Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Aloniu v R [2017] NSWCCA 74 Hearing dates: 22 March 2017 Date of orders: 20 April 2017 Decision date: 20 April 2017 Before: Hoeben CJ at CL [1] Walton J at [2] Price J at [85] Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – three counts of aggravated sexual intercourse without consent – whether procedural fairness denied – requirement of notice for a factor in aggravation –dealing with the applicant's knowledge of the complainant being underage as an aggravating factor – failure to give notice to the applicant – whether error in finding applicant held knowledge of the offence – circumstantial evidence supported inference to support finding of knowledge to criminal standard – resentencing discretion – lesser sentence not warranted – application of s 6(3) of the Criminal Appeal Act 1912 – leave to appeal is granted – the appeal is dismissed Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Currie v R [2013] NSWCCA 267 Franklin v R [2016] NSWCCA 319 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 MRW v R [2011] NSWCCA 260 R v Stokes (2008) 185 A Crim R 74; [2008] NSWCCA 123 R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107 Category: Principal judgment Parties: Malie Aloniu (Applicant) Regina (Respondent) Representation: Counsel: I Nash (Applicant) S Dowling (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/127863 Publication restriction: Nil Decision under appeal Court or tribunal: Sydney District Court Jurisdiction: Criminal Date of Decision: 9 October 2015 Before: Frearson DCJ File Number(s): 2013/127863 Judgment 1. HOEBEN CJ at CL: I agree with Walton J. 2. WALTON J: This matter concerns an application for leave to appeal, filed on 17 November 2016, against the sentence imposed upon him on 9 October 2015 by Frearson DCJ ("the sentencing judge") in the Sydney District Court. After pleading guilty, the applicant was sentenced for three counts of aggravated sexual intercourse without consent, knowing the complainant was not consenting with the circumstance of aggravation being that she was under his authority. The offences were contrary to s 61J(1) of the Crimes Act 1900 (NSW) ("the Act") for which there is a maximum penalty of 20 years imprisonment. A standard non-parole period of 10 years applied. 3. Each charge, with respect to which the applicant pleaded guilty, was identical. The offences involved digital penetration (Count 1), cunnilingus (Count 2) and penile/vaginal intercourse (Count 3) during a single episode on a date between 9 December 2010 and 25 December 2010. The complainant was the applicant's niece by marriage and was aged 15 at the time of the assaults. 4. The applicant was sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the sentencing Act"). He was sentenced to imprisonment for an aggregate non-parole period of 5 years and 9 months with an additional term 3 years 2 months. His Honour indicated the sentences he would have imposed had he dealt with the matters individually as follows: Count 1: A non-parole period of four years with an additional term of two years. Count 2: A non-parole period of four and a half years with an additional term of two years and three months. Count 3: A non-parole period of four years and eight months with an additional term of two years and four months. Factual Background 1. The complainant was the niece of the applicant's wife, AB ("Aunt E"). She was born in Samoa but moved to Australia in 2007 at the age of 12 having been adopted by another aunt, BB. She had lived in Sydney between 2007 and 2010 before moving to a country location in April 2010 after being asked by Aunt E to stay with her and help her out with eight children. 2. After moving to the country location she lived at the applicant's home and enrolled in school at that location. She shared a bedroom with one of the applicant's children, a daughter, M. 3. At the time, the complainant moved to the applicant's home, the applicant was away, working in Melbourne. The applicant did not return to the household until "a few months after" the complainant commenced living there. 4. In early December 2010 Aunt E travelled to Samoa to attend a family reunion. The complainant and her cousins were left in the care of the applicant. She was 15 years of age. Aunt E returned in early January 2011. It was during this period that the offences were committed 5. During the day prior to the offences, the complainant and M had had a fight. As a consequence that night she slept in a spare room. In the early hours of the following morning the applicant entered the room. The complainant felt her arm being grabbed and turned and saw that it was him. The applicant entered the complainant's bed. The applicant then pushed his mouth on the complainant and tried to get her to open her mouth. She kept her mouth clamped shut and was crying. The applicant told the complainant not to tell anyone and that he would buy her anything for Christmas. He then took off the complainant's shorts and underpants, touched her vagina and then put a finger inside her vagina, whilst at the same time trying to kiss the complainant on the mouth (Count 1). Thereafter the applicant moved his head between the complainant's legs and performed cunnilingus on her (Count 2). The applicant then lay on top of the complainant, opened her legs and had penile vaginal intercourse with her (Count 3). The intercourse hurt the complainant. She lay crying while the applicant had intercourse with her. When the applicant finished he told the complainant not to tell anyone. He then told her to put her clothes on before leaving the room. 6. The following day, the complainant made a complaint to another aunt ("Aunt S"). The complainant left the applicant's home and, as a result of the complaint, commenced living with Aunt S and Uncle. 7. In March or April 2011 the applicant admitted to the a Mr A, that he had had sexual intercourse with the complainant. Mr A spoke to the complainant who confirmed the sexual intercourse. In December 2011 the complainant left Australia and commenced living with her sister in New Zealand. 8. On 13 February 2012 Mr A reported the incident to a detective at a Police Station. The applicant was arrested at his home on 24 April 2013. During an interview the applicant admitted speaking about the complainant with Mr A but remained silent when questioned directly about the offences. Procedural Background 1. The applicant was charged with the offences on 24 April 2013. On 16 October 2013, he was committed for sentence in the District Court. After a number of adjournments, on 3 September 2014 the applicant withdrew his plea and entered pleas of not guilty. The applicant was re-arraigned on 17 August 2015 and after some pre-trial matters were dealt with the trial commenced. The pre-trial discussion and the partial cross-examination of the complainant revealed that it was the applicant's case at trial that consensual sexual intercourse had occurred and that the complainant was in the house as a helper and not as a family member. Although it was accepted by the applicant that the complainant was 15 years old at the time of the offences. 2. One pre-trial issue concerned the applicant's perception or knowledge of the complainant's age and in particular it was disputed that the appellant knew the complainant was 15 years of age at the time of the offence. The applicant submitted, by his counsel, that he "thought [the complainant] was older than she was" and, in an exchange with the sentencing judge, he did not know "how old she was". The Court confirmed with the Crown that the charges in the indictment alleged aggravation because the complainant was under the authority of the applicant and not due to her age. 3. However, the applicant was put on notice at this time that the Crown would rely on s 61Q(3) of the Act to establish an alternative verdict of guilty under s 66C(3) of the Act. The sentencing judge stated that the applicant was on notice that the Crown was seeking an alternative verdict. 4. The trial commenced on that day after a plea by the applicant that he was not guilty. In the opening submission for the Crown there was no reference to the age of the complainant or to a statutory verdict being sought. However, the Crown stated: I anticipate what you'll hear from the accused is that at no time did he think that this young woman was under 16 years of age and I expect that you will hear reasons why he formed that view: appearance, behaviour, a whole range of things and I expect what you'll hear is that because she had come from Samoa, come to live in Australia and then come out to [a country location], that he wasn't in a position to know exactly her age and that what he was participating in was an illegal act because of that age difference. 1. The complainant gave evidence in chief and under cross-examination. 2. The complainant gave evidence that she was adopted by one of her aunties at the age of 12 and as a result moved from Samoa to Sydney. In 2010 she moved from Sydney to a country location to live with Aunt E and the applicant, who was Aunt E's partner. The complainant could not remember the precise date but was certain it was "term 2 2010". Aunt E had asked the complainant to stay with her and to help her. In early December Aunt E travelled to Samoa. It was about a week after Aunt E had departed that the offences occurred. The complainant described the offences. The complainant's birth certificate was tendered showing her birth date on 22 September 1995. 3. In cross-examination it was suggested to the complainant that when she came to the country location she was not in school. She denied that proposition and indicated that she continued school from Sydney in the country location. The complainant agreed she had met the applicant at family functions in Samoa "a few times before" she moved to the country location. It was put by counsel for the applicant, and the complainant agreed, that she was "a much smaller girl" at that time. The complainant could not remember the applicant paying attention to her at that time but agreed that was because she was "young". 4. The complainant indicated she was older than M; one of her cousins who was about 12 or 13. She saw the applicant as "like my second father". It was suggested to her that she dressed like a teenager from Sydney (she indicated that she did not know if that was the case) and that she looked older than she actually was. The complainant denied that latter proposition. She agreed she wore makeup but disagreed she did so to make her look 18 or 19. Rather it made her "feel good". 5. The complainant also disagreed that helping with Aunt E's children made her feel like the applicant's wife. She denied she had any special connection to him other than him being like her father. She thought she was a family member. 6. The trial was adjourned to the following day, 18 August 2015. The applicant was re-arraigned before the jury and entered pleas of guilty to each count on the indictment. 7. Proceedings on sentence commenced on 19 August 2015. The Crown tendered the aforementioned statement of facts headed "Agreed Facts" and the applicant's criminal history. It was an agreed fact that the complainant was 15 years of age as at the date of the offence. The applicant tendered a psychologist's report of Ms Leah Dodsworth, dated 20 February 2014, and a medical report in relation to his back. 8. The applicant's wife gave evidence through an interpreter in relation to the impact the applicant's incarceration would have on her family. She gave evidence that the applicant asked her to forgive him for what he had done and to forgive the complainant too. The applicant told her he had forgiven his wife and forgiven the complainant. There was no cross-examination. 9. The proceedings were adjourned to 9 October 2015. On that occasion a complete Crown bundle was tendered, which included a pre-sentence report and an updated pre-sentence report dated 8 October 2015. 10. The original pre-sentence report was dated 5 December 2013 and contained the following entry under the heading "Sex offending": At interview it was apparent that Mr Aloniu did not grasp the gravity of the index offences. The statement of facts was read to him and the specific charges summarised and he acknowledged that he understood. He agreed that the incidents took place but he maintained that they were consensual stating that the victim had removed her own clothing and that she was in the bed where he had been sleeping. Mr Aloniu accepted that the victim was below the age of consent. Aside from the implication that the sexual matters were consensual Mr Aloniu offered no other explanation for why the offences occurred. ("the first pre-sentence report"). 1. In the updated pre-sentence report of 8 October 2015, the applicant is recorded as stating "he was now aware that his actions were wrong, however, continued to claim he was not aware of same at the time of his offending." ("the updated pre-sentence report"). 2. In the report of the psychologist, Ms Dodsworth, the following record of statement was made by the applicant: 1. "she did not look like a teenager, wore a lot of makeup, dressing with a thin top and shorts"; 2. "her statement was not one hundred percent correct"; 3. "no I do not know the law, but I broke my promise to my wife"; and 4. "I know forcing someone is a bad thing to do but I do not know the law. I did not know how old Helen was". 1. In submissions on sentence, counsel for the applicant commenced his submission by stating "Your Honour, of course it's a serious matter, it is a 15 year old girl in her own home and the agreed facts detail the plea". He referred, inter alia, to the pre-sentence reports and the psychological reports and made a submission that the applicant had displayed remorse. 2. The submissions of the Crown on sentence were devoted almost exclusively to remorse and the impact of the offence on the complainant. It was contended that the applicant had not understood the true nature of his offending and the impact on the complainant. Grounds of the Appeal 1. The applicant relied upon two grounds of appeal: 1. The applicant was denied procedural fairness prior to the learned sentencing judge finding that the offences were aggravated by the fact that the applicant knew the victim was under the age of 16; and 2. The sentencing judge erred in finding beyond reasonable doubt that the applicant knew the victim was under the age of 16. The Sentencing Judgment 1. The sentencing judge delivered his judgment ex tempore on 9 October 2015. 2. Having regard to the limited grounds of appeal it will not be necessary to traverse through the entirety of that decision. 3. As the offender had changed his plea at trial the sentencing judge determined that he would give a 6% discount for the utilitarian aspect of the plea. 4. His Honour then recorded the maximum penalty. After making some observations about the significance of the maximum penalty and the standard non-parole period, noting in that respect that both matters relate to the objective seriousness of the offence and that those two guides are to be "taken into account in the one step process", his Honour observed "it is significant that the complainant was actually under 16 years of age, which is another matter to be taken into account". He recorded in the factual history that the "complainant was 15". 5. His Honour then recited the factual background which will be unnecessary to repeat. After recounting that history the sentencing judge recorded that the facts demonstrated that, "these are serious examples of this type of offence". He also noted, indictment contained the averment that the victim was under the authority of the offender, so that cannot be double counted, but there are degrees of being under authority and he was regarded as the uncle. They lived in the same house and this was a gross breach of trust. I am entitled to take into account the actual extent of the under authority and the extent of the breach of trust and I do. No complaint is made about that finding. 1. His Honour noted there were no antecedents of particular note although there was a common assault for which there was a fine. This related to domestic violence. 2. His Honour then turned to give particular consideration to the age of the complainant in the following passage of his judgment: Before I leave the facts, if I have not mentioned already, I meant to mention that what is of particular concern here is the age of the complainant. She was an underage girl who was subjected to non-consensual sexual intercourse in three different forms, albeit on the one night. There is a victim impact statement. I have looked at that. The statement is a demonstration of what happens to victims when they are subjected to this type of sexual exploitation… I do not need to treat it as separately aggravating and I do not, because it is just what one would expect from this type of crime. The facts speak for themselves. Non-consensual intercourse in three forms with a 15 year old, of course it has a devastating effect on the victim, and I take it into account as part of the offence. 1. His Honour then turned to "reports" which set out the background of the applicant. In relation to the first pre-sentence report he noted that the applicant had mentioned the sexual intercourse was consensual and that the report writer suggested the applicant "did not grasp the gravity of the offences." His Honour observed that this report and "the material" make it clear "that he does not" and, after dealing with his family situation and noting that the applicant does not have a problem with alcohol and drugs, stated: This report says that he is now aware these actions were wrong. He continued to claim he is not aware of the same at the time of the offending. That statement – I have not got to some of the other material – does seem incompatible with the objective facts and the other material. I do accept that the girl was crying. I do accept that in some sense he forced his way on her and he had three forms of intercourse. I accept that he knew she was not consenting, it was without her consent, and I do find beyond reasonable doubt he knew she was underage as well. How could he not know? What he has done is just refuse to accept responsibility, the responsibility that he should accept. 1. His Honour observed he would take into account the following objective features of the matter, in particular the age of the complainant, the gross breach of trust. As I have said, I appreciate that the being under authority is not to be double counted. I take into account precisely what happened. Sometimes some forms of sexual intercourse are said to be more heinous than others, although the legislation does not differentiate, but here you have digital, cunnilingus and penile/vaginal. I take into account exactly what happened. I appreciate that they occurred in an almost transactional, the one incident. 1. His Honour found that there was planning in the offence. The applicant indicated what he was about to do – "it involved considerable deliberation at the time". He also recognised the harm to the complainant and the community at large. 2. The sentencing judge made a number of findings as to subjective matters as follows: There are reports which set out the background of the offender. In particular there is a presentence report of December 2013 which sets out the family and social circumstances. I will not read it all out because it is now 5 to 4. He was the youngest of ten children to his parent's union. His parents are now deceased. He resided in Griffith with his wife and eight children aged between 16 and two. They came to Australia for a better life. The offender was educated in Samoa. He left school at 15 following the completion of year 9 and since coming to Australia he has always been employed, predominantly in seasonal work and more recently has been working as an interstate and local truck driver. … I have a document form Dr Yang, which details the offender's lower back injury, symptoms and pain, the severe injuries to his head, neck and shoulder, and the fact he received steroid injections for all that. I have the report from a consulting psychologist, Leah Dodsworth. I do not propose to read it all in view of the time, but it talks about his intellectual functioning. He has some difficulty with comprehension. It gives his history, his history in Samoa. He had some problems with education, but she came from happy family and it does confirm he came to Australia for a better life. It confirms his work history and it points out that both the offender and his wife are religious. The entire family are practicing Mormons are that is of great importance to him. … I do have other material and I am aware of the difficulties in relation to his four year old child. I am aware of another son's prowess in basketball. I am aware of the hardship on the family, and indeed I have a series of documents from lafeta Sekali. What is detailed in that document is the other positive attributes of the offender, how the offender participates in the sporting activities with the church and the community, and how he has loving care for his family. There is a document by his son Raymond who describes his dad as being very loving, caring and supportive, and about problem with the young brother, and the problem with people being candid when the father is not around. There is a document from the president of the Church of Jesus Christ of Latter Day Saints and it speaks of the positive attributes of the offender. There is a document by Earl Wallace, who was then the relieving principal of the Kalinda School, which talks about Zak's intellectual disability and indeed a document from David Gilmour, the head volleyball coach, about Raymond being a vital member of the team and that the offender was keen to assist during the training sessions wherever possible. In addition to that, I also have some medical certificates, if I can call them that, which goes to the details of the back pain and the back injury. I appreciate it is the type of injury that will make life difficult in gaol. I do take into account the hardship to the family, and there will be hardship. … I take into account the problems with his family, in particular his younger son. 1. The sentencing judge also made a number of findings about remorse. He observed the applicant had no real appreciation for the plight of the complainant, her distress at the time and noted "she was underage and was not consenting". His Honour found that the applicant's "remorse" was centred upon his betrayal of his wife and letting his religion down but then observed "he is not being sentenced for breaking the marriage vows, he is being sentenced for having non-consensual intercourse in three different ways, as I have said, with a fifteen year old girl". The sentencing judge stated that the applicant forgave the complainant but that "there was no reason to forgive [the complainant] for anything because she was the victim of the crime. This was the misapprehension of the offender". 2. Ultimately, his Honour found that the sentence imposed should not be mitigated for the remorse of the applicant. He found: "Try as I might, I am unable to find his actual remorse for having non-consensual intercourse with a 15 year old, on the totality of the material". 3. The sentencing judge found that the applicant was unlikely to reoffend and had good prospects of rehabilitation. He also found there was no need for "specific deterrence". 4. The sentencing judge then turned to questions of accumulation, concurrency and totality and deterrence. After discussing the indicative sentences for each count, his Honour stated: Were I sentencing for those three matters at the one time, I would have adjusted that last sentence to four years non-parole with a three year additional term because of totality. 1. His Honour concluded: The upshot is that I impose an aggregate non-parole period of five years and nine months form 18 August 2015 which will expire on 17 May 2021. There will be an additional term of three years and two months commencing at the expiration of the non-parole period. I find special circumstances on the basis principally of the offender's physical condition in relation to his back. The offender will be eligible for parole on 17 May 2021. The parole does not have to be supervised. Consideration Ground 1 – the applicant was denied procedural fairness prior to the learned sentencing judge finding that the offences were aggravated by the fact that the applicant knew the victim was under the age of 16. 1. The central tenant of this ground of the appeal was that the sentencing judge had found, as an aggravating circumstance in sentencing the applicant, that the applicant had knowledge that the victim was under 16 years of age at the time of the offence. Counsel for the applicant emphasised, in that respect, the passage of the sentencing judgment which is extracted at para [39] of this judgment. 2. As the submission was developed, it was correctly contended that the circumstance of aggravation averred (and admitted) as an element of the s 61J(1) offence as pleaded in the indictment was that the complainant was under the authority of the applicant. The charge was confined to the aggravating circumstance appearing in s 61J(2)(e) of the Act which related to a victim being under the authority of an "alleged offender". 3. It was further contended that at no point during the pre-trial argument, the trial or sentencing proceeding, did the Crown positively assert that it could establish knowledge on the part of the applicant (as to the age of the complainant) either beyond reasonable doubt or otherwise. That much may also be accepted. Additionally, I note that, in the appeal proceedings, the Crown did not contend that the statutory alternative verdict for an offence contrary s 66C of the Act referred to by the Crown in the pre-trial proceedings (see para [15] above) should be taken as creating a contrary indication. It was again correctly submitted that the Crown did not submit that the offences were aggravated because the applicant knew that the victim was under 16 years of age. 4. The final step in the development of the applicant's argument was that there had been a denial of procedural fairness because the sentencing judge was obliged to, but did not, draw to the defence's attention that a finding might be made, in aggravation, that the applicant knew the complaint was under 16 years of age (and consequentially did not give the applicant an opportunity to be heard): see R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 ("Tadrosse") at [19] (per Howie J with whom Grove and Hall JJ agreed) and R v Stokes (2008) 185 A Crim R 74; [2008] NSWCCA 123 at [13]-[15] (per Barr J with whom Giles JA and Hall JJ agreed). 5. Those contentions contain a fundamental, but flawed, premise, namely, the sentencing judge did not treat the applicant's knowledge of the age of the complainant as a factor in aggravation. 6. In substance, the Crown submitted that the premise upon which the applicant had constructed his argument was flawed. In the passage of the sentencing judgment primarily relied upon by the applicant, his Honour was making a finding as to the applicant's knowledge for the purpose of assessing remorse (responsively to the report of his attitude recorded in the updated pre-sentence report) rather than making a finding that the knowledge of the applicant at the date of the offence constituted in and of itself a factor in aggravation. It was further submitted that the sentencing judge was entitled to use the fact of the complainant's age, when assessing the seriousness of the offences, given that the complainant's 15 years of age at the time of the offence was an uncontested fact. 7. It was further submitted that the sentencing judge did not engender an expectation in the applicant that he would not make a finding in respect to the applicant's knowledge that the complainant was 15 years old at the time of the offence. The applicant's counsel made no submissions about the applicant's state of mind in relation to the complainant's age. Nor could he in the absence of evidence from the applicant in the sentencing proceeding. Where the evidence led is not sufficient to satisfy the Court of the relevant matter, the sentencing judge is not required to sentence on a view that the facts most favourable to the offender. 8. Contentions such as those advanced by the applicant under this ground need to be approached with caution in order to avoid the Court being drawn into a parsing exercise in which insufficient recognition is given to the pressure under which a busy court such as the District Court may deliver an ex tempore judgment (as occurred in this matter): see Currie v R [2013] NSWCCA 267 at [50] per Johnson J with whom Hoeben CJ at CL and Bellew J agreed). 9. The Crown was correct to submit, in essence, that attention needed to be given to, in evaluating the merits of this ground, not only the expression used by the sentencing judge to which much attention was drawn "I do find beyond reasonable doubt he knew she was under age as well. How could he not know?" ("the impugned remark") but to the entirety of the paragraph in which that phrase and sentence appeared (see para [39] of this judgment) and the paragraph of the judgment in which the sentencing judge first dealt with the age of the complainant in his reasoning process (as set out in [38] of this judgment – "the preceding paragraph"). 10. I will begin with a consideration of the preceding paragraph. The first conclusion which may be drawn about the remarks there appearing, is that the sentencing judge was not dealing with the question of whether the applicant knew or did not know the age of the complainant at the time of the offence. He was there, as he plainly stated, dealing with the age of the complainant simpliciter. Whilst he stated he would "take it [that factor] into account as part of the offence", I consider his Honour was doing no more than indicating that he would have regard to the applicant's age when assessing the seriousness of the offence. It is clear from the confinement of the preceding paragraph to the age of the complainant simpliciter that, when his Honour subsequently returned to make the impugned remarks as to the knowledge by the applicant of the offence, he was referring to an additional factor bearing upon the seriousness of the offence which, by its nature, was an aggravating circumstance. This analysis also tends to undermine the Crown's submission that his Honour was only dealing with remorse in making the impugned remarks to which I will return to further below after attending to one further matter in the preceding paragraph. 11. It may be noted there is a component of the preceding paragraph which contradicts the applicant's contention that the sentencing judge had regard to knowledge of age of the complainant at the date of the offence as an aggravating factor. His Honour remarked that he did "not need to treat it as separately aggravating". The question is whether his Honour when using the word "it", should be taken as illuminating his approach to the age of the complainant or dealing with some other consideration. In my view, he was adopting the latter course. I am satisfied that, his Honour was referring, in that respect, not to the age of the complainant but to the "substantial emotional harm" suffered by the complainant, his remarks in that respect appearing immediately prior to his reference to aggravation. 12. As mentioned above, the Crown also submitted that his Honour was, in making the impugned remark, dealing with the question of remorse because his remarks appear in the context of a discussion regarding the updated pre-sentence report where issues of that kind were raised. I do not, however, agree with that submission for the following reasons. First, that construction requires a rather strained reading of the impugned remark. Secondly, his Honour deals squarely with remorse later in his judgment. Finally, whilst the last sentence of the paragraph referred to the acceptance by the applicant of responsibility, this statement does not necessarily verify the Crown's contention. The concept of "responsibility" is ambiguous and may well concern the applicant's offending or criminality given its proximity to immediately preceding findings of that character in the paragraph. 13. I turn now to the impugned remark itself and the paragraph in which it appeared. When read literally, the language used in the impugned remark suggests the sentencing judge was making a finding that there was aggravation. The age of the complainant, if under 16 years, was a circumstance of aggravation for the purposes of s 61J(2)(d), which required proof by the Crown to the criminal standard. His Honour emphasised that he made the finding reflected in the impugned remark to the criminal standard ("beyond reasonable doubt") in a manner thereby consistent with him taking into account a further aggravating circumstance. His Honour's approach, in that respect, also contradicts any proposition that he might be dealing with a factor advanced by the applicant in mitigation such as remorse. Further, support for this conclusion may be found in the context in which the impugned remark appeared. It was encased in a group of other findings none of which concerned subjective matters but rather concerned the offence and the applicant's criminality. 14. It follows that his Honour was dealing, in my view, with the applicant's knowledge of the complainant being underage as an aggravating factor. Given the charge plead aggravation in that respect and the Crown made no submission seeking such a finding at the sentencing hearing, it was necessary, as a matter of procedural fairness, for the sentencing judge to give an opportunity to the applicant to be heard on that issue before ruling upon it. The sentencing judge's failure to give notice to the applicant of his intention to take into account that aggravating factor thereby resulted in a denial of procedural fairness. As Howie J stated in Tadrosse in relation to aggravating factors under s 21A(2) of the sentencing Act at [19]: If the sentencing judge considers that any of the aggravating factors listed are present, it seems to me that, in fairness to the offender and as a matter of good common sense, the judge should indicate to the offender's legal representative that he or she is considering taking that matter into account so that, if necessary, the court might be persuaded that the aggravating feature is not present or for some reason it should not be taken into account in the peculiar circumstances of the particular case. 1. In my view, Ground 1 of the appeal must be accepted. Consideration Ground 2 – The sentencing judge erred in finding beyond reasonable doubt that the applicant knew the victim was under the age of 16 1. The applicant submitted that, other than evidence of the actual age of the complainant, there was "only meagre evidence from which the applicant['s] state of knowledge might be inferred. Properly considered that evidence could not have excluded the reasonable possibility that he was unaware of her age". 2. Counsel for the applicant accepted that there was some circumstantial evidence from which the applicant's knowledge of the offender's age might be inferred. For example, the complainant had been living in the applicant's home and going to school the country location for a number of months prior to the offences which were committed sometime between early December 2010 and early January 2011 (the complainant said Aunt E had only been away for a week when the assaults took place). 3. It is contended, however, that other evidence undercut the strength of any such inference. That evidence included: 1. Whilst the agreed facts were that the victim was the niece of the applicant, "it seems that the relationship was by marriage only". 2. The complainant was adopted and had only moved to live with her adoptive mother when she was 12 years of age. The evidence did not "[included] any detail of what, if any, contact the complainant had with the applicant prior to moving into his home in April 2010". 3. The applicant was not living at his residence when the applicant arrived as he had been working in Melbourne. The evidence of the complainant that he had returned a few months after she had moved in. 1. In my view, the second ground of appeal should be rejected. There was circumstantial evidence from which the applicant's knowledge of the complainant's age might be inferred such that it open to his Honour to make a finding to the criminal standard that the applicant did so know. 2. The applicant's counsel was incorrect in submitting that the applicant had not known the complainant prior to her coming to his residence. Rather, as I have earlier discussed, the applicant's counsel established in cross examination that the applicant had met the complainant in Samoa whilst attending family functions. In cross-examination the complainant described herself at that time as "young". 3. Further, for the nine months prior to the offences the complainant lived in the applicant's home with his children (her cousins) and attended school with them. Whilst the applicant was situated away from his home for "some months" after the complainant taking up occupancy, by the time of the offence the complainant had been living at the residence for a considerable period of time. No suggestion was made by counsel for the applicant that there was insufficient opportunity for the applicant to observe the complainant as being school aged. It might also be observed that arrangements were made between Aunt E and the applicant to take care of both the complainant and her cousins whilst she attended a family reunion; again suggesting a tender age for the complainant because parental care was required in the absence of her aunt. 4. Finally, an inference may be drawn from the manner in which the complainant responded to the applicant, on the evening of the offence, which was demonstrative of her young age. This included not only the complainant clamping her mouth shut and crying without raising her voice, to avoid waking the other children, but the applicant asking her not to tell anyone for the reward that "he would buy her anything for Christmas". This was demonstrative that the applicant knew he was dealing with a child. 5. In my view Ground 2 should be rejected. Resentencing 1. Having found that the applicant was denied procedural fairness, this Court should exercise the sentencing discretion afresh taking into account the purposes of sentencing and the factors, inter alia, the sentencing Act requires to be considered: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]; Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 at [60], [65], [86] and [128]. Such an exercise from an independent discretion may result in a lesser sentence where such a sentence is appropriate having regard to the offender and the offence. Objective Seriousness 1. I have earlier set out the facts surrounding the commission of the offences. 2. These were three very serious examples of sexual intercourse without consent on a young person under the authority of the applicant. 3. The maximum penalty for the offence and the standard non-parole period indicate the seriousness of the offences. That the assaults occurred in the complainant's home, where she was entitled to feel safe, is an aggravating factor (see s 21A(2)(eb) the sentencing Act). The commission of the offences also involved a gross breach of trust: Franklin v R [2016] NSWCCA 319 at [71] citing MRW v R [2011] NSWCCA 260 (per Bathurst CJ with whom James and Johnson JJ agreed). Subjective Factors 1. There was no challenge to the sentencing judge's findings with respect to subjective matters or the discount afforded for the plea of guilty. I propose to adopt them for the purpose of resentencing with some brief further confirmatory observations below. 2. The applicant had one offence of common assault in his criminal history for which he received a fine and a s 9 bond for 12 months, under the sentencing Act, that had expired by the time of the offences. 3. In relation to the pre-sentence reports it may be noted with respect to the applicant: 1. he was educated in Samoa. He left school at 15 after completing year 9. 2. after coming to Australia he had always been employed, in seasonal work and then as a local truck driver. 3. he had a wife and eight children aged between two and 16. 4. he was now aware that is actions were wrong but continued to claim he was not aware of same at the time of the offending. 1. With reference to the psychologist's report of Ms Dodsworth, the following may be noted: 1. the applicant's distress in relation to the subject matters is centred on his betrayal of his wife and breach of his faith more so than the legal implications or impact on the victim. 2. the applicant has no real appreciation of the plight of the victim, her distress at the time, the fact the she was underage or that she was not consenting. 3. the applicant has a problem comprehending the illegality of his behaviour. 1. The sentencing judge properly took into account the hardship befalling the applicant's family and in particular his young son in the sentencing process. However, the evidence revealed the applicant was not remorseful for what he did and did not take responsibility for his actions. 2. The applicant has good prospects for rehabilitation and was unlikely to reoffend. 3. Case notes from the NSW Department of Corrective Services, dated between 2016 and 2017, were annexed to the affidavit of Janet Witmer (affirmed on 10 February 2017) provided by the applicant during the hearing of this matter. I agree with Ms Witmer's assessment that the applicant had not posed a management problem in prison and he was using his time profitably. 4. The sentencing statistics provided by the applicant during the hearing of this matter do not illustrate that the sentence imposed by the sentencing judge was other than appropriate given the criminality of the applicant. 5. Taking all of those matters into account, I do not consider a sentence less severe than imposed by the sentencing judge is warranted in law (see s 6(3) of the Criminal Appeal Act 1912 (NSW)). Such a conclusion must result in the dismissal of the appeal: Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107 at [5] (per Simpson J with whom Hulme J agreed). Accordingly, whilst I would grant leave to appeal and I would dismiss the appeal. Orders: 1. I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed. 1. PRICE J: I have had the advantage of reading the draft judgment of Walton J. Although I agree with the orders proposed, I find myself in respectful disagreement with some of Walton J's reasons. In particular, I do not agree that Ground 1 of the appeal must be accepted. The essence of the applicant's complaint in Ground 1 is that he was denied procedural fairness as the judge found that his knowledge of the complainant's age was an aggravating factor. 2. In my view, the sentencing judge's ex tempore remarks on sentence are to be considered in the context of the oral submissions that preceded them. 3. Counsel for the applicant put to the sentencing judge that the applicant's remorse was genuine and was not confined to his wife, family and church but extended to the complainant herself. It was submitted that there was evidence of remorse. In reply, the Crown directed the sentencing judge's attention to the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 which provides: "… (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (i) The remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)". 1. The Crown argued that the requirements of the subsection had not been satisfied by "the mere telling" for the purposes of the second pre-sentence report that the applicant was now aware that his actions were wrong. The Crown referred to the substantial harm to the complainant and went on to say (Tcpt 9/10/15, p 6–7): "…in our respectful submission, your Honour, that's a critical matter in the sentencing process that your Honour wouldn't be satisfied that this offender is entitled to the remorse that Mr Watson's eloquently submitted". 1. Immediately following these submissions, his Honour delivered his reasons for sentence. The impugned remarks are quoted at [39] above in Walton J's judgment. Whilst it is unnecessary to repeat the passage in-full here, it is important to record the words that followed the finding that the applicant knew the complainant was underage. The sentencing judge said (ROS 6): "…and I do find beyond reasonable doubt he knew she was underage as well. How could he not know? What he has done is just refuse to accept responsibility, the responsibility that he should accept." [Emphasis added.] 1. In order for the sentencing judge to take into account remorse as a mitigating factor, the applicant was obliged to provide evidence that he accepted responsibility for his actions, and he acknowledged any injury caused by his offending. In my opinion, when his Honour found beyond reasonable doubt that the applicant knew that the complainant was underage he was providing reasons for not being satisfied that s 21A(3)(i)(i) had been established. His Honour was firmly rejecting the applicant's submission that there was evidence of remorse. 2. The sentencing judge continued his consideration of the issue of remorse and concluded (ROS 7): "I have received submissions on whether I should find any remorse in view of the legislation, 21A(3)(i), and it just seems to me that what he is sorry about is not for what he did, he is sorry about all sorts of other matters. Try as I might, I am unable to find his actual remorse for having non-consensual intercourse with a 15 year old, on the totality of the material." 1. I do not consider that the applicant was denied procedural fairness. The sentencing judge did not find that the applicant's knowledge of the complainant's age was a factor of aggravation. His Honour carefully considered all of the matters that had been placed before him which included the applicant's remorse. I would reject Ground 1 of the appeal. 2. Notwithstanding my disagreement with Walton J in respect of Ground 1, I agree that leave to appeal should be granted and the appeal should be dismissed. 3. Accordingly, I agree with the orders proposed by Walton J. ********** Amendments 24 April 2017 - Amendment pursuant to orders made in CCA on 20 April 2017 (per Simpson JA). Reference to certain individuals and places were removed and replaced with pseudonyms to prevent identification of the victim of the offences. 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 April 2017