Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Nelson [2016] NSWCCA 130 Hearing dates: 6 June 2016 Decision date: 06 July 2016 Before: Basten JA at [1]; Rothman J at [57]; Fagan J at [86] Decision: (1) Allow the Director's appeal and set aside the sentences imposed in the District Court on 3 December 2015. (2) Resentence the offender to an aggregate sentence of imprisonment for 3 years, as follows: (a) make a finding of special circumstances; (b) impose a non-parole period of 2 years with an additional term of 1 year; (c) direct that the sentence shall commence from the date 8 months before the date on which the offender is taken into custody with respect to this sentence. (3) The non-parole period will expire on a date two years from the date on which the sentence commences. (4) Direct that the offender be released on parole at the end of the non-parole period, subject to the prescribed conditions for supervision whilst on parole. Catchwords: CRIMINAL LAW – appeal against sentence – bonds and suspended sentences – sexual intercourse with females under 16 years – manifest inadequacy – whether sentencing judge erred in assessment of objective seriousness – young offender – whether judge erred in failing to accumulate sentences for offences with respect to separate complainants Legislation Cited: Crimes Act 1900 (NSW), s 66C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 12, 32, 33, 50; Pt 4 Criminal Appeal Act 1912 (NSW), s 5D Cases Cited: BP v R [2010] NSWCCA 159 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 CMB v The Queen [2015] HCA 9; 89 ALJR 407 DBW v R [2007] NSWCCA 236 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Hogan v Regina [2008] NSWCCA 150 MJ v R, CPD v R [2010] NSWCCA 52 Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 O'Brien v R [2013] NSWCCA 197 R v Engert (1995) 84 A Crim R 67 R v English [2000] NSWCCA 245 R v G [2009] 1 AC 92 R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 R v King [2009] NSWCCA 117 R v LNT [2005] NSWCCA 307 R v McHugh (1985) 1 NSWLR 588 R v Muldoon (unrep, 13/12/1990, NSW CCA) R v Newman, R v Simpson [2004] NSWCCA 102; (2004) A Crim R 361 R v RD [2014] NSWCCA 103 R v Sea (Court of Criminal Appeal (NSW), 13 August 1990, unrep) R v Schwenke [2004] NSWCCA 289 R v Taane [2014] NSWCCA 330 R v Tuala [2015] NSWCCA 8 Regina v AN [2005] NSWCCA 239 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Wiggins v R [2010] NSWCCA 30 Texts Cited: The Hon P McClellan and A Doyle, "Legislative Facts and Section 144 – A Contemporary Problem?" (2016) 12 TJR 421 Category: Principal judgment Parties: Regina (Applicant) Aaron Nelson (Respondent) Representation: Counsel: Mr Huw Baker (Applicant) Mr Tim Gartelmann SC (Respondent) Solicitors: Mr C Hyland, Office of the Director of Public Prosecutions (Applicant) Mr S E O'Connor, Legal Aid Commission of New South Wales, (Respondent) File Number(s): 2015/12638 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 03 December 2015 Before: Hanley SC DCJ File Number(s): 2015/12638 Judgment 1. BASTEN JA: Pursuant to a judgment delivered on 3 December 2015, the respondent, Aaron Robert Nelson, escaped a custodial sentence in respect of numerous offences of sexual intercourse involving three young girls. In one case the victim was under 14 years of age and in two other cases the girls were just over 14 years of age. The Director of Public Prosecutions has appealed against the leniency of the sentences, pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW). 2. The first count involved a 13 year old girl (JM). The charge laid under s 66C(1) of the Crimes Act 1900 (NSW) carried a maximum term of 16 years imprisonment. The sexual relationship commenced in August 2013 and continued for several months. The victim gave birth to a child in September 2014, just short of her fifteenth birthday. 3. The other girls, (BR) and (JN), were 14 at the time of the offending. Three charges were laid in respect of each under s 66C(3), which carried a maximum term of 10 years imprisonment. A further charge under this provision was taken into account in sentencing in respect of offences involving each of JN and JM. The sentences imposed in the District Court were as follows: 1 Sexual intercourse with a person aged 10-14 Sentence: 2 year suspended sentence with conditions to date from 3 December 2015 s 66C(1) Crimes Act 1900 (Victim JM) 2 Sexual intercourse with a person aged 14-16 Sentence: 12 month suspended sentence with conditions to date from 3 December 2015 s 66C(3) Crimes Act 1900 (Victim BR) 3 Sexual intercourse with a person aged 14-16 Sentence: s 9 good behaviour bond, 3 years with conditions to date from 3 December 2015 s 66C(3) Crimes Act 1900 (Victim BR) 4 Sexual intercourse with a person aged 14-16 Sentence: s 9 good behaviour bond, 3 years with conditions to date from 3 December 2015 s 66C(3) Crimes Act 1900 (Victim BR) 5 Sexual intercourse with a person aged 14-16 Sentence: 18 month suspended sentence with conditions to date from 3 December 2015 s 66C(3) Crimes Act 1900 (Victim JN) 6 Sexual intercourse with a person aged 14-16 Sentence: s 9 good behaviour bond, 3 years with conditions to date from 3 December 2015 s 66C(3) Crimes Act 1900 (Victim JN) 7 Sexual intercourse with a person aged 14-16 Sentence: s 9 good behaviour bond, 3 years with conditions to date from 3 December 2015 s 66C(3) Crimes Act 1900 (Victim JN) 1. The primary basis on which that degree of leniency was justified was that the offender (a) was a young man (being 18 years of age during the course of most of the offences and 19 years of age in respect of the latest counts); (b) had suffered physical abuse as a child from both his father and his step-father, and (c) had significant cognitive disabilities and mental health problems. As a result, the cycle of abuse has been perpetuated by his abuse of young girls. 2. One is entitled to have deep scepticism about the effectiveness of the criminal law as a mechanism to break such a cycle of abuse. Nevertheless, if the circumstances of the offending, objectively viewed, call for a custodial sentence, that sentence should be imposed (with such leniency as the subjective conditions of the offender require) unless to do so would be futile or would cause more harm than it might prevent. 3. In the present case, the offender's circumstances invite significant sympathy. However, they do not demonstrate a level of intellectual disability or mental illness which would significantly diminish the moral culpability of the offending. Nor are they such as to demonstrate that the offender should not suffer incarceration, in the light of a period of 7.5 months in custody after breaching bail conditions. Sentencing – offences against JM 1. It is convenient to address the adequacy of the sentences imposed by reference to that which the sentencing judge accepted was the most serious of the offences to which the offender had entered a plea of guilty, namely the first count of sexual intercourse with JM. 2. The facts surrounding the offending were derived from a statement apparently prepared by the prosecutor. It was, appropriately, expressed in neutral language. It involved the following chronological account. When JM was 13 years old, she moved into the household which was the home of the offender, his mother and his younger brother. That occurred in May 2013, apparently because JM was encountering difficulties with her adult sister. A sexual relationship between the offender and JM commenced in August 2013, when JM was approximately 13 years and 10 months. Before that, and for a period which was not identified but could have been between one and four weeks, the offender and JM were engaged in what was described in the statement of facts as a "relationship". After the first occasion of sexual intercourse, it was alleged that sexual intercourse continued about three or four times per week. In September (that is a month after the sexual intercourse commenced) the offender started sleeping with JM in her bed. 3. In circumstances not identified, in about Christmas 2013, JM moved out of the household and went to live with her sister for about three months, before returning to the offender's household. Whether the sexual relationship continued during those three months is not known. It is said to have continued when JM returned to the premises occupied by the offender. 4. The statement of facts blandly stated that "[a]round Christmas 2013 the complainant attended Blacktown Hospital and she was found to be pregnant with the accused's child." It was JM's mother who made a complaint to the police when she learned that the offender and JM were in a sexual relationship. The date of the complaint was not identified. However, the statement recorded that in July 2014 JM "resumed residing with her mother", although when she had last resided with her mother was not noted. She gave birth the following month. 5. It is tolerably clear from the history set out in the statement that it was JM who resumed living with the offender in March 2014. Nevertheless, the statement recorded that "the accused resumed living with the accused and his family." That patent error was repeated by the judge in recounting the facts. 6. After noting that the majority of the offences involved penile/vaginal intercourse, the judge stated: [1] "I am satisfied that there was no force or threats or violence utilised or relied upon by the offender to have sexual intercourse with [JM] or indeed any of the other victims. I am satisfied that even though there may have been occasions when persuasion was needed to instigate sexual intercourse I am satisfied on the balance of probabilities at least that it was consensual although that is not an element of any of the offences. It does, however, impact upon the objective serious nature of the type of sexual intercourse undertaken. I am satisfied that there is no evidence before me that suggests that such sexual intercourse resulted in any pain or injury to the victims." 1. The judge also stated: [2] "In the commission of the offences I accept that there was a degree of emotional manipulation by the offender upon the victims, particularly [JM], in him exercising control over her by way of managing her communications on Facebook." 1. In the same context, the judge noted, correctly, that a relevant factor in determining the objective seriousness of the offences was a comparison between the age of the victims and the age of the offender. He described the age disparity as "not great". [3] He also noted that the offender was at all stages aware of the ages of his victims. 2. The judge paid specific attention to the question of harm to the victims. What he said in that regard was as follows: [4] "The courts are entitled to act on the basis that child sexual assault cases cause substantial psychological harm (DBW v R [2007] NSWCCA 236 [38]). In respect of this sentencing process no material has been put before me that suggest [sic] that there has been any substantial psychological or physical harm to any of the victims and accordingly I am not proposed [sic] to take that into account as an aggravating factor." Errors in approach (a) "consensual" activity 1. The first error derives from the reference to DBW and the reference to the sexual activities as "consensual". Those references revealed an approach which was erroneous both as a matter of legal principle and fact. 2. In DBW Spigelman CJ sought to explain that "over the last few years, the public and the courts have become much more aware of, and knowledgeable about, the effects of child abuse." [5] The Chief Justice further noted that the Court "would have been entitled to proceed on the basis that there was a substantial risk of emotional harm", even in the absence of evidence. [6] 3. Nor was DBW the last word from this Court in relation to this issue: indeed, it was but the first step in departing from an earlier approach which presumed no harm was caused by sexual abuse of young children, in the absence of scientific evidence to the contrary. [7] Thus, in R v King [8] the Court stated: "No one could know at the date of sentencing what emotional or psychological harm might have been occasioned to the child in the long term. The early complaint makes its obvious that the child knew that the conduct was wrong and that she found it distressing. It is significant that the act was committed by a stranger. It should not be assumed, without evidence to the contrary, that there was no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child who is old enough, as was the complainant, to appreciate the significance of the act committed by the offender. It should be assumed that there is a real risk of some harm of more than a transitory nature occurring. That should be a factor taken into account when sentencing for a child sexual assault offence. It is an inherent part of what makes the offence so serious. It was the appreciation of the likelihood of harm resulting that Mason P saw as changing the community attitude to sexual assaults against young children: see R v MJR. [9] " 1. More recent cases have confirmed that approach. Thus, in R v G [10] Baroness Hale referred to the "long-term and serious harm, both physical and psychological, which premature sexual activity can do." That proposition was adopted by this Court in R v Gavel. [11] 2. There may be a risk in overstating the principle in that not every abused child will be profoundly harmed. [12] However, the sentencing judge should be prepared to have regard to a victim impact statement which may either confirm or contradict the presumption. In the present case, the trial judge omitted reference to the victim impact statement available from JM. That statement included the following passage: "Three years ago I was a little girl who went to school, had friends and went shopping then it all just went away like that. I didn't tell anyone for a long time as I was too scared of Aaron. The sexual abuse has impacted on my mental health. I have self-harmed and have anxiety and depression. I hate going outside as I think Aaron will be there and harm me or take my daughter. The anxiety has worsened over time to a point I rarely leave the house and when I do it is always with someone else. I don't like being by myself as I see him when I close my eyes in the shower or when I try to go to sleep. I have a shower with the door open as I think he's going to get me. I have also made my little sister sleep with me because I don't want to sleep by myself. Due to my low mood I just want to stay in bed all day, I hardly go out and have no motivation." 1. The significance of a victim impact statement was considered by this Court in R v Tuala. [13] After a comprehensive review of the developing caselaw with respect to the value of victim impact statements, Simpson J (with the agreement of Ward JA and Wilson J) stated: "[77] By s 28 of the Sentencing Procedure Act, victim impact statements are part of the landscape in the sentencing process. That is not in issue. What is here in issue is the extent to which a victim impact statement can be used to prove an aggravating factor of the kind specified in s 21A(2). Almost invariably the aggravating factor in question is that specified in s 21A(2)(g). It is to be remembered that such aggravating factors must be proved beyond reasonable doubt. [78] In some of the cases considered above, considerable weight was attached to the manner in which the sentencing process was conducted. Where no objection was taken to the victim impact statement, no question raised as to the weight to be attributed to it, and no attempt made to limit its use, the case for its acceptance as evidence of substantial harm has been considered to be strengthened. (It is, perhaps, a little unfair to take into account that no objection to the admission of the statement was taken, given that such statements are admissible by statute, but that does not preclude argument as to the weight to be attributed to them.) [79] Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents." 1. It the present case it might fairly be said that the statement, the critical passage from which is set out above, is in keeping with the expectations based on recent psychological research and the common experience of the courts. It should have been accepted by the trial judge in the absence of any challenge and it should have been relied upon to support the presumptive position that the offending has caused significant harm to the victim. 2. While acknowledging that lack of consent was not an element of the offences, the sentencing judge placed some weight on the fact that the activity as described by him "was consensual". [14] No doubt the use of threats or force in overcoming resistance would be an aggravating factor; however, mere lack of opposition is otherwise irrelevant. The activity was not adequately described as "consensual"; it might be better described as not being the subject of opposition. To treat that as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour. 3. Where, as in this case, such consequences are amply supported by the victim impact statement, the sentencing court should generally treat the risk of such harm as having materialised. 4. Furthermore, this material tends to contradict the proposition that an age difference between a 13 year old girl and an 18 year old man is not significant. Although much will depend upon personalities and physical stature, the age difference is significant. A young girl may more readily be dominated by an older man, but may also be more susceptible to manipulation and persuasion by a young man who is undoubtedly older than she is, but is closer to her own age than an abusive adult. (b) victim in need of protection 1. Secondly, the judge noted that the events all took place in the home of the offender, which was also the temporary home of each of the victims. [15] He noted, correctly, that it was a place where "each victim should have had an expectation of safety." Whilst not erroneous, that proposition failed to take account of the consequences for the victim of a breach of such security. A young person (especially one who has left her family home) will often seek (whether consciously or not) protection from whatever adults may be seen as parent surrogates. This will mean accommodating terms on which such protection may be offered. If that involves a sexual relationship, that relationship should be seen as exploitative. The fact that in each case there was a repeated course of conduct carried out over a considerable period of time exacerbates the level of exploitation involved. (c) boyfriend/girlfriend relationship 1. Thirdly, the sentencing judge accepted that the relationship (apparently in each case) "was a romantic one between the offender and each of the victims and classified as a boyfriend/girlfriend relationship." [16] Such a characterisation is apt to be highly misleading. It is necessary to explore the factors inherent in the relationship, including those set out above. A "boyfriend/girlfriend relationship" may or may not involve a sexual relationship. Further, it may be highly abusive. For the characterisation to be meaningful, these elements should be explored. The fact that the sexual aspect of the relationship was unlawful was a critical factor, not to be ignored. To leave that factor out of account could be seen to reflect the now properly abandoned attitude that personal violence was excusable if it took place within a marriage or similar relationship. It is at least plausible that conduct which takes place in the course of an ongoing "relationship" is more damaging in the long run than at least some forms of isolated sexual activity. (d) sentences totally concurrent 1. All of the sentences were fixed to commence from the same date. Such an approach was unwarranted. The offending involved three separate victims and numerous discrete episodes. There was no common factor except for the availability of the victims being resident in his home, the reasons in each case involving their increased vulnerability. To impose totally concurrent sentences was to disregard the important purpose of recognising the harm done to each victim. [17] It was demeaning to their individual suffering. 2. The seriousness of this error was muted by the fact that all sentences involved conditional liberty, a factor which itself tended to demonstrate the inappropriateness of the sentences. (e) conclusion as to errors in approach 1. Each of these factors leads to the conclusion that there was a material error of principle in the way in which the sentencing judge approached the task of assessing the objective gravity of the offending. Subjective circumstances of offender 1. It is necessary therefore to turn to the subjective circumstances of the offender, the detail of which is set is out by Fagan J. 2. The sentencing judge gave careful attention to the personal circumstances of the offender. He set out in detail his disadvantaged upbringing, including the violence inflicted on him and his mother by both his biological father and his stepfather. The judge was satisfied that "his upbringing provided little guidance or development of his capacity to develop judgment that is expected to be received from parents despite his mother's attempt to provide care." [18] The judge was also satisfied that the offender's "moral culpability was substantially diminished by the presence of these factors and his significant mental illnesses". 3. A psychiatrist, Dr Rafe Pulley, had prepared a report on the offender dated 26 November 2015, whilst he was in custody. The report provided an account of his psychiatric history, including suicidal thoughts and his claim that he had "no intent on acting on them", although he had swallowed a razor blade whilst in hospital and had refused to go to hospital. (The razor blade was passed in his faeces, apparently without causing harm.) Dr Pulley noted that the offender felt that "the world is an unsafe place" and exhibited symptoms "consistent with post-traumatic stress disorder as a result of an assault that he sustained at the age of 15 from his stepfather." [19] He said that he further met criteria for "major depressive disorder, suffering [from] depressed mood, poor sleep, poor concentration, low energy, low motivation and suicidal thoughts." Dr Pulley was satisfied that because of his "mental health issues he lacks the skills or opportunity to seek out and form relationships with girls of his own age." He concluded that this was "a significant contributing factor to his commission of the offences". [20] 4. The sentencing judge had before him a pre-sentence report from a community corrections officer, the report being dated 25 November 2015. She stated: "Although Mr Nelson agreed that there was a level of manipulation and coercion of the victims, he appeared to have limited insight into the impact this behaviour would have on the victims. … The offender appears to have some insight into his sexual offending in that he was aware of the age of the victims and despite this acknowledged that he had used a level of manipulation in order to coerce the victims into a sexual relationship. His insight in relation to victim empathy is considered to be limited and at interview made statements that attributed blame to the victims such as 'they were all flirting' with him." 1. The officer noted his claims that he "self-harms at least once per week and has also tried to take his life on several occasions." The report continued: "Mr Nelson further identified that prior to being held on remand he struggled to leave the family home and suffered from paranoia when in the community. Perusal of Corrective Services records identify that whilst Mr Nelson has been held on remand there have been nine self-harm notifications and numerous threats of suicide." 1. The primary judge nevertheless accepted that the offender was "remorseful and is developing an insight into his offending conduct and is commencing to take responsibility for it." [21] The offender's mother gave evidence on the sentencing hearing: the offender did not. 2. In his concluding observations, the sentencing judge stated that he was satisfied that "as a result of his mental illnesses and the history of his self-harming and psychiatric issues whilst in custody his incarceration has been substantially more onerous than a prisoner who can serve his sentence in the general prison population." [22] That factor led him to assess the time already spent in custody (233 days) as "being equal to a greater term of imprisonment when compared to that experienced by prisoners in the general population." [23] 3. The evidence and findings as to his personal circumstances warranted a significant degree of leniency in sentencing; they did not warrant a rejection of moral culpability, nor indicate a level of incomprehension inconsistent with a custodial sentence. The errors in approach indicate a more serious penalty should have been imposed. Discretion not to intervene 1. Despite the last conclusion, the Court should not intervene unless affirmatively satisfied that such a course is appropriate. [24] 2. In support of the view that, if error were established, the Court should nevertheless not intervene, the offender submitted, first, that the Director had not established a good reason why any error should be corrected and, secondly, that he (the offender) had already suffered significant actual anxiety and distress, following service with notice of the Director's appeal on 24 February 2016. Affidavits concerning his post-sentencing state of health were read in support of that conclusion, which included evidence of significant anxiety and depression. 3. That material included a mental health assessment on his self-referral to Westmead Hospital. He reported suicidal ideation, depression and anxiety, stating "I have a boring life". However, there was no reference to any concern in relation to his criminal convictions and possible resentencing. 4. On 3 June, the offender attended Goulburn Base Hospital complaining of chest pain and palpitations. A doctor's report of that date to his solicitor stated that it was "unlikely" that he would be fit to attend court on 6 June 2016. 5. The offender also saw a psychologist, Dr Susan Pulman, on 25 May 2016. The purpose of the consultation was to prepare a forensic report for this Court. Dr Pulman assessed his "new learning and recent memory functioning" as "very poor", being within a range in which only 3%-9% of age-related peers obtained the same or a lower score. [25] She concluded that his overall assessment placed him within the extremely low range of intellectual ability (which equated to criteria for a "mild" intellectual disability). She also assessed his scores on depression and anxiety scales as within the "extremely severe" range, and on the stress scale, as within the "severe" range. [26] She did not seek to assess the likely causes of anxiety or stress. 6. The offender also swore an affidavit on 3 June 2016 describing his fears and anxieties of returning to gaol and noting that he felt safe in a psychiatric hospital. On the earlier occasion in gaol, he noted that he was on "suicide watch" a lot of the time and had no privacy, no clothes, one blanket and no utensils with which to eat. He said that he had seen people being bashed and stabbed, although that did not happen to him. 7. In terms of negative considerations, this was not a case in which it was suggested that the lenient sentencing was invited by the prosecutor, that there had been delay in filing a notice of appeal or notifying the offender of the appeal, nor that the matter had not been expeditiously pursued by the Director. Further, it was not a case in which an appropriate sentence was required as a matter of general deterrence or for factors unrelated to the circumstances of the offender. Although his personal background warranted a finding of a reduced level of moral culpability, and a significant degree of leniency with respect to the penalty imposed, it was not sufficient to warrant no custodial penalty. Further, although there were both threats and attempts at self-harm whilst in custody, he told the psychiatrist, Dr Pulley, that he "was not afraid of his safety and did not believe other inmates were harassing him." [27] Dr Pulley also noted a description of "a vague sense of paranoia that was affecting him less in his current environment." [28] 8. The other purposes of sentencing, including the need to ensure that the offender is adequately punished for the offence and to recognise the harm done to the victims, require that an appropriate sentence be imposed. Resentencing the offender 1. The power conferred on this Court to intervene in the event that error is established is engaged and should be exercised. 2. The personal considerations identified above warrant a lesser sentence than would otherwise have been imposed for offending of the kind identified. On the first offence, of sexual intercourse with JM, then aged 13 years, the sentencing judge imposed a sentence of imprisonment for two years, which he suspended. With respect to the fifth charge, involving sexual intercourse with (BR), the judge imposed a sentence of 18 months imprisonment, which he again suspended. With respect to the second charge involving sexual intercourse with a person aged 14-16 years (BR) he imposed a sentence of 12 months imprisonment which was also suspended. In relation to other offences involving BR (counts 3 and 4) and JN (counts 6 and 7) he imposed three year good behaviour bonds. Each of the sentences was fixed to commence from the date of sentencing, namely 3 December 2015. 3. The judge took into account in fixing these sentences a period of pre-sentencing custody referrable to these offences, which may be treated as equivalent to nine months imprisonment. In resentencing the offender, it is necessary to take account of the further period of approximately seven months spent at large in the community, but subject to the conditions involved in the bonds and the suspended sentences. 4. Subject to two matters, in order to give full effect to the time served, both in custody and in the community, and the factors personal to the accused, it is appropriate to adopt the structure of the sentencing accepted by the sentencing judge, but to decline to suspend the sentences of imprisonment and to require that there be a substantial degree of accumulation, to reflect the fact that each sentence of imprisonment will have involved a separate victim. The first qualification is that there should be a degree of accumulation of the indicative sentences. Secondly, it is usually appropriate to backdate the sentence to allow for pre-sentence custody; that course should be adopted in resentencing, while accepting that the result may be an added element of leniency in that the trial judge had taken it into account in reduction of the periods specified. 5. There is no reason to doubt the correctness of the finding of special circumstances and the potential value of a significant further period of conditional release. 6. I would impose an aggregate sentence of three years imprisonment, involving a two year non-parole period, to date from a date 8 months before the day on which the offender is taken into custody, with an additional term of 12 months. The indicative sentences would be the periods proposed by the sentencing judge. A notional accumulation would require that the offender serve a period wholly referable to each count as follows: Count 1 – 18 months; Count 2 – 6 months, and Count 6 – 12 months. 1. In these circumstances, it is not appropriate to maintain the good behaviour bonds which will, in any event, terminate before the completion of the parole period. 2. The conduct with BR involved a degree of coercion. In respect of the third offence involving BR, there was a matter to be taken into account on a form 1 which again involved a significant degree of coercion. Had separate sentences been imposed for each offence there would have been some justification in making the sentences largely concurrent, although that in itself would have involved a significant degree of leniency. In the circumstances the indicative sentences for count 3 should be imprisonment for 9 months and in respect of count 4 imprisonment for 12 months. 3. There were two good behaviour bonds in respect of the victim JN, involving counts 6 and 7. Count 6 involved penile/vaginal intercourse; count 7 involved fellatio, with a further offence involving penile/vaginal intercourse taken into account. An indicative sentence for count 6 should be nine months imprisonment and an indicative sentence for count 7 of 12 months imprisonment. Again, were the sentences to be separately imposed, a significant degree of concurrence would have been appropriate. Conclusion 1. The Court should make the following orders: 1. Allow the Director's appeal and set aside the sentences imposed in the District Court on 3 December 2015. 2. Resentence the offender to an aggregate sentence imprisonment of 3 years, as follows: 1. make a finding of special circumstances; 2. impose a non-parole period of 2 years with an additional term of 1 year; 3. direct that the sentence shall commence from the date 8 months before the date on which the offender is taken into custody with respect to this sentence. 1. The non-parole period will expire on a date two years from the date on which the sentence commences. 2. Direct that the offender be released on parole at the end of the non-parole period, subject to the prescribed conditions for supervision whilst on parole. 1. ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of Basten JA and Fagan J. As a consequence, it is unnecessary in these further comments to summarise the facts that have given rise to the offences or the subjective circumstances of the offender. 2. I agree, in general, with the comments of Basten JA, but wish to make some further comments that I understand are not inconsistent with the comments of his Honour. 3. In some jurisdictions, both common law and civil law, (urged in some academic writings for Australia) the age of consent differs significantly from that which applies in NSW and other States. Some jurisdictions, prescribe a variable age of consent relative to the age of the partner until the age of true maturity, namely, 21 or more. Such jurisdictions determine the age of consent by calculating half the age of the partner and adding 7 years. Thus, in those jurisdictions two 14 year olds engaged in sexual conduct or two 15 year olds engaged in sexual conduct are not engaging in illegal conduct. Two 13 year olds would be. 4. In NSW, two 15 year olds engaged in sexual conduct (even conduct short of sexual intercourse) are each guilty of a criminal offence under the law. This pertains to the other States of Australia, as well. I am not, here, either criticising the laws in Australia, nor, advocating a variable age of consent as earlier described. 5. However, such a variable age renders illegal a 30 year old who engages in sexual contact with a 16 year old. In Australia, such conduct would be legal (assuming, for present purposes, that no special relationship exists between the couple). In some respects, a 30 year old who has a sexual relationship with a 16 year old is at least as problematic, if not more so, than two 15 year olds. 6. I make the foregoing comments, not to detract or ameliorate the conduct between the Respondent and his victims but to emphasise the age differential. Even on the variable calculation for the age of consent, referred to above, the difference in age between an 18 year old and a 13 or 14 year old is significant and would be rendered illegal. 7. It is important to understand the significance of the age difference between the Respondent and his victims. A 13 year old, ordinarily, is in Year 7, (or, possibly Year 8), starting the first year of High School and has only recently reached puberty. An 18 year old is permitted legally to drive, to drink, to attend bars and clubs, to smoke, to work and to vote. 8. The capacity to drive and obtain alcohol (or visit clubs) is a subtle and overwhelming distinction and mark of "adulthood" compared to a person who is only just learning about relationships generally and who may well envy the freedom that "adulthood" provides. In my view, the difference between an 18 year old, regardless of the subjective circumstances of the Respondent, and a 13 or 14 year old is extremely significant. 9. Moreover, the law has established an arbitrary age below which consensual sexual relations are impossible. If a person is below 16 years of age, the law regards them as incapable of consenting to sexual contact. 10. There is no evidence to suggest that the cognitive and psychological issues that form part of the subjective circumstances of the Respondent are such as to deny to him the ability to understand that sexual relations with a person under the age of 16 is illegal. While the cognitive and psychological issues affect the culpability for these offences, they do not negate the Respondent's capacity to control himself to the extent necessary to avoid criminal conduct. I do not accept that the age difference is insubstantial. 11. I turn then to the offending. In my view the offending is serious at a number of levels. First, as earlier explained, it is offending by an 18 year old on 13 and 14 year olds. 12. Secondly, it seems that the respondent has used that age difference to lure his victims away from his younger brother. While there is no aggravation associated with a relationship with a former girlfriend of one's sibling, it is the age difference which seems to have been one of the compelling aspects of the relationship that was entered into with the Respondent. 13. Thirdly, even after the offence against the first victim and the resulting pregnancy of the victim, the Respondent continued to offend with other persons under the age of 16. Specific deterrence is a significant issue that is not adequately addressed by a non-custodial sentence or a sentence that provides imprisonment only for time served. 14. Assuming for present purposes, that there is a causal relationship between the disability suffered by the Respondent and the commission of these offences, it does not necessarily mean that the offender will receive a lesser sentence or that the disabilities are ameliorative. If, as I understand some of the disabilities are, the disabilities were cognitive, then, ordinarily, they require the adoption of learned behaviours. 15. In other words, persons with cognitive disability are required to learn behaviours that they may be incapable of determining as a matter of executive functioning of their brain. This issue was discussed by the Court in Engert [29] in which Gleeson CJ said: "In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public." 1. Nevertheless as the earlier passage, to which the foregoing citation refers, makes clear, the effect of such considerations are all factors in a discretionary decision which must be exercised for the purposes to be served by the sentencing exercise. 2. Turning then to the issues associated with the subjective circumstances of the Respondent, the first on which comment has been made in the reasons for judgment of my colleagues, is the question of his youth. A person who is just 18 years of age will be treated not dissimilarly to a person who is 17 ½ years of age. The reverse is also true. But the sentencing of a youth, who is not a minor, must take into account the youth's age and immaturity. [30] 3. Greater complexity arises when the subjective circumstances of an offender are, like the Respondent, a combination of youth and mental disability. In Regina v AN [31] , the Court dealt with the combination of mental disorder and youth. 4. The youth in the factual circumstances of AN was 16 years of age and the charges were sexual assault. The Court, in that judgment, said: "[22] But it was not only the age of the applicant and the principles that applied in sentencing a child that needed to be taken into account in the difficult task that confronted his Honour. The evidence was that the applicant was suffering from a mild to moderate intellectual disability. It was because of his mental abnormality that he was found to be unfit to be tried. The applicant had an intellectual age far below his chronological age. Therefore the applicant's criminal responsibility was not only diminished by the vulnerability and immaturity arising from his youth but also by the mental deficiencies from which he suffered and that resulted in a reduced understanding of the criminality of his conduct and its consequences to the victim and himself. … [46] The considerations that apply in determining the significance to be given to general deterrence when sentencing a child are not the same as those which apply when sentencing a person who suffers from a mental abnormality. In the former case the issue is one of weighing the need for general deterrence as against the need to promote the rehabilitation of the child. In the latter case the issue is whether the offender is a suitable subject for general deterrence and, if so, to what degree having regard to the severity of the mental abnormality and its connection with the offence committed. I do not believe that the weight to be given to general deterrence in dealing with a child suffering from a mental disability can be determined simply on the basis of applying only the relevant considerations applicable to a child or only the relevant considerations applicable to a person suffering from a mental disability. Yet this appears to be what his Honour has done by referring only to the passage in Bus quoted above and in the context of considering the relevant principles to be applied when sentencing a child. … [50] In any case the statement in Wright, quoted above, is not so simply applied in the present case and it cannot be assumed that, had his Honour considered the relevance of the applicant's mental condition to the question of general deterrence, he would have given little or no moderation to that element in determining the appropriate limiting terms. As I have already indicated, I do not believe that the issue of general deterrence can be determined by reference to either the age of the applicant or his mental disabilities alone or independently. The real issue was the significance to be given to general deterrence when sentencing the applicant almost three and half years after the offence and in light of the seriousness of the applicant's offending and his criminal responsibility on the one hand, and his age and mental disabilities on the other. The determination of that issue was no easy task and minds might legitimately differ as to its resolution. But the issue was not appropriately resolved by simply referring to the quote from Bus set out in the reasons set out above." [32] 1. A person such as the Respondent that suffers both cognitive disorder and the immaturity of youth has two disabilities that make each disability more problematic and compound the disabilities, augmenting the significance of each. Thus, this Respondent is not an appropriate example for general deterrence and the level of denunciation is diminished in its significance. [33] 2. As earlier stated, in my view, notwithstanding the lesser significance of general deterrence, the issue of specific deterrence is significant. The Respondent must understand, or otherwise learn, that the law will punish sexual relations with persons under the age of 16. 3. A non-custodial sentence (particularly in circumstances where he has already served time) will not amount to a disincentive to continue the conduct of that kind. Rather, for someone with a cognitive disability, the time in remand will be seen not as a punishment for the conduct, but as a necessary consequence of the delay in the court process. 4. The sentence imposed by the Court below is a sentence that does not involve full time custody. The sentence imposed is that which is seen as the "punishment" for the conduct. 5. For that reason, I agree with the comments of Basten JA that it would have been far better, particularly because of the subjective issues pertaining to the Respondent, for the sentence to be a custodial sentence that was back-dated, rather than a sentence that was devoid of full time custody, but took into account time served. 6. The foregoing does not underestimate the difficulty of a sentencing exercise of this kind. As was explained in R v AN [34] , the exercise of the sentencing discretion when one is dealing with a youth with cognitive disability and other psychological issues is particularly complicated and particularly difficult. The sentencing judge has adequately discussed the issues and the principles to be applied. The sentencing judge delivered a carefully reasoned judgment. 7. Nevertheless, I agree with Basten JA that the judgment that was imposed reflects manifest error in that it is below the range that is appropriate for these offences and this offender. The imposition of a sentence that is outside the range appropriate for these offences and this offender is sufficient to warrant interference, in the ordinary case. [35] 8. The issue then arises as to the residual discretion relating to Crown appeals. I agree with the comments of Basten JA on that issue. 9. When sentencing on a Crown appeal that has been successful where the prisoner has already been released, in my view, the Court should have some regard to the added difficulty of once more having to become accustomed to the goal environment. In my view, however, the sentence proposed by Basten JA is at the lower end of the range available and I would not impose a lesser sentence. 10. I agree with the orders proposed by Basten JA, which back date the sentence to take account of the time served as part of the non-parole period. 11. FAGAN J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D(1) Criminal Appeal Act 1912 (NSW) against sentences imposed upon the respondent by his Honour Judge Hanley SC in the District Court at Penrith. The sentences were handed down on 3 December 2015 in respect of one count of sexual intercourse with a child aged between 10 and 14 years (s 66C(1) Crimes Act 1900 (NSW)) and 6 counts of sexual intercourse with girls under 16 years of age (s 66C(3) Crimes Act). The period of offending was between July 2013 and late September 2014, when the respondent was aged 18 and 19 years (he turned 19 on 8 June 2014). He pleaded guilty to all counts and admitted 3 further similar offences which he requested be taken into account on a Form 1, pursuant to ss 32 and 33 Crimes (Sentencing Procedure) Act 1999 (NSW). 12. The series of offences concerned 3 different complainants each of whom was, at the dates of the offences against them respectively, living in the home occupied by the respondent, his mother, his younger brother (aged 13 to 14 years during the 14 month offence period) and his sister (aged 7 to 8 years at the time). 13. Count 1 concerned complainant JM. It was laid under s 66C(1), JM having been 13 years old when the respondent had penile-vaginal sexual intercourse with her in August 2013. There was taken into account on a Form 1 a charge under s 66C(3). This concerned penile-vaginal intercourse with JM in January 2014, her 13th birthday having passed following the commission of the Count 1 offence. JM became pregnant as a result of this latter occurrence and gave birth at the age of 14 years in September 2014. His Honour imposed a sentence of 2 years wholly suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. 14. Counts 2, 3 and 4 were all of penile-vaginal intercourse with a second complainant (BR, aged 14 years) contrary to s 66C(3). These offences were committed in February and March 2014. In sentencing for Count 2 his Honour had regard to a further s 66C(3) offence committed against BR in the same way, also in early 2014. His Honour imposed for Count 2 a 12 months suspended sentence with conditions. For each of Counts 3 and 4, good behaviour bonds of 3 years duration were imposed pursuant to s 9 Crimes (Sentencing Procedure) Act. 15. Counts 5, 6 and 7 were all of penile-vaginal intercourse with the third complainant (JN, aged 14 years) contrary to s 66C(3). Those offences were committed in September 2014. In sentencing for Count 5 his Honour took into account another offence of the same kind against the same complainant, also committed in September 2014. His Honour fixed an 18 month sentence in relation to Count 5, wholly suspended. Three year good behaviour bonds were imposed in relation to each of Counts 6 and 7. 16. All three suspended sentences and all four good behaviour bonds were dated to commence when sentence was handed down on 3 December 2015. His Honour took into account that by that time the respondent had served 233 days (approximately seven and a half months) in custody on remand. The maximum sentence for the s 66C(1) offence against JM was 16 years and for the remaining s 66C(3) counts, 10 years. Ground – 1 seriousness of the offences 1. Ground 1 is as follows: "1 The sentencing Judge erred in his assessment of the objective seriousness of all of the offences resulting in manifestly inadequate individual sentences." 1. There is an enormous range in the degree of seriousness which may be involved in offending against s 66C(1) and (3). As his Honour correctly recognised, a significant factor in either mitigation or exacerbation of the offence will be the age of the offender (RoS p 11). The respondent had himself only just attained the legal age of majority when he committed these acts. That has a bearing upon his own immaturity particularly in terms of the degree of his appreciation of the vulnerability of a female who is too young to give informed consent and his understanding of the psychological and social harm that may be done to a girl commencing sexual activity at such an age. It also bears upon the degree of disproportionate influence and control which the offender may have. In both of these respects, offending against this section by a man significantly older than the respondent would be viewed as more serious, objectively, than where the age difference is lower, as here. 2. His Honour correctly took account of the complete absence of force, violence or threats by the offender in connection with his sexual intercourse with each of the complainants. The facts tendered by the Crown showed that moderate importuning and emotional pressure had preceded some of the offences. The facts do not reveal exploitation of any of the complainants. This is in part the product of the personal limitations of the respondent, considered below, and the relatively low age differential between the offender and each complainant. The absence of exploitation is significant: R v Sea (Court of Criminal Appeal (NSW), 13 August 1990, unrep); R v Schwenke [2004] NSWCCA 289 at [15]. 3. None of the complainants suffered pain or injury in the sexual acts. His Honour acknowledged that he would have been entitled to proceed on the basis that under age sex may cause substantial psychological harm (RoS p 15) but said that no evidence of substantial harm of this nature to any of the complainants was tendered. His Honour did not treat the offences as worsened by any such feature. A victim impact statement of the complainant in Count 1, who had become pregnant to the offender, said that her mental health had been affected. 4. The respondent's relationship with each complainant was one of boyfriend and girlfriend. This mitigates the objective seriousness: Hogan v Regina [2008] NSWCCA 150. In each case the complainant had at first been in such a relationship with the respondent's younger brother, without sexual activity. Sequentially, each complainant had moved in to live in the house where the younger brother, the respondent and his family lived, following which the respective complainants' relationships with the younger brother had ceased and each of them had taken up with the respondent. 5. The repetition of the sexual acts, constituting a course of conduct over 14 months, was an exacerbating feature. So was the fact that when each offence took place the respective complainant was residing in what had become her home, albeit that it was also the respondent's home. These features were given due consideration by his Honour. The durations of the suspended sentences, 2 years, 12 months and 18 months for Counts 1, 2 and 5, were graded appropriately to reflect the relative seriousness of offending as between these charges. 6. I see no justification for the Crown's contention that his Honour erred in his appreciation of the objective seriousness of the offences. His Honour was entitled to conclude (as appears at RoS p 13) that the offending "falls towards the low range for offences of this type when also taking into account his age", the differential from the age of the complainants and the nature of the relationship which the respondent had with each of them. The Crown's written submissions on the appeal characterise the offences as having involved "coercion". His Honour did not so find. The Crown also asserts that there was "manipulation" and "exploitation" by the respondent of the complainants. I do not accept those descriptions having regard to the narrative of the offences in the statements of facts which were before the learned sentencing judge. 7. The pre-sentence report speaks of the offender having used "a level of manipulation in order to coerce the victims into a sexual relationship". Manipulation and coercion are different things. The statement of facts would not support a finding beyond reasonable doubt that coercion, in the sense of overbearing the will of any of the complainants, occurred. I would reject Ground 1. Ground 2 – manifest inadequacy of bonds for Counts 3, 4, 6 and 7 1. Ground 2 is as follows: "2 The sentencing Judge erred by imposing section 9 bonds in relation to charges 3 and 4 (re victim BR) and charges 6 and 7 (re victim JN) which are manifestly inadequate." 1. Consideration of this ground, in relation to which the assertion of manifest inadequacy is not limited to his Honour's assessment of the objective seriousness of the offences, requires this Court to have regard to the respondent's subjective circumstances. These were evidenced by oral testimony from his mother, a report of Dr Naomi Pulley, a forensic psychiatrist (26 November 2015), a report of Doctors Singh and Korner, consultant psychiatrists of Nepean Hospital (15 May 2015), a report of Ms Pamela Allen, an accredited clinical nurse employed in the Justice Health and Forensic Mental Health Network (29 May 2015) and a pre-sentence report from Community Corrections (25 May 2015). 2. From this body of uncontested evidence his Honour was satisfied that the respondent had experienced a traumatic childhood in which he was the victim of domestic violence first at the hands of his father (to the age of 10 years) and then from his stepfather. This disturbed background unsurprisingly led to behavioural problems. He was diagnosed with Attention Deficit Hyperactive Disorder ("ADHD") in childhood. He also exhibited from an early age Tourette's syndrome, a condition characterised by muscle twitches and reflexive involuntary utterances of foul language. 3. The above-mentioned afflictions of early childhood necessitated the respondent's enrolment in a "behavioural school" from year 6. Even in that environment he could not be controlled and he was expelled in year 8. He completed year 10 by distance education, then failed his Higher School Certificate. Since completing his education to a rudimentary level he has had 3 months employment with McDonald's Restaurants at age 14 but has not worked since. At the date of sentencing he was 21 years old. His prospects of employment then, as now, appeared bleak. The respondent is in receipt of a carer's allowance from Centrelink for the care of his mother. According to Dr Pulley's report the mother has bipolar disorder, anxiety, depression, schizophrenia, liver and bowel disease and breast cancer. 4. In childhood the respondent suffered hallucinations as a side effect of medication prescribed for ADHD. Upon examination and review of his history in November 2015 Dr Pulley found that he met the criteria for post-traumatic stress disorder consequent upon the mistreatment by his father and stepfather. He was also found to suffer from a major depressive order – in addition to the ADHD and Tourette's syndrome which are ongoing. Dr Pulley considered that he was possibly mildly intellectually disabled. The respondent has frequently from the age of 15 years been admitted to psychiatric hospitals on account of depression, anxiety and suicidal ideation. He has made frequent attempts on his own life and he regularly commits acts of self-harm. The latter were observed by Corrective Services during his remand in custody. At the time of sentence he was housed in a crisis unit for inmates at risk of self-harm. 5. In Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; in R v Engert (1995) 84 A Crim R 67 at 71 and in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177] it has been recognised that whilst a psychiatric condition may mitigate culpability, this consideration may be counterbalanced by the heightened risk of repetition of criminal conduct attributable to the relevant condition and the consequent need for protection of the community. In this case his Honour was justified in finding, on the basis of the professional opinions before him, that the respondent did not have a psychiatrically based predilection for underage girls, that his offending was significantly contributed to by social isolation and feelings of personal inadequacy and that whilst his psychiatric history diminished his culpability it did not presage an increased risk of reoffending. 6. His Honour concluded that the respondent's "upbringing provided little guidance or development of his capacity to develop judgment that is expected to be received from parents ... . I am satisfied that despite his age his capacity to exercise appropriate judgment was adversely affected by this factor". The judgment of the plurality in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [40] – [44] is authority for a sentencing judge to have regard to any proven aspect of deprivation or dysfunction in an offender's background which may have compromised his capacity to mature and to learn from experience. 7. The present was a very strong case for the application of this principle. The balancing consideration in many such cases of deprived background will be that the offender's failure to mature in moral strength and self-control may make him a danger to the community – a consideration tending towards full-time custody and a longer term. But his Honour was satisfied that this countervailing consideration was not operative here, where the pre-sentence report indicated that he would only be able to participate in a beneficial sex offender program in custody if incarcerated for 2 years or more, that his risk of reoffending was "medium" and where Ms Allen considered he would benefit from psychological counselling outside the prison system "to address maladaptive coping mechanisms". 8. It was also proper for his Honour to afford leniency on account of his youth: BP v R [2010] NSWCCA 159 at [4] – [6]. 9. Taking into account the objective seriousness of Counts 3, 4, 6 and 7 together with the subjective considerations mentioned above, the absence of any relevant prior offending, the 25% discount which his Honour allowed for the offender's pleas of guilty and the fact that 7½ months custody had been served on remand, I do not perceive manifest inadequacy in the imposition of the 3 year bonds for these counts. 10. Of the purposes of sentencing enumerated in s 3A Crimes (Sentencing Procedure) Act, par (b) (so far as it concerns general deterrence) and par (f) (denunciation) have no significant role to play. That is because the offender's disturbed background and long-standing mental afflictions make his case an unsuitable vehicle for the public educative effect of denouncing the infringements of s 66C in these particular instances. Paragraph (b) (so far as it concerns specific deterrence) and par (c) (protection of the community) are also of reduced significance where the risk of reoffending has been professionally assessed as no more than "medium" and where counselling and supervision in the community are regarded by responsible professionals as a potentially constructive means for reducing the risk still further. 11. For a young offender in the particular personal circumstances of the respondent, par (d) of s 3A (promotion of rehabilitation) was of great significance in this case. It was open to his Honour to conclude that it would be best served by supervision under the bonds which he ordered and which the Crown now criticises. This level of penalty was capable in all the circumstances of also satisfying the requirements of pars (a), (e) and (f) – ensuring adequate punishment, making the offender accountable and recognising such harm as was done to the complainant and the community. 12. Individually the bonds on Counts 3, 4, 6 and 7 were inconsistent with and more lenient than the suspended sentences for Counts 2 and 5, being like offences against the same two complainants respectively. That does not of itself render the bonds manifestly inadequate. I would dismiss Ground 2. Grounds 3 and 4 – concurrency and totality 1. Grounds 3 and 4 are as follows: "3 The sentencing Judge erred by imposing concurrent sentences for all the charges in respect of all three victims. 4 The sentencing Judge erred by imposing an overall sentence in relation to the seven charges that was manifestly inadequate having regard to the totality of the criminality for which the respondent was to be sentenced." 1. For reasons already given the Crown has not shown that any of the sentences for the 7 counts was individually inadequate. The respondent has rightly conceded that his Honour erred in not considering some degree of accumulation. It was not legally possible to accumulate the suspended sentences in any degree because Pt 4 of the Crimes (Sentencing Procedure) Act, which permits sentences to be given commencement dates which would make them cumulative or wholly or partly concurrent, is inapplicable to suspended sentences: subs (3) of s 12. 2. Had his Honour recognised the need to pronounce sentences for the offences against the three complainants respectively which would be in some measure cumulative upon each other, nevertheless it would have been appropriate in the circumstances of this case to fix non-parole periods and commencement dates which would allow the 7½ months on remand to count as time served. Taking in all of the considerations canvassed in these reasons it would have been within the reasonable exercise of his Honour's sentencing discretion to fix terms with non-parole periods partly cumulative totalling no more than the 7½ months. It would have been open to his Honour to impose a bond in respect of at least one of the offences in order to provide ongoing community based supervision, which would appear to be of great importance to rehabilitation of the applicant. 3. His Honour's remarks on sentence exhibit attention to every relevant consideration except accumulation as between the sentences for offences against different complainants. The overall result of his Honour's orders is constructive. It balances the legitimate concerns of the community (and of the complainant's parents in particular) with regard to sexual intercourse with these three girls at such a young age and, on the other hand, consideration for the very unfortunate background and psychiatric history of the respondent and allowance for the level of objective seriousness of the crimes. 4. Although arrived at by way of an erroneous omission to accumulate individual penalties in a manner which would recognise the sequential offending against three complainants, the total effective period of 2 years suspended sentence with an effective additional one year of supervision under bond and 7½ months full time custody already served, was in my opinion an appropriate outcome. Contrary to the Crown's submission, re-sentencing is not in my opinion dictated by any need to issue guidance to first instance judges with respect to the necessity to accumulate sentences relating to more than one complainant. Allowance for time served on remand 1. I respectfully consider that it was undesirable for his Honour to have pronounced sentences which, whilst taking into account the period of remand in custody, did not explicitly exhibit that in the form of the orders made. It would have been preferable to achieve the same result by imposing sentences of full-time custody but with short non-parole periods backdated so that they would be treated as having been fully served during the remand. With a total head sentence of less than 3 years it would have been open to his Honour to order the offender's immediate release on parole from the date sentence was pronounced: s 50(1) Crimes (Sentencing Procedure) Act. 2. Sentencing in this form, with the fact that time served on remand is to count being made apparent in the sentencing orders rather than being buried in the remarks on sentence, is preferred for reasons which have been stated many times: R v McHugh (1985) 1 NSWLR 588; R v English [2000] NSWCCA 245; R v Newman, R v Simpson [2004] NSWCCA 102; (2004) A Crim R 361 at [22] – [33]; Wiggins v R [2010] NSWCCA 30. 3. Street CJ said in R v McHugh: "It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be back-dated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing, in particular in relation to remission or reduction entitlements; ………. A judge departing from this practice could be expected to indicate his reason for so doing." 1. The result of the learned sentencing judge adopting the sentence solution which he did is that the wholly suspended sentences, which are all that show on the record as the penalty imposed, appear much more lenient than in fact the offender's punishment has been. Because of his psychiatric condition, extremely limited intelligence and personality deficiencies the 7½ months he has served on remand are likely to have been equivalent in punishment to a significantly longer period of incarceration for the general run of inmates. This has been taken into account by his Honour but not in a way which is transparent in the orders. Sentencing decisions of this Court on s 66C 1. Cases where this Court has imposed or upheld, for s 66C offences, sentences of similar duration to the sentences fixed by his Honour but without suspension under s 12 Crimes (Sentencing Procedure) Act have involved objective seriousness of offending notably greater than in the present case and subjective circumstances less deserving of leniency. In O'Brien v R [2013] NSWCCA 197 the offender was 23 or 24 years old and the victim 14. He pleaded guilty to four counts under s 66C(3). The first three concerned various forms of penetration which all occurred during the course of one incident, the third of these involving penile vaginal intercourse. The sentencing judge nominated indicative terms of 9 months, 3 months and 3 years. Count 4 arose out of an instance of penile vaginal intercourse on a second occasion two or three months after the incident when the first three offences were committed. 2. An aggregate sentence comprising a non-parole period of 2 years and 2 months and a balance of term of 1 year and 5 months was imposed. This took into account a 10% discount for a late plea of guilty. For purposes of comparison with the present case, if a full 25% discount had been allowed the aggregate sentence would have comprised a non-parole period of 1 year and 10 months with a balance of term of 1 year and 2 months. 3. Thus O'Brien v R concerned offences on two separate occasions against only one complainant. Relative to the present case the much greater seriousness of the offending in objective terms can be seen from the following summary of the facts taken from the sentencing judge's remarks: "A young girl was exploited for the sexual gratification of a man considerably older than her, a married man with children, a man who knew the family well, a man who clearly planned to exploit this young girl. This was not a momentary aberration. This was a deliberate and calculated course of conduct. Notwithstanding that no violence was used, he clearly overbore the will of this girl - in part because of the long association he had with the family." 1. This description highlights by contrast the mitigating circumstances in the present case. It has not been found that the respondent to this appeal engaged in any deliberate or calculated exploitation. The closeness in age of the respondent to each of the complainants and the boyfriend girlfriend relationship which they formed is significant. The respondent's lack of intelligence and personality deficiencies did not equip him to exploit the complainants, as opposed to forming an age-inappropriate relationship with each of them. 2. Although approximately four years older than each complainant the respondent here was not in any position of trust in relation to them such they would have looked to him as an authority figure. This is significant both to the absence of exploitation of such a relationship and also to the degree of harm inflicted. The present is not a case where complainants have been sexually used by an adult whom they were entitled to regard as a carer. A further point of contrast is that the offender in O'Brien v R did not have a strong subjective case to attract leniency, in contrast with the present respondent. 3. R v RD [2014] NSWCCA 103 concerned three offences against s 66C(1) committed over 18 months. The first was sexual intercourse when the complainant was 12 and the offender 19; the second was nearly a year later when the complainant was still 12 years old and the offender had turned 20. The third offence occurred when the victim had turned 13 and was pregnant to the offender. Thus the victim in R v RD was significantly younger than even the complainant in Count 1 in the present case, an age difference of one or two years plainly being material to the seriousness of the offence and the degree of harm occasioned in an offence of this kind. As noted above, most of the offences in the present case were against s 66C(3), with a maximum of 10 years rather than the 16 years maximum which applied to the counts in R v RD. 4. There was no suggestion of any romantic relationship in R v RD. There were simply three instances of the offender taking sexual gratification. He was of below average intellectual functioning and came from a background of significant disadvantage. He had no diagnosable psychological or psychiatric illness. The offender was assessed as being at a moderate risk of further offending. 5. This Court considered that indicative sentences of 2 years and 9 months for each of the first two offences and 4 years for the third would have been appropriate. It substituted for the sentence which had been imposed in the District Court an aggregate term comprising a non-parole period of 2 years and 9 months and a balance of term of 2 years and 9 months. 6. R v Taane [2014] NSWCCA 330 concerned an offender who had initially committed two offences against the same complainant in June and October 2011, one offence contrary to s 66C(1) and the other contrary to s 66C(3). Suspended sentences of 2 years and 18 months respectively had been imposed in the District Court in June 2012. The offender was 25 years old at the time of the offences. The respondent was 13 at the time of the first offence and 14 at the time of the second. Both the offender and the complainant considered the relationship romantic. 7. Whilst awaiting sentence on these first two counts, during the period April to June 2012, the offender had committed further offences against the same complainant contrary to s 66(3). He carried on his sexual and romantic relationship with her in disregard of an apprehended violence order which restrained him from contacting her. In respect of these further instances of sexual intercourse he was charged with two more offences against s 66C(3) and another two were taken into account on a Form 1. The offender pleaded guilty and was allowed a 25% discount. In the District Court a sentence of 2 years non-parole period with a balance of term of 1 year and 4 months was imposed on the first count. For the second count a non-parole period of 2 years with a balance of term of 1 year 1 month was imposed. Dates of commencement were fixed so that an effective 2 years and 3 months non-parole period was required to be served. This Court declined to interfere on a Crown appeal. 8. It is notable that suspended sentences were imposed for the initial offences, notwithstanding the significant age difference between the offender and the complainant. The offences in respect of which the Crown appeal against inadequacy of sentence came before this Court attracted no leniency having regard to the circumstance that they were committed after the offender had been charged with the earlier counts. The complainant had become pregnant as a result of the sexual activity charged in the earlier counts. 9. Each of the individual counts in the present case was less objectively serious than any of the offences in the other cases by a substantial margin and the subjective circumstances of the present applicant were significantly more compelling. Even allowing for the number of counts in the present case and for there having been three complainants, a penalty more severe than that imposed by the learned judge is not required. Conclusion 1. The Crown has not demonstrated that the Court should refrain from exercising its residual discretion to leave undisturbed the sentences passed in the District Court. I would have the Court exercise that discretion and dismiss Grounds 3 and 4. 2. I propose the order of the Court should be: appeal dismissed. ********** Endnotes 1. Judgment on sentence, p 11. 2. Judgment on sentence, p 12. 3. Judgment on sentence, p 11. 4. Judgment on sentence, p 15. 5. DBW at [39]. 6. DBW at [40] (Simpson and Harrison JJ agreeing). 7. R v Muldoon (unrep, 13/12/1990, NSW CCA) (Hunt J). 8. [2009] NSWCCA 117 at [41] (McClellan CJ at CL, Grove J and Howie J). 9. (2002) 54 NSWLR 368 at [57]. 10. [2009] 1 AC 92 at [49]. 11. [2014] NSWCCA 56; 239 A Crim R 469 at [110]. 12. The Hon P McClellan and A Doyle, "Legislative Facts and Section 144 – A Contemporary Problem?" (2016) 12 TJR 421 at 447. 13. [2015] NSWCCA 8. 14. Judgment on sentence, p 11. 15. Judgment on sentence, p 12. 16. Judgment on sentence, p 12. 17. Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(g). 18. Judgment on sentence, p 14. 19. Report, p 6. 20. Report, p 7. 21. Judgment on sentence, p 16. 22. Judgment on sentence, p 23. 23. Judgment on sentence, p 23. 24. CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407 at [33] (French CJ and Gageler J), [54]-[55] (Kiefel, Bell and Keane JJ). 25. Report, p 7. 26. Report, p 8. 27. Report, p 2. 28. Report, p 5. 29. (1995) 84A Crim R 67 at 71 (per Gleeson CJ). 30. MJ v R, CPD v R [2010] NSWCCA 52; R v LNT [2005] NSWCCA 307; BP v R [2010] NSWCCA 159. 31. [2005] NSWCCA 239. 32. Regina v AN, supra, per Howie J (James & Rothman JJ agreeing). 33. See BP v R, above. 34. See above. 35. Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600. Amendments 06 July 2016 - [3] - Inserting "in respect of offences involving" between "sentencing" and "each of". 07 July 2016 - [84] Amending wording of paragraph. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2016