Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AK v R [2016] NSWCCA 238 Hearing dates: 16 March 2016 Decision date: 28 October 2016 Before: Beazley P at [1] Johnson J at [2] Harrison J at [136] Decision: 1. Applicant granted an extension of time to 8 October 2015 to make application for leave to appeal against sentence. 2. Applicant granted leave to appeal against sentence. 3. Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – Applicant sentenced for child sexual offences contrary to s.66C(2) and s.61M(2) Crimes Act 1900 – two female victims aged between nine and 11 years – whether trial Judge erred in manner in which he took into account uncharged sexual misconduct of Applicant – error demonstrated – whether sentencing Judge erred in approach to Applicant's remorse and risk of reoffending – no error demonstrated – independent sentencing discretion exercised in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601 – serious examples of offending of this type – Applicant's limited insight and remorse – no lesser sentence warranted – appeal dismissed Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes Legislation Amendment (Child Sex Offences) Act 2015 Criminal Appeal Act 1912 Cases Cited: Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 BIP v R [2011] NSWCCA 224 Clarke v R [2009] NSWCCA 49 Corby v R [2010] NSWCCA 146 Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; 198 A Crim R 395 House v The King [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McGrath v R [2010] NSWCCA 48; 199 A Crim R 527 MJL v R [2007] NSWCCA 261 Mun v R [2015] NSWCCA 234 NW v R [2011] NSWCCA 178 R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 R v Gommerson [2014] NSWCCA 159; 243 A Crim R 534 R v JCW [2000] NSWCCA 209; 112 A Crim R 466 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Qutami [2001] NSWCCA 353; 127 A Crim R 362 R v Van Ryn [2016] NSWCCA 1 Category: Principal judgment Parties: AK (Applicant) Regina (Respondent) Representation: Counsel: Ms C Wasley (Applicant) Mr E Balodis (Respondent) Solicitors: Legal Aid (NSW) (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/26121 Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 17 September 2013 Before: His Honour Judge Maiden SC File Number(s): 2012/26121 Judgment 1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Johnson J. I agree with his Honour's reasons and proposed orders. 2. JOHNSON J: The Applicant seeks an extension of time to apply for leave to appeal against sentences imposed on him at the Newcastle District Court on 17 September 2013 with respect to a number of sexual offences. 3. The Applicant is referred to in this judgment by a pseudonym, AK (which are not his correct initials). Likewise, the names of the young female victims (and their relatives) are not used, with pseudonyms being used in their place. These steps are taken to guard against identifying the victims consistent with the statutory protection provided by s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987. The Charges and Sentences 1. On 11 July 2012, the Applicant was committed to stand trial at the Newcastle District Court with respect to eight charges involving two complainants. He was arraigned on two separate indictments, one for each complainant. The trials were listed back-to-back in the East Maitland District Court to commence on 29 April 2013. This date was vacated in advance and the trials were relisted to commence on 6 May 2013 at the Newcastle District Court. 2. In advance of the relisted date, negotiations took place between the Crown and the Applicant's legal representatives, in consultation with the complainants and the officer-in-charge. On the first day of the trial, 6 May 2013, the Applicant was re-arraigned on a single indictment and his pleas of guilty to the following offences were accepted by the Crown in full satisfaction of the original indictments: 1. Count 1 - Between 1 January 2010 and 31 December 2010, assaulting Kylie (not her real name) and at the time of the assault committing an act of indecency on Kylie, a child then under the age of 16 years, namely 10 or 11 years contrary to s.61M(2) Crimes Act 1900 (maximum penalty 10 years' imprisonment; standard non-parole period eight years) (touching the genitals of Kylie). 2. Count 2 - Between 18 August 2010 and 18 August 2011, assaulting Helen (not her real name) and at the time of the assault committing an act of indecency on Helen, a child then under the age of 16 years, namely nine or 10 years contrary to s.61M(2) Crimes Act 1900 (showering with Helen and touching her genitals). 3. Count 3 - Between 31 July 2011 and 18 August 2011, having sexual intercourse with Helen, a child below the age of 14 years, namely 10 years, in circumstances of aggravation, namely at the time of the sexual intercourse Helen was under the authority of the Applicant contrary to s.66C(2) Crimes Act 1900 (maximum penalty 20 years' imprisonment with no standard non-parole period) (having penile vaginal intercourse with Helen). 1. The Applicant asked the sentencing court to take into account on a Form 1, when sentencing for Count 3, a further offence of aggravated sexual intercourse with Helen, aged 10 years contrary to s.66C(2) (an act of penile anal intercourse with Helen occurring immediately after Count 3). 2. I note that the s.66C(2) offences in this case, although carrying a maximum penalty of 20 years' imprisonment, did not have a standard non-parole period at the time of these offences. The New South Wales Parliament altered the law in this respect in 2015 by enacting a standard non-parole period of nine years for offences under s.66C(2) committed since 29 June 2015: Crimes Legislation Amendment (Child Sex Offences) Act 2015. Of course, this standard non-parole period has no application to the Applicant, and cannot influence sentencing in this case: McGrath v R [2010] NSWCCA 48; 199 A Crim R 527 at 536 [37], 540 [60]. 3. Following the Applicant's pleas of guilty, a sentence hearing date was set but was delayed due to the Applicant indicating he wished to traverse his pleas, necessitating a change in legal representation. Ultimately, the Applicant adhered to his pleas and the sentencing proceedings took place on 13 and 16 September 2013. 4. On 17 September 2013, the Applicant was sentenced to the following terms of imprisonment: 1. Count 1 - imprisonment comprising a non-parole period of one year commencing on 6 May 2013 and expiring on 5 May 2014, with a balance of term of one year commencing on 6 May 2014 and expiring on 5 May 2015. 2. Count 2 - imprisonment comprising a non-parole period of two years commencing on 6 May 2013 and expiring on 5 May 2015, with a balance of term of one year commencing on 6 May 2015 and expiring on 5 May 2016. 3. Count 3 - taking into account the matter on the Form 1, imprisonment comprising a non-parole period of seven years and six months commencing on 6 November 2013 and expiring on 5 May 2021, with a balance of term of three years and two months commencing on 6 May 2021 and expiring on 5 July 2024. 1. The overall effective sentence for the offences comprised a non-parole period of eight years commencing on 6 May 2013 and expiring on 5 May 2021, with a balance of term of three years, three months and two weeks commencing on 6 May 2021 and expiring on 19 August 2024. 2. It was agreed by the parties before this Court (T2-3, 16 March 2016) that the sentencing Judge had approached the calculation of sentences, and their imposition, in a somewhat unorthodox way which required correction after 17 September 2013. It is sufficient to observe, for present purposes, that the sentences ultimately imposed by his Honour for the offences were those set out at [9]-[10] above. Grounds of Appeal 1. The Applicant relies upon two grounds of appeal: 1. Ground 1 - the sentencing Judge erred in the manner in which he took into account the uncharged sexual conduct of the Applicant. 2. Ground 2 - the sentencing Judge erred in finding that the Applicant did not accept that his offending "is of a class that cannot and should not ever be contemplated or countenanced". Extension of Time to Appeal 1. The Applicant was sentenced on 17 September 2013 and relied upon a Notice of Application for Extension of Time and a Notice of Appeal, each dated 8 October 2015. 2. An affidavit of the Applicant sworn 10 March 2016 and of his solicitor, Stephen Eccleshall, affirmed 10 March 2016 were relied upon in support of the application for the extension of time. It is apparent from those affidavits that the Applicant sought to take steps to bring an appeal, but that difficulties arose in his communications with Legal Aid NSW and the Court. 3. In light of the affidavits, the Crown did not oppose an extension of time being granted to the Applicant. 4. Having considered the affidavits bearing upon the question of extension of time, and taking into account the Crown's concession that an extension ought be granted, I am satisfied that the Applicant should be granted an extension of time to bring the application for leave to appeal against sentence. Facts of Offences 1. An agreed statement of facts was tendered at the sentencing hearing. What follows is drawn from that document. 2. In about July 2008, the Applicant (then 44 years old) commenced an intimate relationship with the mother of Helen and moved in with her and her three young children. 3. Counts 2 and 3 (the offences against Helen) were committed in 2010-2011. However, according to the agreed statement of facts, "There had been inappropriate sexual touching of the complainant [Helen] by the accused since the winter of 2009, when she was aged eight". Count 2 - Aggravated Indecent Assault Under s.61M(2) Crimes Act 1900 Committed Against Helen 1. On an afternoon between August 2010 and August 2011, when Helen's mother was out at work, Helen (then nine or 10 years old) was at home with her two younger brothers and the Applicant. The Applicant put a movie on for the boys in the lounge room and asked Helen to come to the bathroom and have a shower with him. She said "No" and went to watch television. 2. When Helen went into the kitchen to get a drink, the Applicant closed the door to the lounge room and pulled her into the bathroom. He turned on the shower and made her take off her clothes and get into the shower with him. They were both naked. In the shower, the Applicant touched Helen's vagina with his hands whilst she told him to stop. When the victim's mother came home, the Applicant stopped. 3. Helen got out of the shower and took her clothes into the back room, dried herself and dressed. She went outside and then walked back into the house, where she told her mother she had been outside. The incident was witnessed by Helen's eight-year old brother. Count 3 - Aggravated Sexual Intercourse with a Child Under Authority Under s.66C(2) Crimes Act 1900 Committed Against Helen 1. On an afternoon in August 2011, Helen (then 10 years old) had returned home from a dancing lesson. Her mother left the house to go to the shops. The Applicant was cooking dinner in the kitchen and told Helen to go to her bedroom, but she refused, walking back to the lounge room. 2. The Applicant followed Helen and, in the hallway leading to the main bedroom, he picked her up and carried her into the bedroom laying her down on her bed. The Applicant told her brothers to go back into the lounge room and wait. 3. The Applicant was wearing shorts and a singlet and Helen was wearing pyjamas and underpants. The Applicant held Helen on the bed, pulled her pants down, licked and kissed her body and genitals and then announced he was "going to root" her before commencing penile vaginal intercourse. Helen felt embarrassed, angry and scared. Form 1 Offence - Aggravated Sexual Intercourse with a Child Under Authority Committed Against Helen 1. After committing the offence which constituted Count 3, the Applicant repositioned Helen and had penile anal intercourse with her (Form 1 offence). She tried to kick him off and was scared. The Applicant stopped when he could hear Helen's mother and others entering the house. Helen dressed quickly and ran out to the lounge room. The Applicant returned to the kitchen and continued to cook dinner. 2. Helen was first interviewed and disclosed these offences on 18 August 2011. 3. According to the agreed statement of facts, Helen was assessed on 18 April 2013 by Professor Susan Hayes, a forensic psychologist and Professor of Behavioural Science in Medicine at the University of Sydney. Professor Hayes confirmed a diagnosis of severe expressive and receptive language delay, consistent with verbal reasoning at the lower end of borderline intellectual disability, accompanied by poor adaptive skills. Count 1 - Aggravated Indecent Assault Under s.61M(2) Crimes Act 1900 Against Kylie 1. Kylie was related to Helen and frequently spent time at her home. Kylie treated the Applicant as an uncle. 2. On an occasion in 2010, when Kylie (then aged 10 or 11 years) was present at Helen's home, she was waiting for her mother to return. Kylie was alone in the house with the Applicant. The Applicant came and stood naked at the entrance to Helen's bedroom, where Kylie was located. She told him to go away. 3. The Applicant went away and got dressed and later sat on the lounge with Kylie. He placed his hand under her underpants and onto her vagina. He left it there until Kylie removed it. After doing this, Kylie got up and sat on another lounge. Arrest and Charging of Applicant 1. The Applicant was arrested and charged on 20 January 2012. 2. He remained on bail until bail was revoked on 6 May 2013 upon his entering pleas of guilty. The Applicant's Subjective Circumstances 1. The Applicant was born in 1964 and was 46 or 47 years old at the time of the offences. He was 49 years of age at the time of sentence. 2. The Applicant had a criminal history containing entries for driving with PCA (1982), assault occasioning actual bodily harm (1987), driving with high-range PCA (1992), driving with high-range PCA (1998), knowingly obtain a benefit by deception (2000), driving with high-range PCA (2002), driving with middle-range PCA and driving whilst disqualified (2005), make false instrument and steal property in a dwelling house (2005) and use false instrument (2005). Sentences imposed for these offences included a community service order (1995), periodic detention (2000) and suspended terms of imprisonment (2002 and 2005). 3. The Applicant did not give evidence at the sentencing hearing. 4. A report dated 14 August 2013 of Dr Mark Howard, psychologist, was tendered for the Applicant at the sentencing hearing. Having regard to the second ground of appeal, it is appropriate to set out parts of this report. 5. Dr Howard met and interviewed the Applicant at the Parklea Correctional Centre on 9 August 2013 and undertook psychometric testing of him. The Applicant provided a history to Dr Howard. The history included the Applicant's excessive use of alcohol, which had led him to attend an inpatient rehabilitation program at The Glen in 2003 and attendance at Alcoholics Anonymous sessions during 2004. 6. Under a heading "Factors Related to Offending", Dr Howard said (AB61-62): "At the time of assessment [the Applicant] assumed responsibility for his involvement in the index offences as alleged. However, he maintained that he had minimal recall for events directly surrounding the offences. He did not identify any particular factors that may have precipitated such memory loss; he did not associate medical issues or use of medication during 2010-2011 with significant cognitive effects, and denied major spikes in alcohol use in this period. He disclosed that he may have occasionally spoke in an irritable manner or swore at his partner [Helen's mother] at the time of going to sleep or possibly when waking during the night after using alcohol, and having little recall of this the next day. However, he denied prolonged lapses in memory or awareness as a result of his alcohol use during this period. [The Applicant] had difficulty identifying particular motivations or precipitants to his offending, 'I don't know'. He stated that he had no history of sexual attraction to or thoughts about sexual activity with [Helen] or to [Kylie], and he exhibited a degree of distaste about the prospect of this. He denied any history of fantasies about or use of pornography involving female children. He described a generally positive relationship with [Helen] and expressed the belief that she saw him as a father figure; he said he had only occasional contact and had not developed a close bond with her cousin [Kylie]. He recalled that he had been required to engage in relatively intimate parental duties with [Helen] at times, including an occasion in which she asked for attention after falling and hurting her groin, although he said he made efforts to refer this matter to the mother or to formal medical staff. He expressed the belief that he may have made excessive efforts to develop a bond with [Helen] because she was isolated from her father and he had been isolated from his daughter in the past, 'maybe I tried too hard'. However, he stated that the mother had never raised complaints about [the Applicant] engaging in sexually inappropriate behaviours or developing inappropriate relations with her children. He noted that issues surrounding the index offences did not arise in any form until the time of his being charged and expelled from the [xxx] residence in 2011. [The Applicant] repeatedly expressed remorse for his offending behaviour as alleged and the prospect that he may have caused harm to [Helen] or other children involved, 'I feel sorry for what I've done...I feel so remorseful...I'm just so sorry to the kids', 'If I could take it back I would, but I can't'." 1. Dr Howard expressed a number of conclusions under a heading "Clinical Opinion" (AB63): "[The Applicant] is a 49 year old male who presented as cooperative and attentive throughout the assessment. He described a stable early upbringing and historically positive relations with family. He disclosed difficulties making progress in formal education, which he related to deficits in skills for reading and writing in particular. As an adult he has been relatively consistently employed, although in recent years has decreased his workload in response to spinal and other physical complaints. Objective assessment indicated that [the Applicant] is in the lower reaches of the Below Average range of intelligence, with a performance that was stronger than 4% of the normative sample for his age. This outcome was broadly consistent with [the Applicant's] presentation and reported functional history." 1. Dr Howard turned to the topic of the Applicant's sexual attraction towards children (AB64): "During the assessment [the Applicant] reported having minimal recall of events directly surrounding the index offences, which limited examination of factors associated with his offending. He denied any history of paraphilic tendencies or sexual attraction towards the victims [Helen] or [Kylie] in particular. He did disclose difficulties with sexual dysfunction with his partner [Helen's mother] from 2010, which may be indicative of non-conventional sexuality in some cases. However, [the Applicant] attributed this directly to increasing issues with spinal and other physical injury at the time as opposed to noticeable changes in sexual orientation or preferences." 1. With respect to the Applicant's risk of sexual reoffending, Dr Howard said (AB64-65): "Factors associated with [the Applicant's] risk of sexual reoffending were further examined in reference to the Risk of Sexual Violence Protocol (RSVP). Identified recent or ongoing risk factors included: current issues with stability and support such as problems with relationships and problems with employment; past non-sexual criminality; problems with substance use; and partial signs of problems with self-awareness and problems with stress or coping. In contrast, there were no indications of elevated risk associated with chronic, diverse or escalating sexual violence; attitudes that condone such behaviour; diagnosed sexual deviance or major mental disorder; problems with past child abuse; or problems with compliance to treatment or supervision." 1. Dr Howard made a number of recommendations including the following (AB65): "It would be beneficial if [the Applicant] were referred to interventions which may assist him in developing insight into factors underlying his offending and tools for avoiding similar risks in the future. To this end he may be assessed for eligibility to complete a low-moderate intensity sex offender program such as CORE, or possibly the Denier's Program. Programs such as CORE may be delivered as part of case management with Community Offender Services following release, in addition to being available in custodial contexts". Some Findings in the Remarks on Sentence 1. It is appropriate to set out parts of the sentencing Judge's remarks on sentence to assist an understanding of the challenges made before this Court on behalf of the Applicant. 2. Early in the remarks, his Honour summarised aspects of the offences in the following way (ROS1-2; AB8-9) (emphasis added): "The background to these matters is that in 2008 the offender formed a relationship with [Helen's] mother and came to live with her and [Helen's] siblings at [xxx]. There appears to have been a relationship which developed improperly over a period of years and the first matter that he has been charged with relates to the indecent assault upon a cousin of [Helen], [Kylie]. That matter occurred between 1 January 2010 and 31 December 2010 when [Kylie] was 10 or 11 years of age. The short facts are that whilst [Kylie] was at the home of the offender and with him alone and waiting for her mother, she was assaulted by the offender placing his hand under her underpants and onto her vagina. [Kylie] was able to remove the offender's hand and waited for her mother to arrive. The next matter which I understand was part of a continuing course of behaviour involved the person [Helen] and it is an indecent assault matter, count 2 on the indictment." 1. Soon after, his Honour said with respect to the offences (ROS2-3; AB9-10) (emphasis added): "That is, that indecent assaults by an adult person on a child or children and in particular in respect of count 2 as part of a continuing course of action, is considered most serious by Parliament and thus to be taken seriously by Courts and the Court proposes to do so. In respect of the objective degree of seriousness, the first matter involving [Kylie] would not be seen and using the unfortunate words at the lower end of the objective seriousness and in respect of the second matter to be in the middle range of objective seriousness. Particularly in respect of the second matter where, as indicated, it was part of a continuing course of behaviour." 1. After adverting to aspects of the offending conduct, including the Form 1 offence, his Honour continued (ROS4; AB11): "This is a matter again which requires, in respect of this offender, specific deterrence. The reason for that is that despite the best endeavours of his solicitor to obtain a report from a psychologist, there are a number of matters that remain unanswered in respect of his offending behaviour, particularly in respect of his paraphiliac tendencies. This offender denied that he had any paraphiliac tendencies or sexual attractions towards his victims [Helen] or [Kylie]. In that regard the Court does not accept that report to the psychologist Dr Howard and in that sense the sentence must reflect to this man a specific deterrent that if he re-offends he will certainly receive significant custodial time again." 1. The sentencing Judge turned to features of Dr Howard's report and said concerning the risk of reoffending (ROS5-6; AB12-13): "Unfortunately the testing in the report does not in my mind sufficiently identify his chance of re-offending. It is correct that the psychologist did comment on the Risk of Sexual Violence Protocol RSVP but there was no static 99R test which is often used and is seen in this court as to the possibility of recidivism. That perhaps is understandable where the person denies or is unable to give a history that would allow the therapist to diagnose sexual deviance or mental disorder and I find that to be so here." 1. The sentencing Judge then turned to the issue of remorse, and the level of the Applicant's insight in a passage which gave rise to the second ground of appeal (ROS6; AB13) (emphasis added): "In respect of the remorse shown by the offender I accept that he has pleaded guilty even if that plea was entered on the first day of his trial. I accept that as I have already stated that his verbal skills may have limited his ability to express his thoughts and to that extent I do accept that he has shown some remorse. What is difficult to accept is that he has not considered his behaviour to be that of a paedophile. That is, that he does not see at this point that his offending is of a class that cannot and should not ever be contemplated or countenanced. That hopefully will be addressed by a therapist whilst he is in custody." 1. His Honour allowed a discount of 10% for the Applicant's late pleas of guilty (ROS6; AB13). 2. A finding of special circumstances was made having regard to the likelihood that the Applicant would spend time in protective custody, and having regard to the Applicant's limited intellectual capacity (as described in Dr Howard's report) that would make his time in custody more difficult (ROS6; AB13). 3. The sentencing Judge made an assessment of the gravity of the various offences in the following way, in a manner which contributed to the first ground of appeal (ROS6-7; AB13-14) (emphasis added): "In respect of the first matter I have indicated that that was at the bottom end of the range of offending. The second matter somewhere below the [middle] but in respect of the third matter, I find that that is above the middle range of offending although it might be seen to be for a closed period. In doing that, I indicate that he had lived with the complainant [Helen] since 2008 and therefore I have no doubt that he mentored or proceeded to conduct himself in a way that add to this offending and but for the complaint made almost immediately by the child, the offending would have continued." 1. The sentencing Judge referred to a psychological report of Professor Hayes (referred to at [28]) which comprised a victim impact statement from Helen. In that report (AB43), Professor Hayes expressed the opinion that, as a result of the sexual abuse, Helen had developed chronic post-traumatic stress disorder which impacted further upon her development and behaviour. Professor Hayes considered that the impact of the sexual abuse on Helen had been severe. She had experienced confusion, fear and anger which had impacted adversely on her life and education. She had difficulty trusting people and making friends, and was very careful around men. With respect to the report of Professor Hayes, the sentencing Judge said (ROS7; AB14): "In assessing I have had a report from Professor Susan Hayes, Forensic Psychologist and that matter was in respect of the impact upon the victim [Helen]. I am not taking that matter into account as to the objective matters on sentence and suffice to say that in terms of count 3 and the Form 1 matter, one does not need to be an expert in the field to understand the damage that that behaviour would and must have on the victim." 1. Before moving to impose sentences, his Honour said he wished to "emphasise that it is in this offender's interest that he seek to address those issues whilst in custody". His Honour said that he would annex to the sentencing remarks the report of Dr Howard for the assistance of the State Parole Authority and the Probation and Parole Service (ROS7; AB14). 2. His Honour then proceeded to announce the sentences in a manner which (as mentioned at [11] above), gave rise to a level of confusion which had been resolved by the time of the hearing in this Court. An affidavit of Marley Zelinka sworn 4 March 2016 was relied upon by the Crown on this aspect and a further affidavit of Mr Eccleshall affirmed 15 March 2016 was filed for the Applicant. 3. It is not necessary to set out the technical deficiencies in the initial orders made at first instance, for the purpose of resolving the grounds raised before this Court. Ground 1 - Suggested Error in the Manner in Which the Sentencing Judge Took Into Account the Uncharged Sexual Conduct of the Applicant The Applicant's Submissions 1. Ms Wasley, counsel for the Applicant, acknowledged that the agreed statement of facts referred to "inappropriate sexual touching" of Helen by the Applicant since the winter of 2009 (when she was aged eight years) before turning to the specific offences against Helen which occurred in 2010-2011. Whilst submitting that the specific offences against Helen were not said to have been representative counts, counsel acknowledged that it was open to the sentencing Judge to have regard to the earlier improper conduct on behalf of the Applicant on sentence. 2. It was submitted for the Applicant, however, that what occurred here was reliance by his Honour on these matters to find "a continuing course of action" or "a continuing course of behaviour", culminating in a finding that the Applicant "mentored or proceeded to conduct himself in a way that add to this offending" and that "but for the complaint made almost immediately by the child, the offending would have continued" (see [45]-[46] and [52] above). 3. Counsel for the Applicant submitted that the only relevance of other sexual activity is to place the offences charged in their context, and to deny the Applicant the leniency to which he might have been entitled if they were isolated incidents: R v JCW [2000] NSWCCA 209; 112 A Crim R 466; MJL v R [2007] NSWCCA 261; R v Gommerson [2014] NSWCCA 159; 243 A Crim R 534. 4. It was submitted that the sentencing Judge had erred in taking the uncharged conduct into account as a circumstance of aggravation in respect of Counts 2 and 3, rather than relying upon the conduct to deny the Applicant leniency on the basis that the offences as charged were not isolated incidents. Crown Submissions 1. The Crown submitted that it was open to the sentencing Judge to have regard to the earlier sexual misconduct on the part of the Applicant. The Crown had submitted in writing to the sentencing Judge that the offences were not isolated incidents or an aberration, and had argued orally that they constituted an ongoing course of conduct as well. 2. It was submitted that the findings made by the sentencing Judge were open on the evidence. 3. With respect to the submissions for the Applicant that his Honour had erred in particular, in finding that the Applicant's prior conduct "add to his offending", the Crown submitted that undue emphasis had been given to this observation. It was noted that his Honour did not specifically make a finding of aggravation. 4. The Crown submitted that no error had been established in the manner contended for in the first ground of appeal. Decision 1. It was clearly open to the sentencing Judge to have regard to the agreed fact that the Applicant had engaged in inappropriate sexual touching of Helen since the winter of 2009, when she was only eight years of age. It was important that this aspect of the case was not in dispute, although the conduct which attracted this description was not particularised. 2. Although the terms "representative counts" or "representative charges" were not used at the sentencing hearing, it was clear that the Applicant's offences were to be considered against a background of "inappropriate sexual touching" of a girl aged between eight and 10 or 11 years. The principles arising from sentencing in representative count cases have some application to a case such as this. 3. Since the decision of this Court in R v JCW, the accepted approach when courts are imposing a sentence in respect of representative counts, in relation to which pleas of guilty have been entered, is as follows: 1. that the overall history of the conduct from which the representative charges have been selected may be looked at for the purpose of understanding the relationship between the parties; 2. to exclude any suggestion that the offences charged were of an isolated nature; and 3. as bearing upon the degree of any leniency the court might be considering in regard to sentencing. 1. It has been accepted that the history should not be used as the basis for sentencing the convicted person for charges other than those in the indictment, or as a matter of aggravation of those charges: R v JCW at 478 [68]. 2. In Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; 198 A Crim R 395, Basten JA considered (at 408 [67]) that the undisputed fact that the offender committed numerous additional offences (similar to those charged), was relevant to his state of mind in committing the offences charged, his motive, his sense (or absence of sense) of wrongdoing at the time, his willingness to control inappropriate urges for sexual gratification, the effects on the complainant of his conduct and by way of explanation of the fact that the conduct went undetected for a significant period. Following a Victorian line of authority, his Honour considered that the fact that the offences constituted part of an ongoing course of conduct placed them in a higher range of offending (at 408 [68]). 3. RS Hulme J applied the principles in R v JCW, confining the use of the uncharged criminal acts in the manner described in that decision (see [67] above). 4. As the third member of the Court, I found the reasoning of Basten JA persuasive, but did not consider the Court should depart from the principles in R v JCW in circumstances where no party had invited reconsideration of those principles (at 415 [102]-[104]). 5. Since the decision in Giles v Director of Public Prosecutions (NSW), this Court has not been invited to reconsider the principles in R v JCW. Accordingly, with the agreement of Harrison and Garling JJ, I said in R v Gommerson at 547 [68]-[69]: "68 The offences committed against JH were representative counts. It was not argued for the Crown that the approach adopted by Basten JA (to which I gave guarded support) in Giles v Director of Public Prosecutions [2009] NSWCCA 308; 198 A Crim R 395 ought be taken in this case in approaching sentencing for representative counts. 69 The law to be applied, in those circumstances, remains that stated in R v JCW [2000] NSWCCA 209; 112 A Crim R 466. Applying that principle, the Court should bear in mind that the present offences were not isolated offences against JH: R v JCW at 478 [67]-[68]." 1. I approach the resolution of the first ground of appeal with the principles from R v JCW in mind. 2. It was open to the sentencing Judge to have regard to the Applicant's earlier conduct involving inappropriate sexual touching on sentence. It is regrettable that his Honour did not use the accepted principles, as set out in the Crown's submissions in the District Court, that the offences were not "isolated incidents or an aberration". 3. That said, it was not erroneous for his Honour to describe the Applicant's conduct in these offences against Helen in Counts 2 and 3 (and the Form 1 offence attached to Count 3) as being part of a continuing course of action. It may be that the description of conduct as being part of a "course of conduct" may not be apt in a particular case, if the uncharged conduct is said to constitute a small number of incidents. However, the manner in which the uncharged conduct was described in the agreed statement of facts meant that the description was apt in the Applicant's case. 4. The difficulty which arose, however, was the conclusion that the Applicant "mentored or proceeded to conduct himself in a way that add to this offending". This statement was made in the part of the remarks where an assessment was being made of the objective seriousness of the offences (see [52] above). It is difficult to avoid a conclusion that in saying that these matters "add to this offending", his Honour was doing anything other than elevating the objective seriousness of the offences by way of aggravation. Such an approach is not available in accordance with sentencing law as it applies in this State. 5. I am satisfied that error has been established in accordance with the first ground of appeal. Ground 2 - Suggested Error in Finding that the Applicant did not Accept that his Offending was of a Class that Cannot and Should Not Ever be Contemplated or Countenanced The Applicant's Submissions 1. Counsel for the Applicant referred to parts of the remarks on sentence where his Honour adverted to specific deterrence, the risk of the Applicant's reoffending and his attitude towards his own offences and child sex offences more generally. 2. It was submitted that his Honour fell into error in approaching the sentencing exercise upon the basis that the Applicant did "not see at this point that his offending is of a class that cannot and should not ever be contemplated or countenanced" (see [49] above). 3. Counsel referred to the report of Dr Howard where it was said that the Applicant had "assumed responsibility for his involvement" in the offences despite his "minimal recall for events directly surrounding the offences" (see [39] above). It was noted that Dr Howard reported that the Applicant "repeatedly expressed remorse for his offending behaviour as alleged and that the prospect that he may have caused harm" to the children involved (also at [39] above). 4. It was noted that Dr Howard had pointed to factors relating to risk of reoffending, and had made recommendations concerning therapeutic interventions which could be tailored to address the Applicant's level of intellectual functioning and literacy. 5. Counsel for the Applicant submitted that it was open to his Honour to reject the Applicant's denial of sexual attraction towards Helen and Kylie provided in his untested account to Dr Howard. It was submitted, however, that it was not open to the sentencing Judge, on the evidence, to find that the Applicant "does not see at this point that his offending is of a class that cannot and should not ever be contemplated or countenanced". It was submitted that the Applicant's pleas of guilty and his Honour's acceptance that the Applicant had shown "some remorse", militated against such a finding. 6. It was submitted that the sentencing Judge relied upon this determination as the basis for placing excessive emphasis on specific deterrence and that, in this respect, the sentencing exercise had miscarried. Crown Submissions 1. The Crown emphasised that the Applicant had not given evidence at the sentencing hearing and that it was open to his Honour to reject any untested statement made by him to Dr Howard. 2. The Crown submitted that the sentencing Judge had not erred in giving what was described as excessive emphasis to specific deterrence in this case. 3. It was noted that the Applicant told Dr Howard that he had minimal recall to the events surrounding the offences, and that his Honour took a generous approach in not rejecting the claim of memory loss in the absence of supporting evidence. 4. The Crown submitted that the sentencing Judge was entirely justified in querying how the Applicant could fail to appreciate (even with his low intellectual functioning) the problematic nature of his offending against two young girls who were his de facto's relatives. This was especially so, the Crown submitted, as these were not isolated events with the conduct towards Helen having occurred over a period of some two years in a familial setting, culminating in full penile vaginal and anal intercourse. 5. The Crown submitted that the acts ceased only when the Applicant was at risk of being caught (with others entering the house) and ultimately came to an end when Helen made a complaint in August 2011. 6. Against this background, the Crown submitted that it was difficult to accept how the Applicant could deny that he had paraphiliac tendencies or sexual attraction towards children, and failed to acknowledge that he had a problem or that his conduct was of a class "that cannot and should not ever be contemplated or countenanced". 7. It was submitted for the Crown that the fact the Applicant had, according to Dr Howard, assumed responsibility and repeatedly expressed remorse did not overcome the difficulties flowing from the Applicant's own statements to Dr Howard about this offending. 8. In circumstances where his Honour had properly rejected the Applicant's asserted denial, and with inconclusive findings as to the risk of recidivism, the Crown submitted that it was entirely open to his Honour to be particularly concerned with the issue of specific deterrence. 9. The Crown submitted that his Honour made clear that particular emphasis needed to be given to specific deterrence in this case, so that his reasoning was apparent in the sentencing remarks: R v Van Ryn [2016] NSWCCA 1 at [187]. 10. The Crown submitted that no error had been demonstrated under the second ground of appeal. Decision 1. The onus lies upon the Applicant to establish error on the part of the sentencing Judge in the exercise of discretion in this case in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. The relevant principles were summarised conveniently by Gleeson CJ, Gummow and Callinan JJ in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25] (footnotes omitted): "As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'." 1. Here, the Applicant contends that his Honour fell into specific error in giving excessive emphasis to specific deterrence. 2. The Applicant did not give evidence at the sentencing hearing. The matters relied upon in this respect arise from things said by the Applicant to Dr Howard, as contained in the psychologist's report. 3. The sentencing Judge's approach to this topic involved consideration of the Applicant's remorse, his level of insight, his level of frankness in his dealings with Dr Howard and his willingness to explain why he committed serious sexual offences against young girls on a number of occasions. These matters bear upon issues of remorse, the Applicant's level of insight, the need for specific deterrence and the Applicant's prospects of rehabilitation flowing from an understanding of why he committed serious crimes of this type. 4. This Court has observed that the assessment of the genuineness of remorse is likely to be better informed in circumstances where it is expressed directly, as remorse is an intrinsically subjective matter, the evaluation of which depends upon human interaction: Mun v R [2015] NSWCCA 234 at [29]. 5. Further, it has been emphasised that considerable caution must be exercised in determining what weight, if any, can be placed upon self-serving and untested statements by an offender contained in a report of a health professional: R v Qutami [2001] NSWCCA 353; 127 A Crim R 362 at 377 [58]-[59], 380 [79]; R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 184-185 [40]-[41]; Mun v R at [40]. 6. It is necessary to read fairly the various parts of the sentencing remarks where his Honour touched upon this issue. Undertaking this task, it may be seen that his Honour concluded that the Applicant, who had committed serious sexual offences against young girls on a number of occasions, either could or would not characterise his own conduct as being, at least, grossly abnormal sexual conduct so that he did not see, at the time of sentencing, that his offending was of a class that cannot and should not ever be contemplated or countenanced. 7. In my view, such an analysis of what his Honour said is unremarkable. It was certainly an approach open to his Honour on the material before the Court on sentence. 8. Where a person commits serious sexual offences against children, an assessment of the risk of reoffending and the need for specific deterrence, will involve an examination of not just a formulaic expression of remorse to a psychologist, but the degree of insight the offender has demonstrated into what he did, and why he did it. The Applicant's claimed lack of memory of the events had the flavour of an avoidance mechanism, sometimes seen in child sex offenders. The balance of the evidence before the sentencing court, essentially the report of Dr Howard, did not in my view, provide a foundation for a more benign approach on the issue of specific deterrence in this case. It should be noted that Dr Howard recommended that the Applicant undergo the CORE program or the Denier's Program (see [43] above). Of course, the Denier's Program is used for offenders who deny committing the sex offences for which they were sentenced. This is a practical measure of the Applicant's limited or absent insight into his child sex offending. 9. The sentencing Judge ensured that the relevant authorities would have access to Dr Howards' report, to assist custodial treatment or counselling which may serve to reduce the Applicant's risk of reoffending. 10. The Applicant has not demonstrated error in the manner asserted in the second ground of appeal. I would reject that ground. Resentencing the Applicant 1. The Court has upheld the first ground of appeal, but rejected the other ground. Error having been demonstrated, this Court is required to exercise its independent sentencing discretion when it resentences the Applicant in accordance with the principles in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 618-619 [43]. 2. No further evidence was adduced by the Applicant to be placed before this Court in the event that error was established. The Court is to proceed to sentence upon the basis of the evidence which was before the sentencing Judge. The Applicant's Submissions 1. It was submitted for the Applicant that, in resentencing, this Court would have regard to the limited intellectual functioning of the Applicant. It was submitted that the correct application of sentencing principles would see the Court impose a lesser sentence upon the Applicant for the purpose of s.6(3) Criminal Appeal Act 1912. 2. Reliance was placed upon other sentencing decisions for aggravated sexual assault offences: Clarke v R [2009] NSWCCA 49; NW v R [2011] NSWCCA 178 and BIP v R [2011] NSWCCA 224. It was not submitted for the Applicant that these decisions demonstrated a range of sentence for this type of offence. Rather, it was submitted that they provided examples of sentencing by reference to the maximum penalty at the time of the commission of these offences. 3. It was submitted for the Applicant that the Court would proceed to impose a lesser sentence in this case. Crown Submissions 1. If error was demonstrated, the Crown submitted that this Court, having undertaken its task in accordance with Kentwell v The Queen, would not form the opinion that another and more lenient sentence is warranted in law. 2. The Crown submitted that the individual sentences, and the overall sentence, were entirely appropriate, given the maximum penalties, the issue of totality for several counts and victims, the findings of objective seriousness, the inclusion of a serious Form 1 matter and the paucity of positive subjective factors. 3. The Crown submitted that the appeal ought be dismissed. Decision 1. I have approached the question of sentence by consideration of all objective and subjective factors arising in this case, and application of sentencing principles which the law requires to be considered. Having undertaken that task, it is necessary to determine whether a lesser sentence is warranted in law and should be passed: s.6(3) Criminal Appeal Act 1912. 2. The Applicant's offences were serious examples of offending of this type. He was in his mid-40s and committed offences against young girls aged between nine and 11 years. He had access to the girls because his stepdaughter (Helen) lived in the same house as the Applicant and was under his authority (an aggravating factor on Count 3 and the Form 1 offence). He obtained access to the other victim only because she visited the house as a friend of Helen. 3. In each case, the Applicant took advantage of the absence of other adults from the house to sexually abuse one or other of the young girls. His conduct towards Helen did not involve isolated or aberrant conduct. The Applicant had demonstrated a sexual attraction to Helen, involving inappropriate sexual touching for some two years (since she had been eight years of age). Although not constituting an aggravating factor on sentence for Counts 2 and 3, these circumstances assist an understanding of the relationship between the Applicant and Helen and bear upon the degree of leniency to which he might otherwise have been entitled. 4. The Applicant's sexual offending had escalated in its seriousness to the point where he engaged in acts of vaginal and anal intercourse with Helen when she was 10 years old. Given the Applicant's conduct towards Helen, it may be concluded that his sexual offending against her would likely have continued had she not complained on 18 August 2011, not long after the Count 3 and Form 1 offences. Certainly, there was no basis to conclude that the Applicant had determined to cease his offending conduct with the commission of those offences. 5. A standard non-parole period of eight years applied to the s.61M(2) offences (Counts 1 and 2) against the background of a maximum penalty of 10 years' imprisonment for those offences. The curious temporal relationship between these two periods was considered in Corby v R [2010] NSWCCA 146 at [69]-[71]: "69 An offence under s.61M(2) carries a maximum penalty of 10 years' imprisonment and a standard non-parole period of eight years. The oddity of this situation was noted by the New South Wales Sentencing Council in its report 'Penalties Relating to Sexual Assault Offences in New South Wales', Vol 1, August 2008, page 56, at paragraph 3.47: 'Recently, the SNPP for a s 61M(2) offence was increased to 8 years. This amendment has, however, had the effect of precluding the setting of an additional term under s 44 of the Act of one third of the NPP, for the simple reason that the resulting sentence would exceed the maximum sentence by eight months. The 8 year SNPP exceeds the two-thirds worst case scenario of 7 years 6 months, by six months.' 70 The New South Wales Sentencing Council returned to this topic at paragraphs 3.65 (page 63) and 3.68 (pages 64-65) of that report, before suggesting that consideration be given to a number of changes, including (page 69): 'Giving consideration at the time of any wholesale review of the Crimes (Sentencing Procedure) Act 1999 (NSW) to standardising the SNPPs for sexual (and other) of sentences within a band of 40-60% of the available maximum penalty, subject to the possibility of individual exceptions, by reference to an assessment of the incidence of offending and special considerations relating thereto.' 71 This Court has adverted to the 'somewhat curious and inconsistent approach of the legislature' in the specification of standard non-parole periods for certain offences, where the standard non-parole period is not too distant from the maximum penalty for the offence: R v Dagwell [2006] NSWCCA 98 at [38]. Although it is difficult to reconcile the two statutory guideposts in the form of the maximum penalty and the standard non-parole period for a s.61M(2) offence, it remains the position that the legislature has made statutory provision for a standard non-parole period and that it is necessary for sentencing courts to give proper attention to the standard non-parole period, particularly when the term of that period approaches the maximum term provided for the offence: Hudson v R [2008] NSWCCA 90 at [28]." 1. It is appropriate to consider the actual character of the offences under s.61M(2) to assist an assessment of objective seriousness. Count 2 involved a very serious example of an offence of this type, with the Applicant physically forcing Helen to come with him to the bathroom. He made her take off her clothes and get into the shower with him whilst he was naked. He then touched her vagina with his hands whilst the young girl told him to stop. It may be inferred that the only reason the offence came to an end was because Helen's mother came home at that point. 2. The s.61M(2) against Kylie was also serious, involving the Applicant presenting himself to her naked in the doorway. Despite the young girl's obvious resistance, the Applicant placed his hand in her underpants and on her vagina until she removed it. 3. The s.66C(2) offence comprising Count 3 was a very serious example of an offence of this type. When alone in the house, the Applicant picked up Helen and carried her into her bedroom, before removing his pants and holding her down on the bed. He pulled her pants down before licking and kissing her lips, breasts and vagina and then touching her vagina and bottom. He proceeded to insert his penis into her vagina. 4. The Form 1 offence involved a s.66C(2) offence committed immediately after Count 3. The Applicant told Helen to bend over and had penile anal intercourse with her. She tried unsuccessfully to kick the Applicant away. The Applicant ceased this conduct when he heard the girl's mother and others enter the house. 5. The Applicant was fortunate to have a very serious s.66C(2) offence such as this placed on a Form 1 for the purpose of sentence. The inclusion of an offence such as this on a Form 1 required the sentencing court to give greater weight in sentencing for Count 3, to the need for specific deterrence, and the community's entitlement to extract retribution for serious offences: Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at 159 [42]. In this case, the seriousness of the Form 1 offence called for particular emphasis to be given to specific deterrence, and the need for retribution, in passing sentencing on Count 3. 6. Also relevant on the question of sentence was the victim impact statement concerning Helen in the form of Professor Hayes' report of 18 April 2013. It may be said that the sentencing Judge took a generous approach to the Applicant on this aspect (see [53] above), given the contents of Professor Hayes' report concerning the harm actually done to Helen as a result of these offences. 7. In R v Gavel [2014] NSWCCA 56; 239 A Crim R 469, this Court said at 483 [110]: "This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]." 1. What the Court said in R v Gavel reflects the expectation of what the sexual abuse of a child is likely to produce. In this case, there was additional expert evidence from Professor Hayes concerning the serious harm actually done to Helen as a result of the Applicant's offending against her. 2. This is an important feature in the present case. Young child victims are especially vulnerable. It is important that sentences passed for serious child sexual assault crimes such as this recognise the harm done to the victim of the crime: s.3A(g) Crimes (Sentencing Procedure) Act 1999. 3. The Applicant was entitled to a discount of 10% for his pleas of guilty and this Court should maintain that discount on resentence. 4. I have kept in mind Dr Howard's assessment of the Applicant's intellectual functioning. 5. The Applicant's criminal history does not contain any sexual offences. However, it does contain a range of matters which operate to restrict the extent to which leniency may be provided to him. 6. I do not consider that the sentencing decision in Clarke v R, NW v R and BIP v R provide any real assistance to the determination of this appeal. As counsel for the Applicant acknowledged, they do not demonstrate any range of sentencing. They provide a small number of examples of sentences passed upon particular offenders in the circumstances of their particular offences. 7. As part of the exercise of this Court's independent sentencing discretion, I have kept in mind the sentences imposed at first instance. Of course, it is necessary to have regard to those sentences for the purpose of forming the ultimate conclusion as to whether a lesser sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912. 8. Having considered the objective circumstances of the offences and the subjective circumstances of the Applicant, in conjunction with application of all relevant sentencing principles, I am of the view that no lesser sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912. 9. Having made this finding, I conclude that the appeal should be dismissed. Conclusion 1. I would grant leave to appeal against sentence but dismiss the appeal. 2. I propose the following orders: 1. grant the Applicant an extension of time to 8 October 2015 to make application for leave to appeal against sentence; 2. grant leave to appeal against sentence; 3. appeal dismissed. 1. HARRISON J: I agree with Johnson 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: 28 October 2016