Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RL v R [2015] NSWCCA 106 Hearing dates: 14 April 2015 Decision date: 22 May 2015 Before: Basten JA; Simpson J; Adamson J Decision: (1)Grant the applicant leave to appeal. (2)Allow the appeal and set aside the sentence imposed by the sentencing judge on 14 February 2014. (3)Resentence the applicant to imprisonment for 6 years, with a non-parole period of 2 years 9 months to date from 14 February 2014 and a balance of term of 3 years 3 months. (4)The first date on which the applicant is eligible for parole is 13 November 2016. Catchwords: CRIMINAL LAW – sentencing – sentencing adult for sexual offences committed as juvenile – whether sufficient allowance made for applicant's youth at time of offending – whether sentence accorded with sentencing principles applied at time of offending – no need for further rehabilitation CRIMINAL LAW – sentencing – whether planning of type which aggravates offence pursuant to s 21A(2)(n), Crimes (Sentencing Procedure) Act 1999 (NSW) CRIMINAL LAW – sentencing – use of victim impact statement – statement not limited to harm directly resulting from offence CRIMINAL LAW – sentencing – whether to consider ground of manifest excess if specific error established – need for appeal court to determine appropriate sentence – not sufficient to ask if impugned sentence within range – Kentwell v The Queen [2014] HCA 37 applied – Criminal Appeal Act 1912 (NSW), s 6(3) Legislation Cited: Child Welfare Act 1939 (NSW), s 83 Children (Criminal Proceedings) Act 1987 (NSW), s 33 Crimes Act 1900 (NSW), ss 61D(1), 71, 76, 81 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 26, 28, 32, 44, 53A Criminal Appeal Act 1912 (NSW), s 6 Cases Cited: Abbas v R [2013] NSWCCA 115; 231 A Crim R 413 AJB v R [2014] NSWCCA 51; 169 A Crim R 32 Davis v R [2015] NSWCCA 90 Fahs v R [2007] NSWCCA 26 Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 MPB v R [2013] NSWCCA 213; 234 A Crim R 576 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 R v Tuala [2015] NSWCCA 8 Williams v R [2010] NSWCCA 15 Category: Principal judgment Parties: RL (Applicant) Regina (Crown) Representation: Counsel: W Hunt (Applicant) G O'Rourke (Crown) Solicitors: Legal Aid of New South Wales (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/64630 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: 2013/64630 Date of Decision: 14 February 2014 Before: Phegan ADCJ File Number(s): 2013/64630 Judgment 1. THE COURT: Pursuant to a judgment delivered on 14 February 2014, the applicant was sentenced to an aggregate term of seven years imprisonment with a non-parole period of three years and three months. The sentence related to seven offences, with five further offences being taken into account. The applicant accepted his guilt with respect to all offences, which involved sexual assaults. 2. The detail of the offending is set out at [12] below in a table identifying the offences, the respective ages of the victims and the offender, the maximum penalties available at the time of the offences and the indicative sentences identified by the sentencing judge when imposing an aggregate sentence for the totality of the offending. 3. The offending took place between early 1981 and 1986. All but two of the incidents involved one victim, who was a niece of the applicant, being a daughter of the applicant's sister who was considerably older than he. One incident involved the sister of the primary victim (count 7) and another (on a Form 1), a male cousin of the primary victim. (The individuals are identified by their relationships to accord the anonymity required by statute in the case of offences committed by or involving children.) 4. At the time when the offending commenced, in early 1981, the applicant was 14 years of age (having been born in August 1966). Three of the incidents took place in 1981, including the assault on the sister and the cousin (both being less serious offences of their kind). 5. Given the lapse of time since the offending (the primary victim did not make a complaint until 2013) it was not possible to identify precise dates. Thus, the latest offence, said to have taken place "during 1986", probably took place when the applicant was 19 years of age. 6. Sentencing in a case of this kind is fraught with difficulties, both in terms of principle and technicality. So far as principle is concerned, there is an anxious tension between the need for public condemnation of the conduct involved and the vindication of the dignity of the victims, on the one hand, and on the other, the imposition some 30 years after the events, of penal consequences on an offender who has led a subsequently blameless life and has readily acknowledged his own wrongdoing, when confronted with the complaints. 7. Further, principle requires that the Court take into account the law as it applied at the time of the offending. [1] Not only is the offender to be charged with offences as they were identified in the Crimes Act 1900 (NSW) at the time of the offending, but he is subject only to the range of penalties available under the law at that time, and to general sentencing principles as then applied. 8. The technical difficulties are also relevant. The last principle requires, in effect, that an offender not be sentenced more harshly than would have occurred had the sentencing and the offending been roughly contemporaneous. One result of that principle is that the court must have regard to the relationship accepted at that time between the minimum term (or non-parole period) and the full term of the sentence. On the other hand, the Court does not sentence in accordance with the law as then in place, but imposes a sentence under the current law, namely the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). [2] 9. There is a second technical issue: the sentencing judge purported to impose an aggregate sentence, a course available with respect to a number of offences, since the introduction of s 53A of the Sentencing Procedure Act, which commenced in March 2011 and which applies with respect to offences for which a court has accepted a plea of guilty after that date. The purpose of introducing that provision was to avoid the need for a somewhat artificial exercise involved, especially where there are numerous offences, of imposing separate sentences, but allowing almost arbitrary elements of accumulation in order to avoid a total period of imprisonment which would be excessive having regard to the offending, taken as an overall course of conduct. Nevertheless, to ensure that careful attention is paid to the nature and circumstances of each offence, a judge imposing an aggregate sentence is required to "indicate" to the offender, and record, the sentences that would have been imposed for each offence had separate sentences been imposed. [3] 10. In the present case, the sentencing judge did that, but set out in his reasons for judgment the non-parole period, balance of term and commencement date of each indicative sentence. Although those sentences were not imposed in that form, the exercise indicated with a degree of precision the reasoning adopted by the sentencing judge in reaching the aggregate sentence. While this course has the merit of transparency, it also reveals in what way an excessive indicative sentence may have been translated into the aggregate term. Charges and convictions 1. All of the offences were committed between 1981 and 1986 at a residence in Revesby, where the applicant (14 years of age in early 1981) lived with his mother and his sister. The sister was some years older than the applicant, and had three young children, including two daughters, who were the applicant's nieces. These living arrangements had been brought about by the death of the applicant's father in a motor vehicle accident in which the applicant (then eight years old) and his mother had been seriously injured. When the sister with her children moved into the Revesby residence the applicant and his mother moved out of the house and into the garage which had been converted into a granny flat. The applicant was often left in charge of the young children. A young boy, the victim of the fifth Form 1 offence, was the son of another sister of the applicant. 2. The offences for which the applicant was sentenced and the indicative sentences are set out below. ("A" refers to the applicant; "PV" to the primary victim; "SV" her sister and "Male V" is her cousin.) Table of indicative sentences Offence / section in Crimes Act 1900 Particulars Max penalty Date / age of victim / age of applicant Indicative sentence (taking into account 25% discount for plea) Indicative sentence (starting point before discount for plea) Early 1981 1. Indecent assault of a girl: s 76 Digital penetration of PV's vagina while masturbating his own penis 6 yrs PV : 6 or 7 yrs 3 yrs with 12 mths NPP to date from 14.2.14 4 yrs A: 14 yrs After 3.4.82 2. Sexual intercourse without consent: s 61D(1) Forced PV to suck his penis and cunnilingus upon PV 10 yrs PV: 8 yrs 4 yrs with 18 mths NPP to date from 14.2.14 5 yrs 4 mths A: 15 or 16 yrs After 3.4.83 3. Sexual intercourse without consent: s 61D(1) A performed cunnilingus upon PV and digitally penetrated her vagina 10 yrs PV: 9 yrs 4 yrs 9 mths with 1 yr 9 mths NPP to date from 14.5.14 7 yrs 4 mths A: 16 or 17 yrs Just before Christmas 1984 4. Unlawful carnal knowledge – above 10 and under 16 yrs: s 71 Digital penetration of PV's vagina, cunnilingus upon her and penile vaginal penetration 10 yrs PV: 10 yrs 6 yrs 6 mths with 2 yrs 6 mths NPP to date from 14.11.14 8 yrs 8 mths A: 18 yrs 5. Unlawful carnal knowledge – above 10 and under 16 yrs: s 71 Latter half of 1985 (including 1-4 on Form 1) Penile vaginal penetration, cunnilingus and then penile vaginal upon PV 10 yrs PV: 11 yrs 6 yrs 6 mths with 2 yrs 6 mths NPP to date from 14.11.14 8 yrs 8 mths A: 19 yrs During 1986 6. Sexual intercourse without consent: s 61D(1) Touching of vagina, cunnilingus on PV 10 yrs PV: 12 yrs 18 mths fixed term to date from 14.11.14 2 yrs A: c 19 yrs 7. Indecent assault: s 76 During 1981 (including 5 on Form 1) Forced SV to touch his penis 6 yrs SV: 10 or 11 yrs 6 mths fixed term to date from 14.2.14 8 mths A: 14 – 15 yrs 1. As appears in the above table there were five charges on a Form 1 which were taken into account pursuant to s 32 in the sentences indicated in respect of the fifth count (1-4 on the Form 1) and the seventh count (5 on a separate Form 1). The Form 1 charges are set out in the table below. Table of Form 1 charges Offence / section in Crimes Act 1900 Particulars Max penalty Date / age of victim / age of applicant 1981 1. Indecent assault on under 16: s 76 Digital penetration of PV's vagina whilst masturbating his penis 6 yrs PV: 6 or 7 yrs A: 14 or 15 yrs 1983 2. Sexual intercourse without consent: s 61D(1) Performed cunnilingus upon PV and digitally penetrated her vagina 10 yrs PV: 9 yrs A: 16 or 17 yrs Latter part of 1985 3. Sexual intercourse without consent: s 61D(1) Performed cunnilingus upon PV and digitally penetrated her vagina 10 yrs PV: 11 yrs A: 19 yrs 1987 4. Sexual intercourse without consent: s 61D(1) Licked her breasts, performed cunnilingus upon PV 10 yrs PV: 12 or 13 yrs A: c 20 yrs Between 2.7.81 and 2.9.83 5. Indecent assault on male: s 81 Masturbated in front of Male V and pulled his arm towards A in the bath to force contact with his testicle telling him to squeeze them and 'give it a suck' 10 yrs Male V: 8 or 9 yrs A: 14-15 yrs The facts 1. The following narrative is derived from the Agreed Facts. Count 1 1. This offence occurred in early 1981 when PV was 6 or 7 and the applicant between 14 and 15. After PV and her sister SV arrived home from school, the applicant ran a bath for PV and directed her to get in the bath. She did so and left the bathroom door open wide. Once she was in the bath the applicant came into the bathroom, closed the door, undressed and got into the bath with PV who observed that he had an erect penis. The applicant started to masturbate in front of PV and reached over and inserted his fingers into her vagina. He continued to masturbate and ejaculated into the bath water while his fingers were still inside the victim's vagina. He then said to her, to 'get the fuck out'. PV got out of the bath, left the bathroom, got dressed and sat in the front of the house and broke into tears. Form 1 offence (1): taken into account on indicative sentence for Count 5 1. This incident occurred a few days after the previous incident. The applicant was at home when PV and SV arrived, having walked from school. The applicant told PV that she was 'filthy dirty' and directed her to get into the bath. She undressed in her mother's bedroom and entered the bath that had been run for her. The applicant again entered the bathroom, closed the door, undressed and got into the bath. His penis was erect and he started to masturbate. He reached out and touched PV's vagina and inserted one or two fingers inside her. He moved his fingers around inside her vagina and continued to masturbate and ejaculated into the bath water. Again, he told PV to 'get the fuck out'. She left the bathroom and went to the shops with her sister, crying as she went. Count 2 1. In 1982, PV returned home from a play date shortly after her eighth birthday and began watching television. The applicant, who was then about 15, said to PV's mother, 'I've told her to get in the bath but she won't'. PV's mother told her to get into the bath and she complied. When PV was in the bath the applicant came in and closed and locked the door. He removed his clothes and got into the bath with an erect penis. He said 'suck my dick!' to PV and placed his hand behind her head and pushed it towards his erect penis forcing her to open her mouth and put it around it. She quickly pulled her head back at which point the applicant got up on his knees, placed the victim at the end of the bath pushing her legs apart and performed cunnilingus upon her. He inserted his tongue into her vagina and continued to masturbate, again ejaculating into the bath water. He then got out of the bath, opened the door and told the victim to 'get out'. PV went to her bedroom, got dressed and said goodnight to her mother. She told her mother she was crying because she was tired. Count 3 1. In 1983, sometime after PV's ninth birthday, she was playing in the granny flat with her brother. Later, while she was eating lunch in the house, the applicant, who was 16 years of age, complained that the granny flat was messy. PV returned to the granny flat and the applicant followed. There was no mess. He then picked PV up and put her on her grandmother's bed. She cried out 'stop it' but the applicant ignored her plea and grabbed her leg and pulled her towards the end of the bed. He removed her pants and underclothes. She was crying. He forced her legs wide open, put his head between her legs and performed cunnilingus. At the same time he put his fingers inside her vagina. After this he told PV, 'get the fuck dressed and never come back down here again.' Form 1 (2): taken into account on indicative sentence for Count 5 1. On a day in late 1983 the applicant suggested to PV and her younger brother that they play 'hide and seek'. They agreed and followed him to the applicant's bedroom. Whilst the younger brother counted the applicant told the victim to get onto the top bunk which she did. The applicant followed her and joined her under the bed covers. The applicant then removed her pants and underwear, forced her legs apart and performed cunnilingus upon her and then digitally penetrated her. The brother then entered the room and the applicant jumped off the bunk. The victim pulled up her tracksuit pants and did not disclose what had happened. Count 4 1. Shortly before Christmas 1984, when PV was 10 and the applicant was 18, the applicant discovered PV playing with presents she had found in her mother's bedroom. He told her to get out of the bedroom and into the bath, which she did. The applicant then came into the bathroom and closed the door. PV got out of the bath and wrapped a towel around herself. The applicant grabbed her by the arm and pulled her towards him. While he was sitting on the toilet he pulled the towel off the victim and tried to kiss her mouth and reached down and started rubbing her vagina. He then put his finger inside her vagina and told her to stand on his legs, which she did. He then performed cunnilingus on her before he laid her on the bathroom floor, forced her legs apart, continued to perform cunnilingus and then forced his penis partially inside her vagina, thrusting it back and forth. He was unable to fully penetrate the victim. He then got off her and said 'get up you dirty bitch and get the fuck out'. Form 1 (3): taken into account on indicative sentence for Count 5 1. In the second half of 1985 when PV was 11 and the applicant was 19, PV got out of a temporary swimming pool in the backyard of her house and laid on a towel to sunbake. The applicant, who had been swimming with her, also got out of the pool and went into the granny flat. He called PV in, saying that he wanted to show her something. As soon as she entered the flat he jumped from behind the wardrobe, grabbed her hand and led her to her grandmother's bed. He then removed her swimming costume and performed cunnilingus. He then digitally penetrated her vagina and took hold of her lifting her up over his shoulders in such a way that her vagina was in his face and he continued to perform cunnilingus. He then forced her against the wall of the flat before she complained that he was hurting her. He pulled her off the wall and told her to put her 'cozzies back on and shut your mouth'. She said nothing to anyone about this incident. Count 5 1. In 1985 when PV was 11 and the applicant was 19, PV, who had returned from a soccer match, was told by her mother to have a bath. She refused but eventually went to the bathroom, ran the bath, got her pyjamas from her bedroom, returned to the bathroom and closed the door. Once naked and in the bath the applicant walked into the bathroom and closed the door. PV cried and the applicant said, 'Hurry up and wash yourself and I'll help you get out'. The offender handed her a towel which she wrapped around herself as she got out of the bath and the applicant hugged her. He then sat down on the toilet seat and pulled the towel away from PV. He kissed her on the lips and told her to stop crying and ran his hands down the front of her body, touching her breasts and vagina. He pulled PV onto his lap. She felt his penis against her vagina. The applicant then told PV to wrap her legs around his body, which she did. He then tilted her back and took hold of his penis and rubbed it against her vagina and partially entered her. PV complained that it was hurting her and he told her to lie on the floor. She did so and he forced her legs open and performed cunnilingus on her and then kissed her mouth. He then forced his penis inside her vagina and thrust inside her. She again complained he was hurting her, after which he stopped, stood up, got dressed and left the bathroom. Count 6 1. In 1986 PV came home and went to have a bath after her year 6 farewell. She was 12 and the applicant was probably still 19. The applicant came into the bathroom when PV was already in the bath, naked. She sat up and covered herself, at which point the applicant reached over and removed the plug from the bath. PV stood up and the applicant helped her out of the bath. She grabbed a towel, but the applicant threw it onto the floor and told her to lie on the floor. He threatened to tell PV's father (who was then in the house) if she refused. He then forced her legs apart, rubbed her vagina with his fingers and lifted her up and placed her on the vanity unit. He told her to spread her legs and he then performed cunnilingus on her. He then had her turn around with her back to him and continued to perform cunnilingus. Form 1 (4): taken into account on the indicative sentence for Count 5 1. In 1987 PV, who was 12 or 13, got out of the temporary pool in the backyard of the Revesby residence to use the toilet. The applicant, who was 20 or 21, knocked on the toilet door. When she opened the door the applicant pushed her back inside and closed the door. When PV told him to leave her alone, the applicant replied, 'Shut up or I'll tell your mum'. He instructed PV to stand up on the toilet seat, which she did. The applicant then pulled down her swimming costume, licked her breasts and stomach and then started to perform cunnilingus on her. He again told her to turn around and bend over, which she did and he continued to perform cunnilingus. The applicant then turned PV upside down, put her vagina into his face and continued to perform cunnilingus. PV was able to feel that the applicant had an erection. He then put PV down and left. PV started to cry and went inside the house. She said nothing to anyone about what happened. Count 7 1. In 1981, the applicant, who was 14 or 15, had not yet moved into the granny flat with his mother and still had a bedroom in the main house. That year, sometime between counts 2 and 3, SV who was then 10 or 11, walked past the applicant's room where he was masturbating. He called out to her to 'come in and touch it'. She went into the room and sat next to the applicant on his bed. The applicant grabbed her right hand and again told her to 'touch it'. He pulled the victim's hand towards and onto his penis. Form 1 (5): taken into account on the indicative sentence for Count 7 1. Sometime between 1981 and 1983 the applicant's nephew Male V, who was either 8 or 9, was visiting the Revesby house. Male V went to the bathroom and found the applicant naked in the bath. The applicant told Male V to come in and close the door, which he did. Male V saw the applicant holding his penis with his right hand and masturbating. The applicant grabbed Male V's left arm just above the wrist, pulled it down into the bath on top of the applicant's testicles. The applicant twisted Male V's arm slightly so that his palm had touched the testicles. The applicant then said, 'squeeze them' and Male V said 'no'. The applicant then said, 'give it a suck, just suck it', and Male V said, 'no, no, I'm going to get my dad', at which point the applicant immediately let go of Male V's arm and Male V ran out of the bathroom. Male V did not report it to his father. Applicant's arrest 1. At about 12.30 pm on Saturday 2 March 2013 the applicant was arrested. He was conveyed to Narellan Police Station where he was electronically interviewed. He denied the allegations except one incident involving PV which had occurred when they were young which he described as involving "curiosity". He was charged. Applicant's subjective circumstances 1. The applicant was born on 9 August 1966. As referred to above when he was 8 years old he was involved in a motor vehicle accident in which he was injured and his father died. He has three sisters, each of whom is considerably older than him. One sister, the mother of the female victims, moved into his home with his mother in around 1981. 2. Dr Zhu, a forensic psychologist, recorded that the applicant gave the following explanation of his offending conduct: "[RL] agreed with the Police Facts and pleaded guilty to the offences. He stated he could not recall much detail due to the passage of time (over 20 years) but overall he accepted what is described in the Police Facts. [RL] said he is extremely ashamed of his behaviour. He said he understands the impact of his action on the victims. He expressed that he is willing to take responsibility and accept any punishment the Court may impose. [RL] said he has been looking for an explanation for his own behaviour since the disclosure. He said his father died suddenly in a motor vehicle accident when he was young (8 years old). After his father's death, he (and his mother) had to move into a garage to give up the house to his sister and her two daughters (both were victims). He recalled feelings of resentment and animosity towards his sister and nieces due to the deterioration of his living conditions. [RL] recalled a particularly difficult adolescence, manifested as anger, temper outbursts and rebellious behaviour. He believes that his offending behaviour might have been the result of acting out of his anger and resentment. [RL] stated he stopped his abusive behaviour when he was aged between 19 and 20, being the time he grew in maturity as well as gained meaningful contact outside of his family environment through engagement in employment and relationships with people outside of his immediate family." 1. The applicant reported to Dr Zhu that he had worked on a milk run from the age of 14 when he was still at school. He left school at 16 after Year 10, did a horticulture course at TAFE and has been working full-time since he was 16. When the applicant was 21 he purchased the Revesby residence. He also told Dr Lennings, a clinical psychologist, that this was his way of "getting his home back". 2. The applicant appears to have led an exemplary personal life since these offences. He has had four significant relationships and has two children. At the time of sentencing he was living with a woman and her 15-year-old daughter. All partners still support him and he has good relationships with his children. He is a social drinker, denies drug use or any gambling behaviour and has had steady employment since leaving school. 3. Ms Thomson, a Community Corrections Officer, reported: "The offender is unlikely to benefit from a period of supervision by Community Corrections due to [RL]'s assessed low risk of reoffending there are no criminogenic factors that can be addressed by this Service." 1. The applicant gave evidence at the sentence hearing and verified the histories given to Dr Zhu and Dr Lennings. He expressed remorse for the crimes he had committed and the harm he had caused the victims. Sentencing judgment 1. The sentence imposed, together with the indicative sentences for the individual offences, has been set out above. The judge allowed the standard 25% discount for early pleas with respect to all the offences and made a finding of special circumstances to allow departure from the statutory relationship between non-parole period and balance of the aggregate sentence under s 44(2B) of the Sentencing Procedure Act. These findings were not in dispute. To the extent that the sentencing judge's reasoning is otherwise relevant it will be referred to in considering the grounds of appeal. Ground 1: aggravation by planning 1. The sentencing judge accepted that there was sufficient planning or organisation involved in the offending to constitute a circumstance of aggravation under the Sentencing Procedure Act, s 21A(2)(n). That provision refers to an offence which is "part of a planned or organised criminal activity". Counsel for the applicant submitted that there was some "pattern of behaviour" with respect to at least some of the offences, but that they were better described as the spontaneous or opportunistic taking advantage of circumstances as they arose in shared domestic living. He submitted that the present offending did not fall within that aggravating factor, contending that the word "planned" in s 21A(2)(n) is, by reason of its context, to be read narrowly. 2. This submission should be accepted. In Williams v R, [4] McClellan CJ at CL said, in the context of an offence of break, enter and steal: "[18] The complement of s 21A(2)(n) is found in s 21A(3)(b). In as much as s 21A(2)(n) provides that it is an aggravating feature of an offence that it was 'part of a planned or organised criminal activity' s 21A(3)(b) provides that it is a mitigating factor if the offence was not part of such a planned or organised criminal activity. ... [19] Section 21A(2)(n) has been considered by this court on previous occasions. In Fahs v R [5] Howie J said that the provision conveyed 'more than simply that the offence was planned'. His Honour suggested that a street dealer who purchased drugs simply to obtain the cash to purchase drugs for his own use is unlikely to fall within the provision. However, those responsible for maintaining the drug distribution network are likely to be committing offences which form part of planned or organised criminal activity. [20] In my opinion the approach adopted to s 21A(2)(n) by Howie J is correct. It is only when the particular offence is part of a more extensive criminal undertaking that the subsection is engaged. The fact that an offence was planned does not of itself bring it within the subsection." 1. As in Williams, there was some "planning" of the various offences, but not such as to bring it within s 21A(2)(n). Contrary to the Director's approach, this was not an immaterial error: nor was the level of "planning" an objective factor which significantly affected the relative seriousness of the offences for the purposes of s 21A(1)(c). The fact that there were several offences revealing some broad pattern of behaviour does not mean there was relevant "planning". Rather, the fact that the offending, including the matters taken into account, was scattered over a five year period demonstrated that this was opportunistic behaviour. Thus, accepting that three offences occurred in 1981, there was a period of some 12 months between that offending and count 2, a further period of 12 months between counts 2 and 3 (and another offence taken into account); a period of some 18 months between counts 3 and 4; a further period of about 10 months between counts 4 and 5 (and another offence taken into account) and a further 12 months or so between counts 5 and 6. That all of the behaviour involved aberrant sexual activity of an adolescent boy (and, at the end, young adult), within the domestic environment, is inconsistent with anything in the nature of planned criminal activity. The misdirection was not immaterial. Ground 2: applicant sentenced as an adult 1. Four of the seven offences occurred when the applicant was between 14 and 16 years of age. (Count 3 was said to have occurred "after 3 April 1983", but the applicant did not turn 17 until August 1983 and it should, therefore, be accepted that he was still 16 years of age at the time of the offending.) 2. The Director accepted that none of the offences constituted a "serious children's indictable offence" and, therefore, none required to be dealt with according to law. Nevertheless, the Director also submitted that such offending could be dealt with "according to law" and that, "[e]ven if he had been charged prior to his 21st birthday, the fact he faced similar but escalating charges committed when an adult (and for a period of three years into adulthood) and the seriousness of the indictable offences concerned made it more than likely that he would have been dealt with according to law." 3. This submission should be rejected for a number of reasons. First, it assumes a delay (with respect to offences committed before he turned 16) of a further three or four years before the charges were laid. Further, it assumes that offending which took place up after that age should be taken into account. On the other hand, treating the first four charges (and three additional offences to be taken into account) as having occurred whilst he was a young person, recognition should have been given to the probability that he would have been dealt with by a Children's Court. The fact that the primary victim would not have been more than 10 years of age would probably have been a factor in favour of the matter being dealt with in the Children's Court. In that event, the offender would have been committed to a juvenile institution for a period not exceeding two years. [6] 4. By contrast, and before taking into account a discount for an early plea, the sentencing judge indicated that the sentence on count 1 would have been four years (two-thirds of the maximum available), the sentence on count 2 five years, four months (maximum 10 years) and the sentence on the third count seven years four months (maximum 10 years). 5. The indicative sentence in respect of count 7, prior to discount, was eight months. It involved the sister of the primary victim and the offence concerning her male cousin was taken into account. 6. The sentencing judge said with respect to the earlier offences: [7] "The earlier offences were committed while the offender was still short of adult age. He was a teenager without any male parental model. So far as those earlier offences are concerned this has particular relevance because as counsel for the offender quite properly [indicated] it may well be that at that time for those offences, that is the offences up to the time he turned 18, the offender would not have been prosecuted before the ordinary courts at all. He would have been dealt with under the relevant legislation applying to juveniles which would most likely have led to a very different sort of outcome." 1. Despite these observations, the judge would have imposed (disregarding the discount and the effect of concurrency) a lengthy period for the offences committed by an adolescent boy between 14 and 17 years. On his own findings that demonstrates an erroneous approach. It is certainly not within the range of sentences which would have been given for such conduct in, say, 1985 or 1987. If there had been contemporaneous complaints, the applicant would have been dealt with before the commencement of the Children (Criminal Proceedings) Act, as appears to have been submitted at the sentencing hearing. The sentencing judge was provided with the Child Welfare Act 1939 (NSW), s 83. [8] 2. None of that is to say that the sentencing court in 2014 was limited to the range of sentences available in the Children's Court, nor that the court in 2014 could not properly take into account the overall trend of the offending, including later offences. Rather, the significance of the indicative sentences for these offences is that they demonstrate a false basis upon which the aggregate sentence was determined. Ground 3: subjective circumstances of applicant 1. As noted above, there is a high level of tension in relation to sentencing offenders years after the events which constitute the criminal conduct, in providing adequate punishment, giving some effect to general deterrence, denouncing the conduct of the offender and recognising the harm done to the victim, in circumstances where there is no palpable risk of reoffending, no need to deter the offender, no need to protect the community from the offender nor to promote the rehabilitation of the offender. The somewhat unusual circumstances, where the offending was undertaken during adolescence and very early adulthood, rather than the more common examples of an adult preying on young children, give confidence to a finding that the applicant is most unlikely to reoffend. However, the sentencing judge was well aware of these circumstances. 2. So far as the purposes of sentencing were concerned, the sentencing judge expressly ruled out the need for specific deterrence, [9] and held that he did not see "any real prospect of re-offence." [10] The judge continued: "Under subsection (h), [11] he has good prospects of rehabilitation, whether by reason of age or otherwise. His age is certainly relevant but there are also many other factors which combine to lead to the conclusion that the rehabilitation [on] his part is not a matter of good prospects, it has happened and is unlikely to change." 1. There is a question to be considered as to whether the overall sentence was excessive; that question aside, there is no basis for supposing that the trial judge did not give full effect to the entirely favourable findings he made in relation to the subjective circumstances of the applicant. This ground must be rejected. Ground 4: reference to victim impact statement 1. Counsel for the applicant referred to a passage in the judgment on sentence in which reference was made to a statement prepared by the primary victim's sister, who was the subject of one assault. The judge had referred first to the victim impact statement of the primary victim: no complaint is made in that regard. Rather, the challenge relates to the use made of the sister's statement, which was referred to in the following terms: [12] "Can I just add in this context the victim impact statement from the second victim. Now I do not minimise the offence to which she was subjected but it certainly does stand in contrast to what the principal victim was subjected to. What is striking about her victim impact statement is the extent to which she has assumed at least to some degree responsibility for what happened to her sister. What she has been through is what might be described as the vicarious consequences of the impact of these offences on the principal victim. She testifies to her on going loss of self-esteem which she associates with not so much what happened to her but her failure, knowing what was happening to her sister, to do nothing about it [sic]. She goes on also to refer to the pervasively disruptive impact on the broader family which these offences have had. I refer to that particular aspect of the statement because it does draw attention to the need to take account of what I will call the broader consequences of these offences which do not end as acute as they may be with the immediate victim, the principal victim in this case. All of that therefore combines to make these offences of a very serious kind although I have to say and I have already offered some explanation for this not the most serious." 1. The source of complaint is, first, that there appears to have been acceptance of the suggestion that the sister knew at the time "what was happening to her sister", the primary victim, but did nothing about it. As counsel for the applicant correctly noted, this was entirely inconsistent with the statement of agreed facts which were, in respect of each incident, that the complainant did not disclose the incident to any person at the time of the offending. The discrepancy was not unimportant: the question is what can be made of it in the context of the present appeal. 2. The second limb to the applicant's complaint was that the statement by the sister went beyond particulars of any personal harm suffered by her as a direct result of the offence against her. To that extent, the statement did not fall within the defined term, "victim impact statement", in s 26 of the Sentencing Procedure Act. The receipt and consideration of a victim impact statement, pursuant to s 28, does not extend to such material. Even if not objected to, the applicant submitted, it should have been disregarded. 3. In R v Tuala [13] Simpson J noted [14] a number of factors which must be addressed in taking a victim impact statement into consideration pursuant to s 28(1) of the Sentencing Procedure Act. That analysis focused on the extent to which a victim impact statement could establish an aggravating factor for the purposes of s 21A(2). Generally speaking, such a statement is relied upon in support of s 21A(2)(g), namely that "the injury, emotional harm, loss or damage caused by the offence was substantial". With respect to the primary victim, and without diminishing the seriousness of the harm, the judge clearly accepted that the very significant impact was of the kind to be expected in such a case. [15] As Simpson J said in Tuala, issues as to the use to which a victim impact statement may be put will arise where "the harm which the statement asserts goes well beyond that which might ordinarily be expected of that particular offence", or that "the content of the victim impact statement is the only evidence of harm." [16] 4. The concern in the present case is that it was precisely the point at which the second victim statement moved beyond the proper content (namely, personal harm to herself) that it was taken to have assumed a significance described as "striking" by the trial judge and which drew attention to "the need to take account of what I will call the broader consequences of these offences which do not end … with the immediate victim". The judge continued, "[a]ll of that therefore combines to make these offences of a very serious kind". [17] 5. Again as Simpson J noted Tuala, there are questions as to the extent to which complaint can be made on appeal of the use to which the sentencing judge put a victim impact statement, where no objection was taken to its tender and no submissions were put as to its appropriate use. [18] This was one of those cases (hopefully rare) where the prosecutor tendered a statement which went beyond the limits of legitimate content. Counsel for the applicant suggested that objection may not have been taken because that might have appeared inconsistent with the fully remorseful position of the applicant. There is no evidence that counsel below took such a position, nor, one would hope, would such an approach be thought necessary. Genuine remorse does not require submission to inadmissible material. However, and more importantly, the content of the statement was the subject of discussion at the hearing on sentence. The trial judge raised a question with respect to the offence the subject of count 7 (relating to the sister), asking whether that offence would, "looking at it in isolation, attract a custodial sentence". The prosecutor accepted that it did not. [19] 6. The sentencing judge then noted with respect to the second victim's statement that "her reference to loss of self-esteem was primarily her shame at doing nothing about what was happening to her sister, and not specifically to the impact of the offence itself." [20] While anxious not to suggest he was "minimising the offence" the judge concluded by saying that what the prosecutor had said "about the appropriate sentence largely relieves me of any particular concern in that regard anyway." [21] 7. The prosecutor then sought to make the point that, with respect to substantial harm for the purpose of s 21A, "offences of this kind necessarily almost inevitably cause harm, but for that section to be invoked it needs to be over and above that which is normally found in such offences." [22] That statement was followed by counsel for the applicant making the submission that neither of the offences with respect to the other two victims would themselves have attracted a fulltime custodial penalty, "especially given the age of the offender at the time." [23] (Reference was then made to likely disposals under the Child Welfare Act, s 83(3).) 8. This discussion carried with it an implication that the judge was only concerned with the statement of the second victim in so far as it affected the offending against her. However, in the passage in the reasons for judgment, it appears to have been relied upon as a basis for a finding that the impact of the offending extended to the family. There being no other evidence of such an impact, and certainly no evidence of the specificity found within the second victim's impact statement, it appears that those broader effects were taken into account in sentencing for the offences against the primary victim. This course was impermissible. It follows that ground 4 has been made good. Ground 5: manifest excess 1. In determining whether, error having been identified, the court should intervene to resentence the applicant, it is necessary for the court to form an opinion as to what sentence is appropriate and thus "warranted in law." [24] It is not sufficient to consider whether the sentence imposed was within an available range and in that sense not manifestly excessive, nor is it necessary to assess whether and to what degree the error influenced the outcome. Accordingly, material error having been established, the court must consider what sentence should be imposed and, if less than the existing sentence, to quash the existing sentence and resentence the applicant. [25] Whether resentencing required 1. One preliminary issue is the manner in which the offending on the Forms 1 should be addressed. The sentencing judge took four matters into account when sentencing on count 5, that being in substance the most serious of the counts, in circumstances where the objective offending was similar to that under count 4, but the applicant was one year older. However, two of the offences to be taken into account arose at the same time as counts 1 and 2, a third arose at the same time as count 3 and only one offence arose at the same time as count 5. The better course is to take each Form 1 offence into account in respect of largely contemporaneous and similar offending, where that is available. [26] 2. A second preliminary question is whether the applicant should be resentenced by way of an aggregate sentence, or by fixing sentences for the individual offences. Although it is possible (and perhaps desirable) to identify with precision the sentence which should be imposed for each offence, and the appropriate degree of accumulation, so as to reach a total sentence period for all the offending, the fixing of an appropriate non-parole period by reference to an individual offence or offences is artificial. The course adopted by the sentencing judge in imposing an aggregate sentence with a single non-parole period should be followed. 3. As noted above, the precise manner in which the sentencing judge approached the determination of an aggregate sentence and non-parole period is to be found in the table of indicative sentences. It is appropriate to identify the points of departure noted above. First, the prosecutor did not contend that any custodial sentence should be imposed for the offence against the second victim. [27] The trial judge ultimately took a different view, imposing a penalty of eight months imprisonment, which was entirely concurrent with the sentences for counts 1 and 2. Nevertheless, in principle, and viewed in isolation, that sentence was excessive. The prosecutor was right to accept that no custodial sentence would have been imposed for that offence in 1981, if viewed in isolation. 4. Counts 1 and 2 attracted indicative sentences (before discount) of four years and five years four months respectively. The sentencing judge appears to have accepted that these matters would have been dealt with under the child welfare legislation then in force, had charges then been laid. [28] That does not necessarily mean that no custodial sentence should be imposed, charges being laid after the offender was no longer subject to that legislation. However, if the offences are not to be considered, so far as sentencing is concerned, on the basis of a contemporaneous complaint (as would have been appropriate), then there is no greater warrant for treating them as subject of a group of charges putatively dealt with when the offender was 21 years of age, rather than the same charges being dealt with when the offender was 47 years of age. 5. A further difficulty arises in choosing some intermediate point in time, because the sentencing regime under which he would have been sentenced may have changed depending on the precise stage at which he is to be considered for sentence. The preferable approach is to consider the position of the applicant whilst still 14 or 15 years of age and without the benefit of hindsight resulting from the subsequent offending. To do otherwise is to risk double jeopardy, the later offences being approached on the basis that, because of the earlier offences, the offender will not be entitled to leniency. It would be wrong to approach the earlier offences on the basis that leniency should be denied because of the later offending. An indicative sentence which did not involve a fulltime custodial penalty should be adopted in respect of counts 1, 2 and 7. 6. With respect to count 3, the applicant would have been either 16 or 17 years of age. He would still have been a young person and subject to the provisions of the Child Welfare Act. However, he would have lost the benefit of much of the leniency which would have been attracted with respect to the earlier offending when he was 14 or 15 years of age and otherwise with no criminal record. Even then, the offences were, in the words of the sentencing judge, "relatively free of any overt violence." [29] To impose a fulltime custodial penalty, to be served in an adult prison, would have been possible but unlikely. However, a period of committal would have been likely which, in present terms, must translate into a short period of imprisonment. A starting point of 12 months would be appropriate, not the seven years and four months adopted by the sentencing judge. 7. As counsel for the applicant acknowledged, a different approach must be taken for counts 4, 5 and 6. Counts 4 and 5 involved both cunnilingus and penile vaginal penetration at a time when the victim was 10 and 11 years of age respectively and the applicant 18 and 19 years of age. The earlier offending would have precluded any significant degree of leniency. Nevertheless, despite the seriousness of the offending, and particularly the young age of the victim, the absence of overt violence would preclude a sentence approaching the maximum, as suggested by the sentencing judge. A starting point before discount should in each case have been six years. 8. With respect to count 6, the victim was by then 12 years of age and the applicant, it may be assumed, was 19 years of age. Nevertheless, the offending was less serious, involving touching of the vagina and cunnilingus, but no penile or digital penetration. The trial judge fixed a starting point of two years, which may be accepted as appropriate. 9. The next step in fixing indicative sentences is to reduce each by 25% for the plea of guilty. Thus, the 12 month sentence would become 9 months, each of the six year sentences would become 4.5 years, and the two year sentence would become 18 months. 10. Given that the offending was largely limited to the primary victim and involved a course of conduct over a significant period of time, and taking into account the principle of totality, it is necessary to determine the degree of accumulation and concurrency appropriate in the circumstances. In that exercise, significant weight should be given to the subjective circumstances of the offender and the absence of any need for specific deterrence. Further, limited weight should be given to general deterrence in the circumstances of the case; whilst that factor is not to be entirely disregarded, the individual circumstances of the mature offender require that it should be given limited weight. As Howie J noted in Moon, [30] a case involving offending by an adult against his step-daughter: "In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court." 1. The appropriate course is to accumulate count 4 on count 3 by three months, count 5 on count 4 by 9 months and count 6 on count 5 by six months. The resultant sentence, after discounts are included, is an overall period of six years. 2. It is then necessary to fix a non-parole period. As noted by this Court in AJB v R [31] the fixing of a non-parole period is governed by the terms of s 44 of the Sentencing Procedure Act. Nevertheless, the sentencing judge found special circumstances and the statutory regime which would apply absent special circumstances need not be followed. The principal reason for finding special circumstances in the present case is the need to take account of the sentencing regime as it applied when all of the offences were committed. [32] That regime, which operated up until the commencement of the Sentencing Act 1989 (NSW) involved the fixing of a non-parole period at not more than 50% of the head sentence. The purpose of the discrepancy was to allow for the likely reduction of the head sentence on account of remissions, which then applied to the sentence fixed by the court and which would, in the case of a first custodial sentence, reduce the sentence by one-third. Other "earned" remissions would also be available to a prisoner, although remissions might be lost for misconduct. How these calculations were applied depended in part upon whether the non-parole period was itself subject to reduction for remissions, a course which did apply for a period. However, the proportion adopted by the trial judge of a non-parole period of about one-half of the head sentence was not challenged in the present case and should be applied. Adopting approximately the same ratio would give a non-parole period of 33 months in round terms. Conclusion 1. A sentence of six years imprisonment is significantly less than a sentence of seven years and three months and, accordingly, it is appropriate for the court to intervene and quash the sentence imposed by the sentencing judge. 2. The Court makes the following orders: (1) Grant the applicant leave to appeal. (2) Allow the appeal and set aside the sentence imposed by the sentencing judge on 14 February 2014. (3) Resentence the applicant to imprisonment for 6 years, with a non-parole period of 2 years 9 months to date from 14 February 2014 and a balance of term of 3 years 3 months. (4) The first date on which the applicant is eligible for parole is 13 November 2016. ********** Endnotes 1. MPB v R [2013] NSWCCA 213; 234 A Crim R 576 at [12]. 2. MPB at [20]-[25]. 3. Sentencing Procedure Act, s 53A(2)(b). 4. [2010] NSWCCA 15 (McClellan CJ at CL, Simpson and Hidden JJ agreeing). 5. [2007] NSWCCA 26 at [21] Howie J (Simpson and Buddin JJ agreeing). 6. Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(g). 7. Judgment at p 21. 8. Tcpt, 11/02/14, p 41. 9. Judgment at p 26. 10. Judgment at p 30. 11. Referring to par (h) of subs 21A(2). 12. Judgment at p 19. 13. [2015] NSWCCA 8. 14. At [77]-[81]. 15. Judgment, pp 18-19. 16. Tuala at [80]. 17. Judgment at p 19. 18. Tuala at [78]. 19. Tcpt, 11/02/14, p 39(35)-(45). 20. Tcpt, p 40 (5)-(15). 21. Tcpt, p 40 (45)-(50). 22. Tcpt, p 41 (5). 23. Tcpt, p 41 (18). 24. Criminal Appeal Act 1912 (NSW), s 6(3); Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 at [42]. 25. Davis v R [2015] NSWCCA 90 at [75]-[83] (Simpson J, Adamson J and Basten JA agreeing). 26. Abbas v R [2013] NSWCCA 115; 231 A Crim R 413 at [38]-[41]. 27. See at [54] above. 28. See passage set out at [43] above. 29. Judgment at p 21. 30. R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [81]. 31. [2014] NSWCCA 51; 169 A Crim R 32 at [35] (Howie J, Adams and Price JJ agreeing). 32. AJB at [37]. 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: 22 May 2015