Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Taylor v R [2020] NSWCCA 46 Hearing dates: 17 February 2020 Date of orders: 25 March 2020 Decision date: 25 March 2020 Before: Johnson J at [1] Price J at [2] Davies J at [3] Decision: 1. Grant leave to appeal 2. Appeal dismissed Catchwords: CRIME — appeals — appeal against sentence – sexual offences by grandfather against two granddaughters –whether sentencing judge took into account applicant's medical condition - whether sentencing judge provided adequate reasons – whether sentence was manifestly excessive - aggravating factors – abuse of position of trust or authority in relation to victim - where being "under authority" was an element of some but not all of offences - vulnerability of victim - where aggravating factors may have been double counted – no lesser sentence warranted Legislation Cited: Crimes Act 1900 (NSW) s 578A Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Cases Cited: Chamseddine v R [2017] NSWCCA 176 DH v R [2019] NSWCCA 128 EG v R [2015] NSWCCA 21 Hudson v R [2016] NSWCCA 278 MRW v R [2011] NSWCCA 260 Porter v R [2019] NSWCCA 117 R v Hamieh [2010] NSWCCA 189 R v Mills [2005] NSWCCA 175; (2005) 154 A Crim R 40 R v Miranda [2002] NSWCCA 89; (2002) 128 A Crim R 362 R v Obeid (No 12) [2016] NSWSC 1815 R v Scavera [2016] NSWCCA 145 R v Van Ryn [2016] NSWCCA 1 RL v R [2018] NSWCCA 274 RO v R [2019] NSWCCA 183 Sivell V R [2019] NSWCCA 77 Taylor v R [2018] NSWCCA 2555 Texts Cited: Nil Category: Principal judgment Parties: Robert Taylor (a pseudonym) (Applicant) Crown (Respondent) Representation: Counsel: P Lange (Applicant) E Wilkins SC (Respondent) Solicitors: B Wrench (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/332116 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 20 April 2018 Before: Blackmore SC DCJ File Number(s): 2015/332116 Judgment 1. JOHNSON J: I agree with Davies J. 2. PRICE J: I agree with Davies J. 3. DAVIES J: The applicant was convicted of ten offences after a trial before Judge Toner SC and a jury in August 2017. He had been charged with three other offences in respect of which verdicts of not guilty were directed. 4. Due to the ill-health of Judge Toner, the applicant was sentenced by Judge Blackmore SC on 20 April 2018 to an aggregate sentence of 14 years' imprisonment commencing 3 June 2017 and expiring 2 June 2031 with a non-parole period of nine years and four months expiring 2 October 2026. 5. The offences, their maximum penalty and the indicative sentences for those offences were as follows: (a) Counts 1 and 7 - aggravated indecent assault of a child under the age of 16 years. The maximum penalty is ten years' imprisonment and there is a standard non-parole period of eight years. The indicative sentences were imprisonment for two years with a non-parole period of one year and four months. (b) Count 2 - aggravated sexual intercourse with a child aged between 10 and 14 years under authority. The maximum penalty is 20 years' imprisonment and there is no standard non-parole period. The indicative sentence imposed was four years' imprisonment. (c) Count 3 - incite act of indecency with a child under the age of ten years. The maximum penalty is seven years' imprisonment and the indicative sentence was two years' imprisonment. (d) Counts 5, 9, 10 and 11 - aggravated indecent assault of a child under the age of 16 years. The maximum penalty is ten years' imprisonment and there is a standard non-parole period of eight years. The indicative sentences for each such offence were six years' imprisonment with a non-parole period of four years. (e) Count 6 – aggravated incite act of indecency of child under 16 years under authority. The maximum penalty is five years' imprisonment and the indicative sentence was one year's imprisonment. (f) Count 12 was aggravated sexual intercourse with a child aged between 10 and 14 years under authority, but the applicant was found guilty of the alternative count of attempted aggravated sexual intercourse. The maximum penalty is 20 years' imprisonment and the indicative sentence was two years and six months' imprisonment. 1. The applicant now seeks leave to appeal against the sentence imposed on the following grounds: 1. The sentencing judge erred by failing to take into account the appellant's bowel condition; 2. The sentencing judge failing to give adequate reasons; 3. The sentence was manifestly excessive. 1. The names given to the applicant and other persons in this judgment are pseudonyms for the purpose of avoiding the identification of the complainants in accordance with the provisions of s 578A of the Crimes Act 1900 (NSW). The offending 1. Notwithstanding the verdicts of the jury, the applicant maintained his innocence. Because the applicant was sentenced by a different judge from the judge who had conducted the trial, the applicant was sentenced on the basis of facts which the parties agreed were found by the jury to reach their verdicts. 2. The applicant is the maternal grandfather of the two complainants, MP1 and MP2. The complainants' mother, Kylie, is the second of two daughters of the applicant. 3. Kylie was married to Darren. They had five children. The first child, Kurt, was a son born in August 1999. The second child, MP1, was a daughter born in June 2001. The third child, MP2, was a daughter born in December 2004. The fourth child, Josh, was a son born in August 2006, and the fifth child, Jack, was a son born in August 2008. 4. In August 2012 Kylie and Darren separated. In September 2012 the Department of Family and Community Services removed Kylie's children from her care. In October 2012 the applicant and his wife Julie took fulltime care of MP2 and Josh. In November 2012 they also took care of Kurt, MP1 and Jack. At that time Kylie moved in with the applicant and Julie. At some time in 2013 Kylie moved into a succession of houses with her children and her new partner Greg, whom she later married. 5. The applicant was born on 9 August 1951. He was aged between 61 and 63-64 at the time of the offending. Counts 1 and 2 1. On a night between 29 October 2012 and 31 December 2013 MP1, MP2 and the applicant were at the applicant's house. The girls were staying overnight. MP1 was then aged 11 or 12 years. The girls were in the lounge room watching TV. The applicant came into the lounge room and asked MP1 to give him a massage. She agreed and did so. When she finished, she went back into the lounge room and watched TV with MP2. 2. The applicant then entered the lounge room again and asked MP1 if she wanted a massage. She agreed. She sat in a chair in the dining room and lifted up the back of her shirt. She was wearing a bra at the time. The applicant stood behind her and massaged her back. He then massaged her sides, and started playing with her breasts and nipples over her clothing. That act constituted count 1. 3. He then played with her legs, went up her thighs "and then up to the top part and in the middle". His hands went under her shorts. He touched her vagina and her "hole". That touching constituted penetration of the genitalia. He used his finger to play with the "middle thing" on her vagina. He tried to put his finger in her "hole" but she moved back, and he moved his finger away. That constituted count 2. Counts 3 and 5 1. On a day between 1 January 2014 and 1 July 2014, MP2 was at the applicant's house. She was wearing a pair of shorts that had laces. She was then aged nine years. 2. The applicant and MP2 were in the dining room. MP2 massaged the applicant's back and legs. He said to her, "Play with my penis". He pulled his shorts to one side and then cupped his hand over his penis and testicles and exposed them. MP2 touched the applicant's penis and played with it. That constituted count 3. 3. The applicant undid the laces on MP2's shorts and pulled them down to her middle thigh. He played with her "flappy parts" and pressed them very hard with his pointy finger. He did this for about three minutes. It made her cry. This constituted count 5. 4. Julie called out for the applicant and began walking towards the dining room. The applicant said, "Quick, pull your pants up." He put his penis and testicles back into his shorts, and MP2 pulled her shorts up. Julie came into the dining room and spoke to the applicant. MP2 went outside and started crying because she was really sore from where the applicant touched her. Her brother Josh said, "What's up?" and she said, "I got hurt by Pop. He hurt me." Josh said, "How?" and MP2 told him that the applicant played with her flappy parts and hurt her. MP2's first complaint 1. In the first week of January 2014 Kylie, Greg and the children went camping on the North Coast. MP2 was nine years old and MP1 was 12 years old. 2. One afternoon MP2 got into trouble from Kylie for throwing sand at one of the boys. Kylie threatened to call Julie and the applicant to collect her and take her home. MP2 said, "I'm not going anywhere with Pop". Kylie asked, "Why? What has Pop ever done to you?" MP2 replied, "He's touched my fanny and tried to put his finger inside." MP1 was in the tent not far away. Kylie asked her if the applicant ever touched her. MP1 said, "He accidently touched my boob when he was doing my back but I think it was an accident." 3. Kylie, Greg, MP1 and MP2 were in the tent. MP2 was crying. Kylie asked MP1, "Is it true what MP2 said about Pop?" and MP1 said, "No". Third incident – count 6 1. On a night between 5 June and 28 October 2015 the applicant was looking after MP1 and MP2 at his house. Julie was at bingo. MP1 and MP2 were watching television in the lounge room. 2. The applicant walked into the lounge room and asked MP1 to massage his back. The applicant sat on a seat at the dining table with his legs around the back of the chair. He wore short-cut shorts and underwear. 3. MP1 stood behind him and massaged his back. The applicant asked her to massage his legs from the knees up including in the middle bit. MP1 "got up to his groin and stopped". The applicant's testicles were hanging out of his shorts and MP1 accidentally touched them while she was massaging him. She quickly moved her hands away. Fourth incident – count 7 1. On a night between 5 June 2015 and 28 October 2015, MP1 massaged the applicant's back and the applicant "played with the middle bit" of her vagina "on top of her underpants". 2. Later when MP1 went to say goodnight to the applicant, the applicant asked her if she liked it. She said she did not. He asked if she wanted him to stop and she said "Yes". That was the last time he touched MP1. Fifth incident – counts 9 and 10 1. On a weekend in August 2015, the applicant was at home with Julie, MP2, MP1, Kylie, Greg and the three boys. MP2 was ten years old. The applicant asked MP2 to massage his back. She went into the dining room. The applicant took off his shirt and she massaged his back and legs. The applicant was sitting on a chair with MP2 standing next to him. He undid the button and zipper of her pants and pulled them down to the middle of her thighs. He also pulled down her underwear. He played with the "flappy parts" of her vagina and spread them apart. That constituted count 9. 2. The applicant pushed his shorts to one side and pulled his penis out. He told MP2 to play with his penis and she did so. He put her hand on his penis and made her pull it. She did this for three to four minutes. This constituted count 10. Sixth incident – count 11 and alternative count 12 1. On a Saturday evening between 1 August and 18 September 2015, MP2, then aged ten years, was at the applicant's house with the applicant and MP1. Julie was at bingo. The applicant asked MP2 to massage his back. He pulled down MP2's underwear to the top part of her thighs and pushed her onto his knees. She sat there with her legs spread open. The applicant said, "Play with my dick." He took hold of MP2's hand and put it on his penis and moved it around. This constituted count 11. 2. While she was touching his penis, the applicant started playing with the "flappy part" of her vagina. He tried to stick his finger inside her vagina but MP2 said, "Stop, it hurts." That constituted count 12. The applicant told MP2 not to tell MP1. 3. MP2 went into the bathroom where MP1 was just getting out of the shower. She went to the toilet. She told MP1 that the applicant had been playing with her and it hurt to pee. Further complaint 1. In early October 2015 there was an incident on a trampoline where Josh accidentally touched MP2 on the vagina on the top her clothes. MP2 was very upset. Kylie found out that MP2 had told some friends at school about it. Greg then said to MP2, "You better be careful telling people about what Josh accidentally did to you because you could have got him into a lot of trouble. Just like what you said about Pop". When MP2 started to cry and Kylie asked why she was crying, MP2 said, "What I said about Pop is true. Even ask MP1." 2. MP1 then started to cry too. MP1 then told Kylie that "Pop has touched us". She said she did not say anything before because she was scared to do so. She said it was her fault that it kept happening because she did not tell Kylie two years ago when MP2 first told Kylie. MP1 then told Kylie what the applicant had done on a number of occasions. 3. After the police were informed, a surveillance device warrant was issued for use on Kylie's body. In November 2015, after being fitted with a listening device, Kylie spoke to the applicant and said to him that the girls had told her that the applicant had touched them inappropriately. The applicant then made some admissions, claiming that it happened a long time ago, which he said was "half a year". He said that things just got carried away and he was beating himself up about it. He said it only happened once or twice and that he just touched them. He said he did not "go in anywhere or anything like that." 4. When the applicant was arrested and interviewed, although he admitted to MP1 and MP2 massaging him he denied all of the allegations against him. Grounds of appeal 1. I shall deal with the Remarks on Sentence (ROS) and the evidence put forward at the sentence hearing when dealing with each of the grounds of the appeal. Ground 1: The sentencing judge erred by failing to take into account the appellant's bowel condition 1. The sentencing judge had a report from Dr Olav Nielssen dated 21 February 2018. In relation to the applicant's health issues, Dr Nielssen said this: [The applicant] said that he had a series of medical conditions that had completely deprived him of his sexual function some years before the offences. He said that he sustained neurological injury and abdominal adhesions after an operation to remove his spleen in early adult life. He said that part of his large bowel was removed in 2001 because of diverticulitis, in an operation that was complicated by the presence of extensive adhesions, and which left him with further injury to the nerve supply to his pelvis. He said that in 2002 he had an operation to remove his prostate, after which he completely lost the ability to have an erection and put an end to all sexual function. He said "once I could not get an erection and could not ejaculate my mind just put that aside". … He said that he had seen a general practitioner in prison because of problems with his physical health, but did not report any contact with the prison mental health team. He said that he told the doctor he saw that he had trouble sleeping, and was prescribed a sedating antidepressant medication (probably mirtazapine, known by the brand name Avanza), which he said "helps me sleep in in the morning ... it doesn't slow my brain down". … [The applicant] said that his medical problems included high blood pressure, type two diabetes and high cholesterol. He reported a splenectomy after the diagnosis of purpura (an autoimmune condition in which the spleen removed platelets prematurely, affecting clotting), which resulted in his medical discharge from the Army. He said that he had a resection of three quarters of his colon because of diverticulitis and adhesions in 2001, which caused further nerve damage. He reported a secondary haemorrhage three weeks after his prostate operation in 2002 for which he required a blood transfusion. He said that he had a shoulder replacement in 2014. He did not report any serious head injuries or neurological conditions affecting mental function, such as epilepsy or strokes. He said that his regular medications were Irbesarten (Avapro) and amlodipine (Norvasc) for high blood pressure, metformin (Diabex) for diabetes and atorvastatin (Lipitor) for high cholesterol, as well as mirtazapine. 1. The applicant's written submissions at the sentence hearing said this about his health: 14. The offender's health was canvassed at trial. The offender gave unchallenged evidence as to his state of health, which includes diabetes, numerous operations with complications and the effect of these surgeries on his wellbeing and sexual drive. The submissions then summarised that evidence, making reference to the following: • 2001 - operation Involving the resection of bowel as a result of diverticulitis. Resulted in removal of about 75% of bowel. This has the effect of causing an urgent need to go to bathroom and restricts diet. 1. The submissions went on to say that, given the applicant's health issues, it could be accepted that his life expectancy would be impacted. They also said that, given the applicant's health condition, the court could be satisfied that prison conditions would be more onerous. 2. In oral submissions, counsel for the applicant relevantly said: So right at the very start, a couple of pages in of the examination-in-chief, there's evidence about the offender's then medical state. In particular, the offender was asked about - and this is at p 271 of the transcript; your Honour doesn't have to go to it now - a resection of his bowel which causes urgent need to attend toiletry needs. In my submission, that is a matter which your Honour can give appreciable weight to, and I say that because, firstly, it is a matter which is relevant to special circumstances. It goes to the hardship which an offender will experience whilst in custody because of the necessarily embarrassing nature of having to empty one's bowels perhaps at short notice. This was a matter which was considered by the Court of Criminal Appeal - I apologise I don't have a copy here for your Honour but I can email it to your Honour's associate shortly - in the decision of R v Miranda (2002)128 A Crim R 362, in particular at p 368. The issue there considered was a different one from what I suggest in my submission here but where the sentencing judge had refused to take into account issues of bowel incontinence because it was not a matter which was life threatening. So your Honour would do that here, but the Court of Criminal Appeal considered that that was evidence which was relevant to the determination of the sentence, and that appears particularly at paras 40 and 41 of Dowd J's judgment on p 368. So, as I say, it is a matter which is relevant to the determination of the appropriate sentence, given the hardship to the offender, and also potentially to the question of special circumstances although again being mindful not to double count if your Honour were to include it in the determination of the appropriate sentence. 1. In his ROS, the sentencing judge made reference to Dr Nielssen's report. In considering that report his Honour said this: The offender noted that he had a series of medical conditions in his 50s which resulted in him losing his sexual function, those are fully outlined in the psychiatric report. The jury were fully appraised (sic) of the medical conditions of the offender during his trial but were not persuaded that those conditions effected (sic) a finding beyond reasonable doubt that he committed the various offences. It does not appear from the psychiatric report that the medical conditions for which he has been treated in his 50s are causing any ongoing chronic health issues for him now. ... The medical conditions that the offender suffers from, whilst serious, are not life-threatening, they should be able to be adequately addressed in custody. Given the offender's age a significant sentence will occupy a substantial part of the rest of his life. That is not an unimportant consideration on sentence. … [I]t is a factor that I will use to find special circumstances in this case. Submissions 1. The applicant drew attention to what had been said both in the written submissions and in the oral submissions at the sentence hearing (parts of which have been set out above at [38]-[41]). The applicant drew attention to the fact that the sentencing judge had been taken to the decision of this Court in R v Miranda [2002] NSWCCA 89; (2002) 128 A Crim R 362. 2. The applicant submitted that the sentencing judge did not address the applicant's bowel condition at all and that the passage set out from the ROS (at [42] above) was directed to entirely different questions from those that the sentencing judge ought to have addressed. The applicant submitted that in failing to address the bowel condition, his Honour failed to have regard to a relevant consideration, which amounted to a House v The King error. 3. The Crown submitted that no expert medical evidence was led at trial, with the only evidence coming from the applicant himself when he gave evidence and from the history he gave to Dr Nielssen. 4. The Crown submitted that the applicant's evidence concerning the effect on him of the bowel operation was that "on occasion" it caused an urgent need to attend to his toiletry needs. 5. The Crown submitted that there was nothing in Dr Nielssen's report that indicated that the applicant had expressed any concern, distress or embarrassment in respect of managing his bowel condition in the custodial setting. Nor did the report express any medical opinion that the bowel condition or any other medical condition would cause the applicant any additional hardship in custody. In that way, there was no evidence before the sentencing judge that the applicant's bowel condition would cause him hardship in custody. 6. The Crown pointed out that counsel for the applicant when making oral submissions at the sentence hearing omitted to inform the sentencing judge that the evidence from the trial was that there was a problem "on occasion." 7. The Crown submitted that the factual position in Miranda was significantly different from the facts in the present case. Determination 1. In my opinion, no House v The King error has been demonstrated. The evidence concerning the applicant's bowel condition was sparse. While there was material in Dr Nielssen's report that referred to the bowel operation, there was nothing said in the report about the effect of that operation on the applicant's quality of life or daily experiences. The evidence given at the trial, summarised in the extract in the applicant's submissions (at [39] above) was this: Q. In 2001, did you undergo an operation which involved resection of your bowel which involved the removal of about 75% of your bowel? A. Yes. Q. Does that cause urgent need to attend to your toiletry needs-- A. Yes Q. --on occasions? A. On occasion, yep. 1. If the problem was an ongoing one of any significance, it might have been expected that the applicant would have mentioned it to Dr Nielssen when he informed him about the operation that resected three quarters of his bowel. He told him only that the operation caused further nerve damage. At the time the applicant saw Dr Nielssen, he had been in custody for seven months. 2. In the face of what was contained in Dr Nielssen's report which dealt with particular problems he had experienced in prison because of health matters unrelated to his bowel, and in the light of the applicant's own evidence that the problem was an occasional one, his Honour was under no obligation to say more than he did in his ROS on the issue. 3. It is significant that the Court in Miranda had a detailed medical report concerning the appellant's bowel problems in that matter. The detail of that appears at [39] of the judgment, and it is apparent that the problem was an ongoing one throughout the day. The Court concluded at [40] that the medical report provided ample evidence in respect of the impact prison life would have on that applicant. 4. In R v Obeid (No 12) [2016] NSWSC 1815 Beech-Jones J summarised principles associated with the mitigation of a sentence on account of health concerns as follows: [116] The principles relevant to a submission that a penalty should be mitigated on account of health concerns and the relevance of the length of a sentence to a person's life expectancy can be briefly stated as follows. [117] First, in circumstances where illness is relevant to the determination of a sentence, its weight must be assessed in light of "all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life" (R v Achurch [2011] NSWCCA 186; 216 A Crim R 152, "Achurch" at [117] per Johnson J citing: R v Sopher (1993) 70 A Crim R 570 at 573; R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at 6-8 [23]-[31]). [118] Second, although the health of an offender is relevant to the type and length of any sanction imposed, generally it will only be a mitigating factor "when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender, by reason of ill health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health" (R v Badanjak [2004] NSWCCA 395 at [9] per Wood CJ at CL with McClellan AJA and Smart AJ agreeing; R v Smith (1987) 44 SASR 587 at 589; Achurch at [118]). [119] Third, the relative strictness that is applied to a consideration of whether some matter affecting the health of an offender operates as a substantial mitigating factor does not necessarily apply when such matters are considered in combination with other factors such as age in determining whether "special circumstances" are established for the purposes of s 44(2) of the Sentencing Act (see Griffiths v The Queen (1989) 167 CLR 372 at 379 per Brennan and Dawson JJ; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704). However, double counting of matters affecting the length of the head sentence and matters that might constitute special circumstances must be avoided (R v Fidow [2004] NSWCCA 172 at [18] per Spigelman CJ ("Fidow")). [120] Fourth, an otherwise appropriate sentence of imprisonment should not be reduced on the basis that it is likely to extend to most of the offender's remaining life expectancy (Goebel-McGregor v R [2006] NSWCCA 390 at [128] per James J, with whom Hidden and Hislop JJ agreed; Barton v R [2009] NSWCCA 164 at [22]). 1. It should be noted that immediately after discussing the applicant's health problems, the sentencing judge made reference to the applicant's age and found that there were special circumstances to reduce the statutory ratio to 66.6%. I would reject this ground. Ground 2: The sentencing judge failing to give adequate reasons 1. The written submissions identified how the reasons were said to be inadequate. The concerns about the reasons related to two aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) being paragraphs (k) and (l). 2. In his ROS when dealing with the objective seriousness of each of the counts, the sentencing judge said, when dealing with counts 1 and 2: The offender as is common to all of the offences abused his position of trust as a grandfather to abuse the complainant. 1. In relation to counts 3 and 5 his Honour said: Whilst the complainant was under the authority of the offender, there were other people in the house at the time, including the complainant's grandmother. 1. A little later when specifying the indicative sentences and that the sentences would be partially concurrent his Honour said: Inasmuch as I have not referred in detail to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the factors outlined therein I note that I have taken those factors into account on sentence. 1. In the Crown's written submissions before the sentencing judge, the following appears: The victims here were particularly vulnerable by virtue of their age and relationship to the offender being his granddaughters, further the victims had been in the custody of the offender for a period of time when they were removed from the care of their mother for a period of time by intervention of the Department of Family and Community Services. The Offender exploited his relationship with the victims to sexually abuse them. For each of the offences the Offender was in a position of trust and authority over the victims: R v Howes (2000) 116 A Crim R 249. This is also available as an aggravating feature under s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 for the s 61M(2) offences for which it is not already an element. 1. In the applicant's written submissions at the sentence hearing the following appears: Under authority, vulnerability and trust 19. It is accepted that the evidence at trial supports the proposition that the two complainants were under the authority of the offender at the relevant time. However, this circumstance of itself has little to no bearing on sentence as an aggravating factor given the nature of the offence and the offence creating provisions. For example, it is already a statutory element of both counts 2 and 12 that the complainants were under the authority of the offender. 20. Further, inherent characteristics of offences must not be taken into account on sentence as a circumstance of aggravation. Given the nature of the offences, it is submitted that 'position of trust' and 'vulnerability' are inherent features of all offences for which the offender has been convicted. The policy underlying the offences is such that these factors have been 'built in' to the penalties and SNPP's (where applicable). To attribute significance to these factors on sentence would effectively constitute a double counting error. 1. At the sentence hearing, the following exchange occurred between his Honour and counsel for the applicant concerning paragraph 20, as follows: HIS HONOUR: What he says about that does overstate the situation, doesn't it? "Given the nature of the offences it is submitted that position of trust and vulnerability are inherent features of all offences." That's not the case. I mean- LANGE: No, that's not the case. HIS HONOUR: There could be stranger attacks which might certainly enhance vulnerability but, conversely, not bring up specific issues of trust, whereas this is a position of trust case and there would be a degree of double counting if you then started to talk about vulnerability. But this is a grandfather on granddaughters. LANGE: Yes. HIS HONOUR: Obviously, he has their trust and he's abused that trust by carrying out these offence (sic). Submissions 1. The applicant submitted that the general statement about his Honour taking factors into account from s 21A of the Sentencing Act was insufficient to discharge the sentencing judge's obligation to explain the reasons for sentence. The applicant submitted that a bare reference to the section is inadequate to inform him and the community more generally about the way in which the aggravating and mitigating factors were taken into account. 2. The applicant submitted that the ROS were silent on how, if at all, the s 21A(2)(k) aggravating feature was dealt with. The applicant submitted that there was a real and discernible risk that this aggravating factor was taken into account without reference to how, why or in relation to what offences, and that double counting may have occurred. The applicant submitted that the common position of the parties was that s 21A(2)(k) had no role to play except in relation to the s 61M(2) counts, being counts 1, 5, 7, 9, 10 and 11. 3. The applicant submitted that his Honour's general remark that, "common to all of the offences [the applicant] abused his position of trust" (set out at [57] above]), gives rise to the possibility that there may have been double counting for the offences in counts 2, 6 and 12. 4. The applicant also pointed to the submission made by the Crown in written submissions that "The victims here were particularly vulnerable by virtue of their age and relationship to the offender". The applicant submitted that it is not clear from the ROS whether the sentencing judge took into account vulnerability as an aggravating factor at all in the circumstances of the judge's catch-all remark that he had taken into account the factors in s 21A. 5. The Crown submitted that a breach of trust is not the same as the aggravating factor of being under the authority of the applicant at the time of the offences. The Crown submitted that the sentencing judge made it clear that the breach of trust related to all offences and that the reason was that the applicant was the grandfather of both victims. The Crown submitted that the inference was that this was a senior family member whom the victims should have been able to trust. 6. The Crown submitted that the breach of trust and abuse of authority did not arise out of the same facts. The Crown submitted that the breach of trust arose out of the fact that the applicant was the victims' grandfather who ought to have been a person with whom the victims felt secure by reason of the familial relationship. On the other hand, the abuse of authority arose from the fact that in respect of a number of the offences, the applicant had either specific or general authority over the victims when they were staying in the same house with him in the absence of one of their parents. 7. The Crown submitted that the assessment of objective seriousness for each of the offences and the indicative sentences do not suggest that there was double counting in relation to the issue of being under authority. The Crown pointed to the sentencing judge's awareness of double counting by his reference to it during the sentence proceedings (at [62] above) relating to vulnerability due to age and where a breach of trust was involved. 8. The Crown submitted that the sentencing judge, who is a very experienced judge and criminal lawyer, was not required to mention every possible circumstance of aggravation referred to in s 21A which he did not find as an aggravating feature. Determination 1. Section 21A(2) of the Sentencing Act relevantly provides: Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim's occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant), 1. In MRW v R [2011] NSWCCA 260, the offender was the father of the complainant who was then aged ten years and two months. One of the grounds of appeal was that the sentencing judge had found an aggravating factor in terms of s 21A(2)(k) when it was an element of the offence that the victim was under the authority of the offender. 2. Bathurst CJ (with whom James and Johnson JJ agreed) said: [77] There can be little doubt, in my opinion, that the matters referred to in s 21A(2)(k), namely abuse of trust and abuse of authority, are distinct concepts although commonly arising out of the same facts. As only the latter of the two concepts formed an element of the offence, in my opinion, it was open to the trial judge to take the former factor into account as an aggravating feature on sentencing. [78] However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court. … 1. The difficulty in the present case derives from the fact that the sentencing judge, almost as an afterthought, made the reference to s 21A of the Sentencing Act. He did not even indicate whether he was addressing the aggravating factors in sub-s (2), the mitigating factors in sub-s (3) or both. However, the parties had made submissions about both paragraphs (k) and (l) in the terms set out at [60] and [61] above. These matters were briefly expanded upon in oral submissions. 2. In relation to paragraph (k), the difficulty with the Sentencing Judge's general reference to s 21A is compounded by his Honour's statement that "common to all the offences [the applicant] abused his position of trust", and his statement in relation to counts 3 and 5 that the "complainant was under the authority of the offender". It was not an element of counts 3 and 5 that the complainant was under the authority of the applicant. That might suggest that his Honour saw those offences aggravated by virtue of the abuse of authority in paragraph (k). Yet, counts 1, 7, 9, 10 and 11 also had no element of being under authority. 3. Contrary to the Crown's submission, the breach of trust and the abuse of authority arose from precisely the same facts, namely, that the applicant was the grandfather of the complainants who were in his care. That highlights the point made in MRW about undue weight being given to an abuse of a position of trust where abuse of authority is an aggravating factor of the offence. It cannot be determined from the ROS whether weight was given to the abuse of a position of trust in s 21A(2)(k), nor how the sentencing judge considered the position of trust in contradistinction to the authority point which formed an element of some of the offending. 4. The matter is again complicated by the fact that some but not all of the offences contained as an element of the offence being under authority. There is a distinct possibility of double counting, a possibility that cannot be eliminated by the way the ROS were expressed. 5. There is the further matter concerning vulnerability and s 21A(2)(l). 6. In DH v R [2019] NSWCCA 128 the complainant was aged eight years when she was sexually assaulted by her stepfather. The sentencing judge identified three aggravating features, being paragraphs (eb) (that the offence was committed at the home of the victim), and paragraphs (k) and (l). In relation to paragraph (l) the sentencing judge said: The complainant was 8 years old and the step-daughter of the offender, she was therefore a vulnerable victim. One of the grounds of appeal was that the sentencing judge erred in finding that s 21A(2)(l) applied to the principal offences. 1. Justice Hamill (with whom Leeming JA and N Adams J agreed) said at [25]: The reference to the vulnerability of the victim appears to have been made on the basis that she was aged eight or nine when the offence related to children under the age of 16. The statute at the time meant that the offence (in counts 1 and 3) related to children under 10. It was an error to assess the age of the victim as making them vulnerable in those circumstances. All children caught by the provision are necessarily vulnerable and this particular child was not very much younger than the 10 years of age prescribed by s 61M(2) at the time. 1. There was a clear issue in the submissions made to the sentencing judge in the present case about whether s 21A(2)(l) applied in the circumstances. Although the sentencing judge said during the sentence proceedings that there would be a degree of double counting if vulnerability was taken into account, the ROS, delivered more than a month later, were silent about the matter. 2. When paragraphs (k) and (l) were the only aggravating factors identified by counsel in their submissions, there is an inference that they were the factors to which his Honour was alluding by his general reference. If his Honour did so, there is a prospect that there was double counting by virtue of the nature of the offences charged. 3. In Hudson v R [2016] NSWCCA 278, the sentencing judge said: Where relevant I take into account any aggravating features and mitigating features as set forth in the provisions of s 21A of the Crimes (Sentencing Procedure) Act. Justice R A Hulme said of that statement: Such a statement is meaningless; it conveys nothing to the offender, the community, or this Court about what has been taken into account and what significance it had in the assessment of sentence. The use of such a formulation has been criticised by this Court since at least 2005: see the judgment of Bellew J in R v RMW [2016] NSWCCA 211 and the examples he cited at [45]-[48]. As Wood CJ at CL observed in R v Mills [2005] NSWCCA 175; 154 A Crim R 40 at [39], "more is expected than mere lip service to the legislation". 1. In R v Mills [2005] NSWCCA 175; (2005) 154 A Crim R 40 Wood CJ at CL (Grove and Hoeben JJ agreeing) said at [49]: … As is also the case in relation to s 21A of the Act, more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109. 1. When the absence of adequate reasons has left this Court in the position of being unable to determine whether or not double counting has occurred by reason of a consideration of s 21A(2)(k) and (l), error is demonstrated. I would uphold this ground of appeal. 2. This Court is alive to the demands upon sentencing Judges in the District Court. In upholding this ground of appeal, it is not the intention of the Court to require elaborate and lengthy sentencing remarks. The content of sentencing remarks has been referred to in a number of decisions of this Court. It should not be necessary for a sentencing Judge to structure a sentencing judgment as a checklist, in which statutory or common law principles of sentencing are enumerated and then ticked off as having been applied to avoid the prospect of an 'armchair appeal' at a later stage seizing upon any missing reference as evidence of error: Taylor v R [2018] NSWCCA 2555 at [51]. A Judge should do more than state the general sentencing principles that apply, with it being more important to explain how those principles have been applied in the particular case: R v Van Ryn [2016] NSWCCA 1 at [123], [141]; Taylor v R at [52], [56]; Porter v R [2019] NSWCCA 117 at [67]. 3. There is a practical tension between the principles requiring oral reasons, delivered in plain English and brevity (usually in a busy List) and the need for reasons to satisfy the requirements of the law in a particular case: R v Hamieh [2010] NSWCCA 189 at [32]. The difficulty in the present case is that the sentencing Judge did not make any finding concerning the particular issue addressed, and combined that with a type of catchall statement that all s 21A factors had been considered. What was required in this case to satisfy the requirement for reasons was a succinct statement as to the approach adopted on sentence concerning the particular s 21A factors which had been addressed in submissions. The fact that the Court is upholding this ground of appeal should not be treated as widening the obligation of sentencing Judges when passing sentence. Ground 3: The sentence was manifestly excessive 1. In the light of the error found in relation to ground 2 it is not necessary to deal with ground 3. However, submissions made by the parties are relevant in relation to the resentencing exercise which now needs to be undertaken. Resentence 1. As to the objective seriousness of the offending, it is an element of the offences constituted by counts 2, 6 and 12 that the complainant was under the authority of the applicant. In all of the offending the applicant can be said to have abused his trust in relation to the complainants. However, because that abuse of trust and the abuse of authority arise from largely the same facts in the present case, I do not attach added weight to the abuse of trust in relation to counts 2, 6 and 12. Further, since all of the offences specifically relate to children within a particular age range, I do not consider that the aggravating feature concerning the vulnerability of the victim identified in s 21A(2)(l) is relevant to any of the offences. 2. Taking those matters into account, I agree with the sentencing judge's assessment of the objective seriousness of each of the counts. I assess the objective seriousness of counts 1 and 7 as being below the mid-range, counts 2 and 12 being well below the mid-range, counts 3, 5 , 9, 10 and 11 being within the mid-range and count 6 being at the bottom of the range. 3. The applicant is a 68 year old man. He has a number of health issues including high blood pressure, Type 2 Diabetes and high cholesterol. He has undergone a splenectomy and he had the resection of three quarters of his colon because of diverticulitis and adhesions in 2001. He underwent a prostate operation in 2002 and had a shoulder replacement in 2014. He takes regular medications for a number of his conditions. Dr Neilssen considered that he was suffering adjustment disorder with depressed mood. 4. The applicant did not give evidence at the sentence hearing, and there is no evidence in Dr Neilssen's report or elsewhere to justify a finding that the applicant is remorseful. Nevertheless, Dr Neilssen thought that the applicant was at a low risk of further offending. He thought that the offences were opportunistic and somewhat surprising after a fairly blameless and conventional life up to that point. 5. In assessing the applicant's risk of reoffending, it is necessary to keep in mind that there was a pattern of offending over a period of some three years against two separate young girls. The use of the term 'opportunistic' by Dr Nielssen in this context may not be especially apt. A pattern of offending over a period of time against two victims raises a concern with respect to the risk of reoffending. That said, the applicant will be of an advanced age when his release on parole is a possibility and this aspect alone bears on his risk of reoffending, particularly when he will be subject to conditional liberty in the community. 6. The applicant relied for resentencing purposes on an affidavit of Bryan Wrench dated 14 February 2020. That affidavit disclosed the following matters. Since entering into custody the applicant had participated in a number of programs including Health Survival Tips and TAFE Workplace Health and Safety. He was awaiting entry into a horticultural course and a rehabilitation program. In May 2019 the applicant was diagnosed with pneumonia whilst on remand. He appears to have recovered from that illness. 7. Any sentence to be served by the applicant will mean that he will be of an advanced age when and if released on parole. 8. The applicant has no prior convictions and this is his first time in custody. His age and health issues will make his time in custody more onerous. Taking those matters into account, I would find special circumstances. 9. General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse: EG v R [2015] NSWCCA 21 at [42]. 10. In his submissions in respect to manifest excess, counsel for the applicant submitted that the indicative sentences were outside the permissible range having regard to comparable cases and JIRS statistics. He submitted that in that way manifest excess in the aggregate sentence was demonstrated. Care must, of course, be taken when comparing the facts and outcomes of different cases. As this Court has often said, it is always possible to find cases to show that the sentence in the instant case might be too heavy or too light. In deference, however, to the submissions made I will make reference to three of those cases being Chamseddine v R [2017] NSWCCA 176, RL v R [2018] NSWCCA 274 and Sivell v R [2019] NSWCCA 77. 11. The matter of Chamseddine involved four counts of sexual intercourse with a child aged between ten and 14 years and two counts of indecent assault on a child under the age of 16 years. There was a vulnerable victim by reason of deafness, disability and the fact that the child was aged 10-11 years in circumstances where the offender was a taxi driver who transported her to school each day. The offending took place over a three week period on four separate occasions. All of the offences were found to be within the mid-range. There was no prior criminal history and a low risk of reoffending, but no remorse. The applicant was aged 67 years. This Court reduced a sentence of 20 years with a non-parole period of 15 years to a sentence of 12 years with a non-parole period of eight years. 12. In RL, a stepfather abused his two stepdaughters over a period of ten years. The charges of three indecent assaults against one stepdaughter, and three counts of sexual intercourse with an aggravated sexual assault on a Form 1 against the other stepdaughter were representative charges. The offending was found to be above the mid-range, well above the mid-range and in the high range of offending. The offending against the second stepdaughter involved penile vaginal penetration. He was sentenced to imprisonment for 19 years and seven months with a non-parole period of 13 years. By majority, this Court declined to interfere with that sentence. 13. In Sivell there were two victims aged nine and 12 years. The applicant, who was initially a stranger, persuaded the victims to accompany him to his house on the basis that he would get them into modelling. The offending took place over a number of months. He was charged with 19 offences including a number of counts of aggravated sexual intercourse and indecent assault. The applicant had a long history of offending by sexual abuse of children. He was sentenced to an aggregate sentence of 21 years and six months with a non-parole period of 16 years. This Court declined to intervene. 14. The sentences in those cases serve only to reinforce a conclusion that the sentence imposed in the present case was well within the appropriate range. 15. Of the two other cases relied upon by the applicant, R v Scavera [2016] NSWCCA 145 has no relevance. It involved a single victim on a single occasion with two counts of sexual intercourse (oral and digital) and one count of aggravated indecent assault. The final case relied upon by the applicant was DH (see [79] above). Although the offending in DH involved a stepfather and a stepdaughter over a period of some years, I do not consider the case is comparable because there was one victim only and because fewer counts were involved. 16. The present case involved offending over three years against two children where those children were in his care and under his authority. In my opinion, no lesser sentence than that imposed by the sentencing judge is warranted. 17. Unlike the situation in RO v R [2019] NSWCCA 183, I do not consider it necessary to say anything about the indicative sentences where the Court is of the view that no lesser sentence is warranted. In RO, not only was an overall adjustment made to the aggregate sentence, but anomalies in the indicative sentences were identified (see at [38]). The majority (Beech-Jones J with whom Bathurst CJ agreed) at [89] considered only that there may be a need to identify particular indicative sentences prior to forming a conclusion about whether an aggregate sentence that it considers is warranted is more or less severe than the sentence under appeal. Justice N Adams at [123] considered that there was no need to set out proposed indicative sentences unless a new aggregate sentence was to be imposed. Conclusion 1. I propose the following orders: 1. Grant leave to appeal. 2. Appeal dismissed. ********** 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: 25 March 2020