R v RJ

1. [1]

   ADAMSON JA: In February 2023, RJ (the respondent) was sentenced following convictions in two judge-alone trials for 19 offences (predominantly, sexual offences against his biological daughter (the victim) when she was between the ages of 12 and 15 years); an offence contrary to s 319 of the Crimes Act 1900 (NSW) in which he asked his wife to persuade the victim to withdraw her complaint (the s 319 offence) and a breach of the Apprehended Domestic Violence Order (ADVO) made which prevented contact with his wife.

2. [2]

   The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the following two sentences imposed on RJ, the respondent, after two judge-alone trials:

   1. (1)

      an aggregate sentence imposed by Mahony SC DCJ on 10 February 2023 for 19 offences of 12 years’ imprisonment commencing on 9 November 2019 and expiring on 8 November 2031, with a non-parole period of 8 years’ imprisonment; and

   2. (2)

      two sentences imposed by Neilson DCJ on 24 February 2023 for the s 319 offence and the breach ADVO offence, the overall effect of which was a sentence of 2 years’ imprisonment commencing on 9 July 2027 and expiring on 8 July 2029, with a non-parole period of 16 months’ imprisonment.

3. [3]

   The overall effect of the sentences imposed is a sentence of 12 years’ imprisonment commencing on 9 November 2019 and expiring on 8 November 2031 and a non-parole period of 9 years’ imprisonment. The first day on which the respondent will be eligible for parole is 8 November 2028.

4. [4]

   The Crown appeals on the ground of manifest inadequacy. On 21 February 2023 (after Judge Mahony sentenced him but before Judge Neilson sentenced him), the Crown notified the respondent’s legal representatives that it was considering an appeal against Judge Mahony’s sentence. On 10 March 2023, it filed a notice of appeal, service of which was acknowledged by the respondent from custody on 14 March 2023.

The sentences imposed

1. [5]

   Judge Mahony sentence the respondent in respect of 19 offences, all but three of which (counts 12, 20 and 21) were sexual offences against the victim. Count 12 was an assault committed against the victim on the same occasion as the aggravated sexual intercourse in count 11. Count 20 was an assault against his wife (the victim’s mother) when the victim disclosed the sexual offending and count 21 was an assault against the victim.

2. [6]

   A summary of the counts, the sentencing judges’ assessment of objective seriousness, maximum penalty, indicative sentences (in the case of the aggregate sentence) and sentences imposed are set out in the following table (largely reproduced from the Crown’s written submissions):

3. [7]

   While the facts are set out briefly in the table above, it is necessary to summarise the factual findings from the sentencing judgments to determine the appeal.

The facts

1. [8]

   The respondent was born in May 1981. He married in Jordan in 2003. He and his wife had three children. The eldest (the victim), a daughter, was born in June 2004. A son was born in 2006 and the youngest, a daughter, was born in 2018. The victim complained of the respondent’s conduct giving rise to the offences involving her in March 2018.

2. [9]

   The offences involving the victim comprised conduct which occurred on 12 separate occasions.

3. [10]

   The victim, aged 12, was in her parents’ bed with the respondent. It was not unusual for the children in the family to sleep or nap in a bed with their parent. As the victim began to doze off, the respondent slipped his hand inside the victim’s shirt. He told her he loved her and squeezed and rubbed the victim’s breast under her clothes. The victim froze. When she told the respondent that she felt uncomfortable, he said that he wanted to bring her closer to him. He told her not to tell anyone about it because “people think it’s wrong but it’s not wrong” and “if you tell anyone in our family, our family will like, it will fall apart … if you tell anyone then the whole family will be destroyed and you will be the root of that …”.

4. [11]

   The victim was aged 12 or 13. The respondent squeezed the victim’s breasts, rubbed and squeezed her bottom and rubbed her vagina on the outside (count 2). He penetrated her anus with his penis (count 3). He told her “the first time this might hurt a little bit. But you’ll get used to it”, and that she was not allowed to tell anyone about it.

5. [12]

   The respondent went into the victim’s bedroom and told her there was something that he wanted her to do for him. He pulled his pants down and placed his exposed penis on her cheek and mouth. She pulled away and said she wanted to sleep.

6. [13]

   Count 5 was a different occasion to count 4, but close in time. The respondent came into the victim’s bedroom while she was asleep. She began to wake when the respondent was stroking her face. The respondent pulled his pants down and placed his penis on the victim’s bottom lip. The victim rolled over and went back to sleep.

7. [14]

   The respondent and the victim were visiting her grandfather’s house. She went to sleep in the spare room and he got into bed in the same room. He told her to “come next to me” and she shuffled closer. He ran his hands down her body and placed his hand on her breast over her clothing for a period of about three minutes.

8. [15]

   Counts 7, 8 and 9 were committed on an occasion when the victim was in her parents’ bed. The respondent placed her hand on his penis, which had a condom on it (count 7). He then touched her bottom, vagina and breast, and rubbed the outside of her vagina with two fingers (count 8). The respondent also had the victim roll over and tried to place his penis (with a condom on it) in her bottom. He was unable to do so and took the condom off then inserted his penis into her anus for five minutes or so (count 9).

9. [16]

   The victim was in her bed, pretending to be asleep, when the respondent came into her room, put his penis on her mouth and forced it into her mouth telling her to “suck it”, which she did for a minute or so.

10. [17]

    The respondent told the victim to go to her mother’s room and wait for him there. He got onto the bed and after squeezing her breasts, got her to place her legs on his shoulders and pushed his penis into her anus (count 11). He also slapped the victim on her face (count 12).

11. [18]

    The victim was taking a nap and woke to find the respondent in her room. His pants were down, and he had a condom on his penis. He made his penis go into her mouth and told her to suck it for about one minute until he ejaculated into the condom.

12. [19]

    While the victim was asleep, in the early hours of the morning, the respondent came into her bedroom. He placed his penis in her mouth and told her to suck it.

13. [20]

    At about midnight the respondent said to the victim “wait for me in bed”. She went to her parents’ bed. He came in and started touching her breasts and touching her exposed vagina (count 15). He pulled the victim on top of him and rubbed the outside of her vagina against his penis (count 16). He also told her to roll over so that she was lying on her stomach, and he pushed his penis inside her bottom. This lasted for 10 minutes. He ejaculated inside her (count 17). He then told her to go to the bathroom to wash herself off, and to sleep in her room in case her mother came home in the morning.

14. [21]

    The respondent slapped each of the victim and his wife on their faces following the victim’s disclosure of the offending.

15. [22]

    In her victim impact statement, the respondent’s daughter said that the crimes committed against her had made her always expect the worst. They had affected her relationship with her family and her local community, but they had particularly affected her relationship with her brother who bore a physical resemblance to her father. She had become protective, uncomfortable, hypervigilant and suspicious in her interactions with her family. Her community had turned against her and her mother for reporting the offences. Her anger prevented her from building healthy relationships. She found it difficult to go out, or even leave the house. As a consequence, she did not finish school. She did not trust others and was anxious when in the community. She also suffered from insomnia. She felt that her experiences had affected her ability to obtain further education and employment. She had spent her adolescence as a “hermit”. She described the legal process for victims as “gruelling”.

16. [23]

    The victim’s mother said in her victim impact statement that she had become sceptical, suspicious and unable to trust others. She suffered from nightmares and blamed herself for the victim’s loss of her childhood. She avoided the suburbs where they used to live and had lost almost all her friends and family. She also felt guilty about “dragging my children into this huge court case”.

17. [24]

    Between 1 November 2019 and 5 June 2020, the respondent tried to persuade his wife to tell the victim (their daughter) to withdraw her complaint to police. A provisional ADVO, made on 20 March 2018, was in place. At the time of the offences, the respondent was on bail (granted by the Supreme Court on 19 October 2018) in respect of the proceedings which he was seeking to pervert.

18. [25]

    On 5 November 2019, the respondent’s wife sent a text message to the respondent’s mother, which led to contact between the respondent and his wife. In March 2020, the respondent met with his wife at a park. On 4 June 2020, they met again after an exchange of messages on 3 June 2020. The respondent’s wife gave evidence that this meeting was “because [the respondent] wanted to talk about the subject of [the respondent’s] lawyer”. Unbeknownst to the respondent, his wife recorded the conversation on her mobile telephone.

19. [26]

    In substance, the respondent asked his wife to tell the victim:

20. [27]

    The respondent also told his wife: “they are not going to drop the case until she says this”. She told him that she would try to tell this to the victim. Neilson DCJ did not make a finding whether the respondent’s wife actually intended to pass on the message to the victim.

21. [28]

    Neilson DCJ was satisfied that the respondent was “requesting, asking, inviting, soliciting [his wife] to recite the narrative” that he wanted to be conveyed to the victim. Neilson DCJ found that the purpose of the conversation was to solicit his wife to pass his message on to the victim so that she would withdraw her complaint to police so that the police would withdraw the prosecution against him.

22. [29]

    It was accepted by Mr Quilter, who appeared with Mr Baldeo for the respondent in this Court, that the occasions which constituted the breach of the ADVO were separate from the s 319 offence in that the breaches of the ADVO included occasions where the respondent had gone to the victim’s mother’s home to see his children when they were asleep.

Other matters relevant to the sentences

1. [30]

   The judge’s assessment of the objective seriousness of each count of which the respondent was convicted is set out in the table above.

2. [31]

   Mahony SC DCJ found that each of the offences was aggravated pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), as it had taken place in either the victim’s home or her grandparents’ home, where she was entitled to feel safe. His Honour found the emotional harm was substantial pursuant to s 21A(2)(g) of the Act. His Honour also took into account, in assessing the harm of the offending, that the victim had been ostracised by her cultural community for reporting the offences. Further, his Honour found that the respondent, as her father, had committed a gross breach of trust and that she was under his authority (which operated as an aggravating factor in respect of those offences where being under authority was not already an element). Mahony SC DCJ also found that the victim’s vulnerability due to her visual impairment was an aggravating factor. The offending against the respondent’s wife was also found to be aggravated because she was in her own home.

3. [32]

   Mahony SC DCJ found that the offending was mitigated as it was not a planned or organised criminal activity.

4. [33]

   With respect to general deterrence, his Honour referred to the substantial maximum penalties and the need for a clear message to the community that offending against children will not be tolerated. With respect to specific deterrence, his Honour noted the importance of the respondent understanding the very serious nature of the offending and its impact on his daughter.

5. [34]

   Mahony SC DCJ noted the respondent was 41 years old at the time of sentencing and had undergone some disadvantage overseas in his birth country as part of a minority community which was victimised. Since arriving in Australia he had worked to support his family as a security guard and established his own business. The respondent continued to deny his offending conduct and there was no evidence of remorse. His prospects of rehabilitation were found to be guarded, although his risk of recidivism was found to be low.

6. [35]

   Special circumstances were found on the basis of the increased restriction on prisoners as a consequence of the COVID-19 pandemic; that it was the respondent’s first time in custody and “the accumulation in imposing the aggregate sentence”.

7. [36]

   In respect of the s 319 offence, Neilson DCJ found (as set out in the table above) that the objective seriousness fell midway between the mid-range and bottom of the range of objective seriousness. There was no threat of personal violence or a bribe, but there was some moral pressure that the respondent sought to have his wife to bring against his daughter. Neilson DCJ was not satisfied that the s 319 offending involved an ongoing course of conduct. His Honour found that it was a mitigating factor that the offence was not planned. With respect to the contravention of the ADVO, Neilson DCJ found that the respondent’s wife had instigated the contact and appeared to want to be reconciled with the respondent. His Honour considered that this mitigated his criminality in breaching the order.

8. [37]

   Neilson DCJ found that the offender had expressed neither contrition nor remorse. His Honour took into account both general and specific deterrence. His Honour considered that the sentences for the s 319 offence and the breach of the ADVO should be wholly concurrent. His Honour found special circumstances to mirror the ratio found by Mahony SC DCJ. The statutory ratio was preserved in the overall sentence of 12 years imprisonment with a 9 year non-parole period in that the balance of term of 3 years did not exceed one-third of the non-parole period: s 44(2) of the Act.

Consideration

1. [38]

   Where the Crown appeals under s 5D of the Criminal Appeal Act, it must demonstrate House v The King (1936) 55 CLR 499; [1936] HCA 40 error: CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 (CMB) at [54] (Kiefel, Bell and Keane JJ). Manifest inadequacy is such an error.

2. [39]

   To establish manifest inadequacy, the Crown must establish that the sentence imposed was unreasonable or plainly unjust in the context where there is no single “correct” sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321 at 325; [2000] HCA 54 (Dinsdale); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]. Manifest inadequacy (like manifest excess) is a conclusion which does not depend on the identification of specific error: Dinsdale at [6].

3. [40]

   The primary purpose of a Crown appeal against sentence is to articulate principles for the guidance of courts responsible for sentencing. The present case gives rise to the issue of the application of the principles of totality and accumulation in circumstances where an offender is to be sentenced for multiple serious episodes of sexual offending against the same victim.

4. [41]

   Even if this Court is satisfied that the sentencing discretion miscarried because the sentence imposed was manifestly inadequate, it is required to consider whether the Crown’s appeal should nonetheless be dismissed in the exercise of its residual discretion: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24].

5. [42]

   Consistency of sentencing is important to maintain confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public: Green v The Queen; Quinn v The Queen at [42].

6. [43]

   The maximum penalties and the standard non-parole periods (if any) represent important legislative guideposts for sentencing judges Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [27] and [31].

7. [44]

   A maximum penalty reflects the legislature’s view of the seriousness of a particular offence: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. In Markarian, the plurality said at [31]:

8. [45]

   Section 54A(2) of the Act defines the standard non-parole period (SNPP) in the following terms:

9. [46]

   Section 54B(2) of the Act provides that the “standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender.”

10. [47]

    Objective seriousness is to be determined by reference to the nature of the offending and “without reference to matters personal to an offender or class of offenders”: Muldrock at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). However, subjective matters may bring a particular case well below the maximum penalty even if its objective seriousness is very high: Muldrock at [32]. The High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) explained at [18] in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 that:

11. [48]

    The assessment of objective seriousness is fundamental to sentencing, including because of its significance to proportionality. Proportionality requires that the sentence imposed be neither greater (Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14) nor lesser (R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [156]-[158]) than the objective seriousness of the crime: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] (Spigelman CJ). Proportionality is relevant to all offences (those for which there is no standard non-parole period as well as those for which one has been prescribed): DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [68] (Beech-Jones CJ at CL, N Adams and Cavanagh JJ).

12. [49]

    The Crown accepted that this Court ought accept the sentencing judges’ assessments of objective seriousness of the respective offences for the purposes of determining whether the sentences were manifestly inadequate but submitted that, if the Court was satisfied that the sentences, or any one of them was manifestly inadequate, it could form its own assessment of objective seriousness for the purposes of resentencing.

13. [50]

    Section 53A of the Act provides for the imposition of aggregate sentences for two or more offences. Where an aggregate sentence is imposed, the sentencing judge is required to “indicate” the sentence that would have been imposed for each offence had separate offences been imposed instead of an aggregate sentence: s 53A(2).

14. [51]

    While there is no appeal from indicative sentences (since they are not, in fact, imposed), the indicative sentences may provide some insight into how an aggregate was arrived at and may indicate a reason for the alleged inadequacy (or excess): JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40], proposition 11 (R A Hulme J, Hoeben CJ at CL and myself agreeing).

15. [52]

    The Crown submitted that the aggregate sentence was “plainly unjust”, as it was so far below the range of sentences that could justly be imposed that it is likely to undermine public confidence in the proper administration of criminal justice.

16. [53]

    The respondent’s criminality towards his daughter involved frequent anal intercourse and forced fellatio, often to ejaculation, in her own home, which amounted to an egregious breach of trust. There were significant aggravating factors (referred to above).

17. [54]

    As referred to above, Mahony SC DCJ was required to “indicate” the sentences he would have imposed for each of the 19 counts had an aggregate sentence not been imposed. The evident purpose of this requirement is to preserve such transparency within the sentencing process as was available when individual sentences had to be imposed (see Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57) before the amendments which enabled aggregate sentences to be imposed came into force.

18. [55]

    Of the sentences indicated, the following serve as examples (but not a complete list) of anomalies and inadequacy in such sentences.

19. [56]

    Count 8 (aggravated indecent assault) involved the respondent touching the victim’s bottom, vagina and breast and rubbing the outside of her exposed vagina with two fingers. It was assessed as having an objective seriousness “above the mid-range” against a maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years. The indicative sentence of 3 years imprisonment with a non-parole period of 18 months was manifestly inadequate.

20. [57]

    Count 9 involved unprotected penile-anal intercourse until ejaculation. It was assessed as having an objective seriousness “above the mid-range” against a maximum penalty of 20 years imprisonment and a standard non-parole period of 9 years. The indicative sentence of 4 years imprisonment with a non-parole period of 2 years was manifestly inadequate.

21. [58]

    Count 10, which involved fellatio accompanied by some force, was assessed as being within the mid-range. The maximum penalty was 20 years imprisonment and the standard non-parole period was 9 years imprisonment. The indicative sentence of 3 years with a non-parole period of 18 months was manifestly inadequate.

22. [59]

    Further, each of the non-parole periods indicated for counts 8, 9, 11 and 15 (the objective seriousness of which was assessed to be above mid-range) was between 6 and 7 years below the standard non-parole period for the offence. This Court has noted the difficulties created by the legislature fixing a SNPP so close to the maximum penalty: Corby v R [2010] NSWCCA 146 at [69]-[72] (Johnson J, Beazley JA and Kirby J agreeing). However, the present case is an example where both the total term and the non-parole period are manifestly inadequate.

23. [60]

    The Crown has also established anomalies and inconsistencies between the indicative sentences for individual counts which would appear to be irreconcilable.

24. [61]

    For example, although counts 4 and 5 were the same offence (and therefore carried the same SNPP), proximate in time and involved very similar conduct, Mahony SC DCJ assessed the objective seriousness of count 4 as within “the higher end of the mid-range” and count 5 was assessed as “within the mid-range”. However, his Honour specified a lower indicative sentence for count 4 than for count 5.

25. [62]

    A similar anomaly is evident in respect of counts 9 and 11, which also involved the same offence provision and substantially similar conduct (penile-anal intercourse, proceeding to ejaculation). Mahony SC DCJ made identical findings of objective seriousness (above the mid-range) but indicated a higher sentence for count 11 than for count 9.

26. [63]

    Counts 13 and 14 (both aggravated sexual intercourse) involved similar conduct, including an act of fellatio. The objective seriousness of count 13 was assessed as below mid-range, whereas count 14 was assessed as mid-range. Because the victim was under 14 years of age for count 13 and over 14 years of age for count 14, the maximum penalties differed (20 years’ imprisonment for count 13 and 12 years’ imprisonment for count 14). Notwithstanding the similarity of conduct and the difference in maximum penalty, the sentence indicated for count 14 was double that for count 13.

27. [64]

    A similar anomaly is evident from the comparison between counts 10 and 14, both of which charged aggravated sexual intercourse and involved fellatio. Notwithstanding that both offences were assessed as falling within the mid-range and the maximum penalty (and SNPP) for count 10 was significantly higher, the sentence indicated for count 10 was lower than the sentence indicated for count 14.

28. [65]

    Counts 6 and 13 were found to be just below the mid-range of objective seriousness. However, notwithstanding that the offence in count 6 carried a maximum penalty of 10 years’ imprisonment and the offence in count 13 carried a maximum penalty of 20 years’ imprisonment, the sentences indicated for each of counts 6 and 13 were identical: 2 years’ imprisonment with a non-parole period of 12 months. These indicative sentences are, accordingly, anomalous.

29. [66]

    It ought not be inferred from the criticisms of the indicative sentences that there is a necessary mathematical relationship between the maximum penalty (or the SNPP, where there is one) and the assessment of objective seriousness. However, the principle of proportionality (referred to above) requires that the sentence be proportional to the objective seriousness of the crime. It is evident from the examples given above that this has not occurred.

30. [67]

    As referred to above, the Crown does not need to establish patent error to establish manifest inadequacy. However, it has done so in the present case through its analysis of the anomalies and inconsistencies in the indicative sentences, together with their inadequacy to reflect the criminality. The sentences indicated by Mahony SC DCJ for the individual counts were so low as to indicate that his Honour cannot have appreciated the importance of these legislative guideposts (maximum penalty and, where relevant, standard non-parole period) in light of the objective seriousness of the offending, particularly in the absence of either a plea of guilty (which would have warranted a discount) or significant mitigating factors and the presence of substantial aggravating factors (including an absence of remorse or contrition). It is difficult to ascertain the basis for his Honour’s assessment that the risk of recidivism was low (since no reasons were given) however this finding could not properly have reduced the sentence to the level imposed by his Honour.

31. [68]

    The Court has been referred to sentences imposed in cases which are said to be comparable. I have taken into account the sentences to which reference has been made. For the reasons given by the High Court in Hili v The Queen; Jones v The Queen, the utility of such comparative sentences is relatively low, given the requirement for consistency of principle rather than consistency of result.

32. [69]

    The inadequacy of the indicative sentences has resulted in an aggregate sentence which is manifestly inadequate. The Crown has made out the first ground alleged.

33. [70]

    The Crown submitted that the length of the term and non-parole period for the s 319 offence does not reflect the seriousness of the respondent’s attempt to use his wife to persuade his vulnerable daughter (who was then 15 or 16 years old) to withdraw her complaint to police that he had sexually abused her with a view to thwart his prosecution for sex offences against her. He pursued that course despite the terms of the ADVO.

34. [71]

    The Crown argued that the fact that the respondent did not ultimately succeed in pressuring the victim to withdraw the allegations or not to give evidence in the trial is of far less significance than it may be in respect of sentencing an attempt to commit another type of offence: Marinellis v R [2006] NSWCCA 307 at [8].

35. [72]

    Further, the Crown argued that it was significant that the respondent committed the offences while on conditional liberty following a grant of Supreme Court bail (although Neilson DCJ did not refer to this in the reasons) and in breach of the ADVO, which was made to protect the victim and her mother from the respondent.

36. [73]

    The Crown contended that the inadequacy was compounded by the complete concurrency with the sentence imposed in respect of the breach ADVO offence, which was 9 months imprisonment, to be served wholly concurrently with the sentence in respect of the s 319 offence. It submitted that since there was no overlap between the two offences (as the contact which led to the s 319 offence was separate from the breach ADVO offence) there should have been a substantial degree of accumulation.

37. [74]

    Mr Quilter argued that the sentence accorded with Neilson DCJ’s findings of objective seriousness and that, although a higher sentence could have been imposed, the sentences imposed for the s 319 offence and the ADVO offence were not manifestly inadequate. He submitted further that, unless this Court were to be satisfied that the sentences imposed by Neilson DCJ were manifestly inadequate it would not be open to this Court to alter their effect, either by adjusting their commencement dates to give effect to particular accumulation or to change the extent to which their combined effect added to the length of the non-parole period imposed by Mahony SC DCJ. In other words, Mr Quilter submitted that, unless the ground of manifest inadequacy was made out in respect of the sentences imposed by Neilson DCJ, this Court was bound to give no greater effect to them than to increase the non-parole period of the aggregate sentence (on re-sentence, on the assumption that manifest inadequacy was made out in respect of the aggregate sentence imposed by Mahony SC DCJ).

38. [75]

    I accept Mr Quilter’s submission. The only challenge made by the Crown to the sentences imposed by Judges Mahony or Neilson is manifest inadequacy. In these circumstances, the issue whether this Court could ever intervene to re-sentence for error on a Crown appeal unless manifest inadequacy were made out does not arise: see the discussion in R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24 at [85]-[98] (Fullerton J, Adamson and Hamill JJ agreeing). Thus, if manifest inadequacy is not made out with respect to the sentences imposed by Neilson DCJ, no alteration or adjustment to those sentences is permissible.

39. [76]

    However, as I am persuaded that the sentence for the s 319 offence is manifestly inadequate and, for the reasons given below, this Court should re-sentence the applicant, the principle for which Mr Quilter contended does not presently arise.

40. [77]

    My reasons for considering the effective sentence imposed by Judge Mahony and the sentence for the s 319 offence which was imposed by his Honour to be manifestly inadequate are as follows. The conduct which comprised the s 319 offence struck at the core of the administration of justice. There are rarely witnesses to sexual offences, particularly those committed against children. Thus, the prosecution case, as in the present case, largely comprises the complainant’s evidence. If a complainant is unwilling for whatever reason to give evidence in the prosecution case, the result is, almost invariably, that the prosecution must be withdrawn.

41. [78]

    Where the complainant is a family member of the accused (as in the present case), particularly when the complainant is a minor and financially and emotionally dependent on an accused parent, the forces arrayed against the complainant to incline her not to report offending conduct, not to give evidence of offending conduct and not to attend the trial may be monumental. The likely effect of a complainant reporting an offence, participating in a recorded interview and giving evidence at trial may be cataclysmic. Families might break apart. Particularly where the accused is the father, the financial security of the family may also be placed in jeopardy. Extended families may also take positions not only to exclude the complainant, but ostracise her from the family and associated community. The complainant’s mother may have to choose between the complainant and the security provided by the accused and the extended family. Each of these consequences ensued in the present case, as the complainant well knew when she disclosed the offences, having been warned of them by the respondent during the commission of count 1 when the respondent threatened her, as follows (also as set out above):

42. [79]

    For these reasons, the courage and fortitude of complainants, such as the victim in the present case, ought not be underestimated. Without such courage and fortitude, the administration of justice is thwarted and the offences such as those for which the respondent stood to be sentenced are not pursued and a complainant’s fear and silence (while understandable) have the effect of granting immunity from prosecution to sexual offenders such as the respondent.

43. [80]

    The pressures on such complainants are significant without conduct in breach of s 319 but may become even more so as a consequence of a s 319 offence. The respondent’s exploitation of conditional liberty on bail to persuade the complainant, through her mother (whom he can be taken to have regarded as someone who would be better able to persuade her than he was), to withdraw the complaint, is particularly heinous.

44. [81]

    In Allen v R [2008] NSWCCA 11; (2008) 180 A Crim R 428 (where the applicant was convicted of trying to persuade the complainant not to give evidence against him), Grove J (Giles JA agreeing) said at [25]:

45. [82]

    In R v Pearce [2020] NSWCCA 61, the respondent to a Crown appeal was sentenced for one count of doing an act with intent to pervert the course of justice: giving false evidence for his friend who was accused of sexual assault. Although the Crown appeal was dismissed because of the respondent’s strong subjective case, this Court (Leeming JA, Rothman and N Adams JJ) said at [82]:

46. [83]

    For the reasons set out above, sexual offences against children in a family setting are difficult, if not impossible, to detect by outsiders unless the complainant is prepared not only to disclose them but disclose them to authorities, give evidence and be cross-examined. Even more so are offences contrary to s 319 of the Crimes Act in that context (although an inference that such an offence has been committed may arise when a prosecution for a sexual offence is withdrawn because the complainant does not attend or refuses to give evidence). The need for general deterrence is high.

47. [84]

    While I am satisfied for the reasons given above that the sentence imposed for the s 319 offence is manifestly inadequate, I am not satisfied that the sentence imposed for the breach ADVO offence is inadequate although it ought not to have been wholly concurrent with the s 319 offence. Some accumulation was required to reflect their separate criminality.

48. [85]

    In these circumstances, it is necessary for this Court, first, to determine the appropriate sentences on re-sentence; secondly, to consider whether the residual discretion ought be exercised; and, thirdly, either allow the appeal and impose the sentence determined by the Court or dismiss the appeal.

The determination of the appropriate sentences

1. [86]

   The question arises whether this Court ought impose an aggregate sentence in respect of all offences other than the sentence for breach ADVO or whether a separate sentence ought be imposed for the s 319 offence and an aggregate sentence for the offences involving the victim. The Crown submitted that it would be open for this Court to do either. I consider that the better course is to impose a separate sentence for the s 319 offence, address the accumulation with the breach ADVO offence and then impose an aggregate sentence for the offences involving the victim.

2. [87]

   The principle of totality requires that a court imposing a sentence is required to consider the total criminality and determine the appropriate sentence for all the offences: Mill v The Queen (1988) 166 CLR 59 at 63 and 66; [1988] HCA 70; Postiglione v The Queen (1997) 189 CLR 295 at 308 (McHugh J); [1997] HCA 26 (Postiglione). This Court is required to re-sentence the respondent for both sets of offences, while preserving the 9-month fixed term sentence for the breach of ADVO offence.

3. [88]

   Although there are some anomalies in the descriptions of the objective seriousness of the offences, I am not persuaded that this Court ought depart from the assessments made by the sentencing judges. Further, although the basis of Mahony SC DCJ’s finding that the risk of recidivism was low was not exposed by the reasons, this finding is not challenged. Accordingly, this Court will determine the appropriate sentence and indicate the sentences for individual counts on the basis of the assessment of objective seriousness and the facts as found by the sentencing judges.

4. [89]

   It is convenient to do so in table form, as follows:

5. [90]

   The aggregate sentence is required to reflect the multiple separate instances of serious sexual offending against the victim over a period of three years, together with the assaults on his wife and the victim.

6. [91]

   When applying the principle of totality, it is necessary to ask whether the sentence for one offence can comprehend and reflect the criminality of another: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] (Howie J, Adams and Price JJ agreeing). Accordingly, this Court, in determining the appropriate sentence, is obliged to apply the totality principle and consider whether the aggregate is a just and appropriate measure of the total criminality involved: Postiglione at 307-308, 313-314.

7. [92]

   In Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23, the High Court (Gageler, Nettle and Gordon JJ) said at [64]:

8. [93]

   The concept of a “crushing” sentence was also addressed in the context of totality in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159; where the Court (Spigelman CJ, Whealy and Howie JJ) said:

9. [94]

   Concurrence and accumulation operate only notionally in the context of aggregate sentences since the sentences indicated do not include commencement or expiry dates (this being a consequence of the imposition of an aggregate sentence). In the present case, it is necessary that there be a substantial notional accumulation to take account of the harm inflicted on the victim from each additional sexual offence perpetrated on her over a significant period of her life when she was particularly vulnerable to the predations of her father.

10. [95]

    I consider that the appropriate aggregate sentence in place of the sentence imposed by Mahony SC DCJ should be 20 years’ imprisonment. Because of the way in which I propose to structure the sentences to be imposed, I propose to adjust the non-parole period to preserve the statutory ratio for the overall effective sentence.

Determination of sentences for the other offences

1. [96]

   For the reasons given above as to why the claim of manifest inadequacy has been made out, I consider that a fixed term of 4 years’ imprisonment is appropriate for the s 319 offence. There should be partial accumulation between that offence, the breach ADVO offence and the aggregate sentence, as reflected in the orders set out at the conclusion of these reasons.

2. [97]

   Although the length of the sentence for the breach ADVO offence remains the same, it is necessary to set aside that sentence because I propose a new commencement date.

The residual discretion

1. [98]

   If this Court is satisfied that relevant error has been demonstrated, the Crown must also satisfy this Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised in the present case: CMB at [33] (French CJ and Gageler J) and [54] (Kiefel, Bell and Keane JJ).

2. [99]

   Mr Quilter submitted that the residual discretion ought be exercised in the present case. First, he contended that guidance could be given to sentencing judges without the need to re-sentence the respondent. Secondly, he submitted that, if established, the level of inadequacy did not rise to the level where it was “an affront to the administration of justice”: Green v The Queen; Quinn v The Queen at [42] and [69]. Thirdly, he argued that this Court ought not intervene as there had been such a significant delay between the charging of the respondent with the offences against the victim in March 2018 and the hearing of this appeal. He accepted that the delay could be accounted for by the respondent’s plea of not guilty (as was his entitlement) but submitted that several matters which caused delay were beyond his control.

3. [100]

   In support of his submission about delay, Mr Quilter referred to the Crown’s written submissions on sentence before Neilson DCJ, which set out the following history.

4. [101]

   The respondent was first charged with matters relating to the victim and his wife on 20 March 2018. He was charged with further offences on 4 April 2018. These matters were committed for trial on 24 October 2018. The matters were first listed for arraignment on 18 November 2018 at Campbelltown District Court. They were listed for trial commencing on 2 September 2019 but were marked “not reached” on 4 September 2019. A new hearing date was allocated, commencing on 30 March 2020. That trial date was vacated in Chambers on 4 December 2019. On 19 December 2019, a new trial date of 7 September 2020 was fixed.

5. [102]

   On 9 June 2020 the respondent was charged with the later offences. A fresh indictment was presented that included an ex-officio count of do act with intent to pervert the course of justice.

6. [103]

   On 3 September 2020 the respondent successfully applied to vacate the trial fixed for 7 September 2020. On 8 October 2020 the matter was transferred to the Sydney District Court due to its estimated length. On 23 October 2020 the new trial date of 31 May 2021 was set. It was subsequently listed for 2 June 2021 and later listed for 7 June 2021. It was stood over to 8 June 2021 and then 9 June 2021. Ultimately, on 9 June 2021 the trial date was vacated upon the respondent’s application. A new trial date of 21 February 2022 was fixed.

7. [104]

   On 18 and 19 October 2021, a pre-trial hearing took place before Huggett DCJ, who made rulings and published reasons on 29 October 2021. There was a further pre-trial hearing on 21 February 2022 before Wass SC DCJ, following which her Honour ordered that the count of do act with intent to pervert the course of justice be severed from the remaining counts on the indictment.

8. [105]

   A judge-alone trial eventually commenced before Mahony SC DCJ on 21 March 2022. On 9 May 2022, the respondent was convicted of the 19 offences set out above and acquitted of two counts (counts 18 and 19). A judge-alone trial commenced before Neilson DCJ on 1 June 2022. On 7 July 2022 the respondent was found guilty of doing an act with intent to pervert the course of justice and the charge of contravening a prohibition/restriction under an ADVO that had been placed on a s 166 certificate. As referred to above, the respondent was sentenced by Mahony SC DCJ on 10 February 2023 and by Neilson DCJ on 24 February 2023.

9. [106]

   The present case involved a father sexually assaulting his biological daughter for a period of years when the daughter was subject to his authority and he occupied a position of trust. While guidance can be given to sentencing judges even if this Court does not intervene, I regard the aggregate sentence imposed for these offences as so manifestly inadequate as to amount to an affront to justice. As the sentence for imposed by Neilson DCJ for the s 319 offence is also manifestly inadequate, it is necessary for this Court to intervene, subject to the question of delay.

10. [107]

    There has been no delay in the Crown lodging the appeal. The prospect of an appeal was foreshadowed in a timely way shortly after the imposition of the aggregate sentence by Mahony SC DCJ. There has been no undue delay in the listing of the appeal or its determination by this Court. To the extent to which delay between the offending conduct and the appeal to this Court may affect the residual discretion (which is unnecessary to decide), much of the delay was occasioned by steps taken by the respondent to have counsel of his choice available and to have pre-trial matters determined.

11. [108]

    I am persuaded that the residual discretion to decline to intervene ought not be exercised in the present case.

The structure of the overall sentence on re-sentencing

1. [109]

   The principles set out above, including totality, apply to the task of re-sentencing. It is appropriate, in the circumstance of the present case, to begin the sentence with the shortest sentence (for the breach ADVO offence), to proceed with the sentence for the s 319 offence and to conclude with the aggregate sentence: see the discussion in Smale v R [2009] NSWCCA 220 at [27]-[31] (R A Hulme J, McClellan CJ at CL and Grove J agreeing).

Proposed orders

1. [110]

   For the reasons given above, I propose the following orders:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the aggregate sentence imposed by Mahony SC DCJ on 10 February 2023 and the sentences imposed by Neilson DCJ on 24 February 2023 and, in lieu thereof, impose the following sentences:

   3. (3)

      The overall effect of the sentences set out in (2) above is a total term of 22 years’ imprisonment commencing on 9 November 2019 and expiring on 8 November 2041 with a non-parole period of 16 years and 6 months commencing on 9 November 2019 and expiring on 8 May 2036.

   4. (4)

      The first day on which the respondent will be eligible to parole will be 9 May 2036.

   5. (5)

      Note that the sentences indicated for each of the offences for which the aggregate sentence in (2)(c) has been imposed are as set out in the table at [89] of these reasons.

2. [111]

   BASTEN AJA and SWEENEY J: We have had the advantage of reading in draft the judgment of Adamson JA and gratefully refer to her Honour’s statement of the facts of the offences and the issues in the appeal.

3. [112]

   We agree with Adamson JA that the Director’s appeal in relation to the aggregate sentence imposed on the respondent by Judge Mahony SC should be upheld. The sentence was manifestly inadequate. To the extent that the error is revealed by the individual indicative sentences, it is appropriate to recast the individual indicative sentences. The indicative sentences we have reached are different from those indicated by her Honour. They are set out in the table below. We have proceeded on the basis of Judge Mahony SC’s assessments of objective seriousness, as does Adamson JA.

4. [113]

   With respect to the sentences imposed by Judge Neilson, we are not persuaded that the sentences for the breach of the Apprehended Domestic Violence Order, and the breach of s 319 of the Crimes Act 1900 (NSW), are manifestly inadequate, though both are lenient. The error was in making two sentences involving entirely separate conduct totally concurrent, so that no additional custodial time could be attributed to the breach of the ADVO. As will be explained below, if that had been the only error, it would not have been appropriate for the Court to intervene. The fact that the Court should intervene with respect to the much longer aggregate sentence, and that the appropriate sentence structure is to commence with the shorter sentences, make it appropriate, in the Court’s discretion, to intervene in relation to the relatively short sentences.

5. [114]

   The three offences involving assaults under s 61 of the Crimes Act warrant comment, as the individual sentences in this table are lower than those proposed by the sentencing judge. Count 12 formed part of a course of conduct and warranted a short custodial term. Counts 20 and 21, considered in isolation may not have warranted a custodial term, but given the context cannot be the subject of a meaningful alternative penalty. A short, fixed term is therefore appropriate for each, but not a term of one year which would tend to reflect the seriousness of the overall course of offending and risk double-counting.

6. [115]

   We consider the aggregate sentence should be 16 years’ imprisonment with a non-parole period of 11 years, 6 months.

7. [116]

   The sentences should be structured so as to commence with the shortest sentence and then the second shortest. Because they relate to a course of conduct, although involving separate acts, a modest element of accumulation is required. The result does not extend significantly the period in custody contemplated by Neilson DCJ, but some accumulation is necessary as a matter of principle. Absent the need to resentence, the Court would not have intervened to extend the period of custody by a matter of months.

Orders

1. [117]

   We propose the following orders:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the aggregate sentence imposed by Mahony SC DCJ on 10 February 2023 and the sentences imposed by Neilson DCJ on 24 February 2023 and in lieu thereof impose the following sentences:

   3. (3)

      The overall effective sentence is 17 years’ imprisonment commencing on 9 November 2019 and expiring on 8 November 2036 with a non-parole period of 12 years 6 months expiring on 8 May 2032.