Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BIP v R [2011] NSWCCA 224 Hearing dates: 20 September 2011 Decision date: 14 October 2011 Before: BATHURST CJ at 1 JAMES J at 2 HOEBEN J at 3 Decision: Leave to appeal granted. The appeal is allowed. The sentences imposed by her Honour on 13 August 2010 are quashed and in lieu thereof the applicant is sentenced as follows: i) In relation to count 1, the applicant is sentenced to a fixed term of 2 years to commence on 27 October 2009 and to expire on 26 October 2011. ii) In respect of count 6, the applicant is sentenced to a fixed term of 2 years to commence on 27 October 2010 and to expire on 26 October 2012. iii) In relation to count 5, the applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years commencing 27 April 2012 and expiring 26 April 2015 with a balance of term of 2 years expiring 26 April 2017. iv) In relation to count 3, the applicant is sentenced to a term of imprisonment of 8 years and 6 months with a non-parole period of 4 years commencing 27 April 2014 and expiring 26 April 2018 with a balance of term of 4 1/2 years expiring 26 October 2022. Catchwords: CRIMINAL LAW - sentence appeal - offences of aggravated act of indecency and aggravated sexual intercourse to a person under the age of 16 - sentencing judge taking into account matters that were not part of the agreed facts - inconsistency of approach to similar offences - taking into account as aggravating factors matters which were part of the offence - need to resentence Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: EK v R [2010] NSWCCA 199 Ingham v R [2011] NSWCCA 88 Mirza v R [2007] NSWCCA 248 R v Comert [2004] NSWCCA 125 R v Henry & Ors [1999] NSWCCA 111, 46 NSWLR 346 R v Mitchell [2007] NSWCCA 296 Veen v R (No 2) (1988) 164 CLR 465 at 473 Waters v R [2007] NSWCCA 219 Category: Principal judgment Parties: BIP - Applicant Regina - Respondent Crown Representation: Mr M Ramage QC - Applicant Ms V Lydiard - Respondent Crown Jeffreys Lawyers - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2009/242259 Decision under appeal Citation: --- Date of Decision: 2010-08-13 00:00:00 Before: Syme DCJ File Number(s): 2009/00242259 Judgment 1BATHURST CJ: I agree with Hoeben J. 2JAMES J: I agree with Hoeben J. 3HOEBEN J: As the three victims of the offences were under 18 years of age at the time of the offences, each of the victims will be referred to by their first name in this judgment to further the purpose of s15A Children (Criminal Proceedings) Act 1987. In addition, the applicant and other family members will be referred to by initials, as disclosure of their identity may serve to identify the victims. Offences and sentence 4On 7 June 2010 on the first day of a trial, the applicant pleaded guilty before Syme DCJ to the following offences: Count 1: Aggravated act of indecency to a person under the age of 16 years (under authority) between 14 October 2004 and 1 January 2005, contrary to s61O(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years. Count 3: Aggravated sexual intercourse with a child above the age 10 years and under 14 years (under authority) on 30 October 2004 contrary to s66C(2) Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years. Count 5: Aggravated sexual intercourse with a child above the age of 14 and under 16 years (under authority) between 26 July 2007 and 28 August 2007, contrary to s66C(4) Crimes Act 1900 for which the maximum penalty is imprisonment for 12 years. Count 6: Aggravated act of indecency towards a person under the age of 16 years (under authority) between 9 April 2006 and 2 December 2006, contrary to s61O(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years. 5When the applicant came to be sentenced a form 1 document was placed before her Honour. That contained four counts of aggravated acts of indecency as follows: (1) Aggravated indecent assault person (Abbey) under 16 between 4 August 2009 and 14 September 2009 contrary to s61M(2) Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years. (2) Aggravated act of indecency towards person (Shannin) under the age of 16 (under authority) between 9 April 2006 and 2 December 2006, contrary to s61O(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years. (3)&(4)Aggravated indecent assault on a person (Tara) (item 3 between 9 October 2005 and 21 November 2006) (item 4 on 30 October 2004) contrary to s61M(1) Crimes Act 1900 for which the maximum penalty in each case is imprisonment for 7 years. The Form 1 offences were to be taken into account in respect of Count 3 on the indictment. 6The sentencing proceedings took place before her Honour on 13 August 2010. Her Honour sentenced the applicant as follows: Count 1: Aggravated act of indecency - a fixed term of 2 years and 3 months commencing 27 October 2009. Count 6: Aggravated act of indecency - a fixed term of 2 years 8 months commencing 27 October 2010. Count 5: Sexual intercourse - imprisonment with a non-parole period of 5 years commencing 27 October 2012 and expiring 26 October 2017 with a balance of term of 2 years and 2 months expiring 26 December 2019. Count 3: Sexual intercourse - imprisonment with a non-parole period of 4 years and 6 months commencing 27 April 2015 and expiring 26 October 2019 with a balance of term of 4 years and 6 months expiring 26 April 2024. The total sentence was therefore imprisonment with a non-parole period of 10 years, commencing 27 October 2009 and expiring 26 October 2019 with a balance of term of 41/2 years expiring 26 April 2024. 7The applicant seeks leave to appeal against the severity of these sentences. For ease of reference the first, second, third and fourth offences referred to in the grounds of appeal are respectively the offences charged in Counts 1, 3, 5 and 6 on the indictment. The applicant relies upon the following grounds: (1) The sentences imposed were unduly harsh and severe. (2) The sentencing judge erred in: (a) Imposing a sentence involving preventative detention. (b) Taking into account matters which were not part of the agreed facts. (c) Finding that the first offence was of mid-range criminality. (d) Finding that the second offence was an offence above the mid-range of seriousness. (e) Finding that the third offence was one of high criminality and above mid-range offending for this type of offence. (f) Finding that the fourth offence was above mid-range seriousness. (g) Taking into account a Form 1 matter on the fourth count. (h) Finding that the special feature aggravating the offence(s) was that each offence was committed in the home of victim. (i) Finding as an aggravating matter that the victims were asleep or pretending to be asleep. (j) Finding that the offences were aggravated by being planned or manipulated. (k) Finding that the offender's denials when first confronted were a matter of aggravation. (l) Finding the victims' ages were matters of aggravation. (m) Failing to take into account in assessing objective criminality the effect of alcohol. (n) Failing to take into account matters going to objective criminality. (o) Determining that the breach of parole was a serious aggravating circumstance. (p) Failing to take into account subjective matters. Factual background 8The applicant was involved in a de facto relationship with SW from late 2003 until 12 September 2009. At the time the relationship commenced, SW had four children from a previous marriage: Tara born August 1991, Shannin born May 1993; B born July 1995 and Abbey born July 2002. The relationship between the applicant and SW produced two children. 9From August 2004 until May 2005 the applicant, SW, Tara and Abbey resided together. Tara called the applicant "dad". On the night between 14 October 2004 and 1 January 2005, the applicant entered Tara's bedroom while she was lying in bed and said to her "Are you awake?". Tara did not respond. She was facing the applicant, lying on her side with her eyes partly open. The applicant was wearing a white singlet and a pair of dark coloured boxer shorts. The applicant pulled down his boxer shorts to expose his penis and commenced to masturbate in close proximity to her, by using his hand to rub his penis back and forth until he ejaculated. The applicant then left the room. At this time Tara was aged 13. This was the first time the applicant sexually abused Tara. This was the factual background to count 1 on the indictment. 10The applicant continued to sexually abuse Tara during the time he was in a relationship with her mother. Tara estimated that the applicant subsequently committed acts of sexual abuse on or towards her on at least 30 separate occasions. Tara said: "[The applicant] played with himself in front of me on numerous occasions and that escalated to then rubbing and putting his finger into my vagina". 11On 30 October 2004 Tara was preparing to go to a birthday party and was in her bedroom. The applicant entered the bedroom and pulled down her pants. The applicant penetrated her vagina with his finger. At the time of this incident, Tara was 13 years of age. These are the facts relating to count 3 on the indictment and item number 4 on the Form 1. 12The last time that the applicant abused Tara was between 26 July and 28 August 2007. One night between those dates, the applicant entered Tara's bedroom and woke her up. The applicant began masturbating in front of her. The applicant's penis was erect. He removed Tara's boxer shorts and placed his penis into her vagina. Tara was lying on her back on the bed and the applicant had his knees on the bed and he pulled her body into him. Tara described the sensation she felt as "I felt [his] penis enter my vagina and then he pulled it out". At the time of this incident, Tara was 15 years of age. This is the factual material relating to count 5 on the indictment. 13From April 2006 until July 2007 Shannin was part of the household. One night during the period 9 April 2006 and 2 December 2006, the applicant entered the bedroom Shannin shared with her younger sister Abbey. Shannin was in bed, as was Abbey. The applicant tapped her on the shoulder and commenced to masturbate in front of her. Shannin was lying awake in bed whilst the applicant was standing in close proximity to her using his hand to rub his erect exposed penis. At the time of this incident, the child Shannin was 13. These are the facts in relation to count 6 on the indictment. 14The conduct referred to in relation to this count and item 2 on the Form 1, was not isolated conduct. Such conduct happened "many times". The conduct in relation to Shannin ceased when the applicant attempted to take his own life on 1 December 2006. 15The offence in item 1 on the Form 1 occurred in September 2009 when Abbey was playing in the lounge room after returning home from school. The applicant entered the room and placed himself behind her. He pulled her shorts down and placed his penis between the cheeks of her bottom and rubbed his penis back and forth. The applicant left the room and the child pulled up her pants and watched TV until her mother returned. Abbey was 7 years old at the time. 16The offence in item 2 on the Form 1 occurred when Shannin returned home after shopping for new clothes with her mother. When she entered the lounge room where the applicant was, he commenced masturbating in front of her and asked her to model her new underwear which she refused to do. This offence occurred between April and December 2006. 17The offence in item 3 on the Form 1 occurred when Tara was home from school sick. While Tara was sitting in the lounge room, the applicant walked up to her, unzipped his pants and exposed his penis. The applicant said "just touch it". When Tara replied "I don't want to", the applicant grabbed the child's hand and forced it onto his penis. Tara was 14 or 15 when this occurred. 18The offence in item 4 on the Form 1 occurred on the occasion when Tara was preparing to go to a birthday party (see [9] hereof). The applicant entered the bedroom and pushed her onto the bed. He then pulled his pants down, placed his penis onto her vagina, rubbing it along her vagina. After a short time the applicant pulled up his pants and left the room. 19Tara had disclosed the abuse to her mother, her boyfriend and her boyfriend's mother. She did this late in 2006 or early 2007. SW confronted the offender and he denied touching Tara. The police were not contacted on that occasion. Shannin made a disclosure to friends in 2007 but it was never reported to the police. 20On 13 September 2009 Abbey, who was then 7 years old, disclosed sexual assault upon her by the applicant. Her siblings then also disclosed historical sexual abuse and the police became involved. 21On 27 October 2009 the applicant was arrested in relation to these matters. He has been in custody in relation to these matters since that time. Remarks on sentence 22Her Honour noted that the applicant had pleaded guilty on the first day of trial and accordingly allowed him a discount of 10 percent for the utilitarian value of the plea. Her Honour noted that many of the offences had features of aggravation and mitigation which were common to all of them. Her Honour proposed to deal with those common features first. Her Honour noted that the four offences charged, especially those against Tara, were part of a series of similar events, or a course of conduct, that occurred at least 30 times. Accordingly, her Honour found that these charged events were not isolated incidents and deprived the applicant of any leniency which might otherwise arise in his favour. 23Her Honour referred to the breach of trust which was a feature of all of the charged offences in that the children were under the applicant's authority as their stepfather at the time. Her Honour said: "The Court does not then take this into account as a separate aggravating feature, however, the degree of breach of trust is a consideration when assessing criminality. It is an obvious aggravating feature that if the offender was in a position of trust and violated that trust by sexually assaulting the children, the abuse of trust is considered more serious where the offender is the father or family member of the victim. Sentences must be of a severe nature and little leniency can be given." (ROS 4.2) 24Her Honour was not prepared to treat lack of threats and lack of coercion as a mitigating factor. She said: "In the present case there was no need for BIP to threaten or physically coerce the children because of the power he had over them. The girls felt powerless to stop him and their vulnerability was based on their wish to maintain a relationship with him and their mother. The fact that they called him "dad", even though he was repeatedly sexually abusing them, speaks of their vulnerability more than it speaks of his fitness as a father. This is not a mitigating factor." (ROS 4.8) 25Her Honour treated the fact that the offences were committed in the home as an aggravating feature. Her Honour said: "Each of these offences was committed in the home of the victims. They also occurred when they were under his authority, but this is a different feature. The fact that the offences were committed in the home, which is supposed to be a place of sanctuary and safety and sometimes, at least when it commenced, in the girls' bedrooms, was a serious invasion of their privacy in a different way. The place where the offences were committed meant effectively that the victims had no place of safety to escape to." (ROS 5.1) 26In relation to the age of the victims, her Honour said: "I take into account that for the substantive offences the age range variously for the separate offences is either between 10 and 14 years or up to 16 years. In relation to each of these offences both girls were well below the stated age range for each particular offence, but it is a matter that I will take into account considering of course that each of these offences have their inbuilt age factor referred to as a particular of the offence." (ROS 5.6) 27Her Honour took into account as an aggravating feature that the children were asleep when some of the offences occurred. Her Honour stated that a child in her bedroom in her home and asleep was in a more vulnerable position which the applicant took advantage of. 28In relation to planning, her Honour said: "It is true that there is no planning involved in a criminal organisation in that sense. However, the offender and SW commenced a de facto relationship when the children were very young. The applicant started offending a relatively short time thereafter. His offending continued and he took advantage of SW's absences from home and given the degree of privacy to force his attentions on the children. He did this frequently. The degree of planning is to do with him manipulating the family situation to suit his own sexual gratification needs. In such a case the planning was more long term and is an aggravating circumstance as by manipulating the family dynamics by placing himself in a trusted position by being available to supervise the children and by making excuses to go into their rooms in night in order to abuse them. It is that issue of planning that concerns me and it is that issue of planning that I take into account as part of the objective seriousness of the offence. I do not accept that all of these activities happened fortuitously and therefore involved no planning." (ROS 6.8) 29Her Honour went on to say: "BIP told the psychologist who reported that he could not recall the offences in detail but when he was sober after having committed the offences the night before he felt full of guilt. The fact that these offences continued over several years with two children and commenced on the third child later on, does not support his self-minimising statements now. I do not accept them. When the offender was confronted in 2006 by the child Tara in front of SW he denied the offences. Thereafter he continued to offend even against the same child in a more serious fashion, knowing that she was not consenting and in fact had complained about his actions but apparently confident in the knowledge that her complaints would continue to be disregarded. His denials disempowered the child Tara even further and therefore will be taken into account by me, not as planning in the usual sense but certainly premeditation." (ROS 7.2) 30Her Honour noted that the applicant was on parole at the time of the offences. She said: "Further in considering aggravating and mitigating circumstances I have already referred to the aggravating circumstances that I have taken into account. I note further that in relation to sequence 1 and 3 on the indictment, the offender was on parole when the offences were committed, not for like matters but he was placed on parole in October 2004 for a period of 6 months for an assault matter. Therefore, in relation to those offences for which this is relevant, this is a serious aggravating circumstance." (ROS 8.5) 31Her Honour found that there was no clear evidence as to the impact on the victims of the applicant's conduct. Nevertheless, her Honour took into account what she regarded as the "general consequences for children of offending of this nature". She was not prepared to find that there was "substantial loss" experienced by the victims. 32Her Honour treated the question of whether the offender was likely to re-offend or not, his prospects of rehabilitation and his remorse together. She noted that a psychologist, Mr Howard, had reported the applicant as being ashamed and remorseful. Her Honour concluded that if the applicant participated in sex offender programs while he was in custody, there would be "reasonable rather than good prospects of rehabilitation". Her Honour was prepared to take the applicant's plea of guilty as some indication of genuine remorse. 33Her Honour then proceeded to assess the level of criminality of each offence. In respect of count 1, her Honour noted that Tara was 13 years of age, this was the first time the applicant had sexually abused her, the applicant was on parole, there was no physical contact, the child was in bed possibly asleep, ejaculation occurred and the maximum cut off age for the offence was 16. Taking those matters into account, her Honour assessed it as an offence of mid-range criminality. 34In relation to count 3, her Honour took into account that Tara was aged 13, the applicant entered the bedroom, pulled down her pants, and that he digitally penetrated her vagina. Her Honour also took into account that the length of time during which the offence occurred was not very long. Her Honour assessed this offence as being above the mid-range of seriousness. 35In relation to count 5, her Honour took into account that the applicant had entered Tara's bedroom, woke her, began masturbating in front of her until his penis was erect and having removed her shorts, placed his penis into her vagina. Her Honour took into account that at the time Tara was 15 years of age, and that the length of time during which the offence occurred was unknown, but of relatively short duration. Her Honour found that this was not an isolated incident. Her Honour said: "The age of the child, the cut off age of 16 years and the fact that she was asleep when he entered her bedroom meant that the offence was of high criminality". Her Honour assessed it as above mid-range offending for this kind of offence. 36In relation to count 6, her Honour took into account that Shannin was part of the household, she was 13, that the applicant had entered her bedroom which she shared with Abbey, that she was in bed lying awake while the applicant was standing in close proximity to her and that the applicant rubbed his exposed penis in front of her. Her Honour also noted that this was not isolated conduct and only ceased when the applicant attempted to take his own life in December 2006. While there was no direct contact, her Honour assessed the offence as being above the mid-range of seriousness. 37In relation to the applicant's subjective case, he was aged 36 at the time of sentence. He was the fourth of five children. His parents had a somewhat dysfunctional life but he had their support. His mother regularly abused alcohol and other substances and was on occasions physically violent towards his father who was frequently absent. Nevertheless, at the time of sentencing the applicant had the support of members of his family. The applicant and his sister gave evidence. 38The applicant completed his secondary education to year 9 and then left school and commenced work. He had worked as a labourer and painter throughout his working life. There were from time to time financial stressors in his life which caused difficulties. 39The applicant had issues with drug and alcohol abuse throughout his life. He attempted suicide in December 2006. This was apparently related to substance abuse, although the details were not clear. Her Honour noted that the applicant was stable at the time of sentencing because while he was in custody, he was not abusing drugs. Her Honour was impressed by the evidence of the applicant's sister who presented as a supportive and insightful person who would be able to provide the applicant with substantial assistance upon his release from custody. 40In relation to the sentence which she proposed to pass, her Honour said: "In relation to BIP it is of course important to ensure that this offender is adequately punished for these most serious offences. It is important to consider the prospect of general deterrence although it is unknown what effect the sentencing of this offender will have generally on the community, but certainly it is an important consideration, as is the issue of specific deterrence. It is in this type of offence very important to protect the community and more importantly of course each of these victims from the offender by making a lengthy custodial term that will have that effect, but it is also important to consider and to promote rehabilitation of the offender." (ROS 16.9) 41Her Honour backdated the commencement date of the sentence to 27 October 2009 when the applicant went into custody. Her Honour declined to find special circumstances. APPEAL Ground 1 - The sentences passed were unduly harsh and severe 42The applicant did not make any specific submissions in relation to the first ground of the appeal, other than by reference to the individual criticisms set out in ground 2. He did submit, however, that by reference to sentencing statistics, the sentences imposed were very much on the high side and that the extent of the accumulation was excessive so that the principle of totality was offended. 43The thrust of the submission was really directed to the effect of the individual items of complaint set out in the second ground of appeal. The applicant submitted that whilst some of the matters raised would not of themselves justify the intervention of this Court, the number of errors made by the sentencing judge was such that this Court should intervene to reduce the sentence, either by adjusting the individual sentences or by altering the extent of the accumulation provided for by her Honour. Ground 2(a) - Imposing a sentence involving preventative detention 44The applicant submitted that her Honour's observation at ROS 16.9 that "it is in this type of offence very important to protect the community and more importantly of course each of these victims from the offender by making a lengthy custodial term that will have that effect ..." involved a finding which was contrary to principle. The applicant referred to Veen v R (No 2) (1988) 164 CLR 465 at 473 where the Court said: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventative detention which is impermissible and an exercise of the sentencing discretion having regard to the protection of society, among other factors, which is permissible." 45The applicant submitted that as well as being contrary to principle, the statement was not supported by the evidence. He submitted that there was no evidence that he presented any continuing threat to the victims. 46On one view of what her Honour said she was doing no more than restating one of the purposes of sentencing an offender set out in s3A(c) of the Crimes (Sentencing Procedure) Act 1999. Had her Honour restricted her statement to the protection of the community, no real criticism could be made of it. There is, however, some force in the applicant's complaint about her Honour saying that "in this case it was very important to protect each of these victims from the offender by making a lengthy custodial term that will have that effect". There was no evidence before her Honour to support the proposition that the applicant presented any continuing threat to any of the victims. There was no submission by the Crown to that effect. Her Honour erred in making that statement. 2(b) - Taking into account matters that were not part of the agreed facts 47The applicant submitted that her Honour made a number of findings of fact which were not part of the agreed facts and which were not based on any evidence before her. The specific matters in relation to which the applicant complained were: (i) That all four offences charged were part of a series of similar events or a course of conduct that had continued at least thirty times (ROS 3.5) and in respect of Count 5 "it was not an isolated incident" (ROS 13.3). (ii) "The girls felt powerless to stop him and their vulnerability was based on their wish to maintain a relationship with him and their mother" (ROS 4.8). (iii) "The degree of planning is to do with him manipulating the family situation to suit his own sexual gratification needs. In such a case the planning was more long term and is an aggravating circumstance as by manipulating the family dynamics by placing himself in a trusted position by being available to supervise the children and by making excuses to go into their rooms at night in order to abuse them". (ROS 6.9) (iv) "In relation to each of these offences both girls were well below the stated age range for each particular offence" (ROS 5.7). 48The applicant's submission on this issue is well founded. What is clear from the agreed facts and the description of the offences, both the counts for which the applicant was sentenced and those on the Form 1, is that there was only one occasion of vaginal penetration, although there was the rubbing of the vagina in one of the Form 1 offences. There was only one incident of digital penetration. The offences which appear to have been repeated on a regular basis, and to which both Tara and Shannin were referring, were the masturbatory offences where no touching was actually involved. Because of the significant difference in penalty for each offence, it was important for her Honour to keep clearly in mind exactly what offences could be properly regarded as "representative offences" and what could not. 49In relation to (ii), there was nothing to this effect in the agreed facts before her Honour. While it was open to her Honour to make some general observations as to the helplessness of young persons placed in a similar position to these victims, that is not what her Honour did. Her Honour appears to have made findings of fact which were not open to her on the evidence. 50In relation to (iii), this involved impermissible speculation on the part of her Honour on an issue which her Honour clearly regarded as important, i.e. planning. There was no evidence before her Honour to justify such a finding. On the contrary, the effect of the evidence was that these offences were opportunistic and were largely driven by the applicant's substance abuse. 51In relation to (iv), this was also an important finding which was not supported by the evidence. It was simply incorrect to say that in relation to each of the four offences charged, that both girls were "well below the stated age range for each particular offence". 2(c) Finding that the first offence was of mid-range criminality 2(d) Finding that the second offence was an offence above the mid-range of seriousness 2(e) Finding that the third offence was one of high criminality and above mid-range offending for this kind of offence 2(f) Finding that the fourth offence was above mid-range seriousness 2(n) Failing to take into account matters going to objective criminality 52It is convenient to deal with these five submissions together since they raise the same issues. The applicant submitted that no reasons were provided by her Honour as to how she arrived at her assessment of relative seriousness for these offences. The applicant particularly complained of her Honour's approach to the fourth offence. In relation to that offence, the Crown submitted that it was below mid-range of seriousness and her Honour did not give any indication to the contrary when that submission was made. When giving her reasons, however, her Honour made a different assessment without giving the applicant any chance to raise contrary arguments. 53The applicant submitted that in each case her Honour had over estimated the level of criminality involved. Finally, the applicant submitted that this kind of assessment by her Honour was inappropriate in the circumstances since none of the offences had a standard non-parole period. The applicant submitted that her Honour should have approached the question of objective seriousness in a different way. 54While it is difficult to see the purpose of her Honour approaching the objective seriousness of the offences in the way in which she did, given that a standard non-parole period did not apply to any of the offences, the task being performed by her Honour was essentially discretionary. In Mirza v R [2007] NSWCCA 248, Howie J (with whom McClellan CJ at CL and Harrison J agreed) said: "16 It has been held by this Court that a sentencing judge's assessment of where in a range of criminal conduct encompassed by an offence a particular instance of offending stands is a matter of fact upon which minds might reasonably differ. Generally this Court would not interfere in that assessment unless it was clearly erroneous: Mulato v R [2006] NSWCCA 282. Here the assessment was supported by adequate reasons: cf Dang v R [2005] NSWCCA 430. 55Nevertheless, there is some force in the applicant's submission in that her Honour's reasoning is not particularly clear in reaching her conclusions and some of that reasoning, as previously indicated, is based on an incorrect statement of the facts. 56A particular difficulty I have which was not raised by the applicant, but which emerged in the course of submissions, is that factually I can see no difference between count 1 and count 6. The age of the victim was the same, there was no actual touching and the actions constituting the offence were the same, i.e. masturbation in front of the victim. In the case of count 1, her Honour assessed the level of criminality at mid-range, but in the case of count 6, at above mid-range. While I do not accept all of the submissions of the applicant on this issue, there does seem to be some inconsistency in her Honour's approach to what appear to be identical offences. 2(g) Taking into account a Form 1 matter in relation to the fourth count 57This is in fact a reference to count 6 on the indictment. The applicant submitted that her Honour impermissibly took into account the second of the Form 1 offences when assessing the objective seriousness of this offence. 58This submission has not been made out. It is clear from the context in which her Honour was referring to the second offence on the Form 1 that her Honour was merely emphasising the fact that count 6 was representative in nature in that it was an offence of a kind which had been committed by the applicant in relation to this victim on more than one occasion. 2(h) Finding that a special feature aggravating the offence was that each offence was committed in the home of the victims 59The applicant submitted that this was not a matter raised by the Crown in argument and consequently, there was a denial of procedural fairness in her Honour relying upon it. 60The Crown correctly conceded that this complaint was made out if her Honour had taken this into account as a separate aggravating factor. This was clearly the case. Her Honour did not refer to this consideration as part of the overall breach of trust she was considering, but gave it particular weight in that "the place where the offences were committed meant effectively that the victims had no place of safety to escape to" (ROS 5.2). 61This was an erroneous approach on the part of her Honour. In R v Comert [2004] NSWCCA 125 Hidden and Hislop JJ said that in the circumstances of that case where a husband had assaulted his wife, it was not further aggravated by the fact that the assault was perpetrated in the matrimonial home. See also EK v R [2010] NSWCCA 199 at [79] per RA Hulme J (McClellan CJ at CL and Simpson J agreeing), Ingham v R [2011] NSWCCA 88. In any event, it is difficult to see how this consideration constituted an extra matter of aggravation in the light of her Honour's emphasis upon the applicant's relationship to the children as the basis for the breach of trust. 2(i) Finding as an aggravating matter that the victims were asleep or pretending to be asleep 62The applicant submitted that apart from being denied procedural fairness in that this matter was not raised before her Honour in the sentencing proceedings, there was no reasoning set out by her Honour to underpin the finding. 63I agree. It is difficult to see as a matter of logic how this could constitute a matter of aggravation in the circumstances of this case. Her Honour should not have taken this into account as an aggravating factor. 2(j) Finding that the offences were aggravated by being planned or manipulated 64The applicant made the same submissions in relation to 2(b)(iii). I have already indicated that this finding was not open to her Honour. Not only was it not supported by the evidence, it was contrary to the evidence which was actually before her Honour, i.e. that all of the offences appear to have occurred when the applicant was intoxicated by reason of either drink or drugs. This was expressly accepted by the Crown in the sentencing hearing (T.19 on 13.8.2010). 2(k) Finding that the offender's denials when first confronted were a matter of aggravation 65The applicant submitted that it was not open to her Honour to take account of this as an aggravating factor because it involved premeditation and as disempowering the child (ROS 7.5). The applicant submitted that this was not a matter raised at the sentence proceedings and it ignored the sworn evidence of the applicant that he was frightened of telling the truth. 66While the precise way in which her Honour sought to use this material was not open to her, the fact that the applicant did deny Tara's allegations when made and then continued to commit offences against her thereafter was clearly a matter of aggravation which her Honour could properly take into account. This ground of appeal while made out, does not advance the applicant's case. 2(l) The sentencing judge erred in finding that the victims' ages were matters of aggravation 67The applicant submitted that the ages of the victims formed part of the ingredients of the offence. Accordingly, it was not open to her Honour to take their ages into account as matters of aggravation unless, as her Honour erroneously asserted, the victims were well below the stated age for each offence. 68I agree with this applicant's submission. As already indicated in respect of Ground 2(b)(iv), such was not the case. It was not open to Her Honour to take this into account as a matter of aggravation. Not only was it factually incorrect to say that the victims were well below the stated age for each offence, but such an approach involved a real risk of double counting to the detriment of the applicant. 2(m) Failing to take into account in assessing objective criminality the effect of alcohol 2(p) Failing to take into account subjective matters 69The applicant submitted that her Honour was in error in saying that intoxication was not relevant to the evaluation of objective seriousness. The applicant submitted that intoxication was relevant to mitigate objective criminality in that it had the potential to indicate that the conduct was impulsive and unplanned ( Waters v R [2007] NSWCCA 219; R v Mitchell [2007] NSWCCA 296; R v Henry & Ors [1999] NSWCCA 111, 46 NSWLR 346 at [273 - 274].) 70This submission has already been made by the applicant, i.e. the evidence before her Honour was very much to the effect that these offences were opportunistic rather than planned or premeditated because of his ingestion of drugs and alcohol. Apart from that consideration, however, her Honour was entitled to disregard those matters as mitigating factors. 2(o) Determining that the breach of parole was a serious aggravating circumstance 71The applicant accepted that any breach of parole was an aggravating matter at law. However, in this case the offence in respect of which parole had been granted to the applicant (a minor assault matter) was of an entirely different character to the offences for which the applicant was being sentenced. He submitted that at most, her Honour should have treated the fact of parole as a minor matter of aggravation. 72I agree. In the circumstances of this case it was not appropriate for her Honour to characterise the breach of parole as a "serious aggravating circumstance" given the nature of the offences under consideration. Conclusion 73As her Honour appreciated, all of these offences were serious. The very ingredients of the offences and the circumstances of their commission involved breaches of trust and serious criminality against young vulnerable persons. In relation to the masturbatory offences, they had occurred on frequent occasions and all of the offending had taken place over a substantial period of time. The moral culpability of the applicant was high. Nothing other than a substantial sentence of imprisonment was appropriate. 74That having been said, the applicant's submissions have identified a number of errors of varying degrees of seriousness in her Honour's performance of the sentencing function. Whereas some errors of this kind could be explained as involving imprecision of expression or as not significantly influencing the sentencing judge, such is not the situation here. 75In this case the very number of instances identified by the applicant where adverse findings were incorrectly made against him must lead the Court to conclude that cumulatively they had a significant affect upon her Honour's exercise of her sentencing discretion. This is the conclusion that I have arrived at. 76I have concluded that the applicant should be re-sentenced and that there should be some adjustment to the sentences passed by her Honour to more accurately reflect the facts relating to these offences. Even allowing for such an adjustment, the objective seriousness of these offences still requires a very substantial period of imprisonment. The sentence which I propose is imprisonment for 13 years with a non-parole period of 8 1/2 years and a balance of term of 4 1/2 years. 77The orders which I propose are as follows: (1) Leave to appeal granted. (2) The appeal is allowed. (3) The sentences imposed by her Honour on 13 August 2010 are quashed and in lieu thereof the applicant is sentenced as follows: (i) In relation to count 1, the applicant is sentenced to a fixed term of 2 years to commence on 27 October 2009 and to expire on 26 October 2011. (ii) In respect of count 6, the applicant is sentenced to a fixed term of 2 years to commence on 27 October 2010 and to expire on 26 October 2012. (iii) In relation to count 5, the applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years commencing 27 April 2012 and expiring 26 April 2015 with a balance of term of 2 years expiring 26 April 2017. (iv) In relation to count 3, the applicant is sentenced to a term of imprisonment of 8 years and 6 months with a non-parole period of 4 years commencing 27 April 2014 and expiring 26 April 2018 with a balance of term of 4 1/2 years expiring 26 October 2022. ********** Amendments 18 October 2011 - 1/2 fractions omitted by system import have been restored Amended paragraphs: 6, 76, 77 and coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2011