Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CT v R [2017] NSWCCA 15 Hearing dates: 15 February 2017 Date of orders: 24 February 2017 Decision date: 24 February 2017 Before: Hoeben CJ at CL at [1] Johnson J at [87] Latham J at [88] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – seven historic sex offences – complainant aged between 6 and 10 at time of offending – whether sentence manifestly excessive – whether sentencing practice and patterns of the late 1980s taken into account in sentence – whether principle of general deterrence properly applied – whether appropriate weight given to applicant's good character and his voluntary cessation of offending – whether complainant's consent a relevant consideration – application for leave to appeal granted but appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW) – ss 61E(1), 67/66A Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A(2)(g), 44(2) Financial Transaction Reports Act 1988 (Cth) Probation and Parole Act 1983 (NSW) Cases Cited: AJB v Regina [2007] NSWCCA 51; 169 A Crim R 32 Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 Daniel Clayton Scott v R [2011] NSWCCA 221; 213 A Crim R 407 Franklin v R [2013] NSWCCA 122 House v The King [1936] HCA 40; 55 CLR 499 Kerr v R [2016] NSWCCA 218 Magnuson v R [2013] NSWCCA 50 MPB v R [2013] NSWCCA 213 Power v The Queen [1974] HCA 26; 131 CLR 623 PWB v R [2011] NSWCCA 84; 234 A Crim R 576 R v BA [2014] NSWCCA 148 R v Burns [2007] NSWCCA 228 R v Dent(Court of Criminal Appeal (NSW), 14 March 1991, unrep R v Nelson [2016] NSWCCA 130 Regina v Bacon [2000] NSWCCA 549; 120 A Crim R 28 Regina v Lopez [1999] NSWCCA 245 Regina v MJR [2002] NSWCCA 129; 54 NSWLR 368 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Shannon v Regina [2006] NSWCCA 39 Vuni v Regina [2006] NSWCCA 171 Category: Principal judgment Parties: CT – Applicant Regina – Respondent Crown Representation: Counsel: M Ramage QC – Applicant S Hughes – Respondent Crown Solicitors: P Green – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2013/362767 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 19 December 2014 Before: Huggett DCJ File Number(s): 2013/362767 Judgment 1. HOEBEN CJ at CL: Offences and sentence The applicant was found guilty after a trial by jury of seven child sexual offences committed against his stepdaughter. The applicant seeks leave to appeal against the sentence imposed on him by Huggett DCJ on 19 December 2014. The offences of which the applicant was convicted were as follows: Count 1 – Indecent assault on child under 16 years (6 years) – s 61E(1) Crimes Act 1900 (NSW) (maximum penalty of 6 years imprisonment). Count 2 – Indecent assault on child under 16 years (6 years) – s 61E(1). Count 3 – Indecent assault on child under 16 years (6 years) – s 61E(1). Count 4 – Carnal knowledge of girl under 10 years (6 or 7 years) – s 67 (life imprisonment). At the sentencing proceedings the Crown conceded that given the availability of an alternative charge carrying a maximum penalty of imprisonment for 20 years, the lower maximum penalty would be the appropriate guidepost for her Honour in relation to this count. Count 5 – Sexual intercourse with girl under 10 years (6, 7 or 8 years) – s 67/66A (maximum penalty of 20 years imprisonment). Count 6 – Sexual intercourse with girl under 10 years (6, 7 or 8 years) – s 67/66A. Count 8 – Sexual intercourse with child over 10 years and less than 16 years (10, 11 or 12) under authority – s 66C(2) (maximum penalty of 10 years imprisonment). 1. The sentence proceedings were conducted on the basis that counts 1 – 6 were representative counts and that count 8 was an isolated instance. 2. The applicant was sentenced to an aggregate term comprising a non-parole period of imprisonment for 7 years, to commence 12 October 2014 and expire 11 October 2021, with a balance of term of 5 years to expire 11 October 2026. 3. The applicant relied upon the following grounds of appeal. Ground 1 – Manifest excess Ground 2 – The sentencing judge erred in failing to take into account and apply appropriate established sentencing practice and patterns. Ground 3 – The sentencing judge erred with respect to an emphasis placed on general deterrence, general denunciation and protection of the community. Ground 4 – The sentencing judge erred in respect of the applicant's prior good character. Ground 5 – The sentencing judge erred in finding that cessation of offending did not mitigate the offences. Ground 6 – The sentencing judge erred in her assessment of age and under care as relevant considerations. Ground 7 – The sentencing judge erred in failing to mention or take into account an objective fact. Factual Background 1. The complainant was born in 1978. She and her older brother travelled to Australia with their mother on 13 February 1983 and upon arrival resided temporarily at a hostel in Villawood. The applicant met the complainant's mother shortly thereafter and in time a sexual relationship developed. 2. In 1983 the applicant and the complainant's family moved into a two bedroom home unit in Henry Street, Ashfield. Some months later the family, including the applicant, moved into a two bedroom home unit at Bland Street, Ashfield. On 25 September 1984 a daughter was born to the applicant and the complainant's mother. 3. In 1988 the family, including the applicant, moved to a home in Wyoming. In early 1991 the applicant left the family home. The complainant first made a complaint to police about the applicant's conduct on 28 October 2013. Count 1 1. The first occasion of a sexual nature between the applicant and the complainant occurred when she was approximately six years old. By way of background, the complainant and her neighbour, a young boy, had shown one another their genitals and the young boy had put his penis close to her genitalia. The complainant said "I didn't like that idea and I ran off home because I think it was dinner time anyway". 2. Shortly after that the complainant was lying in front of the television on a mattress with the applicant. The complainant became curious and commenced to pick at the applicant's pyjama pants with her finger. The applicant initially became irritated and told her to stop. However, after a few minutes the applicant turned the complainant around. He had unbuttoned his pyjama pants and put her hand in his crotch area. The complainant recalled "the offender still had his underwear on". The complainant touched the applicant's crotch area with her hand and moved her crotch area so that it aligned with the applicant's crotch area and rubbed against him. The complainant estimated that the whole interaction would not have lasted more than a few minutes. Count 2 1. A few days after the events described in count 1, the applicant took the complainant to one of the smaller bedrooms in the Ashfield home. He and the complainant rubbed their crotch areas against one another while clothed. That lasted for a few minutes. 2. The applicant then removed layers of clothing, keeping his underpants on, and he and the complainant continued to rub their crotch areas together. The applicant then removed his own underwear and that of the complainant, so that both were naked from the waist down. The applicant "used his penis to rub against my vulva". The complainant was unable to say whether the applicant had an erection at the time. The complainant estimated that the whole episode lasted 10 or 15 minutes and then it stopped. Count 3 The complainant recalled that the next event occurred about a week after the events described in count 2. The applicant again took the complainant to the smaller bedroom in the home and rubbed their crotches together. At first they were clothed. The clothing was then removed, including underwear, and the applicant proceeded to rub against the complainant's genitalia involving skin to skin contact. Count 4 1. The next incident occurred when the applicant took the complainant to a room and commenced to rub their bodies against one another while clothed. The applicant then proceeded to put his penis on the complainant's vulva. On this occasion the applicant penetrated the complainant's vagina with his penis. The complainant recalled that it was a little painful "but I quite enjoyed it". The complainant recalled that the applicant ejaculated on this occasion. Count 5 1. The complainant recalled an occasion when she became more curious "and wanted to try something slightly different with him". The complainant asked if she could "rub our boobies and I wanted to see how that felt". They then touched breasts and then bottoms. The applicant turned the complainant around so that he was facing the complainant's back and anally penetrated her. The complainant recalled that she moved away and said that she did not like it. She estimated that the whole event took less than one minute and she believed that the applicant's penis was erect. Count 6 1. The complainant said that the applicant took her into the bathroom at the Ashfield home. He placed Sorbolene on his penis and proceeded to have penile-vaginal intercourse with her. The complainant recalled him saying that he used Sorbolene because he did not want to hurt her and she remembered thinking that this was unusual because he had not used it before. Sorbolene was present in the house because it was used to wash her younger sister who had quite bad eczema. The complainant recalled that the applicant ejaculated on this occasion. 2. When asked when the sexual activity stopped, the complainant said: "A. Around the time that I was nine or a little bit – maybe nine and a half. I had been feeling quite guilty about what I was doing and I was tired of feeling guilty all the time. I also started to develop pubic hair and that really scared me because I felt like it was happening because I was having sex too early and I – it scared me very, very deeply and I thought that if I stopped doing it maybe it would go away. So there was one time when [the applicant] approached me when I told him that I didn't want to do it anymore because it was wrong. … Q. Did he respond? A. I can't remember his words but he accepted it. I think he said that it was okay, that it was all right." (T.11.13) Count 8 1. Count 8 involved oral intercourse in the family home in Wyoming. The complainant recalled it happened after her 10th birthday. She recalled being in the bathroom and walking towards her bedroom to get changed. The applicant saw her and called her over. The complainant said "He lifted me up above his head and then he brought my crotch, my genitalia down onto his mouth and he made contact on my vulva with his tongue." The complainant noticed that her older brother was coming into the room and kicked her legs and squirmed to get down. The applicant let her go and she went to get dressed. 2. The complainant said that sexual contact with the applicant was a regular occurrence. Her evidence was: "I know that it happened a lot, maybe not every week, maybe it was more than once a week, maybe it was every couple of weeks, I don't know, but in my head it was something that occurred a lot." (T.8.21) 1. The complainant recalled one occasion when she climbed onto the applicant and was having sexual intercourse with him but her mother was near. The applicant pushed her off. Later he told her "what we were doing should be a secret and we might get in trouble if someone found out". 2. The complainant said: "Well after [the applicant] told me that it was a secret, secret, I - it kind of confirmed the feeling in me that what was happening wasn't right and I felt - over time, I felt quite deeply ashamed by it and I was worried that my mother wouldn't love me if she knew and that if other people knew about it, that they would see me as something really despicable" (T.26.6 – 9.10.14) The sentence proceedings 1. The applicant gave evidence in the sentence proceedings. 2. Her Honour assessed the objective seriousness of the offences. Her Honour was aware that age was an element of each of the offences and in that regard, must not be double counted. Her Honour did, however, take into account the extent to which the complainant was below the relevant upper age threshold at the time of the offence. Her Honour noted that in relation to counts 1 – 3, the offence was against a person under the age of 16 and that at the age of 6, the complainant was well under that limit. In relation to counts 4 – 6, the offence was against a person under the age of 10. The complainant at the time of the offending in relation to count 4 was aged 6 or 7 and in relation to counts 5 – 6, was aged 6, 7 or 8 years. With count 8, which was an offence against a person above the age of 10 years and under the age of 16 years, the complainant was aged 10, 11 or 12 years. 3. Her Honour concluded that to varying degrees the offences were objectively more serious than if they had been committed upon an older child within the relevant age range. 4. Her Honour had regard to the particular circumstances of each offence. She took into account that count 1 involved the complainant using her hand to play with the applicant's penis through his underwear and that counts 2 and 3 involved the applicant rubbing his penis against the complainant's vulva with skin to skin contact. Her Honour took into account that count 4 involved penile vaginal penetration, as did count 6, and that count 5 involved anal penetration. Count 8 involved an act of cunnilingus when the complainant had no lower body clothing on. 5. While her Honour regarded all of the offences as serious, she assessed the penile vaginal penetration and the anal penetration offences to be more objectively serious than the others. Her Honour took into account that except for counts 5 and 8, which were relatively quick, the remaining counts appeared to have lasted for minutes. Her Honour took into account that none of the offences were accompanied by threats, force or violence. 6. Her Honour did not regard that last consideration as a particularly significant mitigating factor, given the context in which the offences occurred and the age of the complainant. Her Honour quoted the following from McCallum J in R v BA [2014] NSWCCA 148 at [33]. "An aspect of the seriousness of sexual offences committed against young children is that their youth and inexperience deprives them of the capacity to resist or protect themselves. The fact that an adult entrusted with the care of a child is able to prey upon the child's trust and vulnerability to commit sexual offences without resort to the use of force is hardly a mitigating factor. It speaks of a pernicious abuse of trust." 1. Her Honour took into account that the complainant was a child, who was effectively in the applicant's care, so that the offending constituted a significant breach of trust on his part. In that regard her Honour noted that in count 8 that consideration was part of the offence and that she would be careful not to double count. Her Honour took into account that each offence was spontaneous in the sense that no planning was involved and that the incident which gave rise to count 8 was an isolated one. Her Honour noted that the significance of the offending being part of a broader pattern of behaviour was to deprive the applicant of a submission that the offences were isolated. Her Honour was careful, however, not to punish the applicant for those non charged offences. 2. On the issue of objective seriousness her Honour took into account the harm done to the complainant. This was set out in the complainant's victim impact statement and it was clear from that document that the complainant had suffered long term psychological and emotional harm as a result of the offending. Nevertheless, her Honour was not prepared to find that s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied. 3. The effect of her Honour's analysis was that the offending was objectively serious. 4. Her Honour found that the offences were committed for the applicant's own sexual gratification. Her Honour did, however, note that the applicant appeared to stop the offending of his own volition. 5. Her Honour took into account the applicant's subjective case. At the time of sentence he was aged 56, having been born in November 1958. He was born in Peru and was the second youngest of 13 children. He was raised by his mother in poor circumstances. He finished the year 12 equivalent of school in Peru and thereafter went to TAFE where he graduated as a welder. 6. The applicant married his wife Heidi in October 1982 in Peru. He came to Australia when aged 23 in 1983. He had a daughter, D, who was born in Peru in July 1984 after he had left for Australia. As already stated, the applicant had a daughter with the complainant's mother who was born in September 1984. The applicant left the home in Wyoming and the complainant's family in 1991. He travelled to South America in 1996 and brought, Heidi, and his daughter to Australia. They were with him at the time of the sentence proceedings and remained supportive of him. 7. The applicant had a good employment history and had worked as a welder for most of his life. He had also worked as a telecom technician for Telstra. At one point he was earning approximately $80,000 per year and used his money towards living expenses and providing for his daughter with Heidi. 8. At the time of sentence the applicant was in custody at the MRRC at Silverwater. Because of the nature of the offending he was in protection but still had contact with other prisoners. Her Honour expected that once the sentence proceedings were finished, his custodial conditions would improve and he would be able to work. Her Honour, nevertheless, took into account that there might still be an element of protection in his custodial conditions. 9. In relation to the applicant's character her Honour said: "It is relevant to take into account the fact that the offender was a person of good character at the time of the commission of the first of the offences before me in Count 1. Thereafter he was not a person of good character. (MPB v R [2013] NSWCCA 213 at [126] per Justice Hulme). The weight to be given to good character is diminished to a degree by reason of the number and nature of the offences before me and the fact that the offender embarked on a course of offending from 1984 which lasted for several years. Since the commission of the last offence, the offender has not been convicted of any relevant offences. There are two driving matters on his record but for present purposes they have no relevance. In this regard Justice Button stated at [62] in Magnuson v R [2013] NSWCCA 50; '… It is useful to say at this stage that, whilst it is true that the applicant had not offended again since the last of the offences, it is also true that, having sexually assaulted his three victims over many years, he escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that time. Furthermore, even if the 'reform to the offender' had been truly exemplary, general deterrence would still have had a significant role to play in sentencing an offender who was convicted of 25 sexual offences after three trials, those offences having been committed against three young girls over an extended period.' The fact the offender ceased offending does not of itself mitigate the seriousness of the offences he did commit. Furthermore, the fact there is a gap of time between the last offence and the imposition of sentence does not extinguish the need for an element of general deterrence (R v Brown [2012] NSWCCA 199 at [42]). Offences of the present type are difficult to detect and prove and must attract principles relating to general deterrence, denunciation and the protection of the community." (Sentence judgment 14.26 –15.28) 1. Her Honour found that specific deterrence did not have any significant role to play in sentencing the applicant. Her Honour reached that conclusion because of the applicant's age and that there was no record of other offending. Her Honour regarded general deterrence to be an important consideration. 2. Because the applicant continued to deny his guilt, her Honour found that he was disentitled to the leniency that might otherwise apply to an acknowledgment of guilt. Despite that absence of contrition and remorse, her Honour found that he had good prospects of rehabilitation and that the likelihood of him re-offending was low. 3. Her Honour then analysed at some length the consequences of the offences being historical in nature, having occurred some 25 – 30 years before. Her Honour noted that regard had to be had to sentencing practices and patterns applicable at the time of offending, with reference to the then applicable statutory maximum penalties. Her Honour noted the effect on sentencing of the Probation and Parole Act 1983 (NSW) which became operative in February 1984. Her Honour noted that non-parole periods imposed at that time were usually in the order of one-third to one-half of the head sentence. Her Honour noted that this was a factor to be taken into account when considering whether there were special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 4. Her Honour specifically referred to Magnuson v R [2013] NSWCCA 50 which was a case involving three separate trials for offences against three young girls committed between 1977 and 1984. Her Honour set out the principles identified in that case as follows: "A sentencing court dealing with old offences must take into account the sentencing patterns that existed at the time of the offences, however, mindful that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice (Power v The Queen (1974) 131 CLR 623). If such a pattern is unable to be discerned, the judge should commence the sentencing process by reference to the maximum penalty, and the place in the range of objective gravity occupied by the offence. A sentencing court dealing with offences, committed at a time when the State statutory ratio did not exist, should sentence in accordance with that fact. A sentencing court dealing with old offences must impose sentences that adequately reflect the criminality of 'any offender, whenever the offences were committed'" at [133]. (Sentence judgment 17.8 – 18.2) 1. Her Honour noted that on the material before the Court in Magnuson Justice Button was able to identify a sentencing pattern applicable to sexual offences committed against children in the latter part of the 1970's and the first half of the 1980's. In particular, he had available to him statistical material in the form of a report entitled "New South Wales Statistics of Higher Criminal Courts 1976". Her Honour further noted that the principle that a sentencing court attempts from available information to fashion the type of sentence that might have been imposed at a time proximate to the date of the offending applied both to the head sentence and the non-parole period. 2. Her Honour said in relation to the material before her: "The information to which I have referred in an effort to ascertain sentencing patterns for the present offences includes a range of previous decisions, including decisions of the Court of Criminal Appeal that have provided reviews of sentences imposed for the present offences, a summary of which will be contained in Annexure A to this judgment. Tables prepared by the research section of the Public Defenders' Chambers relating to sentence appeals for historic offences of indecent assault, sexual intercourse with a child under the age of ten and sexual intercourse with a child between the ages of ten and 16, those tables being available on the Public Defenders' website and provided also by Mr Gillett. I have also had close regard to the case law and material referred to by Mr Gillett in his submissions and the Crown in his submissions as regards statistics for the period in the late 1980s. Upon enquiry by my associate, the Judicial Commission and Bureau of Crime Statistics have confirmed that their records generally do not contain statistics relating to the commission of the present offences over the relevant period and what is available is very limited. That said, any examination of what is available reveals that for offences of the present type in the mid to late 1980s the penalties imposed were considerably more lenient than those imposed today and of course had lesser maximum penalties than they carry today. A review of the available material demonstrates that non-parole periods were between one-third and one-half of the head sentence, and the approach to questions of accumulation and concurrency was less stringent than as is now applicable as a result of Pearce v The Queen [1998] HCA at 57. Therefore while a review of the available material is not capable of demonstrating the relevant sentencing pattern with perfect clarity it is sufficient to establish that while not always the case sentences or at the very least non-parole periods for sexual offences against young persons were [more] lenient in the mid-1980s than they are today." (Sentence judgment 18.26 – 20.1) 1. Her Honour had particular regard to the principle of totality and the need to make the sentences at least partially concurrent. Her Honour specifically referred to what Howie J said in Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 which was followed in Franklin v R [2013] NSWCCA 122. Her Honour noted that those principles relating to concurrency and accumulation needed to be applied in the context of sentencing practices in the 1980s which, as was observed in Magnuson, were such that wholly cumulative sentences would not accord with past sentence practice. 2. Her Honour set out her conclusion as follows: "In my view the approach that I consider to be appropriate and in accordance with sentence practice at the time is to allow a degree of partial accumulation for the offences for which this offender stands to be sentenced." 1. Her Honour found special circumstances which included that this was the applicant's first period of imprisonment and his age. Her Honour then set out the indicative sentences which she assessed as appropriate: Count 1 – 18 months imprisonment. Count 2 – 2 years 6 months imprisonment. Count 3 – 2 years 6 months imprisonment. Count 4 – 7 years imprisonment. Count 5 – 7 years imprisonment. Count 6 – 7 years imprisonment. Count 8 – 4 years 6 months. 1. Having set out the aggregate sentence, her Honour then observed: "I recognise that the ratio between the aggregate non-parole period and the aggregate sentence is approximately 58% which accords with practice at that time. I emphasise that the sentence I have imposed is the minimum that I consider appropriate for the offences of the present type committed against a child, 25 to 30 years ago. It should not be taken as providing any indication whatsoever as to the appropriate sentence for such offences were they committed in more recent times or today in which case a significantly more severe sentence would be imposed." (Sentence judgment 22.16) The appeal 1. In dealing with the various grounds of appeal, it is appropriate that Ground 1 (i.e. manifest excess) be dealt with last since such a ground seeks to invoke the residual ground of appeal under House v The King [1936] HCA 40; 55 CLR 499. Ground 2 – The sentencing judge erred in failing to take into account and apply appropriate established sentencing practice and patterns. 1. The applicant submitted that each of the indicative sentences was excessive and out of line with the sentencing practice at the time of the commission of the offences. The applicant then referred to some cases where offences had occurred in the late 1970s and where sentences lower than the indicative sentences set out by her Honour had been handed down. In making that submission, the applicant acknowledged that her Honour had correctly stated the relevant principles. His complaint was that when setting out the indicative sentences, her Honour had not given effect to those principles. The applicant submitted that if the indicative sentences were excessive and did not accord with practice in the late 1980s, this would inevitably place doubt on the appropriateness of the aggregate sentence. 2. The applicant submitted that at the very least her Honour should have adjusted the non-parole period so that it was somewhere between one-third and one-half of the head sentence, not one which was 58% of the head sentence. 3. The applicant set out some of the statistics which were relied upon in Magnuson and which came from the document entitled "New South Wales Statistics of Higher Criminal Courts 1976". The applicant submitted that these statistics showed that the indicative sentences set out by her Honour were excessive and provided further support for a non-parole period of between 35% and 50% of the head sentence. Consideration 1. It is clear from her Honour's judgment that she not only had regard to those decisions of this Court which considered historical sex offences and the effect of sentencing practices at the time when those offences were committed but also took into account the effect of the cases which were placed before her and which were identified as Annexure "A" to the judgment. As the applicant acknowledged, no fault can be found with her Honour's statement of the relevant principles which was in accordance with those cases (Regina v MJR [2002] NSWCCA 129; 54 NSWLR 368; AJB v Regina [2007] NSWCCA 51; 169 A Crim R 32; PWB v R [2011] NSWCCA 84; 234 A Crim R 576; MPB v R [2013] NSWCCA 213). 2. The criticism that her Honour did not give effect to those principles is not made out. Her Honour did not have the same advantage as this Court had in Magnuson in that there were no comprehensive statistics setting out sentencing patterns for the period under consideration, i.e. the late 1980s. Magnuson v R and the statistics available to the court in that case related to sentencing practices and patterns in the early to mid-1970s. 3. What her Honour clearly did do was to look at the cases to which she was referred by both sides and also the summary of cases provided by the defence. When one looks at that summary of cases and the judgments to which her Honour was specifically referred, almost all the non-parole periods are somewhere between 50% and 60% of the head sentences. Moreover, none of the cases have a complainant as young as the complainant in this matter. The youngest complainant in those cases was 8 – 9 years of age at the time of the offending. 4. Given that state of the evidence, her Honour was entitled to not only have regard to the effect of those cases but also to the principles identified in Magnuson that in the absence of a clear sentencing pattern, a court can take into account that sentences passed at the relevant time tended to be more lenient than those at the present time, and that there has been a steady increase since then. A sentencing judge should take into account that even when dealing with old offences, a court must impose sentences that adequately reflect the criminality of an offence regardless of when the offences were committed and that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all the purposes of justice (Power v The Queen [1974] HCA 26; 131 CLR 623). Her Honour's conclusions are set out at [38] hereof. 5. When one looks at the indicative sentences identified by her Honour, they are clearly less than those which would be imposed at the present time. That is particularly so when one has regard to the fact that the indicative sentences represent head sentences which have not been discounted significantly because there was no plea of guilty. Moreover, the challenge is not to the appropriateness of the indicatives sentences but rather to the aggregate sentence. When regard is had to the aggregate sentence, and the relevant principles identified by her Honour, it is clear that there is a significant amount of concurrency in the sentence which she imposed and that the sentence is substantially less than that which would be imposed according to today's sentencing practice. 6. It follows that not only did her Honour accurately state the relevant principles to be taken into account when sentencing for historical sex offences, but she appropriately applied them. This ground of appeal has not been made out. Ground 3 – The sentencing judge erred with respect to an emphasis placed on general deterrence, general denunciation and protection of the community. 1. The applicant submitted that there was no basis in the evidence for her Honour finding that there was any need for the protection of the community and that such a finding by her Honour was in conflict with her determination that specific deterrence had no role to play in the sentencing of the applicant. The applicant submitted that because of his age and the highly unusual consensual nature of the offences, less emphasis should have been placed on general deterrence and/or denunciation. Consideration 1. This ground of appeal is misconceived. It is based on a misinterpretation of what her Honour said in her sentence judgment (see [34] hereof). It is clear from what her Honour said that her Honour was making a general statement of principle and was not making a finding that the community needed protection from the applicant. The basis for her Honour's finding as to the importance of general deterrence is clearly set out in that passage and is unexceptionable and in accordance with principle. 2. This ground of appeal has not been made out. Ground 4 – The sentencing judge erred in respect of the applicant's prior good character. Ground 5 – The sentencing judge erred in finding that cessation of offending did not mitigate the offences. 1. These two grounds can conveniently be dealt with together since they essentially raise the same issue. 2. The applicant submitted that he had no prior convictions and was entitled to rely upon that to be taken into account as indicating his general prior good character. The applicant submitted that in considering the value to be placed upon the applicant's prior good character, the court should not have taken into account the commission of the offences which was an irrelevant matter when considering this issue. In support of those submissions the applicant relied upon what was said by McHugh J in Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [23]. 3. The applicant submitted that the voluntary cessation of a sexual act when requested and the voluntary cessation of all offences were significant matters of mitigation and should have been recognised as such. In support of that submission, the applicant relied upon R v Burns [2007] NSWCCA 228 at [29] where Harrison J (Spigelman CJ and Simpson J agreeing) said: "29 The respondent cited authority in support of the proposition that voluntary cessation of what is, typically, an ongoing activity, is a significant factor in mitigation for a number of reasons. See, for example, Regina v Lopez [1999] NSWCCA 245, Regina v Bacon [2000] NSWCCA 549; 120 A Crim R 28 and R v Hutton [2004] NSWCCA 60. These factors are as follows. First, there is a public policy to be served in providing encouragement to offenders such as the respondent to cease their criminal activities. Secondly, specific deterrence is a matter to be given little or no weight. Thirdly, it provides strong evidence of remorse, contrition and rehabilitation." Consideration 1. With respect, the applicant has again misstated the effect of what her Honour said. Her Honour was not denying to the applicant the benefit of his previous good character. The point which her Honour made was that the weight to be given to his good character was diminished by reason of the number and nature of the offences (see [34] hereof). Her Honour set out why the absence of offending from the time the applicant left the Wyoming premises did not of itself mitigate the seriousness of the offences. She made this finding based on the statement of principle by Button J (with whom McClellan CJ at CL and Bellew J agreed) in Magnuson which her Honour set out (see [34] hereof). Moreover, her Honour took into account the absence of offending thereafter as a positive factor when she determined that the applicant's prospects of rehabilitation were good and the likelihood of his re-offending was low. 2. The quotation from R v Burns is not particularly appropriate. The "voluntary cessation of all offences" relied upon by the applicant is an incomplete description of what happened. The complainant told the applicant that she did not want him to have sex with her "any more because it was wrong". This was in the context of her being scared "very, very deeply" at the changes in her body with the onset of puberty and which she attributed to having sex with him. It should also be noted that he sexually assaulted the complainant again at a later time as described in count 8. 3. There is another difficulty with the applicant's reliance upon R v Burns and the cases therein cited. Each case involved offences of a kind which were typically committed on an ongoing basis and none involved sexual assault, let alone sexual assault upon children. R v Burns was concerned with supplying a prohibited drug on an ongoing basis, Regina v Lopez was concerned with an imposition on the Commonwealth extending over four years. Regina v Bacon involved the supply of a prohibited drug on an ongoing basis. Regina v Anthony Kendall Hutton involved an offence against the Financial Transactions Reports Act 1998 (Cth) where a number of reportable transactions were concealed. 4. In Regina v Hutton, Sully J (with whom Simpson an Sperling JJ agreed) said: "41 The relevance of such a voluntary cessation of criminal activity is, surely, that it warrants a conclusion that the offender has seen the error of his ways; has ceased his antecedent pattern of offending; and ought, therefore, to be sentenced upon the basis that in his particular case specific and personal deterrence is either not a relevant consideration at all, or is, at the most, a minor relevant consideration." That principle is not applicable to the facts of this case. It could not be said that the applicant saw the error of his ways at any point in time, including the absence of remorse and contrition during the course of the trial. 1. These grounds of appeal have not been made out. Ground 6 – The sentencing judge erred in her assessment of age and under care as relevant considerations. 1. This ground is not understood. The applicant's submissions as to the various dates and ages of the complainant at the time of the various offending does not show error in her Honour's assessment of the complainant's age or the range of ages which were taken into account. There is no doubt as to the correctness of the proposition put forward by her Honour, i.e. the younger the child, the more serious the offence (Shannon v Regina [2006] NSWCCA 39 at [28]). 2. This ground has not been made out. Ground 7 – The sentencing judge erred in failing to mention or take into account an objective fact. 1. The applicant submitted that in reciting the objective facts, her Honour failed to take into account the evidence of the complainant that she continued having sex with the applicant because she enjoyed it. The applicant referred to the complainant's evidence at T.100 where she said: "I don't enjoy saying this but I need to remind you that even though I feel very conflicted about it, I did enjoy the intercourse." 1. The applicant noted that the Crown called expert evidence to support the proposition that intercourse could have taken place without injury and with enjoyment despite the complainant's age at the time. 2. The applicant submitted that although the complainant's age, relationship and the fact that at law she could not consent were appropriately taken into account by her Honour, her Honour did not take into account this very unusual feature, i.e. that the complainant on occasions initiated the sexual contact and enjoyed it. Consideration 1. This is a bold submission. There is no authority for it with good reason. It is quite inappropriate to equate a child's appreciation of a sexual experience with that of a mature adult. Moreover, it is obvious from the complainant's evidence that although she may have experienced some physical pleasure, she was also experiencing feelings of guilt and an increasing appreciation of the wrongness of what was happening. It is clear from the complainant's victim impact statement that the emotional and psychological scarring brought about by this offending has remained with her and will remain with her for the rest of her life. 2. As Lee J said in R v Dent (Court of Criminal Appeal (NSW), 14 March 1991, unrep) at 5 (with the agreement of Gleeson CJ and Loveday J): "When the male parent takes advantage of the helplessness of the child, he not only commits a breach of trust but it is a cowardly breach of trust. The protector of the child's body, the guide and mentor of the child, in those circumstances has abandoned his proper role in order to gratify his lust on the child." 1. This submission on behalf of the applicant is misconceived and should be firmly rejected. The notion of consent has no role to play in sentencing for serious sexual assaults on very young children. In that regard, the observation by McCallum J in R v BA (with whom Gleeson JA and Fullerton J agreed) before set out at ([25] hereof) is unarguably correct. 2. In R v Nelson [2016] NSWCCA 130 Basten JA (with whom Rothman J agreed) said: "23 While acknowledging that lack of consent was not an element of the offences, the sentencing judge placed some weight on the fact that the activity as described by him "was consensual". No doubt the use of threats or force in overcoming resistance would be an aggravating factor; however, mere lack of opposition is otherwise irrelevant. The activity was not adequately described as "consensual"; it might be better described as not being the subject of opposition. To treat that as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour." 1. This ground of appeal should be rejected. Ground 1 – Manifest excess 1. The applicant submitted that the aggregate sentence imposed in terms of the head sentence and the non-parole period was manifestly excessive when compared to the sentences imposed on other offenders for similar offences committed at around the same time. The applicant submitted that the sentence is unreasonable or plainly unjust so as to indicate a misapplication of principle. 2. The applicant submitted that the indicative sentences, which were the basis for the ultimate aggregate sentence, made it clear that error had occurred because each sentence was excessive and out of line with sentencing practice at the time of the commission of the offence. Consideration 1. Many of the issues raised by the applicant under this ground have been dealt with in the consideration of Ground 2. The onus is on an offender, who contends that sentencing practices have moved adversely to him since the time of the commission of the offence, to establish what was the sentencing practice at the time (Daniel Clayton Scott v R [2011] NSWCCA 221; 213 A Crim R 407 James J at [52], with whom Bathurst CJ and Johnson J agreed). 2. As already indicated, the statistical information dealing with the punishment of offences in the late 1980s was sparse and to the extent that cases were placed before her Honour, they were taken into account. 3. In order to show that a sentence is manifestly excessive, an applicant must show that it is unreasonable or plainly unjust. As I said in Vuni v Regina [2006] NSWCCA 171 at [33] (Tobias AJ and James J agreeing): "33 To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was "unreasonable or plainly unjust" (Dinsdale [2000] HCA 54; 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. (Markarian v The Queen [2005] HCA 25 at [26] – [28])." 1. In Kerr v R [2016] NSWCCA 218 Bathurst CJ (with whom Price J and I agreed) said: "The circumstances in which a sentence will be found to be manifestly excessive are well established. The Court will only intervene if the sentence is unreasonable or plainly unjust, such that the Court may infer that in some way there has been a failure of the sentencing judge to properly exercise the sentencing discretion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [59]. In that context, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29. 114 As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive." 1. There are a number of difficulties for the applicant in attempting to demonstrate that the aggregate sentence is unreasonable or plainly unjust. By committing the offences, he exposed himself to three counts involving a maximum penalty of 20 years each, one count with a maximum of 10 years and three counts with a maximum of 6 years. There were acts of penetration and ejaculation, at least once without a condom. There is the further difficulty of the abuse of trust and/or authority inherent in his offending (without double counting the element of the offence in count 8). Further, the complainant was very much younger than the threshold ages for the offences. The offences (save for count 8) were not isolated. That fact does not aggravate the offending but denies the applicant leniency in that respect. The offences occurred over a period of years and it is clear that the applicant has received the benefit of a large degree of concurrence in the indicative sentences (which total 32 years). 2. Finally, notwithstanding that she had told him she did not want any further sexual contact, the applicant committed the offence in count 8 at a later time. That further exploitation of the complainant called for a degree of partial accumulation of the indicative sentences which amply justified the aggregate non-parole period. 3. In relation to the aggregate non-parole period being approximately 58% of the head sentence, her Honour specifically referred to this in her sentencing judgment and noted that "the sentence I have imposed is the minimum that I consider appropriate for the offences". These offences represent an egregious and gross abuse of trust upon a very young child with whose care the child's mother had entrusted the applicant. In those circumstances, the aggregate sentence was well open to her Honour. 4. This ground of appeal has not been made out. 5. The order which I propose is that leave to appeal be granted but that the appeal be dismissed. 6. JOHNSON J: I agree with Hoeben CJ at CL. 7. LATHAM J: I agree with Hoeben CJ at CL. I would only wish to add that her Honour's sentencing remarks demonstrate a conscientious and thorough application of all the relevant sentencing principles to the case at hand. In my view there was no merit in this appeal. ********** 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: 24 February 2017