Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: WM v R [2020] NSWCCA 96 Hearing dates: 20 April 2020 Date of orders: 12 May 2020 Decision date: 12 May 2020 Before: Johnson J at [1] Adamson J at [2] Bellew J at [3] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW – Sentence – Appeal – Sexual intercourse with child under 10 – Where applicant was the father of the victim who was 9 months old – Whether sentencing judge erred in weighing applicant's breach of trust – Necessity for parity principle – Whether applicant had a justifiable sense of grievance in light of sentence imposed on a co-offender – Where sentencing judge properly took into account similarities and differences in the cases of the applicant and the co-offender – No unjustified disparity in the sentences imposed – Sentence not manifestly excessive – Appeal dismissed WORDS AND PHRASES – "breach of trust" – "under the authority" Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 Goodbun v R [2020] NSWCCA 77 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Lowe v the Queen (1984) 154 CLR 606; [1984] HCA 46 MLP v R [2014] NSWCCA 183 MRW v R [2011] NSWCCA 260 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Postiglione v the Queen (1997) 189 CLR 295; [1997] HCA 26 R v Baker [2000] NSWCCA 85 RLS v R [2012] NSWCCA 236 Ryan v R [2009] NSWCCA 183 Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 Category: Principal judgment Parties: WM – Applicant Regina – Respondent Representation: Counsel: C McGorey – Applicant G Newton – Respondent Solicitors: Ryan and Payten – Applicant Solicitor for Public Prosecutions (NSW) – Respondent File Number(s): 2016/198247 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 11 May 2018 Before: His Honour Judge Lakatos SC Judgment 1. JOHNSON J: I agree with Bellew J. 2. ADAMSON J: I agree with Bellew J. 3. BELLEW J: WM (the applicant) pleaded guilty in the District Court to the following offences: 1. On 19 April 2015, did have sexual intercourse with [ER], a person less than 10 years of age, namely about 9 months old, in circumstances of aggravation, namely, at the time of the sexual intercourse [ER] was under the authority of WM (Count 1). 2. On 19 April 2015, did have sexual intercourse with [ER] a person less than 10 years of age, namely about 9 months old, in circumstances of aggravation, namely, at the time of the sexual intercourse [ER] was under the authority of WM (Count 2). 1. Each count constituted an offence contrary to s 66A(2) of the Crimes Act 1900 (NSW) (the Act), the maximum penalty for which is life imprisonment. A standard non-parole period of 15 years is prescribed. 2. The applicant also asked the sentencing judge to take into account a further offence on a Form 1, namely using a child under 14 years to produce child abuse material, contrary to s 91(G)(1)(a) of the Act. 3. On 11 May 2018 the sentencing judge imposed an aggregate sentence of 13 years and 8 months' imprisonment, with a non-parole period of 10 years and 3 months' imprisonment. His Honour gave the following indicative sentences: 1. in respect of Count 1, 13 years' imprisonment with a non-parole of 9 years and 9 months; 2. in respect of Count 2, and taking into account the matter set out on the Form 1, 13 years and 2 months' imprisonment, with a non-parole of 9 years and 11 months. 1. The applicant now seeks leave to appeal against the sentence imposed on the grounds more fully set out below. It is noted that at the commencement of the hearing, the applicant abandoned the second basis of Ground 1, and also abandoned Ground 2 in its entirety. THE FACTS OF THE OFFENDING 1. The sentencing judge found the facts of the offending to be as follows: [1] The victim was a nine month old baby at the time of the offences. The offender is her biological father, and he and the co-offender [N] were in an intimate domestic relationship residing in Victoria. The victim lived with her mother in a small town proximate to [deleted]. In terms of the offences on 19 April 2015 this offender and [N] travelled from Melbourne to the small town where the victim lived with her mother. On that morning, the mother who I will refer to as SR, went to a vocational course leaving the victim in the care of the two offenders. Records show that SR was at the training course between 9am and 12.30pm that day and it was during that two or three hour period of absence that the offender's [sic] took explicit photographs of the genitalia of the nine month old baby. An investigation commenced in Victoria in March of 2016 by the Victoria Police executing a search warrant on premises which related to a person who is known as Mr Shingles, who was being investigated for child sex related offences and police seized numerous computers and devices which contained Skype chats between a person known as Julian Hill and the co-offender [N]. There were Skype conversations between those persons on two occasions on 3 March 2015 and on one occasion on 16 April 2015 which are set out in the agreed facts. In those conversations [N] told the other person that this offender, referring to [the applicant], was aiming to groom his daughter referred to as "a baby in country New South Wales" and there are expressions of an intent to get rid of the mother SR, and practise necrophilia, I presume upon her, and raise the baby. In the second conversation a reference is to "having a little girl to play with and manipulate", and the victim's first name was mentioned in that Skype contact. In relation to the conversation on 16 April 2015 [N] told the person Hill that they were going away to "play with the baby for a few days", and there are references to cunnilingus with the child and the fact that [N] was becoming sexually excited by reason of that fact. The facts indicate, and the Crown has candidly said, that the issues relating to the Skype conversations are not evidence led against this offender, but are only there to give background to the offences which came to be investigated. I have used them in that way except for one additional use to which I will make reference later on in these remarks. Computers were seized and Victoria Police located 17 photographs taken by an unknown person showing this offender holding the victim. They are not child abuse material. And another 33 images of the victim wearing a one piece pink suit or naked, some of which show the victim's bare genitals and anus and "adult male hands opening the genitals and anus to allow the photographer to capture the internal tissue of the relevant orifice." The facts record in tabular form 33 photographs taken between in essence 8.46 and 58 seconds, and 8.57 and four seconds on the 19 April 2015. Each photograph contains a description of what is depicted, and the descriptions generally involve exposed genitals, descriptions of the genitals as being pink or red, and each of the offenders, that is [the applicant] and [N], holding or touching the victim's torso, lower back, or buttocks. Relevantly the last column on the table is headed "Findings of Dr Marks (penetration) and Sergeant Forsyth (finger print identification)." As to count 1, that count is evidenced by three photographs taken between 8.54.34 and 8.54.47, and rely upon the joint criminal enterprise doctrine. Each of the photographs identifies the co-offender [N], and in particular his left thumb, and describes its location as "on the inner aspect of the right labia majora". In addition the last photograph contains the following description, "the photograph depicts a red lesion on the labia minora below the clitoral hood which is consistent with recent penetrative trauma". The offender's counsel Mr Nash submitted that the offender's criminality should not be judged by reference to that injury, submitting that the co-offender has admitted to more extensive and penetrative sexual misconduct, and there remained a reasonable possibility that such injury was attributable to the co-offender's misconduct, not this offender's conduct. Given of course the fact that the co-offender has pleaded guilty to offences over and above that to which [the applicant] has pleaded guilty, in my opinion the argument is correct, and accordingly I am obliged to treat this offender based upon an exclusion of any injury which the victim suffered. If an injury indeed was suffered, it is more likely than not that it was the hands of the co-offender. In relation to count 2, this count is evidenced by five photographs taken between 8.54.57 and 8.55.24. Each photograph depicts the fingers of this offender penetrating the genitalia of the victim, and most particularly the outer lips of the genitalia. The photograph at 8.55.08 contains a similar description to that which I have made reference about an injury and again for reasons which I have expressed, I do not take account of the injury for the present purposes. The 50 or so odd images were found on a Toshiba laptop computer and it appears that the images were taken on a Samsung mobile device between 8.55am and 10.31am. I pause to note that in the context of whether there was planning or forethought, the Crown has argued that given that the facts indicate that the victim's mother SR was at a course around 9am, presumably having left home some short period of time before that, and given the fact that the photographs were commenced to be taken at 8.55am there is a strong inference that these offences were planned between the co-offenders or at least discussed between them prior to them being committed. Mr Nash of counsel as I apprehend it advanced no convincing argument to the contrary. Returning to the facts. Investigations by New South Wales police identified the fingers and thumbs of both offenders from the photographs. On 6 July 2016 both offenders were extradited from Victoria to New South Wales and interviewed. This offender told police that he had known [N] for about 18 months. By my calculation that is sometime commencing late 2014. The relationship became intimate he said in due course, and he acknowledged he was the father of the victim. He told police that he had seen the victim on four occasions since her birth, the last being in February or March 2015. He said that he and [N] drove up from Victoria to visit SR, the mother of the child and catch up with her and his child. SR went to a training course he said for about two hours starting about 8 or 9am and leaving he and [N] alone with the victim. The offender said to police that he did "bugger all" when SR was gone, but remembered taking some photographs describing them "as family photos sort of thing". When shown the actual photographs which police had retrieved from the computer, the offender said that he wished to speak with his lawyer, "so they can word it correctly". He also stated the computer seized during the search warrant belonged to [N], not to him. The facts conclude by indicating that there is no evidence that between April 2015 and July 2016, or in fact at any time the subject photographs were disseminated on the internet or otherwise. THE OBJECTIVE SERIOUSNESS OF THE OFFENDING 1. In assessing the objective seriousness of the offending his Honour noted [2] that the offences took place in the home of the victim and were perpetrated by this offender (her biological father) and his partner, when her mother was absent. His Honour also noted that the conduct was photographed, but that there was no evidence that the photographs were disseminated, and that the evidence suggested that the photographs of the offender's offending took place in a space of approximately 10 or 11 minutes. 2. His Honour considered the age of the victim in assessing the objective seriousness of the offending, and concluded that she was at the most vulnerable end of the victims contemplated by s 66A(2). 3. His Honour concluded that the offending was "at the very serious end of offences of this kind", [3] and was aggravated by the fact that the applicant and his co-offender were in company and encouraging each other. [4] He also had regard to the circumstance of aggravation pleaded in the charge itself, namely that the victim was under the care of the applicant and his co-offender. [5] 4. His Honour accepted that there was no evidence that the applicant was aware of the intentions of his co-offender, or that he was aware of the other offences which his co-offender had committed. [6] He concluded that any planning was more a product of the co-offender's desires and pursuits, and that the applicant's offending was not aggravated by any planning or organised activity. [7] 5. In reference to the Victim Impact Statement provided by the victim's mother, his Honour said (inter alia): [8] [The victim's mother] spoke of having to uproot and stay in a town in which she has no desire to be in, to be part of the court process. Most significantly, she spoke with some feeling and emotion understandably of the proposition and despair of having to divulge to her daughter in the future why her father is in gaol, and what her father did to her. Undoubtedly, there will be a day of reckoning in the future, and those consequences must be borne by this offender and his co-offender. It is often said that children of tender years may well not remember what occurred to them, and so much appears to be true, however, psychological learning has indicated that children, even children of tender years, suffer severe and sometimes traumatic psychological consequences from being abused as either a young child or an older child. There is a real risk, and a known psychological consequence of this sort of offending. 1. His Honour rejected the submission that because of what counsel then appearing for the applicant had referred to as the "only slight penetration of the external genitalia of the victim" the offending could be compared with an objectively serious indecent assault. He concluded: [9] I … find myself more in agreement with Judge O'Connor's assessment of the sole counterpart charge that is common to both the co-offender [N] and this offender. His Honour thought that both offences fell towards the upper end of the mid-range. I consider that by reason of the lack of any element of planning, which his Honour found against [N], but which is not present so far as this offender is concerned, that the proper assessment of these offences is that they are at or towards the mid-range. That is to say, slightly lower than [N], but not significantly so. THE APPLICANT'S SUBJECTIVE CASE 1. A report of Dr Christopher Lennings, psychologist, was before the sentencing judge. Dr Lennings noted that the applicant, who was then 52 years of age, had grown up in Melbourne and had left school after the completion of Year 10 in order to commence an apprenticeship as a butcher, and that he had later trained as a chef. [10] The applicant told Dr Lennings that he had generally worked full-time all his life, other than for an 18 month period when he had not been able to work due to illness. [11] The applicant also told Dr Lennings that he had not previously been diagnosed with depression or anxiety, although he had seen psychologists in the past as a consequence of being diagnosed with HIV. [12] He said that he had been in a relationship with the co-offender for a couple of years and that this was his first same sex relationship. [13] 2. In terms of the offending, the applicant told Dr Lennings that what he did was "wrong and stupid", that he was "lost for words to account for his behaviour", that he had "made a fundamental error of judgment", and that he "should have known better". [14] He reported "deep regret", partly because of the loss of his relationship with his daughter. [15] However, Dr Lennings also reported: [16] He tried to defend himself somewhat by saying he felt he was manipulated, but accepts he knew the behaviour was wrong, acknowledged he felt uncomfortable during it, and should have taken responsibility. He denies any sexual response to the behaviour, such as masturbation or using the photo's [sic] in any sexual way. 1. The applicant expressed a hope to Dr Lennings that he would have a good relationship with his daughter in the future and acknowledged that because his former partner and his daughter lived in a small town, they would experience stigma because of his actions. He told Dr Lennings that he "felt sorry for them". [17] 2. Dr Lennings said that the applicant expressed deep regret for his offence, along with sadness and anger at himself for his behaviour, and for his failure to act protectively towards his child and former partner in regard to the social stigmatising they may experience as a result of the offending. [18] He expressed the view that the applicant did not suffer from a mental illness, a personality disorder, or paraphilia. [19] He described the applicant as presenting "as a somewhat unusual sex offender" and said that his behaviour was inexplicable in terms of his past. [20] Dr Lennings said in particular: [21] On his account of the offence was not planned (although it was seemingly by his co-offender). On his account, he was worried about his daughter, and if his account is to be believed, [N] used [the applicant's] worries to groom [the applicant] into making available his daughter for sexual abuse, and somehow overcame [the applicant's] common sense, inhibitions and natural protectiveness to engage him in the behaviour as well. The behaviour appears unusual, and well outside [the applicant's] usual behavioural repertoire. [The applicant] has no prior criminal record, has shown loyalty and satiability in his previous relationships and employment and apart for [sic] some at times unwise substance use and impulsivity has no obvious risk factors for recidivism or engaging in the offence. 1. In terms of the applicant's risk of re-offending Dr Lennings said: [22] [The applicant's] risk is low (below average) risk. He is [sic] has a very low likelihood of recidivism [sic] the basis of the assessment, his odds for doing so are quite low. The absence of any psychological morbidity, good levels of social support, realistic perception of the future and good coping skills suggest his prognosis is excellent. He will likely make good use and respond effectively to programs designed to increase his awareness about boundaries around children, sexual knowledge, and in gaining further insight into how he came to offend in the first place. He has generally good impulse control and that suggests he will respond very well to supervision in the community. 1. Dr Lennings concluded by recommending that the applicant undertake the CORE program in order to provide education around sexual offending, and expressed the view that once in the community he was likely to respond well to supervision, and would be likely to benefit from psychotherapy with an appropriately qualified counsellor. 2. Also before the sentencing judge was a pre-sentence report prepared by Chris Baker, Community Corrections Officer. Mr Baker assessed the applicant as being a low risk of reoffending, and said that he fell within a below-average risk range in terms of sexual offending. [23] He concluded that the applicant was unlikely to require, or benefit from, a period of supervision. [24] 3. Mr Baker's conclusion that the applicant fell below the average risk range of sexual reoffending was based on a separate assessment conducted on 24 April 2018 by Darren Nicholls from the Campbelltown Community Corrections Office. In his report, Mr Nicholls noted: In an interview with the CCO (28/3/18), [the applicant] appeared to lay blame upon his partner. He appeared to minimise his involvement in the offence claiming that he had no idea that the co-offender was a paedophile and that he has no interest in children. 1. Mr Nicholls said: [The applicant] is at the Below Average risk range in comparison to other adult sexual offenders using the Static 99R and actuarial risk assessment tool. The actuarial assessment is based upon the presence or absence of static risk factors known to be related to sexual offending such as age, prior offending history, characteristics of the victim of the offence. In [the applicant's] case, he is aged between 40 and 59.9 years. His older age contributes to a lower risk score. The Static 99R was based upon [the applicant's] NSW criminal history report in which there is no prior sexual or non-sexual offence convictions or charges. [The applicant] has previously resided in Victoria. If [the applicant] were to have a known criminal history within another jurisdiction this could potentially raise his Static 99R score. 1. Having set out that assessment, Mr Nicholls also said: A limitation of the current assessment is that the potential dynamic risk factors associated with [the applicant's] sexual offending could not be comprehensively surveyed as he was not interviewed. Further clarification of the factors underlying the offending would be required via assessment or treatment. [The applicant] has been assessed as being the below average risk range for sexual re-offending. However, the nature of the offence and the age of the victim imply that sexual self regulation and sexual deviancy issues might be present. This would need further exploration. 1. His Honour noted that the applicant had a modest criminal record which precluded a finding that he was a person of unblemished character, but which had no other impact on sentence. [25] His Honour reviewed the contents of the reports of Mr Baker and Mr Nicholls and found it "difficult to accept" that the applicant was unaware of the co-offender's paedophilic tendencies. [26] 2. His Honour made reference to the Victim Impact Statement provided by the victim's mother. [27] He noted that psychological research indicated that even children of tender years suffer severe, and sometimes traumatic, psychological consequences as a result of being abused in their youth. [28] 3. His Honour concluded that some of the statements made by the applicant to Dr Lennings indicated an avoidance of responsibility, and a failure by the applicant to accept his role in the offending. [29] His Honour pointed out that by his plea, the applicant had admitted engaging in the sexual intercourse to which the charge related. He concluded that the applicant had underplayed his "very active role" in assaulting his young daughter, and that there was no evidence of remorse, to the point where the applicant's explanations served "to minimise [his] criminality". [30] His Honour regarded this as "an abdication of [the applicant's] responsibility for the criminal conduct perpetrated on his young daughter. [31] To the extent that the applicant had told Dr Lennings that he had made a fundamental error of judgment, his Honour found that such expression of remorse was not genuine, [32] and described it as a "prime example of shifting blame and not accepting responsibility". [33] 4. Ultimately, his Honour did not accept that any remorse expressed by the applicant was genuine because: 1. such expressions had not been tested in sworn evidence; 2. the applicant's explanations minimised his part in the offending; 3. such expressions of remorse as were before the Court had been made by reference to the applicant's relationship with the victim, and failed to address, as a stand-alone issue, the harm that she may have suffered; and 4. the applicant's continued relationship with a manipulative co-offender who had paedophilic tendencies cast doubt upon the truthfulness of what he had expressed. [34] 1. In assessing the applicant's prospects of rehabilitation, and having referred to the conclusions expressed by Dr Lennings, the sentencing judge said: [35] Dr Lennings thought there was an excellent prognosis and the offender would likely make good use and respond effectively to programs in prison relating to sexual offending, boundaries with children and the like. With due respect to that opinion and I have no cause to doubt Dr Lennings [sic] expertise, it is relied on accepting at face value the offender's version of events, and I do not. In my view there are many aspects of the account, given by the offender which defy common sense, and are otherwise unexplained. This leads to the inevitable conclusion that the offender was not being wholly frank with the psychologist and therefore the basis of the psychological opinion is to be doubted. 1. The sentencing judge applied a discount of 25% to reflect the utilitarian value of the applicant's pleas of guilty. [36] His Honour then proceeded to impose the sentence previously set out. THE GROUNDS OF APPEAL GROUND 1 – THE SENTENCING JUDGE ERRED IN ASSESSING AND/OR WEIGHING THE APPLICANT'S BREACH OF TRUST The findings of the sentencing judge 1. The sentencing judge noted (and ultimately agreed with) the submission made by counsel then appearing for the applicant that the fact that the victim was in a position of trust vis a vis the applicant, and the fact that the victim was under the applicant's care, were "co-extensive", to the point that to regard the abuse of trust as an aggravating factor would be to engage in double counting. [37] Having noted other aspects of this submission, and having referred to various authorities, his Honour concluded: [38] In my mind there is a difference between under authority and breach of trust although no doubt they are overlapping concepts. In the circumstances however, I propose to treat the element of breach of trust which is graver, that breach of trust I should note is graver for this offender, than it is for [N], not as a separate aggravating factor, but as part of the mix of circumstances which serve to inform the objective seriousness of this offender's criminal conduct Submissions of the applicant 1. Counsel for the applicant submitted that although the sentencing judge had acknowledged that there was a degree of overlap between the fact that the victim was under the applicant's authority, and the fact that the offending involved a breach of trust, he had failed to explain how that overlap impacted upon the weight to be attributed to such matters in assessing the objective seriousness of the offending. It was submitted, in particular, that the sentencing judge's observation that he did not treat the breach of trust as a separate aggravating factor, but rather as part of the "mix of circumstances", failed to address that issue, and amounted to error. 2. Specifically, counsel for the applicant submitted that: 1. a breach of trust by an offender towards a victim is separate to that offender having the victim under his or her authority; 2. the sentencing judge had correctly recognised that there was a degree of overlap between the two concepts; 3. the sentencing judge had erred in failing to identify the facts and circumstances which constituted the breach of trust on the one hand, and the fact that the victim was under the authority of the applicant on the other; 4. the sentencing judge had erred in failing to explain how, when determining the objective seriousness of the offending, he had weighed the magnitude of the overlap between the two; 5. the sentencing judge had erred in failing to identify how that overlap impacted on the sentence which was ultimately imposed. Submissions of the Crown 1. The Crown submitted that the sentencing judge had properly identified the applicant's breach of trust as having been brought about as a consequence of the specific familial relationship between himself and the victim. It was submitted that as a consequence of that breach of trust, the applicant had been able to bring about a situation whereby he and the co-offender were left alone with the victim so that the offences could be committed. The Crown submitted that the sentencing judge had correctly identified that this was a different concept to the victim being under the applicant's care, supervision or authority. 2. The Crown submitted that the sentencing judge had obviously been cognisant of this distinction, and that there was nothing in his remarks that suggested that undue weight was given to the applicant's breach of trust. It was further submitted that the sentencing judge was obviously mindful of the risk of double-counting, and had gone to some lengths to ensure that he did not give any factor undue weight in the sentencing process. 3. The Crown further submitted that matters of weight were necessarily matters for the sentencing judge, to the point where, had his Honour engaged in the process suggested by counsel for the applicant, he would have acted contrary to the process of instinctive synthesis. The Crown submitted that the approach taken by the sentencing judge was entirely appropriate and, importantly, was one which avoided any double counting. CONSIDERATION 1. The fundamental proposition advanced by the applicant in support of this ground was that the sentencing judge erred in failing to articulate the weight that he gave to a particular factor or factors. That being so, the difficulty faced by the applicant is that this Court has reiterated on a number of occasions that the weight to be ascribed to particular factors is a matter for the sentencing judge at first instance, and that the occasions on which this Court will intervene to address a "weighting error" will be rare. [39] In my view, for a number of reasons, this case is not one which it is appropriate for this Court to intervene. 2. The sentencing judge was required to approach his task by way of a process of instinctive synthesis, taking into account all relevant factors. The concept of instinctive synthesis requires a sentencing judge to reach a sentence which balances many features. [40] That is precisely what the sentencing judge did in the present case and his approach was entirely correct. The suggestion that his Honour was required to specify the precise weight he had attributed to the applicant's breach of trust on the one hand, and the fact that the victim was under the authority of the applicant on the other, is at odds with such approach. 3. It is also evident that the sentencing judge addressed this issue with considerable care. He properly recognised that the breach of trust was separate and distinct from the abuse of authority, even though both matters arose from the one set of facts and necessarily overlapped. It is evident from his remarks that he was acutely aware of the risk of double counting. 4. Moreover in my view, it remained open to the sentencing judge to take the applicant's breach of trust into account as an aggravating factor. [41] His determination that it should be taken into account as part of the overall mix of circumstances was an approach which was particularly generous to the applicant. 5. Finally, there is nothing whatsoever to suggest that the sentencing judge gave undue weight to the applicant's breach of trust. He regarded it as "significant". That was an apt description, in circumstances where that breach, in one sense, facilitated the offending. 6. For all of these reasons, this ground is not made out. GROUND 3 – THE APPLICANT HAS A LEGITIMATE SENSE OF GRIEVANCE OWING TO THE SENTENCE IMPOSED UPON HIM RELATIVE TO THAT OF HIS CO-OFFENDER The sentences imposed upon the co-offender 1. The co-offender pleaded guilty to three offences contrary to s 66A(2) of the Act in circumstances where: 1. the first offence involved digital penetration of the victim; 2. the second offence involved cunnilingus performed on the victim; and 3. the third offence also involved digital penetration of the victim. 1. The co-offender also asked the sentencing judge to take into account a further offence on a Form 1, namely an offence contrary to s 91G(1)(a) of the Act of using a child under 14 years to produce child-abuse material. 2. Acting Judge O'Connor QC, who sentenced the co-offender, found that the circumstances of his offending were disturbing and involved serious objective criminality, [42] to the point where each offence fell "at least at the upper end of the mid-range" of objective criminality. [43] 3. In terms of the co-offender's subjective case, and drawing upon material contained in a psychological report and a pre-sentence report, his Honour noted that the co-offender had been diagnosed with symptoms of anxiety and depression in 2012, but had significantly improved since that time to the point where his mood was relatively stable. In these circumstances his Honour attached little weight to the co-offender's depressive state when determining the sentence to be imposed. [44] 4. His Honour found that the co-offender did not have any record of previous convictions and was of prior good character. [45] However, he concluded that in circumstances where offending of this nature is often committed by persons of otherwise good character, this factor was deserving of limited weight. [46] He concluded that the co-offender was a medium to average risk of reoffending, and thought it was significant that he lacked empathy for the victim, and did not accept responsibility for his offending. [47] 5. In terms of the co-offender's prospects of rehabilitation, his Honour took the view that much would depend upon his successful participation in courses which would be offered to him in custody. However, his Honour did note that the co-offender had demonstrated an ability to seek assistance in other respects and concluded that if he were to demonstrate the same enthusiasm in custody, there was "some prospect" of rehabilitation. [48] 6. His Honour concluded that leaving aside the pleas of guilty, the co-offender had not shown any remorse, and had not accepted responsibility for his offending. He accepted that the pleas were entered at the first available opportunity and applied a discount of 25% to reflect their utilitarian value. [49] 7. His Honour declined to make a finding of special circumstances and concluded that the non-parole period which would eventuate by application of the statutory ratio would be adequate to address any issues of the co-offender's rehabilitation and reintegration into the community. [50] He also concluded that general deterrence, as well as specific deterrence, were important factors in sentencing the co-offender. [51] 8. Ultimately, his Honour found that there was "little in the co-offender's subjective case" which mitigated his sentence. [52] He sentenced the co-offender to an aggregate sentence of 15 years' imprisonment, with a non-parole period of 11 years and 3 months' imprisonment. The findings of the sentencing judge 1. In sentencing the applicant, the sentencing judge specifically addressed the issue of parity in the following terms: [53] Finally counsel argues that there are significant differences between the circumstances of [N] and this offender such that true parity cannot operate. For reasons that I will express, I accept that submission, but in my mind the distinction between the offending is not great. Nevertheless it will reflect in a lesser sentence. I have had close regard to the sentencing remarks of Judge O'Connor and undoubtedly his Honour was dealing with an offender charged with one like offence against the same victim, and two other serious offences which are not present so far as this offender is concerned. Those are matters which of course I am obliged to take into account in determining what is a proper sentence and most particularly the issue of parity. 1. His Honour later returned to the issue, saying: [54] I have regard to the issues of parity. I regard the following differences so far as [N] is concerned and which justified the more serious penalty that he was subject to. Firstly there were some more serious charges and an additional offence. Secondly his offending took place over a longer period of time, thirdly he was rightly characterised as a principal offender and there was a considerable amount of preplanning engaged in by him and lastly he posed as a medium risk of re-offending. As against that, this offender poses according to Dr Lennings, an opinion which in my mind is to be doubted based upon its unsound factual underpinnings, a low risk of re-offending. However and of course issues of preplanning and so on are not of any great order in the present case. However as against that, this offender was the natural father of the victim and facilitated access to his nine month old daughter by his co-offender and engaged in criminal misconduct himself against her. In my view the breach of trust was significant and was much higher than that which applied to [N]. Submissions of the applicant 1. Counsel for the applicant submitted that the distinguishing features between the two cases included that the co-offender had: 1. committed more acts upon the victim which were as serious, if not more serious, than those committed by the applicant; 2. expressed paedophilic interests before and after the offences were committed, in circumstances where the applicant had not done so; 3. influenced the applicant to some degree; and 4. presented as a moderate or average risk of offending, in circumstances where the sentencing judge did not make that finding in respect of the applicant. 1. It was submitted that a more significant demarcation was warranted in terms of the respective sentences which were imposed. It was submitted that in all of the circumstances, the applicant had a legitimate sense of grievance which this Court should intervene to correct. Submissions of the Crown 1. The Crown submitted that it was evident that the sentencing judge had specifically turned his mind to the question of parity, and had concluded that the applicant's breach of trust was significantly more serious than that of the co-offender. This, it was submitted, was a correct finding, and one which stemmed from the fact that absent the applicant's direct relationship with the victim and her mother through which the applicant was able to facilitate the co-offender's access to the victim, the offences would not have been able to be committed. 2. The Crown further submitted that the significance of the applicant's breach of trust was illustrated by the Victim Impact Statement prepared by the victim's mother. It was submitted that in all of these circumstances, it was at least open to the sentencing judge to conclude that the distinction between the two offenders in terms of the offending was not significant. 3. The Crown further submitted that the sentences imposed appropriately reflected the relevant differences between the two offenders, and that no greater demarcation was warranted. It was submitted that the applicant had not demonstrated that he had an objectively justifiable sense of grievance by reason of the disparity between sentences. Consideration 1. The principles which apply to this ground may be conveniently summarised as follows. 2. Equal justice requires, so far as the law permits, that like cases be treated alike. It also requires the differential treatment of persons according to differences between them. Consistency in the punishment of offences against criminal law is a reflection of the notion of equal justice and finds its expression in the parity principle, which requires that like offenders should be treated in a like manner. The parity principle also allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability, and/or different circumstances. [55] 3. The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. It is not simply a question of the imposition of different sentences for the same offence, but a question of due proportion being structured between those sentences. That is a matter which is to be determined having regard to the different circumstances of the co-offenders, and the different degrees of criminality. [56] 4. When these principles are applied to the present case, I am not satisfied that there is any undue disparity between the sentence imposed on the co-offender, and that imposed on the applicant. 5. To begin with, it is evident from his remarks that the sentencing judge was aware of the necessity to have regard to the issue of parity. It is also evident that in considering this issue, his Honour had close regard to the conclusions of Acting Judge O'Connor when sentencing the co-offender. 6. True it is that the co-offender faced two more serious charges than the applicant. However, the sentencing judge found that the applicant's breach of trust towards the victim was, in all the circumstances, greater than that of the co-offender and that overall, any distinction in the respective offending was not great. These were obviously significant findings in terms of sentence generally. Neither was challenged by counsel for the applicant before this Court. It is evident from his Honour's remarks that the first of those findings, in particular, weighed heavily in his determination of an appropriate sentence, and properly so. It was a factor which had little role to play in the sentence of the co-offender. 7. Further, although his Honour found that the differences in the offending were not great, he expressly recognised the sentence imposed upon the applicant would necessarily be less having regard to the matters to which he had referred. That conclusion is reflected in the sentences which were imposed. 8. For all of these reasons, the applicant can have no justifiable sense of grievance. All of these matters pointed to by counsel for the applicant [57] go to explaining why the co-offender's sentence was greater than that imposed on the applicant. In an overall sense, the respective sentences imposed properly recognise both the similarities and the differences in the two cases. 9. This ground is not made out. GROUND 4 – THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE Submissions of the applicant 1. In the course of his submissions, counsel for the applicant specifically acknowledged that: 1. appellate intervention on the basis of manifest excess is not justified simply because the result arrived at first instance is markedly different from sentences imposed in other cases; 2. consistency in sentencing is not demonstrated by, nor does it require, numerical equivalence, but rather requires consistency in applying relevant principles; and 3. because there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. 1. Having cited such principles, counsel then referred the Court to a series of sentences imposed in other cases of offending contrary to s 66A(2). Counsel submitted that reference to these cases gave this Court "a sense of the sentencing regime" for offending of this nature. It was submitted that even accepting the seriousness of the applicant's offending, the sentences imposed on the applicant were manifestly excessive in all of the circumstances when one had regard to the sentences imposed in those other cases. 2. Whilst counsel acknowledged the objective seriousness of the applicant's offending he pointed out that the offences were committed close in time. Counsel further submitted that the victim's age was such that she would have no memory of the offending. Accepting that the victim may be told about the offending at some stage when she was older, counsel submitted that there was a "degree of speculation as to what impact that would have on the child at a later point". 3. Counsel also pointed to the fact that the applicant had pleaded guilty at an early stage, and had a criminal history which, although not unblemished, did not disclose a record of similar offending in the past. Submissions of the Crown 1. The Crown submitted that the applicant's offending was a serious example of aggravated sexual intercourse with a child under 10 years of age. The Crown pointed out that the offence carried a penalty of life imprisonment, and attracted a standard non-parole period of 15 years' imprisonment. The Crown also emphasised that the finding of the sentencing judge that the applicant's offending fell at or towards the mid-range of objective seriousness had not been challenged before this Court. The Crown also pointed out that the offending was committed in company, and in the home of the victim in circumstances where both the offender and the co-offender were visitors. 2. The Crown further submitted that the age of the victim was such that she fell at the most vulnerable end of the age range contemplated by s 66A(2). The Crown also relied upon the various other findings of the sentencing judge which were not impugned, including those in relation to the applicant's subjective case. 3. The Crown submitted that in all these circumstances, the aggregate sentence imposed was within the range available to the sentencing judge. Consideration 1. The general principles which apply when considering a ground of manifest excess were summarised by R A Hulme J in Obeid v R in the following terms: [58] Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust. 1. The applicant's reliance on sentences imposed in other cases gives rise to the necessity to reiterate the limitations which are placed on material of that kind. In Goodbun v R [59] I said the following: [257] Sentences imposed in other cases are not binding precedents. They are statements of what has happened in the past. [60] A history of sentencing can establish a range of sentences that have in fact been imposed. However, such history does not establish that the range is the correct range, or that the upper or lower limits of the range are the correct upper and lower limits. Further, the range of sentences that have been imposed in past cases does not fix the boundaries within which future judges must, or even ought, to sentence. Such cases can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a particular sentence. However when considering past sentences, it is only by examination of the whole of the circumstances that have given rise to the sentence that unifying principles may be discerned. [61] Fundamentally, the consistency that is sought in sentencing is consistency in the application of the relevant legal principles, and not numerical or mathematical equivalence. [62] [258] It follows that a careful approach must be taken when a Court is asked to compare the sentence imposed in one case with the sentence imposed in another. The need for such an approach obviously arises, at least in part, from the fact that no two cases are the same. There will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another. [63] 1. Whilst I have had regard to the cases to which counsel for the applicant referred the Court, it is not necessary to undertake an individual analysis of each and every one of them. There are, as one might expect, similarities and differences between those cases themselves, and between those cases and the present case. It is sufficient for me to say that none of the sentences imposed in those cases support the conclusion that the sentence imposed on the applicant was manifestly excessive. 2. As I have noted, in order to succeed on this ground the applicant must establish that the sentence imposed was unreasonable or plainly unjust. [64] I am not satisfied that this is so, for a number of reasons. 3. Firstly, the maximum penalty of life imprisonment and the standard non-parole period of 15 years' imprisonment not only reflected the serious view taken by the Parliament of this offending, but provided important yardsticks for the sentencing judge. 4. Secondly, any observations about the objective seriousness of the offending would be superfluous. Leaving aside the matters raised in the context of Ground 1, no issue was taken with the findings of the sentencing judge in that regard. 5. Thirdly, whilst the age of the victim was such that she will have no independent memory of the offending, the sentencing judge was correct to point out that there would, as he put it, be a "day of reckoning" on which the victim would be informed of the offending. Whilst there might be in one sense (to use the phrase adopted by counsel for the applicant) a "degree of speculation" about what effect that will have, it is reasonable to assume that whatever the effect, it will not be positive. 6. Fourthly, as the sentencing judge correctly pointed out, the applicant's conduct was aggravated by the fact that it involved not only a breach of trust which facilitated the offending, but that it occurred at a time when the victim was under the applicant's authority, and in the victim's home. 7. Finally, there was little substance in the applicant's subjective case. The sentencing judge took into account the pleas of guilty. None of his other findings as to the various aspects of the applicant's subjective case were challenged before this Court. 8. For obvious reasons, this offending was serious and it is evident from the passage of his Honour's sentencing remarks that I have set out that his Honour carefully took into account all relevant considerations. In all of these circumstances I am not persuaded that the sentence imposed was unreasonable or plainly unjust. ORDERS 1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. ********** Endnotes 1. Commencing on ROS 3. 2. Commencing on ROS 20. 3. ROS 21. 4. At ROS 22. 5. At ROS 19. 6. At ROS 23. 7. At ROS 20. 8. At ROS 11. 9. At ROS 23. 10. Report of Dr Lennings at paras [9] – [11]. 11. At [12]. 12. At [16]. 13. At [23]. 14. At [6]. 15. At [6]. 16. At [6]. 17. At [7]. 18. At [50](4). 19. At [50](1). 20. At [48]. 21. At [48]. 22. At [50](5). 23. At p.2. 24. At p.3. 25. At ROS 7. 26. At ROS 9. 27. At ROS 10 – 11. 28. At ROS 11 – 12. 29. At ROS 13. 30. At ROS 13 – 14. 31. At ROS 14. 32. At ROS 15. 33. At ROS 15 – 16. 34. At ROS 19. 35. At ROS 18. 36. At ROS 20. 37. At ROS 19. 38. At ROS 25. 39. See for example R v Baker [2000] NSWCCA 85; Ryan v R [2009] NSWCCA 183; Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215. 40. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75]. 41. See MRW v R [2011] NSWCCA 260. 42. At ROS 8. 43. At ROS 10 – 11. 44. At ROS 13. 45. At ROS 16 – 17. 46. At ROS 17. 47. At ROS 17. 48. At ROS 17 – 18. 49. At ROS 18. 50. At ROS 18 – 19. 51. At ROS 18. 52. At ROS 15. 53. At ROS 25 – 26. 54. At ROS 27 – 28. 55. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 [28] per French CJ, Crennan J and Kiefel J (as her Honour then was) and the authorities cited therein. 56. Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at [301] per Dawson and Gaudron JJ; Lowe v the Queen (1984) 154 CLR 606; [1984] HCA 46 at 610-611 per Mason. 57. At [54] above. 58. (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], citations omitted. 59. [2020] NSWCCA 77 commencing at [257]. 60. Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [83]. 61. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] citing Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303] – [305]. 62. Hili at [18]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]. 63. MLP v R [2014] NSWCCA 183 at [44]; RLS v R [2012] NSWCCA 236 at [132]. 64. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. Amendments 13 May 2020 - Correction to typographical error at [39]. 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 May 2020