RG v R

1. [1]

   DAVIES J: I agree with Yehia J.

2. [2]

   LONERGAN J: I agree with Yehia J.

3. [3]

   YEHIA J: RG (“the applicant”) pleaded guilty to 14 sexual assault offences committed against two of his biological daughters, RG and JG, when they were aged 8 or 9 and 10 or 11 years old respectively, and one offence of choking RG. Some of the offences were committed either in company with, or in the presence of the victims’ biological mother, BG. The offending was rightly characterised by the applicant’s counsel at first instance as being “heinous, depraved and appalling”. Such characterisation is not resiled from by counsel on the appeal and was appropriately adopted by the sentencing judge.

4. [4]

   The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by her Honour Judge Wass SC (“the sentencing judge”) on 17 October 2023 at Taree District Court.

5. [5]

   The applicant pleaded guilty in the Local Court and was committed for sentence. The sentencing judge sentenced the applicant to an aggregate term of 48 years’ imprisonment with a non-parole period of 28 years to date from 1 June 2022. The head sentence expires on 31 May 2070. The applicant is first eligible for release to parole on 31 May 2050.

6. [6]

   The following table sets out each of the offences, the relevant maximum penalty and standard non-parole periods that apply, the indicative sentences and the starting point of each indicative sentence prior to the application of a 25% discount to reflect the utilitarian value of the plea of guilty.

Grounds of Appeal

1. [7]

   The applicant seeks leave to appeal against his sentence on the following grounds:

Circumstances of offending and assessment of objective seriousness

1. [8]

   The facts upon which the applicant was sentenced are contained in the Remarks on Sentence (ROS) and the Statement of Agreed Facts. The sentencing judge summarised the facts constituting each offence, immediately setting out her findings in respect of the objective seriousness.

2. [9]

   The following summary is taken in large part from the ROS and deals with each offence in the order that the sentencing judge dealt with them.

3. [10]

   The applicant and BG met in 2006. In all, the pair had seven children together, born between 2009 and about 2017. JG was born in July 2009 and RG was born in July 2011.

4. [11]

   The victims first disclosed the offending in 2021, stating that the applicant and their mother had regularly sexually assaulted them since they were very young. The sentencing judge was mindful that the applicant stood for sentence only for the matters set out in the charges and to which he had pleaded guilty. That offending occurred, however, in the context of ongoing and regular abuse within the home.

5. [12]

   The offending took place between 22 August 2019 and 21 March 2021 when the family lived in a house in Taree. Aside from one sexual assault (sequence 11), all charged assaults and sexual assaults occurred during this period.

6. [13]

   Between August 2019 and March 2021, when RG was either 8 or 9 years old, the applicant held her against a wall by her throat with her feet above the floor. She was scared and later cried.

7. [14]

   Given the nature of the act, the disparity in age, size, authority and power between the applicant and RG, the sentencing judge concluded that the offence is “a very serious example of the offending” and “at the high end of the range of criminality”.

8. [15]

   When RG was either 8 or 9 years old, the applicant held her down while BG inserted a long flexible rod into RG’s urethra as punishment. RG urinated when the rod was pulled out. This act occurred in the presence of another child. It was not an isolated event. The applicant and BG punished RG and her siblings in this way on other occasions.

9. [16]

   The sentencing judge did not regard the absence of sexual motivation on this occasion as lessening the objective seriousness of the offence. Her Honour concluded that the offence was at “the high end of the range of criminality”.

10. [17]

    Between August 2019 and March 2021, when RG was either 8 or 9 years old, the applicant and BG disciplined her by inserting a carrot into her anus. The carrot broke off inside her. RG could not remove it herself. The applicant put on gloves and penetrated her anus with his fingers to remove that part of the carrot that remained in RG’s anus. This occurred while BG held RG down.

11. [18]

    The sentencing judge stated that this is a particularly demeaning act of anal penetration “dressed up as parental discipline”. The fact that the offence occurred while BG held the victim down was “particularly humiliating and demeaning”.

12. [19]

    It was accepted at the sentence proceedings that the Crown could not prove whether it was the applicant or BG who inserted the carrot. However, the applicant was responsible on the basis that he was part of a joint criminal enterprise with BG.

13. [20]

    Her Honour found that the offence was one above the mid-range of objective seriousness.

14. [21]

    On an occasion when JG was aged 10 or 11 years old, she entered the applicant’s bedroom while the applicant and BG were arguing. They put pornography on the television and the applicant put his erect penis into JG’s mouth until he ejaculated. BG instructed JG on what to do.

15. [22]

    The intensity of the directed fellatio and the introduction of pornography to the victim was described by the sentencing judge as “insidious”. The offence was described as being at the “higher end of seriousness”, and the applicant’s moral culpability for it assessed as “high”.

16. [23]

    The Form 1 attaching to sequence 14 is an offence of aggravated sexual intercourse with a child between 10 and 14 (in company): s 66C(2). On either the same day as sequence 14, or the following night, the applicant was naked, blindfolded, with his legs and arms tied to the bed. BG told JG to fellate the applicant’s penis and instructed her on how to do it.

17. [24]

    The sentencing judge determined that the Form 1 offence required an increased sentence to reflect the appropriate measure of retribution and “deterrence”.

18. [25]

    When RG was 8 or 9 years old and JG was 10 or 11 years old, the applicant and BG let RG watch as JG fellated the applicant (this was an uncharged act in respect of JG). BG then instructed RG to fellate the applicant’s penis until he ejaculated in her mouth. RG’s older brother, LG was also in the room. He was aged either 9 or 10 years old.

19. [26]

    The sentencing judge described it as an “extremely serious offence”. The applicant’s moral culpability was assessed as “high” and the offence towards the higher end of objective seriousness.

20. [27]

    The applicant and BG had a range of sex toys that they used with each other and the children. When JG was 10 or 11 years old, the applicant made her use a vibrator on herself to show him that she knew how to use it. He subsequently bought a vibrator for JG and RG.

21. [28]

    The sentencing judge remarked that the purchase and use of sex toys involved forethought and planning. The applicant’s actions were prone to confuse and unfairly cause guilt in the mind of JG. Her Honour concluded that the conduct constituted “a most serious form of this offence”.

22. [29]

    When JG was either 10 or 11 years old, the applicant and BG used a vibrator to penetrate JG’s vagina. The sentencing judge found that the offence was slightly below the mid-range of objective seriousness.

23. [30]

    The Form 1 attaching to sequence 12 contained three offences (sequences 18, 19 and 31). Each was an offence of sexually touching a child between 10 and 16 years contrary to s 66DB(a). The applicant and BG demonstrated to JG how to use a vibrator. On at least three occasions the applicant and BG used a vibrator to touch JG’s vagina.

24. [31]

    When RG was 8 or 9 years old and, on an occasion, when she was alone with the applicant, he touched her on her genitals and in between the folds of her vulva with a spiked vibrator.

25. [32]

    The sentencing judge found that the offence was above the mid-range of objective seriousness.

26. [33]

    The Form 1 attaching to sequence 3 contained three offences (sequences 28, 29 and 30). These offences related to occasions where the applicant used a vibrator to touch both victims’ genitals, together and alone.

27. [34]

    When RG was 8 or 9 years old, the applicant took her into his bedroom and engaged in penile vaginal intercourse with her. The sentencing judge described the offence as “opportunistic” and concluded that it fell “just below the mid-range of seriousness”.

28. [35]

    On this occasion BG assisted the applicant to put his erect penis into RG’s vagina. The victim was aged either 8 or 9 years old at the time. The sentencing judge emphasised the gross breach of trust by the applicant given that the offence occurred in the victim’s home and in company with BG. The offence was assessed as “just above the midrange of criminality”.

29. [36]

    When JG was 10 or 11 years old, the applicant took her into the bedroom where BG performed cunnilingus upon her while the applicant watched. The sentencing judge found that the offence was “above the midrange” of objective seriousness.

30. [37]

    The Form 1 attaching to sequence 9 contained one offence (sequence 8), an offence of aggravated sexual intercourse with a child between 10 and 14 years old. The offending involved the applicant and BG taking JG into the bedroom. The applicant directed JG to put her mouth and her tongue on BG’s vagina.

31. [38]

    When JG was aged 10 or 11 years old, she was in the bedroom where the applicant was tied to the bed, naked and blindfolded. BG was present. She directed and watched while JG sat on the applicant’s penis so that it penetrated her vagina.

32. [39]

    The sentencing judge observed that the direction by BG to JG to perform “a serious act of bondage, is grotesque”. Her Honour found that the offence was well into the “higher end of the range of criminality”.

33. [40]

    When JG was 10 or 11 and RG was 8 or 9 years old, the applicant, in the presence of BG and both children, put on a condom and put his erect penis into JG’s anus and had sexual intercourse with her until he ejaculated. He then used a different condom and repeated the act on RG.

34. [41]

    The sentencing judge found that the offences were “towards the higher end of the range of criminality”.

35. [42]

    When JG was 11 years old, the applicant put his erect penis into her anus and had sexual intercourse until he “finished”. The conduct was not an isolated event. The sentencing judge held that the offence was “well above the midrange of objective seriousness”.

36. [43]

    Where it was not already an element of the offence, the sentencing judge took into account the gross breach of trust and authority as an aggravating factor. The applicant is the biological father of the victims who were in his “supposed care”. The sentencing judge noted that the relationship required the applicant to exercise a duty of care over the victims. Her Honour found that the applicant had breached that duty in the “most egregious way”.

37. [44]

    The sentencing judge also took into account, as an aggravating feature in each case, that the offending took place in the victims’ home, where they had a right to feel supported, safe and secure.

38. [45]

    The applicant was 32 years old at the time of sentence. He is an Aboriginal man and is the sixth of eight siblings. His father was a heavy drinker and used “strong corporal punishment” on the applicant.

39. [46]

    The applicant reported being the victim of a sexual assault perpetrated against him by a family friend when the applicant was in year six. Although the act occurred on one occasion, it was a serious sexual assault perpetrated against him when he was a child. Subsequently, the applicant became preoccupied with sex and was hyper aroused. He was aware that the perpetrator had also abused the applicant’s sister and several other young girls. The applicant reported being embarrassed and ashamed of the abuse. The sentencing judge observed that the abuse perpetrated against him “sadly has given him little insight into his offending and what that has caused in RG and JG”.

40. [47]

    The sentencing judge referred to the report of Mr Patrick Sheehan, Forensic Psychologist, dated 5 June 2023. Mr Sheehan opined that the applicant’s “abnormal sexual development may well have been linked to this early sexual experience, particularly given the close temporal nexus between the abuse he suffered and his own emerging sexual preoccupation”.

41. [48]

    The applicant’s responses to Mr Sheehan revealed that he is a person with a basic vocabulary and low intelligence although he does not have a cognitive impairment. The applicant was described by Mr Sheehan as “emotionally immature”.

42. [49]

    When the applicant was aged about 16 or 17 years old, he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD). He was medicated in about 2007 with some positive effects, however, was subsequently non-compliant with his medication.

43. [50]

    The applicant left home at the age of 17. He has a strained relationship with his family. Following disclosure of the offences, RG and JG were placed in the care of the applicant’s parents. Since his incarceration, the applicant has had telephone contact with his parents, but they do not discuss the offending.

44. [51]

    The applicant has never held paid employment. He was on a disability support pension since 2015 when he sustained an injury to his hand in an accident.

45. [52]

    The sentencing judge noted the applicant’s long history of social deficits which include an inability to make and sustain normal friendships. He can be defensive and aggressive in his approach to others and finds it difficult to understand others and to be understood. The applicant’s ASD has become increasingly evident over time, and he exhibits low empathy.

46. [53]

    The sentencing judge noted that Mr Sheehan opined that the offences could not be accounted for by the ASD, but that the applicant’s “impaired understanding of relationships, deficits in recognising non-verbal cues, and fixated interests of abnormal intensity” likely contributed to his offending.

47. [54]

    The applicant’s relationship with BG commenced when he was 15 years old. The applicant described BG’s “incestuous family” in the context of reporting that the pair had few sexual boundaries. The applicant also reported that he and BG were “sexually adventurous” and that he had an interest in being submissive. The applicant claimed that his wife had a greater sexual appetite and that this was a repeated source of tension in the relationship. That tension was resolved through sex.

48. [55]

    The sentencing judge noted the applicant’s lack of insight, which was demonstrated in a number of ways including his denial that he had any “broader sexual interest in children”. Her Honour noted that whilst the applicant acknowledged his offending, he could not explain his motivation. He knew that his behaviour was wrong but reported that he had been so embedded in an overly sexualised and permissive environment that he lost all perspective.

49. [56]

    The sentencing judge had regard to the applicant’s history of depression and attempts at self-harm. Her Honour had little doubt that the prospect of facing a lengthy term of imprisonment has resulted in “some situational depression”.

50. [57]

    In relation to the applicant’s background and mental health issues, her Honour remarked:

51. [58]

    The sentencing judge concluded:

52. [59]

    Her Honour remained of the view that the applicant’s moral culpability for the offending was “very high”. The applicant’s mental health issues “increase the need for specific deterrence, protection of the community and may undermine the offender’s ability to rehabilitate”.

53. [60]

    The sentencing judge accepted that the applicant is remorseful “to some degree” for his offending. However, the applicant’s limited insight, his ASD, and his inability to come to terms with his offending and employ strategies to guard against reoffending, underpinned the sentencing judge’s finding that the applicant’s risk of reoffending is “above average and that his pathway to rehabilitation at this point remains unclear”.

54. [61]

    The sentencing judge had regard to the various purposes of sentencing including specific and general deterrence, the protection of the community and punishment. Her Honour also had regard to the impact of the offending on the victims, noting the contents of the victim impact statements. Her Honour did not however have regard to the harm occasioned to the victims as an aggravating factor.

55. [62]

    The sentencing judge addressed the principle of totality, noting that “[p]ublic confidence in the administration of justice requires that I studiously avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending”.

56. [63]

    The sentencing judge varied the statutory ratio between the head sentence and the non-parole period to reflect a finding of special circumstances. In making that finding, the sentencing judge took into account the onerous conditions in custody given the nature of the offending, the applicant’s mental health issues and the fact that he had already twice been assaulted in prison.

Ground 1: error in failing to take into account in mitigation the applicant’s own history of child sexual abuse

1. [64]

   The applicant submitted that the ROS demonstrate a failure on the part of the sentencing judge to consider the effect of the applicant’s own history as a victim of child sexual abuse on the offending and any concomitant reduction in his moral culpability.

2. [65]

   In support of that contention the applicant relied upon Mr Sheehan’s report, particularly the opinion that the applicant’s abnormal sexual development may well have been linked to his early sexual experience.

3. [66]

   It was noted that the applicant’s counsel in the sentence proceedings acknowledged that Mr Sheehan did not suggest there was “any kind of direct link between [the abuse the applicant experienced as a child] and his offending”. However, counsel did rely on Mr Sheehan’s opinion of the earlier abuse contributing to his sexual development and preoccupation with attitudes towards sex, as supporting a “finding of further diminution in his moral culpability, in line also with some consideration of Bugmy in that respect”.

4. [67]

   The applicant complained that the reasons of the sentencing judge do not demonstrate any independent consideration of the issue of the effect or impact, if any, of the applicant’s history on the commission of the offending. On the appeal, it was argued that the applicant’s and co-offender’s “highly sexual” status and lack of regard for boundaries were central drivers or features of the commission of the offences. In that context it was said to be entirely logical and rational that these drivers were, at least partially, the result of the serious sexual abuse he experienced as a child.

5. [68]

   The respondent submitted that the applicant’s counsel in the sentence proceedings accepted there was no “direct causal link” between the reported sexual abuse and the applicant’s offending. In these circumstances, it was not incumbent upon the sentencing judge to explain the effect or impact, if any, of the history of abuse on the commission of the offences. The respondent submitted that there is no evidence to support such a finding having regard to Mr Sheehan’s opinion that the applicant’s “abnormal sexual development may well have been linked to his early sexual experience.” (Emphasis added.)

6. [69]

   The respondent submitted that the sentencing judge did accept that the applicant had been the victim of one instance of sexual abuse. Confining the relevance of that abuse to an aspect of his dysfunctional childhood, to be taken into account as part of his subjective circumstances does not demonstrate error.

7. [70]

   In determining Ground 1, it is first necessary to say something about the appropriate test to be applied in determining whether an offender’s own history of sexual abuse reduces moral culpability. An analysis of previous cases where the issue has arisen reveals that the test applied has been somewhat fluid. Various formulations have been used to describe the test ranging from “direct causal link”, “causative of”, “materially contributed to”, and “contributed to”.

8. [71]

   R v AGR (Court of Criminal Appeal (NSW), 24 July 1998, unrep) (“AGR”) appears to contain one of the earliest formulations of the test to be applied when determining whether an offender’s history of sexual abuse can reduce moral culpability. James J (with whom Mason P and Groves J agreed) said at 13:

9. [72]

   In WW v R [2023] NSWCCA 311, although Wilson J (with whom Kirk JA and Fagan J agreed) referred to there being “no direct evidence of any causal link” between the childhood abuse and the crimes committed (at [88], [91]) (emphasis added), her Honour applied the formulation set out in AGR, at [87]; see also KAB v R [2015] NSWCCA 55 at [64], referring to AGR (per Wilson J with whom Ward JA and Simpson J agreed).

10. [73]

    In Da Silva v R [2024] NSWCCA 216, Stern JA (with whom Dhanji and Faulkner JJ agreed) said at [18]-[19]:

11. [74]

    It should be observed that in DC v R [2023] NSWCCA 82 (cited in Da Silva v R), the evidence relied upon to reduce moral culpability related to the applicant’s mental health issues, rather than a history of sexual abuse. It was in that context that the test applied was whether the mental health conditions played a “role of some significance” in his offending.

12. [75]

    The test applied when considering the impact of mental health issues upon an applicant, derives from the well-known principles enunciated in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”). McClellan CJ at CL summarised the principles to be applied in sentencing where an offender is suffering from mental health conditions. Relevantly, his Honour said, at [177]:

13. [76]

    It is often the case that a history of sexual abuse will result in the onset of mental health issues such as, for example, post-traumatic stress disorder. The interplay between these features is sometimes difficult to disentangle. It is worth noting, however, that the “material contribution” test applies in circumstances where an offender is suffering from a mental illness, intellectual handicap or other mental health conditions.

14. [77]

    The use of terminology such as “causal link” or “causal nexus” is prone to unnecessarily and unduly elevate the threshold that an offender must meet before the evidence of childhood sexual abuse can be taken into account to reduce moral culpability. In my view, a sentencing judge should not become preoccupied with the issue of “causation” as a technical matter. As observed by Hamill J in Luque v R [2017] NSWCCA 226 at [114], the sentencing task should not be approached in “an unduly technical or restrictive way”.

15. [78]

    To be clear therefore, in my view, the following propositions can be distilled from the authorities:

16. [79]

    Turning then to the evidence in this case. There appears to be no issue that the sentencing judge accepted the history provided by the applicant that he was sexually assaulted by an older male who was a friend of the family. This sexual assault was perpetrated against the applicant when he was in the sixth grade (the applicant was aged 10 or 11 years old). The perpetrator penetrated the applicant anally with a dildo in a single episode offence during a trip to church. The applicant was aware that the perpetrator had also abused his sister and several other young girls and had been charged and convicted of those offences.

17. [80]

    Mr Sheehan outlined the applicant’s report of having been exposed to some childhood trauma, through “overzealous corporeal punishment and through penetrative sexual assault”. The applicant did not report the requisite symptoms in keeping with a diagnosis of post-traumatic stress disorder. However, Mr Sheehan opined, as noted earlier, that the applicant’s abnormal sexual development “may well” be linked to his early sexual experience, noting the temporal nexus between his own abuse and his emerging sexual preoccupation.

18. [81]

    The sentencing judge acknowledged that the applicant had a long history of social deficits. Following a summary of the applicant’s subjective case, including the evidence of having been “seriously sexually abused on one occasion by a family friend when he was in year six at school”, the sentencing judge described the applicant’s childhood as a “dysfunctional childhood”. In addition to that dysfunctional childhood, her Honour took into account the applicant’s mental health issues in her “overall assessment”. Immediately following, her Honour said: “[a]ny reduction in moral culpability, however, must be seen in the context of offending that took place over a prolonged period and involved persistent and varied offending”.

19. [82]

    Two things may be observed. Firstly, her Honour did have regard to the applicant’s dysfunctional childhood, a feature of which was his sexual abuse. There was no requirement in the circumstances of this case, to address that abuse separately. Secondly, in my view her Honour did turn her mind to the extent to which the applicant’s dysfunctional childhood and mental health issues reduced his moral culpability, determining that that assessment must be conducted in the context of nature of the offending. It was open to her Honour to approach the question of moral culpability in that way, given that the offending was extremely serious, persistent and prolonged.

20. [83]

    I am not persuaded that the sentencing judge erred in failing to take into account in mitigation, the applicant’s own history of child sexual abuse. Ground 1 is not made out.

Ground 2: error in finding that the applicant’s mental health issues increased the need for specific deterrence and protection of the community

1. [84]

   Ground 2 can be dealt with succinctly. The principle that by virtue of a person’s mental illness, they may present more of a danger to the community, such that considerations of specific deterrence may result in an increased sentence, is uncontroversial: De La Rosa at [177] (per McClellan CJ at CL); R v Israil [2002] NSWCCA 255 at [24]-[25] (per Spigelman CJ, Simpson J and Blanch AJ agreeing); R v Henry [2007] NSWCCA 90 at [28] (per Howie J, Simpson and Hislop JJ agreeing); R v Lawrence [2005] NSWCCA 91 at [23]-[24] (per Spigelman CJ, Grove and Bell JJ agreeing).

2. [85]

   The applicant complained, however, that it was not open, on the evidence in this case, for the sentencing judge to make a finding that the applicant’s mental health issues increased the need for specific deterrence and the protection of the community.

3. [86]

   Mr Sheehan opined that the applicant’s offences “cannot be accounted for by his ASD” but was of the view that some nexus existed between the ASD and the applicant’s offending, “by way of impaired understanding of relationships, deficits in recognising non-verbal cues, and fixated interests of abnormal intensity (in this case sexual interest)”. Mr Sheehan also opined that the applicant was at “an above average” risk of reoffending.

4. [87]

   In addition to Mr Sheehan’s opinion about the applicant’s risk of reoffending, the sentencing judge made a finding that the applicant had limited insight into his offending; a finding that was entirely open on the material. Notwithstanding the nature of the offending and the diagnosis of paedophilic disorder, the applicant denied that he had a sexual interest in children. He could not explain why he repeatedly offended against his daughters, despite knowing that the conduct was wrong.

5. [88]

   Furthermore, the sentencing judge found that the applicant’s ASD and low intellect not only limited his “ability to come to terms with his offending”, but also his ability to “employ strategies to guard against it happening in the future”. The sentencing judge recognised the applicant’s lack of insight and his mental condition as “hurdles to deterring any future offending…”, concluding that the applicant’s pathway to rehabilitation remained unclear.

6. [89]

   The evidence provided the foundation for each of her Honour’s findings, and it was open to her Honour to find that the applicant’s mental health condition increased the weight to be afforded to specific deterrence and the protection of the community.

7. [90]

   I would therefore dismiss Ground 2.

Ground 3: the sentence is manifestly excessive

1. [91]

   The applicant contended that the sentence is manifestly excessive having regard to:

2. [92]

   Firstly, it was accepted by the applicant that each of the nominated sequences involved a particular feature or features that distinguish the offence from the other acts of penetration and fellatio and served to increase the objective seriousness of those offences. In circumstances where the indicative sentences were discounted by 25% to reflect the utilitarian value of the plea of guilty, the extent of increase in each of the nominated sequences was said to be excessive. It was submitted that the nature of the distinctive features with respect to the nominated sequences was not such as to so significantly increase the seriousness of each relevant offence.

3. [93]

   Secondly, the applicant submitted that the length of the indicative sentences, the ultimate aggregate sentence and the non-parole period, did not reflect any meaningful mitigating impact being allowed for the favourable findings as to the applicant’s dysfunctional childhood, his mental health issues and his remorse.

4. [94]

   Thirdly, the applicant submitted that the total sentence is beyond that which would reflect the total criminality of the offending given the significant commonality underlying the facts and circumstances of the offending; the overlap and/or proximity of timing in many instances; and the total timeframe of the offending.

5. [95]

   Fourthly, the applicant relied upon a schedule of cases (Annexure B to the applicant’s written submissions), to demonstrate that the sentence is manifestly excessive.

6. [96]

   The respondent submitted that there were clear features of each of the nominated sequences which warranted an increase in the indicative sentence. These features included occasions when a victim was subjected to acts of bondage or directed to perform the sexual act on the applicant at the direction of BG; display of pornographic material to prepare the victim for sexual activity; and the presence of a younger sibling during the sexual act.

7. [97]

   The respondent submitted that the applicant’s dysfunctional childhood was a relevant factor on sentence but that the sentence was also required to recognise the harm done to the victims, deter the applicant and others and protect the community. The applicant’s subjective case could not be allowed to overwhelm a proper balancing of the factors relevant to the sentence imposed for prolonged and persistent sexual offending.

8. [98]

   In respect of totality, the respondent submitted that the sentencing judge carefully considered the principle, to avoid imposing a “crushing sentence”.

9. [99]

   The respondent distinguished some of the comparative cases referred to in Annexure B, submitting that in many of those cases, the offending was less serious. In any event, the respondent emphasised that appellate intervention is not justified simply because the result arrived at by the sentencing judge is markedly different to a sentence imposed in another case.

10. [100]

    There is no doubt that the applicant’s actions subjected the victims to degrading and frightening sexual offending which has had a distressing and debilitating impact upon them. The applicant’s offending is properly described as “heinous, depraved and appalling”. The sentence must reflect the Court’s denunciation of such conduct. The offences called for a very lengthy term of imprisonment.

11. [101]

    However, the total sentence and the non-parole period imposed by the sentencing judge went beyond what can be categorised as a “stern” or “harsh” sentence. It is clearly manifestly excessive. In arriving at this conclusion, I have had regard to the principles relevant to a contention of manifest excess. The correct approach to a ground asserting manifest excess is well-settled.

12. [102]

    The principles applicable to a complaint that a sentence is manifestly excessive were summarised by R A Hulme JA (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) at [443] as follows:

13. [103]

    The principles expressed in Obeid were cited with approval by Bell CJ (Stern JA and Button J agreeing) in Astill v R [2024] NSWCCA 118 at [77]. At [78], the Chief Justice also cited with approval the further guidance provided by R A Hulme J in JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39]–[40]:

14. [104]

    In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, after summarising the principles applicable to determining whether a sentence is manifestly excessive, Bell P (Gleeson and McCallum JJA agreeing) continued as follows:

15. [105]

    As observed by N Adams J in Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153 at [168], the principles summarised in Obeid identify what is not sufficient to establish a ground of manifest excess: it is not sufficient merely to show that the sentence is “markedly different” from sentences imposed in other cases or that this Court might have exercised the sentencing discretion differently.

16. [106]

    The applicant relies in part on the asserted excessiveness of the indicative sentences for nominated sequences. The applicant’s contention must be considered having regard to the observations made by Wright J (Payne JA and Price J agreeing) in Merheb v R [2021] NSWCCA 224 at [77]:

17. [107]

    There were clear features of each of the nominated sequences which warranted an increase in the indicative sentence as compared to other indicative sentences specified for the same offence. By way of example, sequence 21 involved the insertion of a carrot into the anus of RG who was 8 or 9 years old at the time. She was held down by BG when this penetrative act took place, purportedly as an act of punishment.

18. [108]

    More generally, the nominated sequences included the victim being subjected to acts of bondage; direction by BG to perform sexual acts on the applicant; the display of pornographic material to the victim to prepare her for sexual activity; and anal penetration in the presence of the victim’s younger sibling. These features operated to increase the objective seriousness of the offending.

19. [109]

    I accept that in relation to some of the nominated sequences the indicative sentences were excessive. For example, sequences 13 and 14, offences contrary to s 66C(2) of the Crimes Act 1900 (NSW), attract a maximum penalty of 20 years’ imprisonment. The starting point for each offence (prior to discount) was an indicative sentence of 16 years’ imprisonment. However, a finding that the indicative sentences for some of the nominated sequences were excessive, does not, by itself, render the aggregate sentence manifestly excessive.

20. [110]

    I turn to consider the comparative cases relied upon. In assessing a ground contending that a sentence is manifestly excessive, an intermediate appellate court will often need to have regard to other cases, albeit exercising the requisite caution that each case will be different and that sentencing judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Davidson v R at [168] per N Adams J.

21. [111]

    The numerous statements of principle regarding the limitations of “comparable” cases does not mean that they are irrelevant. In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] Gaudron, Gummow and Hayne JJ stated:

22. [112]

    The requirement to show a difference that warrants appellate intervention will often involve reliance upon comparable cases. It is difficult to see how else the difference demonstrating some misapplication of principle can be illustrated. The caution that must be borne in mind is that while a history of sentencing might establish a range of sentences imposed, “it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range”: He v Sun at [42] per Bell P (with whom Gleeson and McCallum JJA agreed); MLP v R [2014] NSWCCA 183 at [41]-[44] per Bellew J (with whom Macfarlan JA and Adamson J agreed); Martinez v R [2020] NSWCCA 250 at [39] per Bellew J (with whom Hoeben CJ at CL and Rothman J agreed).

23. [113]

    However, the statement that the utility of seeking to establish manifest excess by reference to statistics and the selection of similar cases has been “regularly and repeatedly, decried by this Court as inapposite to the task”: FL v R [2020] NSWCCA 114 at [77]-[79] (per Wilson J, R A Hulme and Hamill JJ agreeing), is, as observed by the Chief Justice (with whom Davies and N Adams JJ agreed) in Moodie v R (2020) 284 A Crim R 87; [2020] NSWCCA 160 at [83] (“Moodie”), “too strong a statement”. The Chief Justice continued:

24. [114]

    While no two cases and no two offenders are identical or the same, comparative cases proceed on the basis of some commonality and can be useful in demonstrating points of distinction. Of course, to be of some utility, the process of comparison requires critical analysis of the similarities and points of distinction.

25. [115]

    On the present appeal, the applicant provided a schedule (Annexure B to the applicant’s submissions) containing four cases in which offenders were sentenced for multiple child sexual offences involving biological children. What is readily evident is that there is only one other case where an aggregate sentence of 48 years’ imprisonment has been imposed: WG v R; KG v R [2020] NSWCCA 155 (“WG”). I will return to an analysis of these cases in due course.

26. [116]

    It is appropriate to first address the schedule of comparable cases that was relied upon by the Crown at the sentence proceedings. Of some interest is the fact that the Crown at first instance did not rely on WG as a comparative or comparable case.

27. [117]

    Counsel for the applicant in the sentence proceedings did not rely on any comparative cases.

28. [118]

    The Crown’s schedule of comparative cases relied upon in the sentence proceedings included six cases, one of which is also relied upon by the applicant in the appeal (ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132) (“ZA”). What can be readily discerned from those cases is that the total sentences ranged from 26 years’ imprisonment to 12 years’ imprisonment. The highest aggregate sentence relied upon by the Crown below, as a comparator, was 26 years, which is just above half the total sentence imposed in the present case.

29. [119]

    As to the schedule of cases relied upon by the applicant on the appeal, ZA was a case where the offender was sentenced, after a discount of 25%, to an aggregate term of imprisonment for 26 years with a non-parole period of 18 years. The applicant in that case was sentenced for seven offences contrary to s 66A(2) and two offences contrary to ss 91G(1) and 91H(2) of the Crimes Act. The offender had sexually abused his biological daughter who was aged between 8 and 9 years old over a period of 18 months.

30. [120]

    The acts involved fellatio, cunnilingus, penile-anal penetration and the penetration of the victim’s anus with an object. The offender showed his daughter child pornography and filmed the acts on several occasions. He was found to be in possession of 44 videos and 67 images of child pornography.

31. [121]

    While there are common features with the present case, there are also differences. The applicant, in this appeal, was sentenced for 14 sexual offences against two of his biological daughters. Many of the offences were committed by the applicant in company with BG. To that extent some of the offences for which the present applicant was sentenced are objectively more serious than those committed by the offender in ZA.

32. [122]

    In BR v R [2021] NSWCCA 279 (“BR”), the offender was sentenced, following a successful appeal, to an aggregate term of 28 years’ imprisonment with a non-parole period of 20 years in respect of 13 offences contrary to ss 66A, 66C(2) and 61M(1) and (2) of the Crimes Act, against three victims (the offender’s biological daughter, his stepdaughter and step-granddaughter). The indicative sentences were discounted by 5%.

33. [123]

    There were however some differences which rendered the overall criminality less grave. The offences were assessed as being “either at the midrange or the low range” of objective seriousness. None of the sexual offences involved anal intercourse and none were committed in company. On the other hand, the discount applied was only 5%.

34. [124]

    In DH v R [2022] NSWCCA 200 (“DH”), the offender was sentenced to an aggregate term of imprisonment for 30 years with a non-parole period of 20 years. The offender was sentenced for 17 child sex offences committed over a 28-year period against nine children, including two of his biological daughters. Seven of the offences were contrary to s 66A(1) of the Crimes Act although none involved penile-vaginal or penile-anal intercourse. The remaining offences were indecent assault offences. The discount applied was between 5-10%. The offending was described as offending “of a most reprehensible kind”, the Court observing that “[t]he sexual assault of one’s own daughters is particularly abhorrent”.

35. [125]

    Although not identical to the present case, DH provides some assistance in assessing the applicant’s contention that the sentence imposed is manifestly excessive.

36. [126]

    The case that has been of most utility in my assessment of whether the sentence is manifestly excessive is the case of WG. Exercising the caution referred to above and recognising that one case does not establish a range of patterns of sentencing, having regard to the magnitude of the sentence imposed on the applicant, close analysis of the facts and circumstances in WG has proved useful.

37. [127]

    The first matter to note in relation to WG is that the offender was sentenced after trial. No discount was applied to the indicative sentences. In WG the offender was sentenced to 48 years’ imprisonment with a non-parole period of 36 years for 73 offences which included 67 sexual offences against his biological daughter when she was aged between 5 and 19 years old.

38. [128]

    WG was sentenced for historical offences which carried a maximum penalty of 20 years’ imprisonment unlike the applicant who was sentenced for seven offences carrying a maximum sentence of life imprisonment. The offending involved only one biological daughter.

39. [129]

    However, in WG the offending was much more objectively serious than the present case. That does not of course diminish or in any way detract from the applicant’s appalling conduct, the seriousness of the sexual offences he committed against his daughters, or the heinous nature of his behaviour by preying upon their vulnerability.

40. [130]

    But engaging in a process of critical analysis of the comparator, it is necessary to point to the differences which favour the applicant. Not only did WG engage in offences that were much more objectively serious than the present case, but the offending continued over a more extensive period, of approximately 14 years.

41. [131]

    The sexual acts were often accompanied by extreme violence and on some occasions the sexual acts were committed in the company of the offender’s spouse and mother of the victim. Furthermore, on occasion the victim was restrained by binding her wrists and detained in a shed on the family property for hours and sometimes days.

42. [132]

    In my view, WG’s overall criminality was much more grave than that of the applicant. The number, nature and circumstances of the offending in WG are points of distinction that favour the applicant.

43. [133]

    I am satisfied that the sentence is manifestly excessive. I would, accordingly, uphold Ground 3.

Re-sentencing

1. [134]

   It is necessary, in accordance with the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 to exercise the sentencing discretion afresh and re-sentence the applicant. In approaching the task of re-sentencing, I agree with and adopt the findings of the sentencing judge as to the objective seriousness of each offence.

2. [135]

   The applicant’s offending constituted a gross breach of trust and profound violation of his daughters’ right to feel secure and safe in their own home and to be nurtured by their parents. Instead, the victims were subjected to appalling sexual offending which, on occasion, involved the applicant and BG acting in company. The applicant must be held to account for his offending. Importantly, the harm occasioned to the victims is acknowledged.

3. [136]

   In addition to these purposes of sentencing, protection of the community and denunciation have a significant role to play.

4. [137]

   In re-sentencing for the s 66A offences, I am mindful of the legislative history of that section which reflects the serious view the legislature takes of sexual offending against children and the increase in the maximum penalty as prescribed. As was noted by Simpson AJA in Gibbons (a pseudonym) v R [2019] NSWCCA 150 at [58] (with whom Lonergan J agreed, Button J in dissent, although not on this point): “A full measure of respect must be paid to the intention of the legislature”.

5. [138]

   Mr Sheehan’s assessment of the applicant’s risk of reoffending, together with the applicant’s lack of insight and unclear prospects of rehabilitation partly connected to his ASD, warrant greater weight being afforded to specific deterrence and the protection of the community.

6. [139]

   The applicant’s subjective case demonstrates a dysfunctional childhood which included an instance of serious sexual assault perpetrated against the applicant. That sexual assault was perpetrated by a family friend when the applicant was a child. It involved the penetration of the applicant’s anus.

7. [140]

   Of significance is Mr Sheehan’s opinion that the applicant’s “abnormal sexual development may well have been linked to his early sexual experience, particularly given the close temporal nexus between the alleged abuse and his own emerging sexual preoccupation”. That evidence is sufficient, in my view to establish on a balance of probabilities that the applicant’s experience of sexual abuse (a matter that is not in dispute and was accepted by the sentencing judge) contributed to his offending.

8. [141]

   The applicant’s dysfunctional background, which includes that sexual abuse, and his mental health issues, operate to reduce the applicant’s moral culpability at least to some degree. However, the extent to which his moral culpability is reduced is tempered because of the serious nature of the offending which was persistent and took place over a prolonged period. The applicant’s mental health condition also operates to reduce the weight afforded to general deterrence. However, given the gravity of the offences, general deterrence remains a relevant factor.

9. [142]

   In re-sentencing the applicant, I have had regard to his affidavit affirmed 28 January 2025 and the affidavit of Ms Witmer affirmed 17 January 2025 which were read on the usual basis. The applicant has been assaulted in custody and has had to be moved from one correctional centre to another to provide for his security. He is held in protection which at times means that his access to a yard, work programs and educational programs is limited. The applicant expressed some hope that he would be relocated to a prison closer to Queensland so that he could receive family visits.

10. [143]

    I accept that the custodial conditions will be more onerous on the applicant, warranting a finding of special circumstances and a variation of the statutory ratio. In making that determination I have also had regard to the fact that the aggregate sentence involves partial accumulation of the indicative sentences which will result in a very lengthy term of imprisonment. The applicant will require a lengthy period on parole to readjust to life in the community and to obtain the necessary treatment for his paedophilic disorder.

11. [144]

    In formulating the indicative sentences, I have applied a 25% discount to reflect the utilitarian value of the plea. In determining the aggregate sentence, I have had regard to the principle of totality. While each offence involves a separate and discrete criminal act, the common features and the period of time in which the offences were committed, warrant some degree of concurrency.

12. [145]

    In respect of some of the sequences, an additional degree of concurrency is warranted because the offences were committed on the same occasion or on the next day. For instance, sequences 18, 19 and 31 were committed on the same occasions as sequences 28, 29 and 30 and involved the same type of offending, perpetrated against each of the two victims respectively. Sequences 16 and 27 were also committed on the same occasion, against each of the two victims respectively.

13. [146]

    The indicative sentences are as follows:

14. [147]

    There will be a degree of notional accumulation to reflect the applicant’s overall criminality. In my view, an aggregate sentence of 30 years’ imprisonment with a non-parole period of 20 years is a proportionate sentence having regard to the objective gravity of the offences and the applicant’s subjective case.

15. [148]

    The variation of the statutory ratio is not as generous as the sentencing judge afforded the applicant. However, the sentence I propose reflects the proportionate sentence having regard to the overall criminality and the applicant’s subjective case. Furthermore, the proposed sentence provides for a substantial period on parole which is sufficient to allow for treatment and readjustment to living in the community.

16. [149]

    Accordingly, I propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the sentence imposed on the applicant at Taree District Court on 17 October 2023.

    4. (4)

       In lieu of the sentence imposed in the District Court, sentence the applicant to an aggregate term of imprisonment of 30 years to commence on 1 June 2022 and expire on 31 May 2052, with a non-parole period of 20 years. The earliest date upon which the applicant will be eligible for release on parole is 31 May 2042.