respondent exhibited was limited to the effect the charges have had on him. The author said he "displays very little insight" into how the offending impacted on the victim or her family. 3. On the other hand, the respondent presented with positive references which Judge Williams described in his remarks on sentence: "22 There are two references provided by counsel on behalf of the offender, one from his partner [redacted], who says that they have been in a relationship since 2014. She says he has treated her and their five children with nothing but respect and kindness. He was known in the town as a good bloke, and a decent man who loved his family and was always there to lend a hand to everyone. Obviously, his extradition to New South Wales to face these charges has negatively affected her and her children greatly. She describes him as the best dad she has ever known and that their boys are growing up without a father. 23 There is a further reference from a Year 2 teacher named [redacted] who has known the offender since he enrolled his boys at her school in 2020, and she has taught three of his children. She is aware of the allegations that have been made against him, and says that type of behaviour does not reflect his character and the person that he is. She said he was devoted to his children's learning and supporting them." 1. Much of the respondent's personal history and subjective case was elicited through a report prepared by a clinical and forensic psychologist, Dr Paul Pusey. There was no objection to the report and the sentencing Judge appeared to accept the history provided and the author's opinions. 2. The respondent was the fourth of six children and was raised in the Southern Highlands near Sydney. He said that he "had a traumatic childhood with a lot of issues with his mother and her favouritism of her other sons." The respondent said that when he was in Year 7 his older brother, who was around 18 years old, started to abuse him sexually. When he reported this to his mother, she did not believe him. The respondent no longer has a relationship with any of his siblings. His father is dead, and his mother does not speak to him, although she will pick up the 'phone if he calls. These aspects of Mr Carey's personal history were also referred in the SAR, albeit in less detail. 3. The respondent attended primary and secondary school in the Southern Highlands. He reported significant bullying issues and left after Year 10. He completed a Bachelor of Science, a Diploma in Sports Coaching and obtained qualifications to be a fitness trainer. He also achieved a Certificate IV in Web Design and a Certificate III in Business. 4. The sentencing Judge referred to a recent diagnosis of a major depressive disorder but accepted the Prosecutor's submission that the diagnosis was a recent one, no doubt resulting from the current charges, and did not inform an assessment of the respondent's moral culpability. Judge Williams remarked: "He acknowledged the experience of both suicidal and deliberate self-harming ideation. He was assessed as having a very low risk of general and/or violent criminal recidivism. Notwithstanding his denials, the psychologist raised the question of whether he would meet the diagnosis for a paedophilic disorder, but that was beyond the scope of the assessment. He did diagnose major depressive disorder which will require monitoring, assessment and treatment. [T]he Crown acknowledges that that is at least one basis upon which his time in custody will be more onerous and may found a finding of special circumstances." 1. The sentencing Judge accepted that the respondent's lack of previous convictions was a mitigating feature and found that he had good prospects of rehabilitation and was unlikely to re-offend. The submissions on appeal 1. No specific legal error was identified in Judge Williams' careful judgment on sentence. His Honour set out the relevant principles and applicable legislation and had regard to all the factual circumstances relevant to the sentence. No factual finding was impugned. There was no dispute between the parties as to the applicable legal principles and the task of this Court when dealing with a prosecution appeal and a ground of alleged manifest inadequacy. Those principles are well established and I will return to them when addressing the single ground of appeal. The Director's submissions 1. The Director did not explicitly challenge the sentencing Judge's finding that none of the offences were above the putative mid-range of objective seriousness but submitted that this was "not a determinative factor" and noted the imprecision of such terminology. There was some criticism of the sentencing Judge making the assessment by reference to features of the offence that did not exist, rather than by reference to the features that were present: cf SB v R [2022] NSWCCA 164 at [70]. It was submitted (correctly) that the lack of physical injury was not of great significance given the expected (and in this case, established) psychological injury that such offending causes. Similarly, the lack of force was of little significance given that the victim was a child who was groomed and manipulated over a period of time. 2. The substance of the Director's challenge to the aggregate sentence was that the indicative sentences nominated for the individual offences were "disconnected from the objective gravity of the offending" and that this in turn led to a manifestly inadequate aggregate sentence. The sentence failed to reflect the serious aspects of the offending including the special vulnerability of the child who had no contact with her natural father, the abuse of the respondent's position of trust as a father figure, and the prolonged period over which the offending occurred. 3. It was submitted that the sexual intercourse offences (counts one, two, four and five) carried a maximum penalty of 10 years and were serious examples of offences of their kind. The indicative sentences of 2 years and 6 months and 2 years and 3 months did not capture the character of the offending. The sentence for count five was plainly unjust given the aggravating feature of that offence; it was committed in the home of the victim and the sexual activity occurred over an extended period while the victim's mother was present under the doona cover. 4. It was submitted that, in any event, the aggregate sentence was manifestly inadequate with the Director noting that the total sentence was only 1 year, 10 months longer than the indicative sentences for the first count. This suggested a latent error in the extent of notional accumulation within the aggregate sentence. 5. Further, it was submitted that the aggregate non-parole period was inadequate and did not reflect the criminality involved in the offending. It was submitted "if a head sentence is towards the lower end of the range (as the head sentence imposed by the sentencing judge was), it will be difficult to sustain a NPP that is very significantly less than the statutory proportion." Here the non-parole period was 58% of the total sentence and the Director submitted that the basis of the finding of special circumstances did not justify such an adjustment, particularly in light of the lenient head sentence. 6. The Director analysed the "comparable" cases his Honour considered and demonstrated the distinguishing features of those cases. The respondent's submissions 1. The respondent relied on the generally positive factual findings made by the sentencing Judge and in particular his lack of any criminal convictions before the offences and in the 25 odd years since which led to a finding that he had rehabilitated and was unlikely to re-offend. He emphasised the burdensome nature of his incarceration including his mental illness, age and the strictures of the COVID-19 regime as a result of which he had been locked down in his cell for 173 days during the period of remand and up to the date of sentence. Judge Williams accepted the history of childhood trauma and sexual abuse. These findings "called for leniency in sentence." 2. The respondent called attention to the fact that the sentencing Judge paid proper regard to the maximum penalty applicable at the time. He observed that the finding that none of the offences were above mid-range was not challenged and, in respect of the sexual intercourse offences, appropriate given the nature of the intercourse alleged. He acknowledged that there is no rigid hierarchy in that respect but submitted the fact that the sexual intercourse was digital "was very relevant to the assessment of the objective seriousness". 3. The respondent drew attention to "the difficult task of fixing a sentence for offences committed about 25 years earlier" and referred to the complications arising in the application of s 25AA of the Sentencing Act. 4. In all the circumstances, he submitted the indicative sentences were lenient but were "open" on the basis of the favourable findings made by the sentencing Judge. Based on well-established authority, he said that questions of (notional) accumulation and concurrence are matters firmly within a sentencing judge's wide discretion. Accordingly, the aggregate sentence was not plainly unjust or unreasonable. Sections 21B, 25AA and comparable cases 1. In 2018, s 25AA was introduced into the Sentencing Act. It required a sentencing judge to sentence an offender in accordance with the sentencing patterns and practices which prevailed at the time of sentencing. This amendment overcame the majority judgments in R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 ("R v MJR") which required a sentencer to approach the sentencing exercise based on sentencing patterns which existed at the time of the offence. The difficulties with the earlier approach were considered in the powerful dissenting judgment of Mason P in R v MJR: see also the discussion in MC v R [2017] NSWCCA 316; (2017) 271 A Crim R 83 at [22]-[52]. 2. The relevant amendments made in 2018 are now found in s 21B of the Sentencing Act which was introduced in 2022: 21B SENTENCING PATTERNS AND PRACTICES (1) A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing. (2) However, the standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing. (3) Despite subsection (1), a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if-- (a) the offence is not a child sexual offence, and (b) the offender establishes that there are exceptional circumstances. (4) When varying or substituting a sentence, a court must vary or substitute the sentence in accordance with the sentencing patterns and practices at the time of the original sentencing. (5) This section does not affect section 19. (6) In this section-- "child sexual offence" has the same meaning as in section 25AA. 1. Following the 2022 amendments, s 25AA now provides: 25AA SENTENCING FOR CHILD SEXUAL OFFENCES … (3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts). … (5) In this section-- "child sexual offence" means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years-- (a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900, (b) an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act, (c) an offence of attempting to commit any offence referred to in paragraph (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c). 1. Finally, s 19 provides: 19 EFFECT OF ALTERATIONS IN PENALTIES (1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty. (2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement. (3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty. 1. There is no difficulty in the application of s 25AA(3) or the requirement in s 21B(1) that sentencing practices at the time of sentencing are to be applied rather than the sentencing practices pertaining when the offence was committed, possibly years or (as here) decades ago. However, this case demonstrates the difficulties in sentencing in accordance with sentencing "patterns" existing at the time of sentence when the earlier maximum penalty has been increased substantially between the time of the offences and the time of sentence. 2. These difficulties manifested themselves in the debate surrounding the "comparable" cases raised by each party, both at first instance and on the hearing of the appeal. Relevant comparators will require two temporal features. First, they need to be cases from the period when the maximum penalty (or standard non-parole period) was the same or similar. Secondly, they need to be cases decided after the introduction of s 25AA(1), since repealed and replaced by s 21B. 3. The most significant legislative guidepost to any sentencing exercise is the maximum penalty set by Parliament for the relevant offence or offences. Another is the standard non-parole period, if any, applying to the offence. In the present case, there have been substantial increases in the maximum penalties. For the sexual intercourse offences, at the time of the offending there was a maximum penalty of 10 years under s 66C(2). There have been some changes to the offences, but the same conduct engaged in today (or at the time of sentence), would attract a maximum penalty of 20 years imprisonment: see Crimes Act 1900 (NSW), s 66C(2). There is now an applicable standard non-parole period of seven or nine years (depending on how the offence is charged): Sentencing Act, s 54A, and Items 10B and 10C in the table following s 54D. There was no standard non-parole period when Mr Carey committed these offences. 4. The result of those matters is that there are a limited number of truly comparable sentencing cases. Beyond that, there are the well catalogued difficulties and limitations in applying sentencing statistics and the results in other cases to the individual facts and circumstances of a particular sentencing exercise: see, for example, the observations of Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [283]-[290] which were cited with approval in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]. Another issue is that most District Court sentencing judgments are not published on Caselaw or in a way that make them easy to find. Cases that find their way to this Court often involve sentences at the margins of leniency or severity. 5. I am grateful for counsel's diligence in providing their summaries and making their arguments in relation to what are probably the closest comparable authorities. I have considered the outcomes, similarities and distinguishing features of those cases in considering the question of whether the sentence imposed on the respondent was manifestly outside of an appropriate discretionary range to reflect Mr Carey's offending and his individual circumstances. Here is a table of the cases to which the Court was taken, with a bare summary of the relevant details: Case Offence(s) Pleas Sentence FB v R; R v FB [2011] NSWCCA 217 Aggravated sexual assault (s 61J(1)) against female student (14yrs old) involving penile/vaginal sexual intercourse Not guilty Total term: 10yrs NPP: 6yrs Aggregate: 3yrs 7 months NPP: 2yrs 2 months Count 1: sexual intercourse with girl (14yrs old) (s 66C(3)) – involving digital penetration Indicatives without discount: Count 2: sexual intercourse with girl (14yrs old) (s 66C(3)) – with cunnilingus • Count 1: 9 months O'Brien v R [2013] NSWCCA 197 Count 3: sexual intercourse with girl (14yrs old) (s 66C(3)) – involving penile/vaginal sexual intercourse, ejaculation inside and no condom Guilty to all offences on day one of trial • Count 2: 3 months Count 4: sexual intercourse with girl (14yrs old) (s 66C(3)) (Form 1 offence of digital penetration taken into account) – involving penile/vaginal sexual intercourse, ejaculation inside and no condom • Count 3: head sentence 3yrs concurrent with counts 1 & 2 • Count 4: 3yrs partially accumulated on counts 1-3 Total effective without discount: 4yrs Discount: 10% Aggregate: 5yrs 6 months Count 1: sexual intercourse with stepdaughter (11yrs old) (s 66C(2)) – NPP: 3yrs R v Malloy [2018] NSWDC 477 involving digital penetration Guilty to count 2 from the outset Indicatives with discount: Three further indecent assaults (s 61M(1)) taken into account on a Form 1 for count 1 which involved two incidents of touching the offender's erect penis Guilty to count 1 and Form 1 offences during the voir dire • Count 1: 5yrs Count 2: acts of indecency with stepdaughter (11-12yrs old) (s 61O(1)) – offender exposing himself on 20 occasions • Count 2: 2yrs Discount: 25% Aggregate: 5yrs NPP: 2yrs 6 months Offence 1: penile/vaginal intercourse with girl (12yrs old) (s 66C(2)) (Form 1 offence of aggravated indecent assault s 61M(1) taken into account) Indicatives with discount: Dawkins v R [2018] NSWCCA 278 Offence 2: fellatio with girl (12yrs old) (s 66C(2)) (Form 1 offences x 3 of oral intercourse on girl 12-13yrs old taken into account) Guilty to four offences at earliest opportunity • Count 1: 4yrs 2 months Offence 3: penile/anal intercourse with girl (12 or 13yrs old) (s 66C(2)) • Count 2: 4yrs 9 months Offence 4: penile/vaginal intercourse with girl (12 or 13yrs old) – ejaculation outside and no condom (s 66C(2)) • Count 3: 4yrs 10 months • Count 4: 4yrs 2 months Discount: 40% Aggregate: 8yrs 6 months NPP: 5yrs 6 months Count 1: aggravated indecent assault of daughter (11 or 12yrs old) (s 61M(1)) – involving touching near vagina Indicatives: Count 2: incite daughter (11 or 12yrs old) to commit act of indecency (s 61O(1)) – asked to touch his penis (did not), forced to watch ejaculation • Count 1: 11 months Count 3: aggravated indecent assault of daughter (11 or 12yrs old) (s 61M(1)) – touching outside of vagina and forced to touch penis • Count 2: 1yr 4 months Carr v R [2020] NSWCCA 214 Count 4: incite daughter (11 or 12yrs old) to commit act of indecency (s 61O(1)) – forced to watch ejaculation Guilty to seven counts after trial date fixed • Count 3: 1yr 4 months Count 5: aggravated indecent assault of daughter (11 or 12yrs old) (s 61M(1)) – touching breasts and clitoris • Count 4: 11 months Count 6: attempting to have sexual intercourse with daughter (11 or 12yrs old) (ss 66C(2) and 66D) (Form 1 offences taken into account of 2 x aggravated indecent assault, 1 x inciting aggravated indecency and 1 x attempted sexual intercourse of 11 or 12yrs old daughter) • Count 5: 2yrs 8 months Count 7: attempting to have sexual intercourse with daughter (11 or 12yrs old) (ss 66C(2) and 66D) • Count 6: 4yrs 11 months • Count 7: 4yrs Discount: 10% Aggregate: 6yrs Seq 1: penile/vaginal intercourse with ejaculation in daughter (13yrs old) (s 66C(2)) NPP: 3yrs Seq 2: fellatio with ejaculation in daughter's mouth (14yrs old) (s 66C(2)) Indicatives with discount: Seq 3: penile/vaginal intercourse with ejaculation on the daughter's stomach (14yrs old) (s 66C(2)) • Seq 1: 2yrs 6 months Seq 4 & 5: Form 1 offences of sexual intercourse with daughter (14yrs old) (s 66C(2)) – referable to seq 3 • Seq 2: 17 months R v Hovell [2021] NSWDC 326 Guilty to all offences at earliest opportunity • Seq 3: 2yrs 9 months Seq 6: penile/vaginal intercourse with ejaculation on the daughter's stomach (14yrs old) (s 66C(2)) • Seq 6: 2yrs Seq 7: penile/vaginal intercourse with daughter on top (14yrs old) (s 66C(2)) • Seq 7: 19 months Seq 11: penile/vaginal intercourse with daughter (15yrs old) (s 66C(1)) • Seq 11: 16 months Seq 12: penile/vaginal intercourse with daughter (15yrs old) (s 66C(1)) • Seq 12: 16 months Discount: 25% Resolution of the ground of appeal: is the sentence manifestly inadequate? 1. The comparable cases suggest that the concession made by counsel for the respondent – that the aggregate sentence was lenient – is a sound one. However, a survey of those cases does not, of itself, establish that the sentence is manifestly inadequate. 2. As the respondent submitted, there is no single correct sentence and the law vests in the sentencing judge, not this Court, the responsibility of instinctively synthesising the many relevant facts and circumstances to determine an appropriate sentence which reflects the objective gravity of the offending and an offender's individual personal circumstances. In the absence of an identifiable and patent error, an appellate court will not intervene based on "latent" error unless the sentence imposed is manifestly unreasonable, or plainly unjust or wrong. An appellate court cannot intervene on this ground merely because its members might individually have imposed a more – or less – severe sentence. The foregoing is a barely adequate summary of statements of principle made by the High Court in several well-known authorities on the subject. [5] 3. The prosecution is generally expected to be, and is, restrained in bringing appeals against the inadequacy of sentence. Generally, it brings such appeals in cases where some point of principle arises or where the sentence is so manifestly inadequate that it constitutes an affront to justice. The Director submitted that the present case fell into the latter category but also presented an opportunity for the Court to consider the proper application of ss 21B and 25AA in sentencing for offences of some antiquity. I think the latter consideration, which raises a difficult and interesting question of sentencing practice and principle, amply justifies the bringing of this prosecution appeal. 4. In addressing the questions presented by the sentencing judgment and outcome in this case, it is necessary for the Court to apply the same kind of instinctive synthesis as is required by the sentencing judge but to do so while paying deference to the role of a sentencing judge in the criminal justice system. Ultimately, it is a question of judgement: a sentence is either manifestly inadequate (or excessive) or it is not. [6] 5. This is not a case that it easy to resolve. The offending was grave but there is force in the respondent's submissions and the sentencing Judge's findings as to the objective seriousness of the individual offences which is not challenged. Further, the absence of any criminal history before or after the offending is an important factor entitled to significant weight. The findings concerning rehabilitation and the unlikelihood of future offending were both open to Judge Williams and, on my independent assessment, correct. There were valid reasons for the imposition of a lenient sentence. Against that, the offending represented an egregious breach of trust of a vulnerable, young victim and the respondent's conspicuous lack of insight into the harm he has done to the victim is startling. 6. Ultimately, I accept the Director's submission that each of the indicative sentences was very lenient. Further, the indicative sentence nominated for the fifth count was manifestly wrong. The conduct giving rise to that count was a particularly brazen example of child sexual abuse, which was committed in the child's own home and with her mother present. By that stage, the vulnerable victim was completely under the spell of the respondent's manipulative and criminal conduct which had being going on for about a year. While it appears that proof of penetration was not as strong as in some of the other counts, the jury must have found penetration to return its verdict of guilty. The facts state that the manipulation of the child's genitalia went on for a long time. An indicative sentence of 2 years and 3 months for that offence, when sentencing after trial and with a maximum penalty of 10 years, was manifestly inadequate. 7. An error in one of the individual indicative sentences does not necessarily establish an error in the aggregate sentence although it may inform to some extent the question of whether the aggregate sentence is manifestly inadequate. The appeal is against the aggregate sentence. 8. In regard to that ultimate question, I accept the Director's submission that the combination of the lenient (and in one case manifestly inadequate) indicative sentences and the modest degree of accumulation for what were, in most instances, separate and distinct offences, did result in an aggregate sentence that is properly described as unreasonable, plainly unjust or manifestly wrong. The offending continued for about a year and the individual counts on the indictment caught only some of the respondent's criminal conduct. These were far from isolated and opportunistic offences. Rather, the counts and surrounding circumstances establish a pattern of very serious child sexual abuse extending over the course of a year or more. The child was especially vulnerable and the abuse of trust and manipulation of the respondent's position as a father figure required severe punishment, even allowing for his rehabilitation in the intervening 25 years. The aggregate sentence of 4 years and 4 months, with a non-parole period of 2 and a half years failed to reflect the grave objective criminality involved in the offences. 9. I would uphold the Director's ground of appeal and turn to the question of the Court's discretion not to intervene despite finding error. The outcome of the appeal: should the Court exercise the "residual discretion" to dismiss the prosecution appeal despite the established error? 1. In CMB v Attorney General of New South Wales (2015) 256 CLR 346; [2015] HCA 9 French CJ said: "33 Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as 'residual' ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised. 34 Accordingly, as Heydon JA succinctly put it in R v Hernando: 'if [the Court of Criminal Appeal] is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.' The Court of Criminal Appeal, in this case and in R v Smith, was wrong to depart from that statement of the law. 35 The second of the two hurdles to which Heydon JA referred in R v Hernando has a statutory foundation and a systemic significance. Before s 5D of the Criminal Appeal Act was amended to add reference to the DPP, Barwick CJ said in Griffiths v The Queen: 'On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.' With the clarification that the reference to 'matter of principle' by Barwick CJ 'must be understood as encompassing what is necessary to avoid ... manifest inadequacy or inconsistency in sentencing standards', his Honour's explanation of the nature of an appeal under s 5D has since been said to represent 'general and authoritative guidance to the Courts of Criminal Appeal of this country.' It expresses the 'limiting purpose' of an appeal under s 5D, and in so doing provides 'a framework within which to assess the significance of factors relevant to the exercise of the discretion.'" 1. In the same case, Kiefel, Bell and Keane JJ said: 54 The law reposes a wide discretion in the sentencing judge as to the determination of the appropriate sentence for the offender and the offence. Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King. Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh. Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient. This is sometimes described as 'the residual discretion'. As French CJ and Gageler J explain, the discretion is residual only in that its exercise does not fall to be considered unless House error is established. 55 The joint reasons in Green v The Queen explain the difference in appellate approach to offender and prosecution appeals by reference to the purpose that each serves: offender appeals being concerned with the correction of error in the particular case and prosecution appeals being concerned with laying down principles for the guidance of sentencing courts. This is the 'limiting purpose' which CMB invokes in his first ground." 1. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green and Quinn") French CJ, Crennan and Kiefel JJ said at [43]: "Other circumstances may combine to produce injustice if a Crown appeal is allowed. 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 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." 1. Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) ("CARA") which was inserted in 2009, prohibits an appeal court from taking into account "double jeopardy" in deciding to dismiss a prosecution appeal against sentence. The content of that prohibition was discussed in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49. The Court confirmed that, while the double jeopardy element of the discretion was removed, "there remains a residual discretion to reject a Crown appeal". 2. Mr Carey affirmed an affidavit to be relied on if the Court came to consider the exercise of the residual discretion or to re-sentence the respondent. The affidavit shows that the respondent's time in custody has been relatively event free. He described two disciplinary charges. The first involved him fighting with a cellmate which appears to have been the result of ongoing provocative conduct on the part of the cellmate. The second was stealing eight satchels of International Roast instant coffee when the respondent was working in the kitchen. The respondent also deposed to spending a total of close to 190 days in "lockdown" during his period of incarceration and the limited contact he has had with his partner and children because they live interstate. The respondent had a knee reconstruction many years ago and described being in constant pain. He applied to see a doctor in January but is yet to be offered a medical appointment. He described his post-release plans and his partner's struggles in raising the five children while the respondent remains in custody. Upon release, he plans to move back to Queensland and to renovate a property he owns there over the next few years to be able to sell it and relocate. 3. A critical factor in this case is that the respondent will become eligible for release to parole on 24 September 2024. That is a little less than four months away. His release to parole is not automatic but, given the sentencing Judge's findings as to rehabilitation, the period since the offences were committed, and his good conduct, Mr Carey's prospects of release shortly after that date must be at least reasonable. The imminence of a respondent's release date is one of the matters raised specifically by French CJ, Crennan and Kiefel JJ in Green and Quinn at [43] as bearing upon the exercise of the residual discretion. 4. It is also the case that, while I am satisfied that the appellant established its ground of appeal, I did not find that issue to be an easy one to resolve. Had I been sentencing afresh, and without regard to the issue of double jeopardy in accordance with s 68A of the CARA, the increase in the sentence would not have been substantial. Without being prescriptive or precise, the increase would have been in the order of a year in relation to both the aggregate head sentence and non-parole period. While that is far from "tinkering" with the sentence, it is not such a substantial increase that it militates in favour of the appellant's submission that it has discharged its onus in respect of the discretionary dismissal of the appeal despite the proximity of the respondent's release date. The Director very properly acknowledged that the imminence of the respondent's release was a significant feature. 5. In the particular circumstances of Mr Carey's case, I would exercise the Court's discretion not to intervene. In light of the imminence of the respondent's eligibility for release to parole, the appellant has not discharged its onus not to exercise the residual discretion. I would not increase the respondent's sentence at this late stage of his minimum term of imprisonment. 6. The manifest inadequacy of the sentence in the District Court will be apparent to those who read this judgment. The judgment will also provide some guidance concerning the application of ss 21B and 25AA of the Sentencing Act. It also emphasises the need for sentencing judges to take care when setting aggregate sentences, and not to combine particularly lenient indicative sentences with a very modest degree of notional accumulation. Reconsideration of, and further reasons for, the application of the residual discretion 1. Since circulating the first draft of this judgment, I have had the benefit of reading Justice N Adams' thoughtful analysis of the application of the residual discretion to the circumstances of Mr Carey's case. Her Honour's judgment, and the mere fact that her Honour reached a difference conclusion, caused me to consider the issue again. Having done so, I remain of the view that the Court should exercise the discretion not to intervene, that is it should not increase the respondent's sentence at this stage. 2. The first thing to note is that her Honour and I have reached quite similar conclusions as to appropriate sentence: see my judgment at [70] and her Honour's proposed sentence at [98]. The only difference of substance between us is whether the residual discretion should, or should not, be invoked. 3. It is accepted that the Director did nothing in this case to cause the sentencing proceedings to miscarry and her appeal was notified and instituted quite promptly, particularly considering the Christmas break. However, that is a neutral factor in the consideration of the application of the residual discretion. If the Director's representative at first instance had led the District Court into error, or if there was an extensive delay bringing the appeal, those would be powerful reasons for not exercising the discretion in favour of increasing the respondent's sentence at this stage: see, for example, R v Khoury [2018] NSWCCA 223 at [56]-[58]. 4. However, the converse does not follow. In an appeal under s 5D, the onus remains on, and must be discharged by, the prosecuting authority before this Court will intervene to increase a sentence imposed on an offender. There are many examples in this Court of the discretion not to intervene being exercised without finding fault on the part of the prosecuting authority. A rudimentary search of Caselaw NSW throws up scores, if not hundreds, of cases on the subject decided since the introduction of s 68A in 2009 and the High Court's judgment in Green and Quinn in 2011. However, the value of recourse to decisions in other cases decided by this Court is limited. The exercise of the so-called "residual discretion" is a prime example of an issue that must be determined by reference to the individual facts and circumstances of the case. The principles have been explained by the High Court; the decisions of intermediate appellate courts in most instances do no more than provide examples of the application of those principles. 5. Even so, I considered the case of R v Kijurina [2017] NSWCCA 117 where Price J (Hoeben CJ at CL and Lonergan J agreeing) said at [108] "[t]here has been no delay in the institution and service of the Crown appeal nor can it be said that the manifestly inadequate sentence was caused or perpetuated by the Crown." Nevertheless, because of delay in the sentencing hearing the Court declined to increase the sentence despite the finding at [106] that it was manifestly inadequate. In Mr Carey's case, any delay in the curial process might be attributed to the respondent's decision to defend the charges, which he is not to be punished for, and the fact there was an unexplained and lengthy delay (from April 2019 to March 2022) in charging him after the victim had the courage to come forward. R v Toma [2018] NSWCCA 45 was a case where the delay in the case coming to trial was one factor held to favour the exercise of the discretion not to intervene despite the manifest inadequacy of the sentence: see White JA at [39]-[40] and [48], (Hoeben CJ at CL and N Adams J agreeing). Toma's rehabilitation in the period after charging was also a significant feature of that case, although he had (like the present respondent) pleaded not guilty. It is hard to see why the respondent should be disadvantaged in considering the discretion by the fact that, on the unchallenged finding of the sentencing Judge, he had rehabilitated in the 25 years since the offences were committed. 6. As I said at [69], the major factor in this case favouring the exercise of discretion against increasing the sentence is the proximity of the respondent's release date and the plans he has on release. While again stressing that one needs not go beyond the authoritative guidance of the High Court in Green and Quinn (see above at [66]), there are examples of similar cases in this Court including R v Primmer [2020] NSWCCA 50 (Hamill J at [42], Leeming JA and Harrison J agreeing) where the respondent was due to be released five months after the appeal was determined and R v Tuhakaraina [2016] NSWCCA 81 (Wilson J at [15], [104], R A Hulme and Garling JJ agreeing). In that case, her Honour thought it would have been appropriate to "[triple] the non-parole period" but the proximity of the respondent's release date (less than a month) would mean that increasing the sentence at that stage "would work an unfairness on the respondent". 7. In considering the exercise of the residual discretion in R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556, Bathurst CJ at [20] took into account the proximity of the respondent's eligibility for parole (about four months). See also R v AA [2006] NSWCCA 55 at [1] (McLellan CJ at CL), [57] (Rothman J) where the appeal was heard in January 2006 and the sentence expired in March of that year. 8. Judicial minds will differ as to the application of the residual discretion in individual cases, but it must be remembered that most cases where the residual discretion is under consideration will be those where the Court has concluded that the sentence imposed at first instance is unreasonable, plainly wrong or unjust (that is, manifestly inadequate). As Button J put it in his brief concurring judgment in R v Hookey [2018] NSWCCA 147 at [70] "although error has been established by way of manifest inadequacy, the Crown has not affirmatively demonstrated that, as a matter of discretion, this Court should intervene to increase the sentence of imprisonment". 9. The individual circumstances of the present case include that (i) the respondent is due to be released in a few months, (ii) he has plans to resume a lawful life in the community upon his release, (iii) there is an unchallenged finding that he has rehabilitated in the 25 years since the offending took place and, critically, he has not offended against children during that time, (iv) there was an unexplained delay in charging him after the victim went to authorities, and (v) the judgments on the appeal can provide the necessary guidance as to the appropriate range of sentences and make clear that the sentence imposed in the District Court fell manifestly outside of that range. The 13 matters listed by N Adams J at [90] were considered in reaching the conclusion that the sentence is manifestly inadequate, and the extent to which it is so. They may also inform the exercise of the residual discretion but they do not by themselves or in combination overcome the onus that remains with the appellant to satisfy the Court that it should intervene at this point. 10. Taking into account all of the circumstances, I am unable to accept that declining to intervene at this stage will constitute an "affront to the administration of justice or undermine public confidence in the criminal justice system": Green and Quinn at [42]. Further, the judgment will provide the guidance necessary on the particular issues that arise. 11. These matters, and a further review of the authorities, fortify me in my conclusion that the prosecution appeal should be dismissed. Orders 1. For those reasons, I would make the following order: 1. Prosecution appeal dismissed. 1. N ADAMS J: I have had the significant advantage of having read the judgment of Hamill J in draft. I agree with his Honour's conclusion at [63] that the sentence is manifestly inadequate in the sense that it is "unreasonable or plainly unjust" such that this Court "may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance": House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. 2. Turning to the next question of whether, despite error being established, this Court should nonetheless exercise its residual discretion and dismiss the appeal, I have arrived at a different conclusion to Hamill J. His Honour has set out all the relevant considerations militating both for and against exercising the residual discretion. I have nothing I wish to add to those factors; his Honour has identified them all. The decision whether to exercise the residual discretion is one on which, by its very nature, judicial minds may differ. Ultimately, the factors which weighed most heavily in his Honour's decision to exercise the residual discretion and dismiss the appeal are the imminence of the respondent's release date and the fact that the increase in length of the sentence his Honour would propose, although far from "tinkering", was still not sufficiently substantial to justify the intervention of this Court. 3. Hamill J has summarised the contents of the respondent's affidavit addressing matters relevant to the exercise of the residual discretion and re-sentence at [68] and I have carefully considered that material. The respondent's non-parole period of 2 years and 6 months will expire on 24 September 2024. Clearly, after the respondent was sentenced on 15 December 2023, until he was informed that the Crown would appeal, he would have comfortably assumed that he had just over nine more months to serve. He has been on notice since early January 2024 that his sentence may be increased and no doubt the uncertainty has caused him anxiety. 4. It was common ground that there was no delay on the part of the Director in bringing on this appeal; rather, the imminence of the respondent's release from custody flows from the fact that when he was arrested on 25 March 2022 he remained in custody on remand until the date of sentence on 15 December 2023, being the last day of the 2023 law term. His sentence was backdated to the date of his arrest which means that he was only required to serve an additional 9 months and 13 days imprisonment from that date. The notice of appeal was filed on 9 January 2024 and the appeal was given a hearing date of 17 May 2024 on 21 March 2024. The fact that the respondent's release date is only four months away is the product of the manifestly inadequate (backdated) aggregate sentence imposed by the sentencing Judge. The question for consideration is the extent to which that fact militates against judicial intervention to correct the error. 5. There is no doubt that the imminence of a respondent's release date is a relevant matter bearing upon the exercise of the residual discretion. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, French CJ, Kiefel and Crennan JJ observed at [43] that circumstances may combine to "produce injustice" if a Crown appeal is allowed. Those factors, relevant to the exercise of the residual discretion, were identified as including "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 re-sentencing on progress towards the respondent's rehabilitation". Their Honours went on to observe (at [43]) that: "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." 6. I have considered whether the expiration date of the respondent's non-parole period on 24 September 2024 means that intervention in this matter would come at "too high a cost in terms of justice" to the respondent. But the factor of an imminent release date is just one factor to be weighed with all the other factors relevant to the exercise of the discretion, including the need for guidance to be provided to sentencing judges to achieve a higher level of consistency in such matters. In particular, I have considered the circumstances and nature of the offending and the respondent's attitude to the complainant. Although it is to be accepted that many of these factors are features of the offending, for my part the cumulative force of the following factors has led me to conclude that this Court's intervention is warranted in this matter: 1. The child was aged 12 or 13 years old at the time of the offences; 2. The child was vulnerable having never known her father; 3. The respondent has admitted that he knew the child was vulnerable; 4. The respondent allowed himself to become a father figure to the child and then breached that position of trust; 5. Whilst the respondent was sexually abusing the child, he variously told her she was a "good girl", that "this is how fathers show affection", and "this is what dads do and this is how I show you that I love you"; 6. The acts of digital penetration of the child's vagina caused her physical pain; 7. The offences were not isolated; 8. The offending took place over a period from 13 June 1997 until 30 June 1998; 9. The letters the respondent sent the child (extracted by Hamill J above at [19]) referred to him wanting to kiss her and to his own erections; 10. Despite a strong Crown case the respondent has always denied any criminal behaviour and defended the charges at trial. I will return to this factor below at [94]; 11. The respondent remains unremorseful and was said to display "very little insight" into the impact of his offending by the author of the SAR report; 12. The respondent described the child's behaviour to the author of the SAR report as "precocious and provocative"; and 13. The child, now a woman, says she has been left "physically, psychologically and emotionally scarred" by his behaviour. 1. Even having regard to the various positive findings made by the sentencing Judge about the respondent, the matters raised in his recent affidavit and his imminent release date, I am satisfied that the Crown has discharged its onus and I would not exercise the residual discretion in this matter. 2. Turning to the re-sentencing of the respondent, I have had regard to the matters referred to above. I adopt all of the findings of the sentencing Judge. His Honour found that none of the offences were above the mid-range of objective seriousness but, as was submitted on behalf of the Crown, that is not a determinative factor. Although there were no threats made to the child, this was because, given his position of trust and use of grooming behaviour, there was no need. 3. I have adopted the positive findings made by his Honour with respect to the respondent's rehabilitation and risk of re-offending, his lack of criminal history and the fact that there was no evidence of any further offending in the past 25 years. I have also had regard to the contents of his recent affidavit. The sentencing Judge had regard to the respondent's conditions of custody during the COVID-19 pandemic and the respondent has updated that material in his affidavit. 4. I am satisfied that the respondent has shown no remorse or insight into the offending. As I observed in Baker v R [2022] NSWCCA 195; (2022) 302 A Crim R 60 at [125], an offender is not to be penalised for exercising their right to defend themselves at trial, but maintaining a plea of not guilty in the face of a relatively strong Crown case means that a sentence cannot be ameliorated in ways it otherwise might have. Not only is a 25% reduction on sentence lost; the sentencing court is unable to make a finding of remorse. 5. I have considered the Crown submission that the significant variation to the statutory ratio in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (from 75% to 58%) was not warranted in this case. Although there is some force in that submission, I would still vary the statutory ratio to a significant degree; albeit it will not be to the same extent as fixed by the sentencing Judge. 6. I have had regard to the maximum penalties for each offence. Counts 1, 2, 4 and 5 (the offences of sexual intercourse with a child aged between 10 and 16 while the victim was under the respondent's authority contrary to s 66C(2) of the Crimes Act 1900 (NSW)) had a maximum penalty of 10 years imprisonment whereas counts 3 and 7 were aggravated indecent assaults contrary to s 61M(1) of the Crimes Act which had a maximum penalty of 7 years imprisonment. 7. As will be seen from the indicative sentences I would fix, I have allowed for a significant degree of notional concurrence. The application of the totality principle requires me to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]. This principle applies to aggregate sentencing as well: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528. I am satisfied that the degree of notional concurrence I have allowed is not such as to undermine public confidence by suggesting that the respondent has been offered a "discount for multiple offending": R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]. I would fix the following indicative sentences: 1. Count 1: 3 years 2. Count 2: 3 years 3. Count 3: 2 years 4. Count 4: 3 years 9 months 5. Count 5: 3 years 6. Count 7: 2 years 1. I would propose the following orders: 1. Allow the appeal. 2. Quash the sentence imposed by Williams DCJ on 15 December 2023. 3. In lieu thereof sentence the respondent to an aggregate sentence of 5 years and 9 months to commence on 25 March 2022 and expire on 24 December 2027. The non-parole period of 3 years and 6 months is to commence on 25 March 2022 and expire on 24 September 2025. ********** Endnotes 1. The sentencing Judge made an error in the remarks on sentence, referring to the expiration of the non-parole period as being 24 August 2024. The non-parole period will expire on 24 September 2024, and this is reflected in the orders on Justice Link. 2. Crimes Act 1900 (NSW), s 66C(2). 3. Crimes Act 1900 (NSW), s 66C(2). 4. Crimes Act 1900 (NSW), s 61M(1). 5. See, for example, Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55; and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. 6. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). Amendments 07 June 2024 - Respondent solicitor amended to "Legal Aid NSW" 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: 07 June 2024