Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Dowd [2018] NSWCCA 102 Hearing dates: 16 May 2018 Decision date: 28 May 2018 Before: Basten JA at [1]; Button J at [24]; Fagan J at [39] Decision: Dismiss the appeal by the Director of Public Prosecutions against inadequacy of sentence. Catchwords: CRIMES – appeal – sentencing – prosecution appeal against inadequacy of sentence – offender convicted of sexual intercourse without consent –consideration of principles constraining prosecution appeals against sentence – whether need to establish sentencing standard – whether error of principle Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A, 54B Crimes Act 1900 (NSW), s 61I Criminal Appeal Act 1912 (NSW), s 5D Criminal Code (Qld), s 669A Cases Cited: Bullock v R [2016] NSWCCA 131 Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Shortland [2018] NSWCCA 34 Stewart v R [2012] NSWCCA 183 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Director of Public Prosecutions (Appellant) Djanni Dowd (Respondent) Representation: Counsel: Ms M England (Appellant) Ms M Avenell (Respondent) Solicitors: Director of Public Prosecutions (Appellant) Aboriginal Legal Service (Respondent) File Number(s): 2016/194796 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 02 February 2018 Before: McClintock SC DCJ File Number(s): 2016/194796 Judgment 1. BASTEN JA: On 2 February 2018 the respondent, Djanni Dowd, appeared before Judge McClintock SC for sentencing with respect to a single count of sexual intercourse without consent, knowing that the victim was not consenting, in contravention of s 61I of the Crimes Act 1900 (NSW). The matter had proceeded to verdict before McClintock DCJ as the trial judge sitting without a jury. As the judge noted at the commencement of the sentencing judgment, a full account of his findings of fact had been made in the trial judgment. The judge imposed a sentence of 5 years imprisonment, with a non-parole period of 2 years 6 months. The Director appealed against the sentence on the sole ground of manifest inadequacy. There has been no delay in commencing or addressing the appeal. 2. Although the Director did not seek to particularise specific errors in the judgment on sentence, the written submissions did identify possible bases upon which an inadequate sentence may have been imposed. There was merit in that course in seeking to engage the power of this Court to intervene. As French CJ, Crennan and Kiefel JJ affirmed in Green v The Queen, [1] the primary purpose of an appeal by the Director under s 5D of the Criminal Appeal Act 1912 (NSW) is, in the words of Barwick CJ in Griffiths v The Queen, [2] "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." The Court referred, in support of that principle, to the historical account of the statutory right of the Attorney (and later the Director of Public Prosecutions) to appeal against sentence, as set out by six members of the Court in Lacey v Attorney-General (Qld). [3] 3. The purpose of the exposition in Lacey was to provide some background to the conferral in 1975 under s 669A(1) of the Criminal Code (Qld) of a power for the appeal court, on an appeal by the Attorney General, to vary a sentence "in its unfettered discretion". [4] After referring to the statement of Barwick CJ in Griffiths, the joint reasons in Lacey noted that the statement had been endorsed in Everett v The Queen, [5] as including in the notion of a "matter of principle", both manifest inadequacy and inconsistency in sentencing standards. Lacey also referred to the reasoning in Hili v The Queen, [6] where six members of the Court had noted that "the consistency that is sought is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence." [7] 4. Hili was a case in which the Director advanced a single ground of manifest inadequacy. The joint reasons stated: [8] "As was said in Dinsdale v The Queen, [9] '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out [10] in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say [11] in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'." 1. The joint reasons in Hili affirmed the observations of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa: [12] "As her Honour pointed out, [13] a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: [14] 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. [15] Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence'. [16] (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'. [17] " 1. These observations were apt for the present appeal; this was not merely a case in which the Director relied upon a single ground of manifest inadequacy, it involved an offence which, notoriously, covers widely disparate circumstances and hence a range of potentially appropriate sentences. However, while the Judicial Commission's statistics may be of little if any value to a sentencing judge, they may be relevant in determining whether this Court should intervene. 2. Counsel for the Director referred the Court to three specific passages in the reasons of the sentencing judge as indicating possible explanations of the inadequate sentence. First, she referred to the statement that "[t]hese matters and the other matters previously mentioned make it a matter where I view the standard non-parole period as not applicable to this offence." [18] 3. It is, as counsel noted, not entirely clear what was meant by this statement. Section 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (in its amended form) merely provides that the standard non-parole period for an offence "is a matter to be taken into account by a court in determining the appropriate sentence for an offender". That section is undoubtedly applicable; the sentencing judge's description of the standard non-parole period as "not applicable" cannot be taken literally. Rather, the sentencing judge seems to have meant that he gained little assistance from the standard non-parole period as a guidepost in this particular matter. The Director understood the passage in the same way, but submitted that "the circumstances of this case were eminently suitable for the standard non-parole period to be used as a guidepost for sentence." [19] 4. While the standard non-parole period cannot be ignored, it is clear that the sentencing judge did not ignore it: he identified (correctly) both the maximum penalty (14 years) and the standard non-parole period (7 years). [20] However, this is an offence for which it is difficult to know how much guidance the guidepost gives. If one applies the standard ratio (absent special circumstances), pursuant to s 44 of the Sentencing Procedure Act, the standard non-parole period would form part of a sentence which would be two-thirds of the maximum sentence for the offence (namely 9 years 4 months). That would generally be thought an appellably high sentence for an offence in the middle range of objective seriousness, in the terms of s 54A of the Sentencing Procedure Act. The impugned words in the reasons of the sentencing judge should not be taken literally and are found in a passage which is otherwise unexceptionable. 5. Secondly, the Director submitted that the sentencing judge may have "conflated the finding that the standard non-parole period did not apply, with the finding of special circumstances." [21] The basis for this proposition was obscure. In the context, the matters to which the judge was referring when speaking of the usefulness of the standard non-parole period were imprecisely identified, but were clearly intended to cover the earlier findings both as to the objective seriousness of the offence and the offender's particular (subjective) circumstances. The judge's reasoning continued, after the reference to the standard non-parole period: [22] "This is a difficult sentencing matter. The offender is still a very young man and will need assistance in order to maintain a constructive and crime-free existence. I intend to find special circumstances for the reasons above and I am concerned that a short period of supervision may not be adequate to ensure his successful transition back into the community and as a law-abiding citizen." 1. The judge went on to summarise his findings as to objective seriousness, in a passage to which reference will be made shortly. However, the point made by the Director appeared to be no more than that the judge may have relied on some of the circumstances which he viewed as rendering the standard non-parole period inapplicable in determining that there should be a finding of special circumstances, although he also gave two specific reasons relevant to the latter finding. It is not possible to say that there was a conflation of two separate and independent considerations. In fact, the judge was entitled to take the same matters into account in the way that he did; he did not conflate two separate concepts. As the Director accepted, there was no dispute before the sentencing judge that a finding of special circumstances was appropriate. 2. At the heart of the Director's case was the proposition that the overall sentence imposed (5 years) was less than the standard non-parole period (7 years) and that the non-parole period itself was half of the overall term. The sentence, it was submitted, failed adequately to reflect "a brutal sexual assault that was aggravated by violence and the threat of violence". 3. The Director had no quarrel with the judge's assessment of the objective circumstances, expressed in the following terms: [23] "In summary, this was a significant and serious offence involving callous and brutal sexual violation of an ostensible friend of the offender. The offender's sense of sexual entitlement was reinforced by violence and threats. There has to be a custodial sentence that reflects the seriousness of such conduct. There has to be an element of general and specific deterrence involved in the sentence. … The sentence has to denounce such totally unacceptable conduct." 1. The judge then went on to say that he had taken into account "issues relating to the background of the offender, his medical condition and psychological condition and the hope of his rehabilitation." The Director submitted that the sentence imposed must therefore have resulted from undue weight being given to personal circumstances of the offender. 2. Caution is called for with respect to this challenge. This Court is generally reluctant to reassess the evaluative judgment of objective seriousness undertaken by a trial judge; it should be even more reluctant to reassess findings as to the subjective circumstances of the offender. Particularly is that so where the trial judge has had an opportunity to assess the offender both in the witness box during the trial and in giving evidence on sentence. The judge dealt with these matters with obvious care. He accepted that "at the time of the offence he was having difficulty with his drug addiction." [24] He accepted that the offender was now "off drugs" and that he had been in no trouble whilst in custody. The offender had had repeated consultations with his psychologist, who also gave oral evidence. The offender affirmed the contents of a letter which had been written to the court explaining his background and why he had not pleaded guilty. He had been medicated at school for attention deficit disorder. He had a supportive family to whom he asserted "a strong sense of obligation and responsibility". [25] The judge said: [26] "It is clear that the offender presents as a person of good character and proud of his Aboriginal heritage. However, there is a significant disconnect between the respectful and indeed fragile individual who appears within the reports and the conduct of the offender on the day. … Ultimately I conclude from the material that the offender is a troubled young man with a significant drug addiction problem. His anxiety and other psychological issues make him vulnerable on one level but his psychology also seems to predispose him to legally risky and reckless conduct. There is a disturbing element in some of the material of posturing and overinflated claims. The offence itself, as I have indicated, among other things appears to demonstrate a disturbing egotistical focus and a lack of empathy. This may reflect his immaturity and I intend to take his immaturity into account in the sentencing process consistent with the authorities." 1. The statement by an experienced trial judge that he considered this to be a "difficult sentencing matter" should not be disregarded. The question for this Court is not whether the judge imposed a lesser sentence than this Court thinks would have been appropriate, but whether the intervention of this Court is required to establish a proper sentencing standard. 2. While the parties accepted all the usual qualifications with respect to sentencing statistics, including the fact that the current offence could encompass a wide range of circumstances, one lesson which can be derived from those statistics is that the present sentence did not fall outside the range, however imprecisely it may be defined. Thus between 2009 and 2017, there were 22 cases involving a principal offence under s 61I alone, with offenders between 18 and 20 years. The sentence periods ranged from 18 months to 7 years with almost half falling in the range of 2 years to 3 years. The bulk of the non-parole periods for such offending (73%) fell within the range of 18 months to 36 months. Indeed, 61% of all offenders (the total pool being 279) fell within that range for the non-parole period. 3. Those figures would, of course, include a large number of guilty pleas with variable discounts. With respect to not guilty pleas, the judge was not provided with statistics for the 18 to 20 year old cohort, but was provided with figures for all not guilty pleas (115 cases), of whom some 80% received sentences between 3 years and 8 years, with 53% receiving non-parole periods within the range of 18 to 36 months. 4. The trial judge was also invited to take account of the decision of this Court in Bullock v R. [27] Mr Bullock had been sentenced to imprisonment for 6 years with a non-parole period of 3 years and 6 months, after allowing a 25% discount for an early guilty plea. The offender appealed and this Court reduced his sentence to a non-parole period of 2 years 6 months with a balance of term of 2 years 6 months, giving an overall sentence of 5 years. The sentence in the present case was more lenient, because an identical sentence was imposed in circumstances where no discount was available. 5. For present purposes, it is not relevant to itemise the precise similarities and differences between the cases; suffice it to say that each involved a degree of violence and an assault which continued over several minutes. 6. Since the present sentencing in the District Court, this Court handed down judgment in an appeal by the Director with respect to the adequacy of three sentences imposed for offences under s 61I in R v Shortland. [28] The trial judge had imposed three wholly concurrent 2 year sentences and had suspended their operation. This Court intervened, but only for the purpose of removing the suspension, fixing a non-parole period of 15 months. However, R A Hulme J would have intervened to impose a degree of accumulation which would have resulted in an effective sentence of 3 years imprisonment with a non-parole period of 1 year 10 months. Although that case involved a level of force being applied to the victim, it did not, as in this case, involve a direct punch nor the express threat of physical violence. On the other hand, the punch administered in the present case did not cause actual bodily harm or, as the prosecutor noted on sentence, there would have been a more serious offence of an aggravated sexual assault. [29] 7. Again, the purpose of referring to Shortland is not to invite a meticulous analysis of similarities and differences, but rather to support the proposition that this Court should be reluctant to intervene at the behest of the Director in circumstances where (a) a not insignificant period of mandatory imprisonment has been imposed, (b) the length of which is within a broadly identifiable range of appropriate sentences based on past experience, (c) the specific sentence depended on difficult evaluative judgments as to objective seriousness and personal circumstances, and (d) there has been no clear misstatement of principle or erroneous approach warranting correction. 8. In these circumstances, the Director's appeal should be dismissed. 9. BUTTON J: I have had the benefit of reading the draft judgements of Basten JA and Fagan J. 10. I agree with their Honours that the Crown appeal should be dismissed. 11. I also agree with the analysis undertaken by their Honours of the legal principles applicable to Crown appeals against sentence. 12. My own approach to the question of whether the Crown has demonstrated that the sentence imposed was manifestly (that is, patently, or obviously) inadequate is as follows. 13. As the learned sentencing judge himself remarked, this was a difficult sentencing exercise. 14. On the one hand, the respondent had inflicted very significant sexual violence upon the victim in the form of penile/vaginal penetration without her consent. There was other violence, in the form of a punch to the face, and the threat of its repetition. The respondent well knew that the victim was not consenting. The victim was not yet an adult, and indeed had just turned 16 years of age. 15. The respondent was not otherwise of good character, in the sense that he was a supplier of prohibited drugs. He had shown no remorse at any stage for his crime. A sentence of full-time imprisonment was inevitable. 16. On the other hand, the offence was not premeditated. The respondent had just turned 19 when the offence was committed, and was 20 years of age when he was sentenced. The sentencing judge found that his level of maturity was below his age. His refusal to take responsibility for what he had done may well have been a function of that immaturity. 17. The respondent had never been convicted of (or otherwise dealt with for) any crime before the commission of this offence, let alone a crime of sexual or other violence. After the offence, he had been convicted merely of a single offence of shoplifting, which can be disregarded. 18. His life had been distorted by the abuse of prohibited drugs from an early age. There was evidence that he had been motivated to seek psychological help, and indeed had been in a drug rehabilitation centre for a time. The sentencing judge accepted evidence that, at least by the time of sentence, the respondent was not abusing drugs in custody. It seemed that his incarceration before sentence had proceeded without incident. 19. Although his upbringing was not grossly deprived, and indeed was privileged in some ways, it had been damaged by the psychological difficulties of his mother. 20. There was evidence placed before the sentencing judge from a large number of sources that, despite the descent of the respondent into the abuse and supply of prohibited drugs, and his commission of this grave offence, he remained a young man of some potential. By the time of sentence, he had become a qualified carpenter, and retained the support of his romantic partner, who was a person of good character. 21. The head sentence of five years was not an insignificant one to impose upon a young man who had previously been free of criminal convictions. And a mandatory period of incarceration of two years six months cannot be dismissed as inherently trivial. 22. As Basten JA has shown, recent decisions of this Court in very broadly similar circumstances do not compel acceptance of the proposition that the sentence imposed here is erroneous. 23. In my opinion, taking into account all of the objective and subjective features of the matter, the head sentence is lenient, and the non-parole period markedly so. I am not affirmatively satisfied, however, that either is so far beyond the discretion reposed in the sentencing judge as to be capable of being characterised as manifestly inadequate. 24. FAGAN J: Basten JA has identified the sentencing decision from which this appeal arises at [1]. The single count of sexual assault contrary to s 61I of the Crimes Act was committed by the respondent on 10 June 2016. The maximum penalty under s 61I is imprisonment for 14 years. A standard non-parole period of 7 years applies. 25. The sentence of imprisonment for 5 years with a non-parole period of 2 years and 6 months was in my view very lenient for a sexual assault without consent involving violence, by a strong young man against a defenceless 16-year-old girl, in the absence of remorse or any acknowledgement of responsibility and with no compelling background circumstances. The sentence is low to the point of approximating sentences passed or upheld by this Court in cases which are comparable across a number of significant sentencing factors, but where the offenders received 25% discounts for early pleas and demonstrated genuine remorse: for example Stewart v R [2012] NSWCCA 183 (severity appeal dismissed, sentence of 4 years 6 months, with a non-parole period of 2 years 8 months upheld); Bullock v R [2016] NSWCCA 131 (severity appeal allowed, resentenced to 5 years with a non-parole period of 2 years 6 months). Constraints of the Crown appeal 1. However, the question on a Crown appeal where no specific or explicit error of sentencing has occurred is whether the sentence imposed was "plainly unjust": Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J) and [22] (Gaudron and Gummow JJ). This is not answered by considering whether the sentence is more lenient than this Court would itself have imposed if, on the same facts, it came to resentence following a successful severity appeal. Recognising the high bar for a s 5D appeal the Crown contended in this case: the sentence was so far below the range of sentence that could justly be imposed that it is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders who commit violent offences against members of the public. 1. In this context the expression "range of sentence" usually means the spread between limits of severity and lenience within which sentences have generally, in other cases, been fixed for offences of similar gravity against the same section, where the offenders' subjective circumstances have been comparable. A manifest inadequacy ground raised by the Director of Public Prosecutions may be sustained if the sentence under appeal reflects latent error of principle in that it fails to achieve consistency with the treatment of like offenders, as demonstrated by reference to "the range". There is ample authority establishing that lack of conformity to a range, within which sentences in previous cases can be seen to fall, constitutes error of principle. 2. In Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 at 310 Barwick CJ said, with reference to a Crown appeal against sentence under s 5D: Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle. 1. In Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 the court considered the Tasmanian provision for sentence appeals by the Attorney-General. This was treated as subject to the same considerations as apply to appeals under s 5D of the Criminal Appeal Act 1912 (NSW). Brennan, Deane, Dawson and Gaudron JJ quoted part of the above passage from Barwick CJ's judgment in Griffiths v The Queen and said (at 300): The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in point of principle". 1. McHugh J said (at 306): The jurisdiction to hear a Crown appeal against sentence is conferred on a Court of Criminal Appeal so that that Court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice […]. 1. The authorities on latent error indicated by inconsistency with an established pattern of sentencing were summarised by Spigelman J in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [111], in a passage with which all judges of a five-member bench agreed: In both the judgment of Deane and McHugh JJ in Malvaso v The Queen (1989) 168 CLR 227 and in the joint judgment in Everett v The Queen, the reference in Barwick CJ's judgment in Griffiths v The Queen to establishing a "matter of principle" (ie the error principle) was expressly extended to encompass "manifest disparity or inconsistency in sentencing standards" (Malvaso v The Queen at 234) or to "what is necessary to avoid … inadequacy or inconsistency in sentencing standards." (Everett v The Queen at 300.) (See the authorities referred to by Wood CJ at CL in R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 at [70](c).) The clarification that manifest inadequacy or inconsistency involves correction on a matter of principle, will be of significance in terms of determining whether or not Crown appeals are, as a matter of fact, "rare". 1. In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 and Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 the High Court has repeatedly emphasised the importance of maintaining consistency in sentencing. When the issue arises it is always a range rather than a defined length of sentence which is sought to be gleaned from past decisions, because sentencing is inherently imprecise and because there is never exact identity between cases. 2. The Crown did not in this appeal attempt to demonstrate, by citation of prior sentencing decisions of this Court or the District Court, a range of sentences which have been passed for comparable offending, in reference to which the sentence imposed on the respondent could be held inconsistent and therefore erroneous in point of principle. Rather, the Crown's contention that the impugned sentence was "far below the range of sentences that could justly be imposed" was advanced on the basis that "the range" referred to is one that this Court would itself conceive and then apply in the hearing of the appeal. 3. Thus, the Crown's manifest inadequacy ground does not invoke the above-cited authorities on consistency. The Crown's argument is one of impression, namely, that when all relevant sentencing factors, objective and subjective, are taken into account the sentence of 5 years with a non-parole period of 2 years and 6 months must be regarded, self-evidently, as inadequate punishment. Objective gravity of this offence 1. The objective facts are recorded in the learned sentencing judge's reasons for finding the respondent guilty. Those reasons were published on 20 July 2017. The complainant was aged 16 years at the date of the offence and the respondent was 19. They had met in early 2015 when the complainant was 14. The respondent was at that time supplying illicit drugs to the complainant's best friend. He commenced to supply drugs to the complainant herself and continued to do so through to October 2015. During that period the complainant and the respondent met and had sexual intercourse about once per month, usually at the home in which the respondent lived with his mother. 2. From November 2015 the complainant commenced an intimate relationship with another young man and ceased sexual relations with the respondent. By the time of the offence in June 2016 the complainant was living with her new partner. She continued for some time after November 2015 to buy drugs from the respondent but at some time in the first half of 2016 she ceased all contact with him at the request of her boyfriend, who was attempting to stop her from obtaining drugs. 3. On the day of the offence the complainant arranged to meet the respondent near his house to buy drugs from him. When they met she accompanied him, at his request, into the house and to the respondent's bedroom. There he weighed out the quantity she wanted. His Honour accepted the evidence of the complainant which he summarised as follows: She was sitting on the bed and leaned over to get the money [to pay for the drugs] out of her bag. He got up. As she was getting the money he pushed her up against the wall which was next to his bedroom door shutting the door. He started putting his body against her. He started kissing her neck and tried to kiss her lips. She said stop continuously. She moved her head away from him as he tried to kiss her. He hit her with a closed fist to her face. It hurt. She said "what has gotten into you. This isn't you." She was crying and saying stop continuously. He pushed her onto the bed and she said stop again. He said "if you say stop one more time I will hit you again." 1. The complainant was wearing her school uniform. The respondent pulled down the school pants and underwear and had penile-vaginal intercourse with her. His Honour accepted her evidence that: Whilst he was doing this he was trying to kiss her lips and continuously kissing her neck. She was moving her head away from him and crying. … She did not know whether he was wearing a condom and she did not know whether he ejaculated inside her. 1. The respondent then got off the bed and went to a nearby bathroom and took a shower. The complainant left and did not make immediate complaint to friends whom she met shortly afterwards. She said that in the following days she felt emotional and suicidal. Within a few days she told a girlfriend and then her boyfriend. She reported the sexual assault to police on 15 June 2016. 2. The learned judge was justified in treating this as at or slightly above the mid-range of objective seriousness for this type of offence. The complainant was a schoolgirl of just over 16 years. Although the respondent was himself a young man, the disparity of age is significant. He left school at 16 and had been working in the building industry for 3 years at the time of the incident. He was described as having been "an exceptional sportsman when he was younger". He had played "representative levels of Rugby League". His physical strength and maturity were evidently such that the complainant would have been utterly defenceless against him. When she opposed his initial attempts to kiss her, he was able to subdue her immediately with a single punch using his closed fist. The learned trial judge found it "impossible to determine the exact amount of force used". But that is immaterial given the marked physical mismatch. The shock of the blow and the threat of more to come constituted significantly violent duress. The respondent used no protection during the intercourse. 3. The respondent gave evidence admitting that the sexual intercourse had taken place but asserting it had been consensual. He denied that the complainant came to his house to buy drugs. He said he had not ever supplied her with drugs but that she from time to time had met with him to have sexual intercourse. He said she rang him on the day of the offence and arranged to meet him and he assumed the purpose of her visit was sexual intercourse with himself, which occurred. His Honour "found the accused entirely unimpressive as a witness" and rejected this evidence. Evidence given by a cleaner and by the respondent's brother concerning the visit of the complainant to the house on the day in question was, in his Honour's view, fabricated. Subjective considerations 1. His Honour found that "in no sense" could it be said the respondent had a deprived background. His parents separated in early childhood and he had lived primarily with his mother. But his father had visited regularly and shared in the care of the respondent and his two younger siblings. The respondent was educated through high school to year 10 at Waverley College, a prestigious private school, and at Matraville Sports High. His achievements in education were limited by attention deficit hyperactivity disorder. He had completed a carpentry apprenticeship by the date he was sentenced. 2. The respondent had no relevant criminal record but admitted to drug misuse from age 14. This had resulted in three months' residential rehabilitation for cocaine addiction when he was 17. The evidence in the trial showed he had been distributing drugs over some years. His own evidence on sentence and references tendered on his behalf were to the effect that he enjoyed strong family and community support up to the time of the offence and continuing, with the qualification that his mother's ill health had placed a strain upon the family and increased his own responsibilities. All of this was positive for his rehabilitation but it indicated no amelioration of his moral culpability. 3. The learned sentencing judge found it "difficult to determine what weight to give" to a number of testimonials in favour of the respondent, given that he had not admitted his guilt or given "any realistic picture of his conduct". This was no doubt a reference to the respondent continuing to deny the offence in his evidence on sentence and tendering his own letter to the court asserting that the conviction had "hurt me very deeply" and went "against everything that I believe in and how I was raised". He claimed that a female relative and "aunties" (meaning, in accordance with common usage amongst indigenous persons, female family friends not limited to relatives) had been sexually assaulted and that he had been brought up "to treat women with the utmost respect" and would not commit such a crime. 4. His Honour found the respondent's maturity was below that of his chronological age. On the basis of a psychologist's report it was accepted he was suffering depression and anxiety and that he would need psychological counselling and assistance with regard to drug and alcohol misuse. His Honour considered a short period of supervision on parole "may not be adequate to ensure his successful transition back into the community" and accordingly found special circumstances justifying departure from the default ratio between the non-parole period and balance of term. The respondent's youth and the fact that he was undergoing his first period in custody were taken into account. His Honour referred only to "the hope" of rehabilitation. The outlook in that respect would necessarily be guarded in view of the respondent's persistent failure to accept responsibility. Conclusion 1. Lenient as I find the sentence under appeal, I cannot say, putting together all of the above considerations, that it is "plainly unjust". It is a sentence of full-time custody for a relatively young offender, of a length which has some measure of punitive, deterrent, denunciatory and retributive capacity. I am not convinced that the sentence is below the lowest level encompassed by the broad discretionary nature of sentencing and the flexibility allowed to first instance judges. I therefore agree with the order proposed by Basten JA. ********** Endnotes 1. (2011) 244 CLR 462; [2011] HCA 49 at [1]. 2. (1977) 137 CLR 293 at 310; [1977] HCA 44. 3. (2011) 242 CLR 573; [2011] HCA 10 at [8]-[20]. 4. Lacey at [29]. 5. (1994) 181 CLR 295 at 300 (Brennan, Deane, Dawson and Gaudron JJ); [1994] HCA 49. 6. (2010) 242 CLR 520; [2010] HCA 45; Lacey at [54]. 7. Hili at [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 8. Hili at [59]. 9. (2000) 202 CLR 321; [2000] HCA 54 at [6]. 10. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. 11. Wong at [58]. 12. (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305]. 13. De La Rosa at [303]. 14. De La Rosa at [303]. 15. De La Rosa at [304]. 16. De La Rosa at [304] (emphasis added in Hili). 17. De La Rosa at [304] citing Wong at [59]. 18. Sentencing Judgment, p 7. 19. Director's written submissions, 23 April 2018 at par 38. 20. Sentencing judgment, p 2. 21. Written submissions, par 39. 22. Sentencing judgment, p 7. 23. Sentencing judgment, p 7. 24. Sentencing judgment, p 4. 25. Sentencing judgment, p 5. 26. Sentencing judgment, pp 5-6. 27. [2016] NSWCCA 131 (Basten JA, Rothman and Fagan JJ). 28. [2018] NSWCCA 34. 29. Tcpt, 15/12/17, p 32(1). Amendments 20 September 2018 - Paragraph 59 amended. 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: 20 September 2018