Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: WC v R [2016] NSWCCA 173 Hearing dates: 27 April 2016 Date of orders: 17 August 2016 Decision date: 17 August 2016 Before: Hoeben CJ at CL at [1] Campbell J at [2] Natalie Adams J at [79] Decision: (1) Grant leave to appeal and allow the appeal; (2) Quash the sentence passed in the District Court on 16 February 2015; (3) Re-sentence the applicant to an aggregate term of imprisonment with a non-parole period of 11 years and 9 months commencing on 9th November 2011 and expiring on 8th August 2023 with an additional term of 5 years and 3 months commencing on 9th August 2023 and expiring on 8th November 2028; (4) The earliest date upon which the applicant will be eligible for release on parole will be on the expiration of the non-parole period on 8th August 2023. Catchwords: CRIMINAL LAW – appeal – appeal against sentence –interstate offending – totality principle – assessment of rehabilitation in context of interstate imprisonment CRIMINAL LAW – appeal– appeal against sentence– rejection of expert report as to risk of reoffending by sentencing judge– whether reasons for rejection adequate – where reasons for decision made clear Legislation Cited: Crimes Act 1900 (NSW), ss 59, 61M(2), 61O(1), 61O(1A), 66(2), 66C(2), 78A Criminal Appeal Act 1912 (NSW), ss 5(1)(c), s 6(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(d), 22A, 33, 47(2), 53A Cases Cited: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407 Mill v The Queen [1988] HCA 70; 166 CLR 59 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 R v Ellis (1986) 6 NSWLR 603 R v MAK & MSK [2006] NSWCCA 381; 167 A Crim 159 R v Pogson [2012] NSWCCA 225; 82 NSWLR 60 R v Todd [1982] 2 NSWLR 517 Vartzokas v Zanker (1989) 51 SASR 277; 44 A Crim R 243 Category: Principal judgment Parties: WC – Applicant Regina – Respondent Crown Representation: Counsel: S Healy – Applicant N Noman SC – Respondent Crown Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2012/126605 Publication restriction: Non publication order in respect of the name of the victim and of the offender Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: R v WC Date of Decision: 16 February 2015 Before: Conlon DCJ File Number(s): 2012/126605 Judgment 1. HOEBEN CJ at CL: I agree with Campbell J. 2. CAMPBELL J: The applicant applies for leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by his Honour Judge Conlon SC in the District Court of New South Wales on 16 February 2015. 3. The applicant entered a plea of guilty at the earliest opportunity to 12 offences of child sexual assault committed against his daughter over a period of years. He also asked for an additional nine related offences to be taken into account on "Form 1s" spread over four of the principal offences. He was sentenced to an aggregate sentence of 19 years commencing on 9 November 2011 and expiring on 8 November 2030 with a non-parole period of 13 years expiring on 8 November 2024 when he will first be eligible for parole. Indicative sentences totalled 44 years. 4. The sentence was backed-dated to 9 November 2011 to give effect to the principle of totality in sentencing by partially accumulating the sentence on Queensland sentences then being served for three counts of incest involving his same daughter. That offending occurred in 2006 in Queensland, after the New South Wales offending. The District Court of Queensland sentenced the applicant to three concurrent sentences each of 4 years commencing on 10 November 2009, with non-parole periods of 16 months. 5. The application of the totality principle to cross-border sentencing was at the forefront of this application. Two grounds are relied on by reference to it. First, the applicant argues that the sentencing judge erred when considering the rehabilitation of the applicant, specifically by assigning little or no weight to rehabilitative programs undertaken interstate, and otherwise incorrectly addressing the question of rehabilitation. 6. Secondly, the applicant avers that the sentencing judge fell into error by rejecting expert evidence that supported a finding that the applicant's risk of reoffending was low. It was said that the sentencing judge's reasons for this were either inadequate or lacked a rational basis. Factual background 1. It is relevant to outline briefly the criminal and custodial history of the applicant, as it keenly bears upon the grounds of appeal. The applicant's criminal history is limited to this serious sexual offending against his natural daughter, JC, over the period from 1999 to 2006, and occurring in New South Wales and Queensland. JC was only twelve years old when the offending first commenced. 2. JC was born in 1988. When she was 9 years of age, her parents separated. She and her brother then resided with the applicant and their step-mother. They lived in Buxton, NSW until JC was 15 years of age, when they moved to Leumeah, prior to moving to Queensland when JC was 17 years of age. 3. It was in Queensland that JC first made a complaint against the applicant, in April 2007. The applicant pleaded guilty to the three counts of incest with which he was charged, occurring on different days in 2006 ("the Queensland offences"). He was sentenced on 10 November 2009 at Beenleigh District Court to 4 years imprisonment with a non-parole period of 16 months expiring on 9 March 2011. For various reasons the applicant was never granted parole in Queensland and accordingly served the whole of his sentence there. 4. Prior to the expiration of the Queensland sentence, JC made a complaint to NSW Police in respect of the prior NSW offending. The applicant was extradited on 8 November 2013, at the expiration of the Queensland sentence. He was then charged for the NSW offences, and pleaded guilty to all charges on 3 September 2014 in the Local Court. 5. The NSW offences consist of the following 12 counts: 1. 8 counts of sexual intercourse with a child between 10 and 16 years of age and under his authority, contrary to s 66C(2) of the Crimes Act 1900 (NSW) committed on various dates between 20 January 2000 and 12 June 2003. 2. One count of sexual intercourse with a child aged between 14 and 16 years of age and under his authority, pursuant to s 66C(2) of the Crimes Act committed on various dates between 13 June 2003 and 31 December 2003 3. Three counts of incest contrary to s 78A Crimes Act, committed on various dates between 19 February 2004 and 21 November 2005. 4. A further nine offences were included on 4 separate Form 1 schedules. Form 1(1) included one count of assault occasioning actual bodily harm, contrary to s 59 of the Crimes Act; two counts of aggravated indecent assault on a person under 16 contrary to s 61M(2); and one count of aggravated act of indecency, contrary to s 61O(1). Form 1(2) contained one count of sexual intercourse with a child between 10 and 16 years and under his authority contrary to s 66(2); and one count of incite aggravated act of indecency contrary to s 61O(1). Form 1(3) contained one count of sexual intercourse with a child under authority aged between 10 and 16 contrary to s 66C(2); and one count of aggravated indecent assault contrary to s 61O(1A). Form 1(4) contained one count of aggravated act of indecency, contrary to s 61O(1A). Nature of the NSW offending 1. The applicant's offending began when JC in 1999 was in year 6 of primary school. According to the statement of agreed facts, JC returned home from school, accompanied by a friend. The applicant expected that she would bring her brother with her. The applicant met her on the front lawn, one can infer, unreasonably angry at her failure, and told her to pull down her underwear, and then proceeded to strike her bottom with a studded belt. 2. This initial violent act of excessive discipline is different in nature from the sexual and physical abuse that follows. In 2000 the applicant commenced to commit an escalating series of sexual acts against his daughter under the outrageous guise of supposedly "educating" her about sexual matters. This began with "educating" JC about kissing and masturbation, and soon progressed to the applicant demanding oral sex and him penetrating his daughter's vagina digitally. This occurred a couple of times a week. 3. The abuse escalated in 2001 when JC was 13. The applicant began penetrating her vaginally with his penis, again explaining it to JC as a way of educating her about sex. He also said it was a way of him showing his love for her. 4. The following year when JC was 14 years old, the applicant penetrated her anus with his penis, causing her immediate and ongoing pain; he repeated this particular abuse the following year when JC was 15 years old. 5. The offending was predominantly carried out in the family home. The applicant sought to hide his offending from his partner, the step-mother of JC. He told JC that it was their secret, and was otherwise careful when other persons were also at home. 6. He also took advantage of opportunities to offend outside the family home. On occasion he vaginally penetrated JC while they were in the horse sheds on their property at Buxton, and in their family swimming pool when they lived at their house at Leumeah. The applicant worked for a time as a delivery driver, and he would sometimes take JC along. On one occasion he sexually assaulted her as part of his "fantasy" of doing so in the back of his truck. When JC was 15 years of age, he would also take the opportunity to demand oral sex during driving lessons he gave her on their way to her riding lessons. This pattern of offending continued after their move to Queensland until JC made her "official" complaint to police on 5 April 2007. Custodial history in Queensland 1. On 29 June 2010, the applicant was assessed as suitable for the Getting Started: Preparatory Program ("GSPP") and the New Directions: Medium Intensity Sexual Offending Program ("MISOP"). He was put on a priority waiting list, considering the imminence of his earliest possible release date (9 March 2011). On 2 July 2010 he was offered a place in a MISOP at Townsville, but did not take-up this opportunity due to his unwillingness to leave south-east Queensland where he had some social support. 2. The applicant first applied for parole on 9 September 2010. In its report dated 11 October 2010 the Southern Queensland Regional Parole Board recommended against parole, on the grounds of: the Applicant's failure to complete the GSPP and the MISOP; his limited insight into the nature of his offending; and inadequate relapse prevention and release plans. At this point the only offending known to the board were the Queensland offences. The applicant's limited insight evidenced by him blaming the victim for his offending was recorded (p 8). The application was refused on 20 January 2011, due to the unacceptable risk posed by the applicant. 3. The applicant lodged a second application on 28 March 2012. In its report dated 24 April 2012 the parole board referred to the arrest warrant in respect of 24 further charges of sexual offending against his daughter JC, answerable at the Campbelltown Court, noting that he would be extradited upon release. A recommendation against granting parole was made for largely the same reasons as previously. While he had applied for and been accepted into the Ozcare parole support program, he had not completed the GSPP and MISOP. It seems from the material that the parole board decided to postpone a final decision until they received a completion report for the GSPP. 4. The applicant commenced the 12 session program on 17 August, completing it on 27 September 2012. The Board further informed him on 13 November 2012 that completion of the MISOP was also necessary prior to a determination; the applicant had commenced this program 4 July 2012, and completed the 30 session program on 11 April 2013, but he served the remainder of his sentence without a grant of parole, and was extradited on 9 November 2013, at its expiration. The GSPP report 1. It was argued by the Crown that the MISOP and GSPP reports demonstrate that the applicant had "failed to truthfully address" his offending by "his reluctance to discuss the details of his outstanding charges". And his accounts of his Queensland offending were incomplete or inaccurate, because the true extent of that offending had to take account of the NSW offending, as the Queensland offences were not isolated acts. It was further submitted that in any event, these rehabilitation programs were of limited weight as they were not directed towards his NSW offending. 2. The applicant had not yet entered pleas in relation to the NSW offending at the time of participating in the GSPP and MISOP and on his account, did not yet know the exact extent of the charges he would face. There are several references to this in the GSSP report, which are worth outlining when considering this allegation of a want of truthfulness in his account of his offending. 3. At page 1, the authors considered that "no responsivity issues were identified…However, prisoner [WC] reported being reluctant to provide all details of his life as there were outstanding charges from New South Wales." They then later report at page 2 under the heading of "disclosure" that: "At the end of his presentation, prisoner [WC] revealed that he is awaiting extradition to NSW in relation to additional charges for sexual and violent offences. He stated that due to those charges he was hesitant to provide information about his life in relation to that period due to fear of incrimination." 1. From the heading, this section of the report is addressing questions of "insight into offending behaviour; acceptance of responsibility; recognition of the four stages of offending; victim harm; denial or minimisation" (page 1). Alongside this acknowledgment of pending further charges for sexual and violent acts, the authors also noted that the applicant "exhibited signs of shame and guilt". The applicant also reportedly detailed instances of his offending, as well as acknowledging that "despite his guilt, he offended several more times until his victim asked him to stop" (page 2). 2. Under the heading of "autobiography", the report states: "Prior to commencing his presentation, prisoner [WC] stated he had outstanding charges for sexual offences in New South Wales, and was unsure how much to disclose in relation to the period surrounding these offences. He was informed that he did not need to discuss these charges, but could discuss his life generally during this period." (page 2) 1. According to the report, this exercise is designed to help prisoners to understand contextual factors and personal life experiences which contributed to their offending. This is the third mention of the outstanding offences in this report. By the division of each section, it is open to infer that these were each separate sessions in which each of these topics were discussed, particularly as each section annunciates this point differently. The applicant does not appear to attempt to hide or not acknowledge his offending, indeed, he mentions it at least on three different occasions, and on this final occasion he is informed that "he did not need to discuss" it. Reasons– objective seriousness 1. His Honour did not in express terms articulate a precise finding of objective seriousness. But he addressed that question in very denunciative language. From that and from the individual indicative sentences, arrived at after allowing the benefit of a 25 per cent discount for the applicant's early plea, it is clear that the sentencing judge assessed the objective seriousness of each instance offending as at or above the mid-range. It is well to bear in mind that in respect of four of the offences his Honour took into account other significant offending on a Form 1. He referred to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in this regard, directing himself that the procedure justified the imposition of a longer sentence than might have been called for if the principal offending, in each affected case, stood alone. 2. Among the findings made by his Honour under the heading "Objective Seriousness" were the following: "The offender has exploited the youth of this child in the worst possible way. He has groomed his own daughter, turning her into his sexual plaything. His behaviour no doubt, had the effect of engendering a feeling of both helplessness and hopelessness in the claimant. She was entitled to feel safe and protected within the confines of the family home. Instead he made her a slave for his own lust and sexual gratification. … The range of sexual assault she was subjected to [is] indicative of the offender's extreme level of depravity. The vulnerability, dependency and immaturity of young children render them amenable to sexual exploitation by adults. They simply have no ability to assert their own will over that of an adult. The offender's grooming of this child effectively short circuited her moral and mental development… … In this country, for the overwhelming majority of fathers, the love they have for their daughters is such that they would give their own life to protect and keep them safe from harm. When fathers like the offender are finally exposed for their horrific crimes, the community expects the courts will impose severe punishment." Reasons- subjective circumstances 1. The applicant was aged 49 when he came up for sentence. By then he had served about 5 years and 3 months in custody referrable to this serious, serial offending. 2. The sentencing judge did not find much to commend itself in favour of leniency in the applicant's circumstances. He acknowledged that the applicant's lack of a prior criminal history brought him before the court "as a person of prior good character". He regarded that matter as of little weight "when dealing with repeat sexual offending against children". 3. The applicant's background was unremarkable. He grew up in Sydney in a supportive home, completed year 10 and obtained a trade as a motor mechanic. He moved to truck driving for better pay. 4. A favourable psychiatric report by a Dr McCulloch utilised in the Queensland proceedings was of little value because the author did not have a full history. She was restricted to the three Queensland offences and knew nothing of the earlier more extensive NSW offending between 2000 and 2005 when the victim was much younger. The learned sentencing judge could not accept the accuracy of the history received, at least by implication, that up until February 2006 the applicant had a "brilliant relationship" with his daughter. His Honour recorded that the applicant explained his offending by telling the psychiatrist that he had wanted to show his daughter how much he loved her but "he showed her in a sexual way, the "wrong way"". The sentencing judge discounted Dr McCulloch's assessment that the applicant presented "a low risk of re-offending", again because she had no knowledge of the applicant's gross offending prior to 2006. 5. Anticipating the significance of the applicant's progress toward rehabilitation in custody in Queensland to the application of the totality principle to his cross-border offending, the sentencing judge undertook a review of the Queensland parole documents. (I have summarised them at [17]-[26] above.) His Honour recorded that on completion of the GSPP on 27 September 2010, the applicant was recorded as displaying, "limited empathy towards…his victim". And also the record of what the applicant had said about his "fear of incrimination" set out at the foot of [23] above. But he made no reference to the material set out at [25] above, that the applicant "was informed that he did not need to discuss [the NSW offences] but to discuss his life generally" during the period. Nor did his Honour make any finding about the impression formed by their own observations of the authors of the GSPP report that the applicant "exhibited signs of shame and guilt". 6. Because of the applicant's failure to make a full disclosure of the NSW offending, his Honour found: "Accordingly it is clear to this Court that he has not undertaken any rehabilitation program in Queensland aimed at his extensive sexual offending from 2000-2005, that is, in respect of the offences that I am specifically dealing." 1. His Honour did record the conclusion that "overall it was considered [the applicant] made gains in relation to his treatment needs and adequately identified areas which need further development." 2. His Honour referred to the applicant's letter to the court (Exhibit 2) setting out the applicant's understanding of the rehabilitation programs that he had undertaken in custody in Queensland and expressing the uncertainty that he felt because he was unaware of "the exact nature of [the NSW] charges until [he] was extradited". His Honour, with respect, correctly, observed "it would appear that having completed the Queensland programs, he still has difficulty articulating any real expression of remorse." The applicant certainly expresses regret about the damage the offending has done to his own life and to his principal relationships, especially with the victim and her brother. But, as his Honour found, no contrition or remorse is evident. Dr Nielssen's report 1. Dr Olav Nielssen, a well-known psychiatrist, interviewed the applicant by audio-visual link from the correctional centre 26 November 2014 and provided a report dated 2 December 2014. The report is of a familiar type in terms of its format and the nature of its contents. Dr Nielssen recorded the history received from WC in relation to the offending, including his explanation of how "it came about"; past psychiatric history, which apart from depression in prison was negative; general medical history; history of substance abuse, which was not significant; social history; mental state examination; psychiatric diagnosis (there being none); and opinion. Dr Nielssen considered that the applicant did not suffer from any psychiatric disorder and that his experience of depression was "proportional to his circumstances". He also excluded any disordered, or abnormal, sexual interest, such as heterosexual paedophilia. Dr Nielssen concluded with the expression of the following view at page 240: "with regards [to] risk of recidivism, [the applicant's] offences were intra-familial and opportunistic, and the conditions in which the offences took place are unlikely to arise again. [WC] is not a recidivist offender, and the overall rate for sexual offenders is lower than for other categories of offence, and declines with age. There was no history of a pattern of substance abuse of a psychiatric disorder affecting impulse control that might increase the possibility of further similar offences. [sic] [WC] has participated in counselling to improve his self-awareness. He may derive some benefit from further counselling, for example, participation in the maintenance program, prior to his release." 1. Notwithstanding what might be regarded as the familiar, or routine, format and content of the report, the learned sentencing judge took strong exception to two aspects of it. The first matter was WC's explanation for his offending. Dr Nielssen recorded that the applicant said that he was treating his daughter "more like a girlfriend than a child… I had trouble showing my feelings… I just did not know how to express myself". The applicant went on to say that he was aware of publicity surrounding "this kind of offence" but said that "at the time of the offences he did not consider how wrong it was…or the harmful affect it might have had on the child". He now realised "how wrong his behaviour was, and had entered a plea of guilty from the outset. 2. As he was entitled to do, the sentencing judge rejected the applicant's account "as totally self-serving". He was not persuaded that the applicant did not appreciate the wrongfulness of his conduct at the time of the offending. But his Honour went on to take Dr Nielssen to task for his apparent failure to offer "any critical evaluation" of the applicant's explanation. I interpolate, with respect, that this is somewhat unfair. It is not the role of the expert to say whether the account was self-serving, or is truthful. The proper role of the medical expert is to record the history, set out the findings on examination, explain so much of her or his branch of medical science as may be relevant to understanding the opinion; and express an opinion as to whether or not the person examined suffers from any relevant diagnosable condition within the expert's branch of expertise. Dr Nielssen's report performed this function. To the extent to which he expressed an opinion as to the risk of reoffending, his reasoning process in that regard was made manifest. Evaluation of the weight to be accorded the report was a matter for the judge acting in accordance with accepted judicial standards for the evaluation of expert opinion. I accept that his Honour was not obliged to accept Dr Nielssen's assessments. 3. The second matter was his Honour's rejection of Dr Nielssen's use of the word "opportunistic" to describe the applicant's offending. The sentencing judge said: "it is inappropriate to use the word…when dealing with persistent sexual abuse of a child over a period of seven years." For this reason, none other was expressed, he rejected Dr Nielssen's assessment of the risk of future offending. Application of the totality principle to cross-border offending 1. The sentencing judge then discussed R v Todd [1982] 2 NSWLR 517 and Mill v The Queen [1988] HCA 70; 166 CLR 59, dealing, as I have said, with the application of the totality principle "where the offender commits a number of offences within a short space of time in more than one state" (Mill at 63) [Emphasis added.] His Honour observed that the High Court had referred to the significance of a statutory power to backdate the commencement of sentences to enable the sentencing court to structure the sentence, allowing for considerations of accumulation and concurrency, to proper application of the principle. His Honour referred to s 47(2) of the Crimes (Sentencing Procedure) Act and said this (at page 15 of the Remarks on Sentence ("ROS")): "On a consideration of the above decisions I have come to the view that it is appropriate to backdate the sentences to best reflect the principle of totality. It has also been accepted that the court is entitled to have regard to the extent to which the offender has rehabilitated himself in consequence of the period of imprisonment served interstate when determining the appropriate sentence. On this issue I have already referred to the fact that to date, he has not undertaken any rehabilitation program aimed at his persistent sexual abuse of his daughter from 2000 to 2005." 1. His Honour then referred to what Street CJ said in Todd at 519F about fairness requiring weight to be given to the progress of rehabilitation and: "….the circumstance that he [the offender] has been left in a state of uncertain suspense as to what would happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach…" 1. His Honour did not refer to what the Chief Justice had said about these considerations "playing a dominant role" in sentencing, "at times" requiring "what might otherwise be a quite undue degree of leniency being extending to the prisoner." Nor does his Honour record that the whole of that passage was quoted with apparent approval by a unanimous High Court in Mill (at page 64; 65-66). Rather, his Honour sought to distinguish this part of the principle discussed in Todd and Mill on the basis that in each of those cases, the cross-border offending, "occurred over a short period of time, or in the course of one criminal enterprise." [Emphasis added.] Not, as here, as part of "a continuing course of conduct over a seven year period." Other factors taken into account by the sentencing judge 1. As I have said, his Honour allowed a 25% discount on each of the indicative sentences to take account of the early plea. He correctly directed himself that the additional penalty for those offences carrying other offences on Form 1s "may be substantial". His Honour said (at page 16-17 of the ROS): "After taking into account the subjective material on behalf of the offender, and all other relevant matters such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offences and be proportional to the criminality involved. The punishment must also be in accordance with sentencing principles at the time… I have taken into account the purposes of sentencing set out under s 3A of the Crimes (Sentencing Procedure) Act. The offending conduct calls for a significant element of specific deterrence. Concerning general deterrence, recognition must be given to the fact that children in a family situation are virtually helpless against sexual attack by a male parent. The Court of Criminal Appeal has stated on many occasions that children have a right to be protected from sexual molestation within the family and that this can be achieved by courts imposing sentences of salutary nature." 1. His Honour decided to impose an aggregate sentence in accordance with s 53A and made a finding of special circumstances, "owing to the aggregation". He set out the various indicative sentences referred to at [3] above. The total effective sentence, taking into account the Queensland sentences and the backdating of the New South Wales sentence for the purpose of notional accumulation is a non-parole period of 15 years, expiring on 8 November 2024 with an additional term of 6 years, expiring on 8 November 2030; a total of 21years. The arguments of the parties 1. Mr S Healy of counsel for the applicant argued that the learned sentencing judge erred in principle in his application of Todd and Mill. His Honour failed to appreciate that there are three factors tending towards a degree of leniency in the application of the Todd principle and that fairness to the offender required weight to be given to: one, the progress of his rehabilitation during the earlier sentence; two, the circumstance that he has been left in a state of uncertain suspense as to what will happen when he comes up for sentence again; and three, the fact that sentencing for a stale crime "calls for a considerable measure of understanding and flexibility of approach" :Todd at p 519-20 per Street CJ at CL; see p 521-2 per Moffat P; Mill at p 65-6. It was an error in principle to regard the relevance of rehabilitation to be restricted to the offending for which sentence was then being passed. This error was compounded, so the argument ran, by his Honour's failure to address the issue of rehabilitation at all. 2. In relation to ground two, it was argued that his Honour failed to give adequate reasons for his rejection of Dr Nielssen's opinion that the applicant presented a low risk of reoffending. His Honour's stated grounds for this conclusion, that Dr Nielssen failed to "critically assess" the applicant's explanation for the offending, and his strong disagreement with Dr Nielssen's characterisation of the offending as "opportunistic" failed to engage with the expert evidence, which was not contradicted. 3. Ms N Noman SC for the Crown argued that his Honour had considered the question of rehabilitation and it was well open to him to find that the programs he had undertaken whilst in custody in Queensland did nothing to address the prior repeated offending in NSW. That he refused to discuss the details of the NSW offending "raises a concern of the applicant's account of his offending and therefore the basis of any programs to address the offending": Crown submissions at [17]. The lack of remorse significantly told against any real progress having been made in the applicant's rehabilitation. Remorse "is typically a pre-condition" to a finding that the offender is unlikely to reoffend and has good prospects of rehabilitation: Crown submission [19]-[20]; R v MAK & MSK [2006] NSWCCA 381; 167 A Crim 159. There was no error in his Honour finding that there had been no rehabilitation in respect of the NSW offending and in rejecting the evidence that the applicant was unlikely to re-offend. This gave rise to a need to include "a significant element of specific deterrence" in the sentence. 4. Concerning the second ground, learned senior Counsel argued that the evidentiary value of Dr Nielssen's opinion was substantially undermined by the important consideration that the assumed facts upon which the opinion was proffered was significantly at variance with the facts as found by the sentencing judge. It was well open to the judge to reject the applicant's explanation as untruthful and to disagree with Dr Nielssen's assessment of the nature of the offending as opportunistic. This being so, Dr Nielssen's opinion was not entitled to much weight in the circumstances of this case Consideration – relevant principles 1. The principle expounded in Todd and approved by the High Court in Mill relates to "an offender [who] comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed about the same time". The learned sentencing judge may be taken as having questioned the application of the principle to this case because "it cannot be said that the offending conduct occurred over a short period of time or in the course of one criminal enterprise. It was a continuing course of conduct over a 7 year period" (AB 39). Nonetheless, it is obvious he purported to apply it by referring to the need to "reflect the principle of totality" and to his power to backdate the sentence under s 47(2) Crimes (Sentencing Procedure) Act. I have no doubt that the principle applies notwithstanding the offending was not confined to a short period of time. The High Court's reference to "an offence of the same nature and committed at about the same time" should not be construed like the words of a statute. But, doubtless, the consideration that the offending was a continuing course of conduct over many years was highly relevant to the assessment of the objective seriousness of the offending. 2. Street CJ's exposition of the principle in Todd identified three discreet circumstances which engage the principle in a given case. They are: the progress of the offender's rehabilitation during the term of his earlier sentence; that he has been left in a state of uncertain suspense about the outcome when sentenced again; and that "sentencing for a stale crime, long after the committing of the offences calls, for a considerable measure of understanding and flexibility of approach…". These factors are relevant because of "considerations of fairness to [the offender])" (at 519). These matters will frequently play a dominant role when the offender comes up for sentence again. Leniency may be the effect of the application of the principle. 3. Again, as the learned sentencing judge correctly recognised, the High Court identified the existence of a statutory power to backdate a sentence as facilitative of the application of the principle. However, it would be wrong to regard the legitimate operation of the principle as being totally subsumed by the exercise of the back-dating power as the sentencing judge's reasons may suggest. 4. The purposes for which a court may impose sentence on an offender include promoting his or her rehabilitation: s 3A(d) Crimes (Sentencing Procedure) Act. The learned sentencing judge specifically said he was taking the purposes of sentencing into account. Moreover, he correctly recognised that the application of the principle of totality to cross-border offending where an offender has first been imprisoned interstate entitled the Court to have regard "to the extent to which the offender has rehabilitated himself in consequence of the period of imprisonment served interstate". His Honour recognised that the applicant had undertaken relevant programs in Queensland. The sentencing judge's difficulty was that, because he had not disclosed the full extent of his New South Wales offending during the programs in Queensland, "he has not undertaken any rehabilitation program in Queensland aimed at his sexual offending [in New South Wales] from 2000 – 2005." Rehabilitation for the offence or of the offender? 1. The question that really arises is whether for the purpose of the application of the principle it is necessary for an offender to show that he has in fact undergone programs directed to his New South Wales offending rather than his offending behaviour generally. 2. Under s 21A(3)(h) Crimes (Sentencing Procedure) Act, good prospects of rehabilitation "whether by reason of the offender's age or otherwise" is a mitigating factor. In accordance with established principle the offender carries the onus of establishing that matter on the balance of probabilities. 3. In Australian sentencing law, the concept of rehabilitation is usually understood by reference to the analysis of King CJ in Vartzokas v Zanker (1989) 51 SASR 277; 44 A Crim R 243; see R v Pogson [2012] NSWCCA 225; 82 NSWLR 60 per McClellan CJ at CL and Johnson J at 85 [112] – 87 [124]. King CJ said (at 279): "Rehabilitation as an object of sentencing is aimed at the renunciation by theoffender of his wrongdoing and his establishment or re-establishment as anhonourable, law-abiding citizen." The Chief Justice pointed out that as an object of sentencing, rehabilitation is not confined to the infirm or disadvantaged. 1. In Pogson McClellan CJ at CL and Johnson J said (at 87 [123]): "…. every offender is in need of rehabilitation. Some may needgreater assistance than others. It has been commonplace to speak of "payingyour debt" to society. That phrase, in colloquial parlance, captures the essence of rehabilitation, enabling the offender to re-establish him or herself as an honourable member of the community." 1. It is trite that the object of sentencing in an individual case is to fix the sentence for the offence and the offender. As an object of sentencing generally, rehabilitation is directed principally to the offender rather than the offence. This is consistent with the ordinary meaning of the word rehabilitation which according to the Macquarie Dictionary is "restoration to former health". 2. The proper application of the Todd or Mill principle "requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence" (Todd at 519). As I have already pointed out, because of his lack of empathy for his victim, it is obvious that the applicant's rehabilitation is not complete nor does he seem to have progressed to the full achievement of a state of genuine remorse. As the Crown pointed out in argument, this consideration is very relevant to the finding that may be made about the offender's progress toward, and prospects of, rehabilitation. In R v MAK; R v MSK, The Court (Spigleman CJ; Whealy and Howie JJ) said at [41] : "….s 21A of the Crimes (Sentencing Procedure) Act … requires the sentencing court to take into account specifically, as matters in mitigation of sentence, not only the plea of guilty but also that the offender is unlikely to re-offend and has good prospects of rehabilitation. In respect of the last two matters it is clear that remorse will be a major factor in determining whether those matters of mitigation exist: without true remorse it is difficult to see how either finding could be made." Their Honours also pointed that nothing in s21A "affects, or was intended to affect, the matters that were taken into account in determining the appropriate sentence before the section was enacted". Error in principle 1. The absence of true remorse in this case limits the weight that can be given to the offender's progress toward, and prospects of, rehabilitation in this case. But it does not nullify the consideration. Judgments are not statutes, but there is no reason to suppose that Street CJ did not choose his words carefully. The evidence in this case proved that the offender had made some progress toward rehabilitation even if he remains a long way short of having been rehabilitated. 2. It is clear from the findings made by the sentencing judge and his heavy emphasis upon the need for specific deterrence that his Honour gave no weight whatsoever to the progress the offender had made by completing the relevant courses in Queensland. In my judgment this was an error because the question was one of rehabilitation of the offender, not for the offence. And the emphasis was upon progress not cure. 3. This conclusion is somewhat reinforced by his Honour's apparent criticism of the offender for having been reluctant to discuss the full extent of his offending for the purpose of his participation in the courses in Queensland. This is problematic on a number of levels. First, it is one thing to acknowledge that full and frank disclosure of offending may entitle an offender to a degree of leniency, or in some circumstances even a discount: s 22A Sentencing Procedure Act; CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407; R v Ellis (1986) 6 NSWLR 603. It is quite another to use that consideration to his disadvantage having regard to the right to silence, a fundamental value of the common law. Secondly, when the offender explained his difficulty to those conducting the Queensland course he was advised he need not, in the circumstances, at that time make full disclosure. Thirdly, when the charges were formulated he was extradited to New South Wales and pleaded guilty at the first available opportunity; a sign of acceptance of full responsibility, if not remorse in this case, having more than utilitarian value. Finally, a reluctance to discuss the matters may be taken to have evinced his uncertainty about what would happen when he was sentenced in New South Wales, a consideration, as I have pointed out, relevant to the principle expounded by Street CJ. Reasons not inadequate 1. I am not persuaded that the learning sentencing judge's reasons for rejecting the opinions of Dr Olav Nielssen are inadequate. One way of viewing the judicial obligation to give reasons is as a manifestation of the open justice principle. The parties, the broader community, and higher courts are entitled to know why decisions are made: justice must be seen to be done. Another way of viewing it is as a manifestation of natural justice. The losing party in particular is entitled to know why his or her evidence or arguments were rejected. Reading the learned sentencing judge's reasons, fairly, and as a whole, there is no opaqueness about them. His reasons for arriving at his decision are more than evident. I include in this his reasons for rejecting the opinions of Dr Nielssen which were unfavourable to the applicant. 2. As I have said, two specific criticisms are made of the approach of the sentencing judge to Dr Nielssen's report. Although I have decided it was unfair to Dr Nielssen to criticise him for recording the applicant's explanation without what his Honour regarded as appropriate critical evaluation, I do not regard this as an operative error. His Honour rejected the applicant's explanation as self-serving, as in truth it was. His Honour was entitled to reject the applicant's version that at the time he did not appreciate his conduct was wrong. His Honour's reasons for this were cogent. It is well established, and requires no citation of authority, that a sentencing judge is not bound to accept explanations of an offender proffered to medico-legal experts who have examined him or her for the purpose of proceedings on sentence even where the explanation is not challenged by cross-examination; equally, a judge may find them persuasive in the context of the whole of the evidence in a particular case. 3. "Opportunistic" is not a term of art in sentencing law. His Honour was entitled to form his own view of whether it was an apt descriptor of the offending in this case. Given the length and nature of the applicant's ongoing offending conduct, his Honour's rejection of Dr Nielssen's description of it as opportunistic was well and truly open. Some offending involved a degree of planning. In this regard I note that counsel for the applicant accepts that "views could reasonably differ on whether it was appropriate to use the word "opportunistic"" (Applicant Submissions, p 18[61]). 4. Read in context, Dr Nielssen's assessment of the offending as opportunistic was an integral part of his overall assessment of the risk of re-offending. The sentencing judge's rejection of it necessarily undermined the acceptability of Dr Nielssen's opinion in that regard. 5. I would reject the grounds of appeal relating to the sentencing judge's treatment of Dr Nielssen's report. Re-sentencing 1. I have found that his Honour erred by giving no weight to the consideration of the applicant's progress towards rehabilitation as required by Street CJ's exposition of the totality principle in Todd. This is an error of principle: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 42 by Mason J. I have reminded myself that a Court should be slow to act upon this ground "because a mere preference for a different result will not suffice". However, I am satisfied that in the present case, the error was material when one has regard to the heavy emphasis his Honour placed upon the need for specific deterrence. It is accordingly necessary for me to determine whether some other sentence is warranted in law by re-exercising the sentencing task for myself: Kentwell v The Queen [2014] HCA 37; 252 CLR 601. 2. I agree entirely with the learned sentencing judge's assessment of the objective seriousness of the offending. The case is clearly one calling for the exaction of retribution and the clear expression of denunciation. The safety of children in the family as an aspect of community protection requires heavy emphasis on general deterrence. 3. Each of the three circumstances identified by Street CJ as engaging the totality principle in cases of cross-border offending is present in this case. During his Queensland custody the offender did make some progress to rehabilitation. For the reasons I have expressed, it is obviously incomplete and he has a significant distance still to go. Moreover, he was left in a state of uncertain suspense about the outcome of sentencing in New South Wales, which is evidenced by the content of his case notes from Queensland. The third factor, requiring "a considerable measure of understanding and flexibility of approach" when "a sentencing for a stale crime", is somewhat attenuated in the present case, as the sentencing judge properly recognised. The New South Wales offending, while predating the Queensland offending, stretched over a number of years and involved many more counts. This circumstance disentitles the applicant to much by way of leniency. 4. At the same time, as the applicant has made some progress towards rehabilitation whilst in custody in Queensland, the "significant element of specific deterrence" referred to by the sentencing judge is somewhat reduced. 5. Affidavit evidence from the applicant and his solicitor was read on the usual basis in the event that the applicant was to be re-sentenced. From his affidavit sworn on 26 April 2016, I accept because of the nature of this offending, the applicant has, at his own request, been placed on limited association for his own protection. This resulted from threats actually made as fears for his safety are corroborated by the Corrective Services documents attached to the affidavit of the applicant's solicitor sworn on 28th April 2016. It follows that custody may be more difficult for him than for other offenders. It should be recorded that these circumstances were appreciated and allowed for by the sentencing judge. 6. The NSW case notes annexed to the solicitor's affidavit, however, in particular the case note of the 29th April 2015, continue to demonstrate his lack of empathy for his victim. 7. Like the sentencing judge, I think it appropriate to impose an aggregate sentence of imprisonment under s 53A of the Sentencing Procedure Act. In fixing the indicative sentences, I bear in mind that the respective maximum penalties range between 8 years imprisonment and 12 years imprisonment. I have also taken into account that counts 1, 13 and 20 require other matters to be taken into account on the form 1. I have maintained the 25% discount for the early plea. 8. The indicative sentences are as follows: Count 1 - 3 years imprisonment (4 matters on the form 1); Count 6 - 3 years imprisonment; Count 7 - 4 years imprisonment (2 matters on the form 1); Count 10 - 4 years imprisonment; Count 11 - 4 years and 6 months imprisonment; Count 12 - 3 years imprisonment; Count 13 - 3 years imprisonment (2 matters on the form 1); Count 14 - 3 years 6 months imprisonment; Count 15 - 3 years 6 months imprisonment; Count 18 - 2 years imprisonment; Count 19 - 2 years imprisonment; Count 20 - 2 years imprisonment (1 matter on the form 1) I would maintain the sentencing judge's finding of special circumstances "owing to the aggregation". 1. I would impose an aggregate sentence having a non-parole period of 11 years and 9 months with an additional term of 5 years and 3 months. Like the sentencing judge I would commence the sentence on 9 November 2011, after the applicant had served two years of the Queensland sentence. This results in a total effective sentence of 19 years, when one has regard to that part of his sentence served in Queensland prior to the commencement of his NSW sentence on 9 November 2011. 2. The orders I propose are: 1. Grant leave to appeal and allow the appeal; 2. Quash the sentence passed in the District Court on 16 February 2015; 3. Re-sentence the applicant to an aggregate term of imprisonment with a non-parole period of 11 years and 9 months commencing on 9th November 2011 and expiring on 8 August 2023 with an additional term of 5 years and 3 months commencing on 9 August 2023 and expiring on 8th November 2028; 4. The earliest date upon which the applicant will be eligible for release on parole will be on the expiration of the non-parole period on 8 August 2023. 1. N ADAMS J: I agree with Campbell J. ********** 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: 17 August 2016