District Court New South Wales Medium Neutral Citation: R v RM (No.7) [2024] NSWDC 577 Hearing dates: 4 December 2024 Date of orders: 4 December 2024 Decision date: 04 December 2024 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraphs [30]-[31] Catchwords: CRIMINAL LAW – sentencing – re-sentence of offender following remitter from the New South Wales Court of Criminal Appeal – remitter followed that Court's setting aside of a conviction for one count and substituted conviction on a statutory alternative count – further information supplied affecting rehabilitation prospects and reduction in ratio for non-parole period Legislation Cited: Crimes Act 1900 (NSW), ss, 66C(2), (4) Cases Cited: Crane v R [2024] NSWCCA 87 R v RM (No.6) [2023] NSWDC 305 RM v R [2024] NSWCCA 148 Texts Cited: Nil Category: Sentence Parties: Office of the Director of Public Prosecutions (ODPP) RM (the Offender) Representation: Counsel: Mr C Reynolds for the ODPP Ms K Hogan for the Offender Solicitors: ODPP AJA Associates File Number(s): 2020/00213495; 2020/00251096 Publication restriction: Non-publication of the identity of the offender and the victim REMARKS ON SENTENCE Introduction 1. On 11 August 2023, I sentenced the offender to a term of imprisonment of 12 years, with a non-parole period of 8 years and 5 months, following his conviction for 11 sexual offences committed against his daughter, the victim, in a period spanning 1 June 2011 to 19 July 2020. My remarks on sentence were published on Caselaw [1] . I will refer to these as 'My Earlier Remarks'. These sentencing remarks should be read with My Earlier Remarks. 2. The offender appealed all of those convictions (although not the severity of sentence) and on 7 August 2024, and with the exception of his conviction on count 5 of the indictment, his appeals against all of his convictions were dismissed. 3. Count 5 was the offence of his having sexual intercourse with the victim, being a person above the age of 10 years and under the age of 14 years (namely, 13 years) in circumstances of aggravation, that the victim was under the offender's authority, contrary to s 66C(2) of the Crimes Act 1900 (NSW). That particular offence carried a maximum penalty of 20 years' imprisonment; with a standard non-parole period of 9 years. 4. On 7 August 2024, the New South Wales Court of Criminal Appeal allowed the offender's appeal against conviction on count 5, determining that the guilty verdict was unreasonable; and, instead, convicted the offender on the statutory alternative charge of unlawful sexual intercourse with a person above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely that the complainant was under the applicant's authority, contrary to s 66C(4) of the Crimes Act 1900 (NSW) [2] . 5. This alternative offence under 66C(4) carried a maximum penalty of 12 years' imprisonment. At the time of the offending, there was no standard non-parole period [3] . 6. The Court of Criminal Appeal remitted the offender's sentencing back to this Court in accordance with law. Consideration of factors 1. The parties commonly accept that re-sentencing for the statutory alternative to count 5 at trial will affect the total term of imprisonment and that a lesser penalty should imposed on the offender. Neither party seeks to reagitate any factual findings I made in My Earlier Remarks, subject to correction of what I had said at paragraph [18]. Save for what I said specifically about count 5, those remarks are incorporated by reference in these remarks. 2. It goes without saying, when comparing the legislative guideposts (the maximum penalty and standard non-parole period) for the s 66C(2) offence with the same guidepost for the s 66C(4) offence, that the former is more serious than the latter. The greater inherent severity of the former offence compared to the latter, as the Court of Criminal Appeal affirmed, was only because of an age difference: the former statutory provision entailed the victim being under the age of 14; the latter because of the victim was under the age of 16 years (16 years being the age of consent for lawful sexual intercourse). Reconsideration of facts underlying the statutory alternative count 1. In the leading judgment of Adamson JA (with whom Dhanji J and Sweeney J agreed), (at [36]-[38]) her Honour summarised the victim's evidence of what had occurred which had given rise to the offence under count 5. An aspect of that was the victim giving evidence (in late March 2023) that she was either 13 or 14 years of age when the conduct of which she complained (occurring in 2015) occurred. As was recorded in the judgment on appeal (at [210]), in my summing up to the jury on count 5, I had noted that the Crown had conceded before the jury that there was doubt whether the conduct was committed when she was younger than 14 years of age. To reiterate, the only reason for the Court to set aside count 5 and convict on the alternative was of the essential element of the offence giving rise to that count that the victim was aged between 10 and 14. 2. My Earlier Remarks for count 5 appeared at [17]-[19]. I see no reason to alter what I remarked in [17] and [19]. But the finding at [18] of my Earlier Remarks does require re-consideration. 3. Specifically, both parties contend, and I accept, the offender should be sentenced upon the same factual findings made in My Earlier Remarks save for the qualification of the age of the victim being 14 years at the time of the statutory alternative count, as opposed to 13 years. Reconsideration of objective gravity of the offending 1. I undertake this task on the footing that I am considering an inherently less serious offence (s 66C(4)) than the offence I had considered in My Earlier Remarks (s 66C(2)). 2. In My Earlier Remarks, the observations I made informing the assessment of the gravity of count 5 were expressed at [5], albeit that they were made in the context of my assessment of the other offences relating to aggravated acts of sexual intercourse. 3. Returning to [47] of My Earlier Remarks, the only variation to the finding I would make would be the deletion of the penultimate sentence and the substitution of the sentence that the relevant premise was that the victim was 14 years of age. 4. Reconsidering the facts, in my view the conduct was of a very serious kind involving as it did the application of force and a level of premeditation. 5. As to statutory aggravating factors in relation to count 5 at [54], [61] and [66] of My Earlier Remarks, these are readily transposed to the statutory alternative count. Other findings 1. Having reviewed the findings made in relation to statutory aggravating factors from My Earlier Remarks (including those that had been directed to count 5), those findings are substantially unaffected by the Court of Criminal Appeal's orders. 2. I would indicate a sentence of 3 years imprisonment for the statutory alternative count. 3. The remaining indicative sentences (and indicated non-parole periods) from My Earlier Remarks are unaltered. Totality 1. Now that I have substituted an indicative sentence for the statutory alternative to count 5, I consider afresh the application of the totality principle. 2. I do not see any reason to alter the conclusions that I expressed regarding this principle at [102] of My Earlier Remarks. 3. As was apparent from My Earlier Remarks, there were a large number of very serious sexual offences the offender committed over the victim, his daughter, over a long period. Recognising however, the conviction of the lesser offence (s 66C(4)) imposed in lieu of the setting aside of the more serious offence (s 66C(2)) it would be illogical, if not anomalous, that the aggregate sentence remain unaltered. 4. When determining the new sentence, I take into account the period of custody the offender has endured attributed to his offending. That period tallied 702 days. 5. Although I made a finding of special circumstances in My Earlier Remarks, the offender took the opportunity through his Counsel's written submissions on this re-sentencing hearing to draw attention to his 'post-sentencing' situation. It was noted that he is in protective custody, which makes his time in custody more onerous. It was noted that he has behaved himself in custody and has creditably obtained employment. This latter submission was supported by Exhibit B before the Court on re-sentencing. Finally, it is noted that he has contact with family. 6. In My Earlier Remarks, I had anticipated that he was likely to find his time in custody more onerous. But I also determined that I was unable to make a positive finding about his prospects of rehabilitation. In my view, in light of the new information (albeit presented in the form of a submission, rather than direct evidence), there is cause to be a little more sanguine about his rehabilitation prospects notwithstanding his continued absence of remorse or insight (even after his substantially unsuccessful appeals against convictions). 7. Moreover, since My Earlier Remarks, the Court of Criminal Appeal determined in Crane v R [2024] NSWCCA 87 that practical effect needs to be given to a finding of special circumstances. In the sentence that I imposed, the ratio was altered to 70.1%. In Crane, the sentencing judge, who had altered the statutory ratio to 69% was held to have fallen into error. The Court of Criminal Appeal emphasised that specific explanation would be required to justify so modest a variation. 8. I drew the Court of Criminal Appeal's decision to the attention of the parties. 9. At paragraph [105] of My Earlier Remarks, I set out the reasons for the finding of special circumstances. By these reasons, I have also recognised what might be regarded as a slightly more favourable subjective case, in respect to his rehabilitation prospects, than what appeared when I undertook the sentencing exercise in August 2023. I consider it appropriate to reduce further the statutory ratio for the aggregate sentence. Sentence 1. Mr [RM], please stand. 2. The sentence I imposed on you on 11 August 2023 is set aside. 3. In lieu of that sentence, I sentence you to a term of imprisonment of 11 years and 10 months' imprisonment, commencing on 3 January 2023 and expiring on 2 November 2034; with a non-parole period of 7 years and 10 months expiring on 2 November 2030; after which you will be eligible for release on parole. Postscript 1. Following the delivery of these remarks, there was discussion between myself and Counsel as to whether it was necessary to indicate the non-parole periods that would have been given for the specific sentences. The Crown indicated that it was not. ********** Endnotes 1. R v RM (No.6) [2023] NSWDC 305 2. RM v R [2024] NSWCCA 148 3. Currently the non-parole period for the offence is 5 years. 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: 04 December 2024