Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Toohey [2019] NSWCCA 182 Hearing dates: 5 July 2019 Decision date: 09 August 2019 Before: Gleeson JA at [1] Button J at [93] Lonergan J at [94] Decision: (1) Crown appeal against sentence allowed. (2) The sentence imposed by Judge Bennett SC in the District Court on 7 March 2019 be set aside. (3) In lieu, sentence the respondent to 6 years and 9 months imprisonment consisting of a non-parole period of 4 years 6 months commencing 9 March 2016 and expiring on 8 September 2020, with a balance of term of 2 years 3 months commencing on 9 September 2020 and expiring on 8 December 2022. The respondent is eligible for release on parole on 8 September 2020. Catchwords: CRIME – appeals – Crown appeal against sentence – where respondent guilty of sexual intercourse with child under 10 in circumstances of aggravation – victim of offending was 11-month-old infant daughter of the respondent's partner – where victim suffered internal injury to her rectum – sentencing judge not satisfied that offending was sexually motivated – sentenced to 4 years and 6 months with non-parole period of 3 years – where sentence largely concurrent with manslaughter sentence involving same child – whether sentence manifestly inadequate – objective seriousness of the offending – application of the totality principle – exercise of the residual discretion pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – consideration of factors relevant to the exercise of the discretion – expiration of the non-parole period imposed by the sentencing judge – respondent resentenced Legislation Cited: Crimes Act 1900 (NSW), ss 18(1)(b), 24, 61H, 66A(2), 578A Criminal Appeal Act 1912 (NSW), s 5D Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1) Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v R [2007] NSWCCA 1 Clarkson v R; EJA v R (2011) 32 VR 36; [2011] VSCA 157 CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9 Croxon v R [2017] NSWCCA 213 CT v R [2017] NSWCCA 15 CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 EG v R [2015] NSWCCA 21 Essex v R [2013] NSWCCA 11 Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 He Kaw Teh v R (1985) 157 CLR 523; [1985] HCA 43 MLP v R [2014] NSWCCA 183 Mulato v R [2006] NSWCCA 282 Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191 Pannowitz v R [2016] NSWCCA 13 R v CTG [2017] NSWCCA 163 R v Cuc Thanh Pham (1991) 55 A Crim R 128 R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep) R v Gavel [2014] NSWCCA 56 R v Hall [2017] NSWCCA 313 R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412 R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 R v Hallocoglu (1992) 29 NSWLR 67 R v JJ [2019] NSWCCA 148 R v King [2009] NSWCCA 117 R v ND [2016] NSWCCA 103 R v Reeves [2014] NSWCCA 154 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 RLS v R [2012] NSWCCA 236 SW v R [2013] NSWCCA 255 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Appellant) Brendon Toohey (Respondent) Representation: Counsel: Mr G Newton (Appellant) Mr J Trevallion / Ms N Bennett (Respondent) Solicitors: Office of the Director of Public Prosecutions (NSW) (Appellant) Archbold Legal (Respondent) File Number(s): 2014/108477 Publication restriction: Yes. Section 578A(2) of the Crimes Act 1900 (NSW) prohibits the publication of any matter which identifies the deceased child or any matter which is likely to lead to the identification of the deceased child. Decision under appeal Court or tribunal: District Court of New South Wales (Parramatta) Jurisdiction: Criminal Date of Decision: 7 March 2019 Before: Bennett SC DCJ File Number(s): 2014/108477 Judgment 1. GLEESON JA: This is a Crown appeal brought by the Director of Public Prosecutions (NSW) pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the asserted inadequacy of the sentence imposed upon the respondent in the District Court on 7 March 2019 following a verdict of guilty at a trial before a judge alone to a single count of sexual intercourse with a child under the age of 10 years in circumstances of aggravation – at the time of the offence the child was under the authority of the respondent. The offence was contrary to the then s 66A(2) of the Crimes Act 1900 (NSW) and the aggravated form of the offence carried a maximum penalty of imprisonment for life. A standard non-parole period of 15 years is prescribed: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A. The sentencing judge imposed a term of imprisonment of 4 years and 6 months commencing on 9 March 2016 and concluding on 8 September 2020, with a non-parole period of 3 years which concluded on 8 March 2019. 2. At the time of sentence, the respondent was serving a sentence imposed by the Supreme Court on 8 September 2017 for the offence of manslaughter, contrary to s 18(1)(b) of the Crimes Act. That sentence was a term of imprisonment for 7 years and 6 months commencing on 9 April 2014 and expiring on 8 October 2021 with a non-parole period of 4 years and 6 months expiring on 8 October 2018: R v Toohey (No 2) [2017] NSWSC 1217. 3. Both offences occurred in the same 24-hour period in early April 2014 and involved the same child – an eleven-month-old infant girl. 4. Given the statutory prohibition of publication identifying the victims of certain sexual offences, which includes offences contrary to s 66A(2) of the Crimes Act, the deceased child will not be named in these reasons: s 578A(2) of the Crimes Act. Adopting the anonymisation or descriptors used by Justice Fagan in Toohey (No 2), the deceased child will be referred to where necessary as "IS" and her mother as "Ms A". 5. The effect of the sentence imposed in the District Court was that the respondent only received an additional five months with respect to the non-parole period on the manslaughter sentence, and no additional time on the head sentence. The structuring of the sentence meant that the respondent was eligible to apply for parole on the day immediately after the sentence was imposed. The respondent has applied for parole on both sentences, but has not been released from custody. He is due for a parole review on the manslaughter sentence on 9 August 2019. 6. The single ground of appeal is that the sentence imposed by his Honour was manifestly inadequate. Circumstances of the offending 1. His Honour Judge Bennett SC described the circumstances of the offending as "unique". The following summary of the circumstances of both offences is taken from the facts as found by Justice Fagan on sentence and by Judge Bennett on verdict. Judge Bennett did not repeat the background facts of the offending when giving his reasons on sentence, which were delivered immediately following his reasons for the verdict. 2. The respondent had been in a relationship with Ms A, the mother of the deceased child, for about six months. They lived together with Ms A's other two children (aged eight years and ten years) who were also from a previous relationship. The respondent is not the father of the deceased child. 3. On 1 April 2014, Ms A went to Bathurst Base Hospital to undergo surgery and was required to stay overnight. Arrangements had been put in place for the respondent to look after the infant child aged eleven months overnight while Ms A's other children stayed with her father. At about 7.00 pm on that day, the respondent left the hospital with the child to travel home. At 8.18 pm, and again at 8.27 pm, Ms A called the respondent on his mobile phone but there was no answer. 4. At 8.04 am on 2 April 2014, Ms A again unsuccessfully attempted to contact the respondent. At 8.08 am, the respondent called Ms A and told her that the child was still asleep and that he was watching television while he waited for her to wake up. He told her that they would come to the hospital after he got the clothes off the line. 5. At 11.03 am, the respondent drove to the front of the Emergency Department at Blayney Hospital. He raised the alarm and medical staff attended. The respondent requested assistance for the child, IS, who was seated in the motor vehicle. The child was taken into the hospital and resuscitation and other medical procedures commenced. She was unable to be revived. Arrangements were made for Ms A to be transported to Blayney Hospital, and after her arrival at about 12.40 pm, the child's life was pronounced extinct. 6. The respondent claimed to hospital staff that the child had fallen from a trampoline and hit her head on a concrete septic tank while he was taking washing off the line. He said that he had noticed that her breathing was short and shallow. He took her inside and dressed her and then proceeded to Blayney Hospital. 7. On 4 April 2014, a post-mortem examination was carried out on the deceased child. The direct cause of death was found to be repeated blunt force trauma to the child's head. The post-mortem examination also uncovered circumferential haemorrhaging present in the mucosal and submucosal tissues of the child's rectum. There was no tearing or lacerations to the mucosal tissues (the lining of the rectum). There was also no evidence of abnormality at the perianal area, anal area or the ano-rectal margin. The forensic pathologist was of the opinion that the circumferential effusion of blood in the child's rectum was inconsistent with an accidentally inflicted injury. Procedural history 1. The respondent was arraigned in the Supreme Court on 4 November 2016 on two counts as follows: 1. That on or about 1 April 2014 at [XXX] in the State of New South Wales he did murder [IS]. 2. That on or about 1 April 2014 at [XXX] he had sexual intercourse with [IS], a child then under 10 years, namely 11 months. 1. On 21 June 2017, Justice Fagan granted the respondent's application to sever the indictment: R v Toohey (No 1) [2017] NSWSC 846. Thereafter, the Crown proceeded first with count 1 on the indictment. The evidence of the injury to the child's rectum was excluded from the murder trial. Supreme Court trial 1. After a trial in the Supreme Court the jury returned a verdict of not guilty of murder, but guilty of manslaughter on 6 July 2017. The maximum penalty for manslaughter is imprisonment for 25 years: Crimes Act, s 24. No standard non-parole period is prescribed. On 8 September 2017, Justice Fagan imposed the sentence indicated at [2] above and made a further order notifying the respondent pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), that the provisions of that Act apply to him and to the offending the subject of the Supreme Court proceedings. 2. Of present significance are the following findings and observations by Justice Fagan in R v Toohey (No 2), whose reasons were before Judge Bennett on sentence. 3. In relation to the circumstances of the manslaughter offence, Justice Fagan remarked at [11]: It is implicit in the jury's verdict that they found the external head injuries were the result of several separate applications of blunt force trauma to the head inflicted by the offender and that this trauma was at least a substantial contributing cause of death. The jury were not satisfied the offender had intended to cause death or grievous bodily harm or that he had appreciated the injuries he inflicted to the child's head would probably cause her death. 1. In relation to the respondent's mental state at the time of the manslaughter offence, Justice Fagan found at [24]: … I am satisfied beyond reasonable doubt that the offender struck the child's head (probably with his fist) and/or struck her head against something (for example, the back of her head against a floor covered with short pile carpet). The offender thereby committed unlawful acts which carried an appreciable risk of serious injury to the child and which a reasonable person in his position would have realised carried that risk. 1. With respect to the respondent's conduct, Justice Fagan found at [30]: I infer from this evidence that he struck the child in the way that proved fatal whilst under stress and frustration, trying to cope with her when she was needy and demanding and when he was not able to maintain patience and self-control. 1. This finding was reiterated when Justice Fagan stated his conclusion with respect to the objective seriousness of the manslaughter offence at [43]: Taking into account the jury's verdict I have concluded the offender lost control of himself under the pressure of sole parenting and inflicted blows in frustration which a reasonable person in his position would have realised would be likely to cause serious harm but not consciously intending such harm and exhibiting considerable distress when it resulted. The evidence does not show that his violence toward the child was prolonged or that it involved gratuitous or deliberate cruelty or that there had been any previous instance. What occurred was isolated to a single tragic incident. District Court trial 1. Following the severance of the two counts, a fresh indictment dated 30 July 2018 charged the respondent with the then s 66A(2) offence of aggravated sexual intercourse as follows: On or about 1 April 2014, at [XXX] in the State of New South Wales, [the respondent] did have sexual intercourse with a child under 10 years of age, namely, [IS], and at the time of the sexual intercourse [IS] was under the authority of Brendon Toohey. 1. The term "sexual intercourse" (as it applied at the time of the offence in April 2014) is defined relevantly in s 61H to mean: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or … 1. The mental element, or mens rea, for the s 66A(2) offence is an intentional act of sexual intercourse with a certain person, namely a child under the age of ten years: CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 at [20]. As to the mental element usually implied in serious statutory offences, see generally: He Kaw Teh v R (1985) 157 CLR 523 at 528 (Gibbs CJ, Mason J agreeing), 582 (Brennan J); [1985] HCA 43. 2. The Crown's case at trial was that the respondent had penetrated the child's anus causing injury to her rectum with a finger or some other unknown, blunt object. The defence case was that there was no penetration of the child's anus whilst she was under his authority. The respondent argued that the expert medical evidence left open at least the possibility of other explanations for what was observed of the child's rectum upon post-mortem examination. 3. The transcript records the following exchange with the respondent's counsel on 5 March 2019, immediately before his Honour gave reasons for verdict: HIS HONOUR: While you've been speaking it's causing me to go back to what I said about the findings of fact that I can make in relation to the [fact of] penetration. My finding of fact in relation to the penetration as an intentional act, which it has to be, to be deemed to be guilty of the offence – yes I understand. DOYLE: I accept that it has to be intentional for the offence to be found proved. 1. In his ex tempore reasons on verdict commencing on 5 March 2019 and concluding on 7 March 2019, Judge Bennett made the following observations and findings: 1. the Crown was unable to prove the identity of the item with which the anus of the child was penetrated, or that the penetration was for the purpose of sexual gratification. Nonetheless, penetration would be sufficient for sexual intercourse to have occurred and it was not necessary that penetration was for the purpose of sexual gratification; 2. the (physical) elements of the s 66A(2) offence which the Crown must prove beyond reasonable doubt were that: 1. the respondent had sexual intercourse with the child by way of penetration of the child's anus; 2. the child was under the age of 10 years, and; 3. the child was under the authority of the respondent at the time of the alleged offence; 1. there was no issue as to the second and third elements of the offence; 2. the sole issue raised by the first element was whether the facts and circumstances taken in combination proved that the only rational inference was that the respondent in some fashion penetrated the child's anus, causing injury to her rectum; 3. there was a conflict of expert medical opinion with regard to the significance of the effusion of blood found in the mucosal and submucosal tissue of the deceased child's rectum. Prof Timothy Lyons and Dr Susan Marks, who gave evidence in the Crown case, were of the opinion that the evidence was conclusive of the penetration of the child's anus, whereas Prof John Duflou and Prof John Hilton, who gave evidence in the accused's case, were of the opinion that there was a possibility that this was caused otherwise than by way of penetration; 4. he was persuaded: … beyond reasonable doubt that the only rational conclusion to draw from the circumstances that are before me, including the evidence of the complex injuries suffered by the child, including the injury to her anus, can lead to no other conclusion but that the penetration was occasioned at the hand of the [respondent] who was present, and alone responsible for the care of the child; 1. in arriving at this conclusion, he accepted the evidence of Prof Lyons and Dr Marks in preference to the evidence of Prof Duflou and Prof Hilton on whether it is possible that the child suffered the lesion to her rectum as the consequence of some other mechanism. Relevantly, he accepted the opinion of Prof Lyons that there could be no other conclusion then that there was a forceful penetration by a blunt instrument into the child's rectum, causing the lesion he observed and that the lesion would not be explained by the passage of stool material, and the opinion of Dr Marks that the injury was severe and would not be explained by the passage of stool material. 1. It was implicit in the findings referred to at [27(6) and (7)] above, that the judge was satisfied that the Crown had proved beyond reasonable doubt that the respondent had an intentional act of sexual intercourse with the child. Subjective matters 1. The respondent was aged 35 at the time of the offending and aged 40 at the time of sentencing. He is the eldest of six children. Though he had difficulty with reading and writing, he completed Year 10 and became a sheet metal worker. He worked consistently since then. 2. The respondent had a history of past driving offences, and offences involving assault and destroy or damage property – domestic violence (in 2009), driving offences, possession of a prohibited drug, and dishonestly obtaining property by deception. The Judge found these offences to be of marginal significance in the imposition of the sentence in the present case. The Judge found that the respondent spent his time in prison "productively and without blemish". 3. The respondent's father is deceased. The respondent was his mother's carer. She had been undergoing chemotherapy having been diagnosed with cancer about seven years earlier. 4. The respondent remained in a relationship with the victim's mother and she continued to support him. 5. In psychometric testing undertaken prior to sentencing, the respondent was found to have subclinical symptoms of depression. Sentencing judge's reasons 1. The sentencing judge referred to the legislative guideposts provided by the maximum penalty and standard non-parole period for the then s 66A(2) offence, the objective gravity of the offending, and the subjective circumstances, including the report of Dr Kerri Eagle, consultant forensic psychiatrist. The judge made the following findings and observations, which have significance for present purposes: 1. the objective gravity of the offence fell below the mid-range of objective seriousness; 2. the offending involved an infliction of harm on the child, and no findings were made that the respondent's conduct was for the purpose of sexual gratification, or that the offending conduct reflected a deviant sexual preference on the part of the offender; 3. there is no history of sexual misconduct by the respondent, no accusations of any such behaviour and no indications of impaired psychiatric health; 4. consistent with the findings of Justice Fagan, the respondent's risk of offending was low; 5. the statistics for sentences for offences contrary to s 66A(2) involving conduct driven by the desire for sexual gratification at the expense of children of young ages were not of assistance and that "other considerations are brought to bear"; 6. an inference should be drawn that there must have been some level of discomfort experienced by the infant girl in the course of what occurred to her; 7. there was a need for general deterrence "to discourage others from allowing themselves to lose control and inflict such grievous harm on a small child"; 8. there was a need for specific deterrence "to discourage the offender from allowing himself to lose control when entrusted with the care of children such as this victim"; 9. there was a need to denounce the conduct and recognise the harm to the victim and those of her family who do not support the respondent; 10. there must be a significant measure of concurrence between the sentence for the s 66A(2) offence and the sentence imposed by Justice Fagan for the manslaughter offence; 11. there was no evidence to allow a finding that the penetration was over an extended period of time, in particular, the limited extent of the injury to the child's rectum without corresponding damage to her anus was inconsistent with the proposition that this "insult" occurred for anything more than a brief period; 12. the offending "was one discreet (sic) infliction of harm within the one transaction in which the offender by his unlawful acts inflicted harm leading to the death of the child"; 13. in the circumstances of what was a unique case, there must be some accumulation albeit of modest proportion; 14. a finding of special circumstances should be made requiring a shorter non-parole period; 15. the respondent was being sentenced on the basis that the conduct was part of the sequence in which the offender inflicted injuries upon the child, but not in pursuit of sexual gratification. 1. With respect to the finding of objective seriousness, the sentencing judge said: My reasons which I shall discuss further include that this is a unique case. I do not find that the offender's conduct was for the purposes of sexual gratification but rather was part of his overall conduct within the very narrow context in the course of which he inflicted harm upon this child. It is not possible for me to determine what his reasons were for causing penetration of the child's rectum or by means of what device, but the matter is decided upon this being an offence involving infliction of harm. I have not been able to find any comparable authority; all of the cases which I have been able to locate are to do with those base individuals who exploit children for their own sexual gratification and often involve multiple offences of like character. There is none that I have been able to find that could compare with the circumstances upon which I must determine sentence. The approach I intend to take, which I shall announce more formally later in the judgment, is to deal with this offence as part of the insult upon the child's body including the injuries that caused her death in respect of which he has already been convicted of manslaughter and sentenced to imprisonment. 1. With respect to concurrence and accumulation, the sentencing judge said: I find that the infliction of harm to the child by the penetration of her anus was part of the same transaction in which the injuries were also occasioned to the child's head leading to her death. There is no evidence upon which the Court can find when, within the sequence of conduct causing the injuries, the penetration occurred. Neither is there evidence upon which the Court could find that the penetration was for the offender's sexual gratification. … The Court's finding cannot extend beyond the conclusion that the sexual intercourse was one discreet (sic) infliction of harm within the one transaction in which the offender by his unlawful acts inflicted harm leading to the death of the child. But for the nature of this insult to the child's body the Court might here impose an entirely concurrent sentence, but by reason of the intimate nature of this conduct and the specificity of it when compared with the infliction of harm to the child's head and the abhorrence with which the community would be expected to view such behaviour reflected in the maximum penalty provided there must be some accumulation albeit of modest proportion. … The assessment of this sentence has been determined upon the basis that this discreet [sic] instance of misconduct occurred within the sequence of conduct to which Fagan J referred to at para 43 of his Honour's judgment. There his Honour wrote: [The reasons then reproduced [43] of the judgment of Fagan J in Toohey (No 2), which is set out at [21] above]. The Crown appeal Crown submissions 1. The Crown submitted that the sentence imposed upon the respondent is manifestly inadequate because it does not reflect the criminality of the respondent's conduct and could not act as a deterrent to others who are minded to sexually assault very young children. The submission continued that the sentence imposed is "plainly unjust" because it is so far below the range of sentences that could be justly imposed and it is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders for the commission of sexual assaults upon very young children. 2. The Crown sought to identify two errors in explaining why the ground of manifest inadequacy was made out. These were that the sentencing judge erred in his assessment of the objective seriousness of the offence and in his application of the principle of totality. 3. In oral argument, the primary focus of the Crown's submissions was that the sentencing judge misapplied the totality principle because the two crimes were different, and Judge Bennett was sentencing the respondent on a different factual basis to Justice Fagan, who had excluded from his consideration the s 66A(2) offence. Respondent's submissions 1. As to objective seriousness, the respondent submitted that the conclusion of the sentencing judge was based on findings of facts that he was entitled to make. The respondent submitted that the sentencing judge found that the motivation for the offending was not for sexual gratification, that it was an isolated act, that it was of short duration, and that there was minimal harm to the child. 2. The respondent submitted that the lack of a sexual motive for the offence, and the respondent's existing frustration, were important considerations in his Honour's determination of the objective seriousness of the offence, and this was consistent with the findings of Justice Fagan as to the overall surrounding circumstances of the respondent's offending. 3. As to totality, the respondent submitted that the sentencing judge correctly applied the totality principle in finding that the s 66A(2) offence was part of the course of conduct that resulted in the child's death and for which the respondent had already been sentenced. According to the submission, it was entirely appropriate for the sentencing judge to adopt the conclusions of Justice Fagan at [43] in Toohey v R (No 2) when applying the principles of totality. Reasoning 1. Although the Crown sought to identify two errors in the sentencing judge's reasons, there is in substance only one ground, manifest inadequacy. As Adamson J observed (Basten JA and R A Hulme J agreeing) in R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412 at [46]: The claim of manifest inadequacy is a conclusion and does not depend on the establishment of specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]. Nonetheless the identification of specific error may assist to explain why, if it be so, a sentence is manifestly inadequate. Nothing in CMB [CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9] supports, in my view, the proposition that specific error must be identified before this Court will intervene, if manifest inadequacy can be established. Objective seriousness 1. A finding on objective seriousness is a discretionary determination and as Spigelman CJ said in Mulato v R [2006] NSWCCA 282 at [37], this Court will be "very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion". 2. Turning to the two complaints advanced by the Crown, the first concerns the asserted failure by his Honour to make any reference in his remarks on sentence to three aspects of the offending: (1) the very young age of the victim in terms of being "under 10 years of age"; (2) that the penetration caused (internal) injury of a sexual organ; and (3) that it occurred in the home of the deceased child while she was in the sole care of the respondent. The other complaints of this nature in the Crown's written submissions were not pressed in oral argument. 3. The respondent submitted that these matters were specifically taken into account by his Honour and pointed to exchanges in argument during the sentencing proceedings, including the following: HIS HONOUR: It has the characteristic of sexual intercourse by definition, but it was conduct causing harm in respect to which I cannot find that it was sexual gratification. That would mean that this particular offence must be below the mid-range of objective gravity for such misconduct, because as you say the injury is relevantly minor, albeit there's evidence of the penetration, but it didn't involve any significant injury, of short duration. There's no conclusion I can draw other than it was of short duration. There's the age of the child, there's the circumstance where he was the adult present and the only adult present, she was in her own home, all of that material has to be brought to account. But all of those factors notwithstanding, it would be your submission this is well below mid-range. [Emphasis added.] 1. The Crown accepted that the judge referred to these matters in argument, however, as the Crown correctly submitted, exchanges with counsel and argument cannot stand as reasons for judgment: Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191 at [41]. The Crown complained that these matters were not taken into account in the remarks on sentence, or if they were, the reasons did not reveal how and to what extent and what relevance and weight was given to these matters. 2. In my view, it is tolerably clear from the remarks on sentence that his Honour had regard to these matters. As to the very young age of the child, his Honour expressly referred to the "tender age" of the child, when addressing the victim impact statement of the child's paternal grandmother. As to the penetration causing internal injury, his Honour referred to the "intimate nature of this conduct and the specificity of it", when addressing the issue of totality. As to the offending having occurred in the child's home, while under the care of the respondent, his Honour referred generally to this matter in the context of the need for specific deterrence. 3. On a fair reading of the remarks on sentence, his Honour may be taken to have had these three matters in mind when assessing the objective seriousness of the offending. 4. The second complaint by the Crown is that it was speculative for his Honour to make a finding that the offending was not sexually motivated, because this was wholly inconsistent with the positive version given by the respondent in his ERISP that the child grazed her head when falling from the trampoline onto a septic tank, and wholly inconsistent with any possibility of any injury occurring to the child's rectum, even accidentally. 5. It is established that whether the offending was motivated by a desire for sexual gratification is a significant factor to take into account in any assessment of objective seriousness: Essex v R [2013] NSWCCA 11 at [49], citing the remarks of Gleeson CJ in R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep). However, on analysis, the Crown's complaint is based on a flawed premise. 6. At the sentencing hearing the Crown conceded that it could not establish beyond reasonable doubt that the purpose of the infliction of the injury was for sexual gratification. In his remarks on sentence, the sentencing judge said: I do not find that the offender's conduct was for the purpose of sexual gratification … and I am not satisfied on the evidence I have that this conduct was of or reflected a deviant sexual preference on the part of the respondent and in his concluding remarks, the sentencing judge reiterated that he was sentencing the respondent: … upon the basis that this conduct was part of the sequence in which the offender inflicted injuries upon the child, but not in pursuit of sexual gratification. 1. Contrary to the Crown's submissions, his Honour did not make a positive finding. Rather, he found that he was not satisfied beyond reasonable doubt that sexual gratification was the motivation for the offending. His Honour's concluding remark is to be understood as no more than a statement of the basis upon which the respondent was being sentenced, given that the Crown had not established that the offending was in pursuit of sexual gratification. 2. The Crown is not bound by its concession on the hearing of the appeal: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [48] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). However, no basis has been demonstrated for interfering with this finding and it is therefore not necessary to address whether exceptional circumstances justify allowing the Crown to put a contention that was not advanced on sentence: Everett v The Queen (1994) 181 CLR 295 at 302; [1994] HCA 49. 3. I do not consider that error has been demonstrated in the conclusion of the sentencing judge that the objective seriousness of the s 66A(2) offence "fell below mid-range of objective seriousness". Totality 1. As to totality, it is well established that questions of accumulation and concurrence are, generally speaking, matters for determination by a sentencing judge in the exercise of his or her discretion. The focus is on a consideration of the similarity, differences and the degree of connection between the offences both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other: Pannowitz v R [2016] NSWCCA 13 at [40] (Davies J, Hoeben CJ at CL and Beech-Jones J agreeing). That calls for the identification and an evaluation of the relevant factors pertaining to the offences and will include the nature and seriousness of each offence. 2. In Croxon v R [2017] NSWCCA 213 at [27], after referring at [27] to the often cited statement of Howie J in Cahyadi v R [2007] NSWCCA 1, Bellew J (Hoeben CJ at CL and Davies J agreeing) continued at [28]: [28] The application of the totality principle will necessarily have a bearing upon the extent to which sentences are to be served concurrently or accumulatively: Cahyadi at [28] per Howie J citing R v MMK [2006] NSWCCA 272. In R v Holder (1983) 3 NSWLR 245 Street CJ said (at 260): … The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight­forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences… 1. In the present case, the sentencing judge had regard to the principle of totality and there was no error in treating the two offences as having occurred in the same episode. However, the two crimes, in their nature and in the particular way they were committed, were not only very serious, they were also different. It was not appropriate for his Honour to characterise the criminality of the s 66A(2) offence as substantially reflected in the manslaughter offence because they occurred in the same episode and both involved the infliction of harm to the child. 2. First, in assessing the circumstances of the manslaughter offence, Justice Fagan was not addressing the intentional conduct of the respondent of the type involved in the s 66A(2) offence, and necessarily did not have regard to this other offending by the respondent in determining the circumstances leading to the death of the child. 3. Second and related to the first matter, the infliction of harm to the child by the intentional act of penetration cannot be ascribed to the circumstances in which the manslaughter offence was found by Justice Fagan to have occurred: namely, that the respondent "lost control under the pressure of sole parenting and inflicted blows in frustration … but not consciously intending such harm". As indicated, the act of penetration was intentional. To adopt, as the sentencing judge did, the same characterisation of the s 66A(2) offence as that which Justice Fagan had found with respect to the manslaughter offence, is indicative of error. 4. Third, it was necessary for the sentencing judge to consider the type of penetration in all the circumstances surrounding the offending: R v King [2009] NSWCCA 117 at [36] (McClellan CJ at CL, Grove and Howie JJ). That his Honour found that the penetration was for a brief period was not a matter of great weight. In R v King, the s 66A(2) offence involved the penetration of a child's vagina with the offender's fingers. The child was four years of age. The Court said at [39]: The penetration was long enough and deep enough to result in injury and pain to the child. That was the significant aspect of the act of penetration not the length of time over which it occurred. 1. That observation is apposite to the present case. Given the findings by the sentencing judge concerning the intimate nature of the respondent's offending and the internal injuries to the child's rectum, the significant aspect of the act of penetration is that it was long enough and deep enough to result in internal injury and undoubtedly pain to the child. 2. Taken together the above matters lead to the conclusion that there was an error in the reasoning, when applying the totality principle. The combination of the commencement date for the sentence and the 3-year non-parole period resulted in the mandatory period of incarceration after the expiry of the non-parole period for the manslaughter offence of 4 years and 6 months, being increased by only 5 months. Given the different nature of the two offences and the different ways in which they were committed, that is indicative of error. Manifest inadequacy 1. Turning to the issue of manifest inadequacy, in my view, imprisonment for a term 4 years and 6 months is a manifestly inadequate sentence for the s 66A(2) offence. The legislature has conveyed the degree of seriousness of this offence by fixing a maximum term of imprisonment for the then aggravated form of the offence as life. A standard non-parole period of 15 years applies. The reasons for this are clear. The age of the victim, being under 10 years, demonstrates in and of itself, the vulnerability of the victim to an offence of this kind: R v JJ [2019] NSWCCA 148 at [44] (Payne JA, Davies and Button JJ agreeing). In the present case, there is no likelihood that an 11-month-old infant would be able to resist an adult. 2. In EG v R [2015] NSWCCA 21 at [42], Hoeben CJ at CL (Harrison and R A Hulme JJ agreeing) said the following in relation to the seriousness of an offence against s 66A(2) of the Crimes Act: General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment. 1. The Court has repeatedly acknowledged the long-term psychological damage that such conduct can have on a child: R v ND [2016] NSWCCA 103 at [39]; MLP v R [2014] NSWCCA 183 at [31] citing R v Gavel [2014] NSWCCA 56 at [110]-[112] (Leeming JA, Johnson and Hall JJ), SW v R [2013] NSWCCA 255 at [52] (Johnson J, Hoeben CJ at CL and Bellew J agreeing); R v CTG [2017] NSWCCA 163 at [92] (Hoeben CJ at CL, R A Hulme and Wilson JJ agreeing); Clarkson v R; EJA v R (2011) 32 VR 36; [2011] VSCA 157 at [33] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); CT v R [2017] NSWCCA 15 at [27], [71] (Hoeben CJ at CL, Johnson and Latham JJ agreeing). 2. The need to protect children from the harmful effects of such activity is not lessened by the absence of a sexual motivation on the part of the offender, albeit that matter is relevant to the objective seriousness of the offence: Essex v R; R v Dunn. 3. That is not to say that an absence of a desire for sexual gratification will necessarily lessen the seriousness of the offending in all cases. It will depend on the circumstances, as the cases show. In R v Dunn the act of sexual intercourse was committed by a young offender in a fit of irritability and at a time when her capacity for judgment was impaired by the ingestion of drugs. In contrast, in Essex v R the offender had inserted a hose nozzle into the vagina of a three-year-old child whilst hosing faecal matter from around the anal area of the victim, leading to bleeding from the victim's vagina. The trial judge accepted the expert evidence that the injury caused to the victim was consistent only with the introduction of a physical object into the child's vagina, in a manner which was not accidental. 4. In the present case, the respondent was in a position of trust; he was responsible for the care of the infant child while her mother was absent overnight attending hospital for surgery. He breached that trust, a matter of considerable seriousness. He intentionally penetrated the child's anus causing internal injuries to the child's rectum. Even accepting the absence of a finding by the sentencing judge that the offending was sexually motivated, the offending involved the gratuitous and cruel infliction of harm. 5. Contrary to the observation of the sentencing judge, the need for specific deterrence in the present case is not simply "to discourage the offender from allowing himself to lose control when entrusted with the care of children such as the victim". The need for specific deterrence is to discourage the respondent from intentionally inflicting harm by way of sexual assault when entrusted with the care of young children such as the victim, even if not motivated by sexual gratification. 6. In light of the findings of Judge Bennett on verdict accepting the expert evidence of Prof Lyons that there was a forceful penetration by a blunt object into the child's rectum and the evidence of Dr Marks that there was a severe injury, and the findings that there was a need for general and specific deterrence and a need for denunciation, it was necessary for the non-parole period to appropriately reflect the criminality involved in the s 66A(2) offence: R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 at [17] (Heydon JA, Levine J and Carruthers AJ agreeing), citing R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [65] (Spigelman CJ, Mason P, Grove J and Newman AJ agreeing). See also: R v Hall [2017] NSWCCA 313 at [89] (R A Hulme J, Simpson JA and Wilson J agreeing). A 3-year non-parole period did not do this. And the head sentence of 4 years and 6 months is so low that it is also indicative of error. 7. Having regard to the totality of the circumstances, I have concluded that the sentence imposed was manifestly inadequate. The sentence imposed fell outside the discretion available to the sentencing judge. Residual discretion 1. The Crown must also satisfy the Court that what has been called the "residual discretion" to decline to intervene and resentence the respondent should not be exercised in the present case: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green v R; Quinn v R) at [35]-[36] (French CJ, Crennan and Kiefel JJ); CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] (French CJ and Gageler J) and [54] (Kiefel, Bell and Keane JJ). The "residual discretion" arises from s 5D(1) of the Criminal Appeal Act which provides: The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper (Emphasis added). 1. The applicable principles concerning the exercise of the residual discretion were summarised by this Court in R v Reeves [2014] NSWCCA 154 at [12]-[19] (Bathurst CJ, Hall and R A Hulme JJ), which it is convenient to reproduce in full: [12] Accordingly, where error has been identified in a Crown appeal, the Court is not obliged to re-sentence a respondent. There remains a discretion to refuse or decline to interfere with a sentence even though the sentence is erroneously lenient: Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 at [2]; R v JW [2010] NSWCCA 49; 77 NSWLR 7. That discretion has become known as the "residual discretion". [13] In exercising the residual discretion, it is for the appellate court to answer two questions: (1) Whether, notwithstanding the inadequacy of the sentence, the Court should decline, in the exercise of its "residual discretion" under s 5D, to allow the appeal and thereby interfere with the sentence appealed from. (2) To what extent, if the appeal is allowed, the sentence appealed from should be varied: Green v R; Quinn v R at [35]. [14] In Green v R; Quinn v R it was noted by the plurality (French CJ, Crennan and Kiefel JJ), quoting Griffiths v The Queen [1997] HCA 44; 137 CLR 293 at 310 [53] (Barwick CJ), that the primary purpose of Crown appeals against sentence is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": at [1]. This was similarly expressed in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [70]: "... the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong." [15] This purpose is a "limiting purpose" that does not extend to the general correction of errors made by sentencing judges. Rather, it provides a framework within which to assess the significance of factors relevant to the exercise of the discretion: Green v R; Quinn v R at [36]. [16] Accordingly, it has been held that it may be appropriate for the appellate court, in the exercise of its discretion, to dismiss a Crown appeal where "circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice": Green v R; Quinn v R at [2]. [17] Additional factors that may favour the exercise of the residual discretion include: • Delay by the Crown in lodging the appeal: R v Hernando [2002] NSWCCA 489; 136 A Crim R 451; R v JW, supra. • The deteriorating health of the respondent since sentence: R v Yang [2002] NSWCCA 464; 135 A Crim R 237 at [46]; R v Hansel [2004] NSWCCA 436 at [44]. • The fact that the non-parole period imposed at first instance has already expired (R v Hernando), or the fact that the respondent's release on parole is imminent (Green v R; Quinn v R). • The fact that the respondent has made substantial progress towards rehabilitation: R v Tortell [2007] NSWCCA 313 at [63]. • The "effect of re-sentencing on progress towards the respondent's rehabilitation": Green v R; Quinn v R at [43]. [18] These circumstances are by no means exhaustive: Director of Public Prosecutions v Karazisis [2010] VSCA 350; 31 VR 634 at [100]. [19] In determining whether or not to exercise the residual discretion, it is open for the appellate court to look at material available at the time of the hearing of the appeal: R v Deng [2007] NSWCCA 216; 176 A Crim R 1 at [28]; R v Todorovic [2008] NSWCCA 49 at [32]. Accordingly, the appellate court is not required to put itself back in the position of the sentencing judge at the moment of conviction: "If a Crown appeal against sentence is successful, and the appellant court resentences the respondent, it does so in light of all the facts and circumstances as at the time of resentencing. Events which have occurred after the original sentencing may be relevant." (R v Allpass (1993) 72 A Crim R 561 at 562). (Emphasis in original.) 1. In addition to the other factors mentioned in Reeves v R at [17] may be added, the conduct of the Crown. In CMB v Attorney-General (NSW) at [38] the plurality said: … The Crown (by whomever it is represented) has a duty to assist a sentencing court to avoid appealable error. That duty would be hollow were it not to remain rare that an "appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error". (Footnotes omitted) 1. Turning to the factors that may favour the exercise of the residual discretion in the present case. Delay 1. The respondent was sentenced on 7 March 2019 and the notice of appeal signed on 5 April 2019 was served on the respondent on 8 April 2019. The small delay by the Crown in terms of weeks in the filing of the appeal and notifying the respondent is not significant. Nor has the delay, such as it is, caused prejudice to the respondent: R v Hallocoglu (1992) 29 NSWLR 67 at 79-80 (Hunt CJ at CL, Grove and Sharpe JJ agreeing), referring to R v Cuc Thanh Pham (1991) 55 A Crim R 128 at 136, 138. Respondent's health 1. The respondent gave unchallenged affidavit evidence that he was his mother's full-time carer, that she was diagnosed with cancer in 2009, that her prognosis has deteriorated since he has been in custody and that the fear of his mother dying whilst he remains in custody is causing him significant stress and anxiety. However, there is no evidence that the respondent is suffering from any diagnosed health condition. Expiry of parole period 1. The respondent's non-parole period for the manslaughter sentence expired on 8 October 2018, and the non-parole period for the s 66A(2) sentence expired on 8 March 2019. The respondent has been considered for parole on the manslaughter sentence on two occasions. He was automatically considered for release at a private meeting of the State Parole Authority (NSW) (SPA) on 10 August 2018. His release was not recommended by Community Corrections and was not granted by the SPA. Following his sentence on the s 66A(2) offence, he applied to be considered for parole in March/April 2019. His release was again not recommended by Community Corrections due to his need to be assessed for offence "targeted intervention". He has applied to be considered for release at the anniversary of his non-parole period with respect to the manslaughter sentence, being 8 October 2019, which is currently listed for review at a private meeting of the SPA on 9 August 2019. Effect of re-sentence on the respondent's rehabilitation 1. The respondent has filed a notice of intention to appeal his conviction on the s 66A(2) offence. He deposed in his affidavit that he has not completed the offence targeted intervention course, known as the DENIAL course, explaining that this course is not available to inmates where the respondent is presently housed. The respondent also deposed that he has not been subject to any disciplinary charges whilst imprisoned since April 2014. 2. The respondent has not shown any remorse or contrition, given that he maintains his denial of the offending. The evidence does not establish that the respondent has made any progress towards rehabilitation, at least, with respect to the s 66A(2) offence. Nor is this is not a case where resentencing would have an effect on progress towards the respondent's rehabilitation, given that he has not yet undertaken the offence targeted intervention course. Conduct of the Crown 1. The Crown acknowledged that its representative on sentence failed to sufficiently challenge some of the proposed findings by the sentencing judge about which complaints are now made – namely, the findings concerning the objective seriousness of the offending and the absence of a finding that the offending was in pursuit of sexual gratification. However, as explained above, the conclusion of manifest inadequacy does not arise from any error with respect to these findings. 2. As to the application of the totality principle, whilst the Crown's representative on sentence did not cavil with his Honour's foreshadowing that "there should be some accumulation but in modest proportion to reflect the totality of the conduct", the significance of that concession must be viewed in the context of the Crown's submissions on totality. The Crown specifically directed the sentencing judge's attention to the differences in the circumstances and type of the two offences, namely: … [the s 66A offence] would require a degree of calculation and a degree of specificity to inflict this particular injury; and … it's not a case where the spontaneity which resulted in the injuries… which were later found by the jury to amount to manslaughter, can be in effect cast in the same way as this particular injury. 1. Thus, notwithstanding that the two offences occurred in a single episode, the Crown's submissions on sentence drew attention to the need for the sentence on the s 66A(2) offence to reflect the separate criminality involved in that offence. 2. Recognising the limiting purpose of Crown appeals as noted in Green v R; Quinn v R at [36], I have concluded that if the sentence was allowed to stand, it would be an affront to the administration of justice which risks undermining public confidence in the criminal justice system: Green v R; Quinn v R at [42]. 3. In my view, the Crown has negated any reason to decline to re-sentence the respondent in the exercise of the residual discretion; however, the extent of intervention should be moderated by the fact that the non-parole period imposed for the s 66A(2) offence has already expired. Re-sentence 1. For the purposes of re-sentence, I accept the findings of the sentencing judge that the objective seriousness of the offence fell below mid-range. Nonetheless the intentional penetration of the child's anus causing internal injury to the child's rectum is a very serious offence, even if the offender is not sexually motivated in committing it. 2. I also accept the findings with respect to the respondent's subjective case, noting however that the respondent's criminal history included a conviction for assault occasioning actual bodily harm involving domestic violence in 2009. 3. The Crown pointed to Essex v R, referred to at [68] above, as a comparative case. There on the offender's appeal, the Court imposed a lesser sentence of a non-parole period of 8 years and 6 months imprisonment with an additional term of 3 years and 6 months. Whilst the offence in Essex v R was not sexually motivated and this Court found that the offending conduct was cruel and reckless and caused significant injury, it involved quite different factual circumstances to the present case. 4. A careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] (Bellew J, McClellan CJ at CL and Johnson J agreeing). That caution is heightened with respect to s 66A(2) offences because there are no single unifying features which mark out a "typical" offence, given the broad range of circumstances in which these offences can be committed: MLP v R at [44], [48]-[51] (Bellew J, Macfarlan JA and Adamson J agreeing). What needs to be kept in mind is that the sentence imposed must recognise the seriousness of this type of conduct and the necessity that it be visited by condign punishment, even where the offence is not sexually motivated. 5. In my view, a sentence of 6 years and 9 months imprisonment was required to be imposed for this conduct. Making the same finding of special circumstances, I would impose a non-parole period of 4 years and 6 months. With respect to accumulation, I would have applied a longer period than the sentencing judge, however given the need for some moderation of the extent of intervention for the fact that the non-parole period has already expired, the sentence should date from 9 March 2016, as his Honour determined. The net result with regard to the total non-parole period of the respondent is that the mandatory period of incarceration after the expiry of the non-parole period for the manslaughter sentence of 4 years and 6 months is increased from 5 months to 1 year and 11 months. Orders 1. I propose the following orders: 1. Crown appeal against sentence allowed. 2. The sentence imposed by Judge Bennett SC in the District Court on 7 March 2019 be set aside. 3. In lieu, sentence the respondent to 6 years and 9 months imprisonment consisting of a non-parole period of 4 years 6 months commencing on 9 March 2016 and expiring on 8 September 2020, with a balance of term of 2 years 3 months commencing on 9 September 2020 and expiring on 8 December 2022. The respondent is eligible for release on parole on 8 September 2020. 1. BUTTON J: I agree with Gleeson JA. 2. LONERGAN J: I agree with Gleeson JA. ********** Amendments 13 August 2019 - Formatting within [74] 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: 13 August 2019