DS v R

1. [1]

   HARRISON AJA: I agree with Muston J.

2. [2]

   SWEENEY J: I agree with Muston J.

3. [3]

   MUSTON J: The applicant entered pleas of guilty to two offences of sexually touching a child under the age of 10 contrary to s 66DA of the Crimes Act 1900 (NSW). He was convicted in the District Court and, on 18 March 2024, sentenced to an aggregate term of imprisonment of 5 years with a non-parole period of 2 years and 6 months. He seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to bring an appeal from that sentence, and further seeks leave to do so out of time.

4. [4]

   The applicant’s single ground of appeal asserts that the sentence imposed by the primary Judge was manifestly excessive.

5. [5]

   The identity of the victim is protected by statutory prohibitions against publication of information that may lead to her identification. Criminal sanctions, including sentences of imprisonment, apply to any breach of those prohibitions. In conformity with those prohibitions, a pseudonym (DS) has been used to describe the applicant in this judgment.

Should the applicant be permitted to bring his application for leave out of time?

1. [6]

   Following the imposition of his sentence, the applicant filed a Notice of Intention to Appeal. It was not filed within time; although, the delay in filing that document was short, and I infer from the fact that it was ultimately filed that the Registrar was properly satisfied that he should be granted leave to file it out of time.

2. [7]

   The applicant’s subsequent Notice of Appeal and Application for Leave to File a Notice of Appeal After Expiry of the Filing Period were not filed until 18 December 2025, more than seven months after the expiry of the time for the filing of those documents contemplated by his Notice of Intention to Appeal.

3. [8]

   In support of his application for leave to file his Notice of Appeal out of time, the applicant read and relied upon an affidavit of his solicitor, Mr Angus Bennett.

4. [9]

   Mr Bennett provides no explanation for the delay by the applicant in filing his Notice of Intention to Appeal but indicates that he was “informally retained” on 8 May 2024. He describes a series of challenges faced by the applicant in obtaining funds to pay his lawyers in connection with the preparation of his appeal. Nevertheless, Mr Bennett’s affidavit indicates that, when funds became available, work was done on the applicant’s behalf to advance the preparation of his appeal.

5. [10]

   On 6 August 2025, the applicant received a grant of Legal Aid for his appeal. Thereafter, the filing of his Notice of Appeal, and the preparation of his submissions in support thereof, was further delayed by reason of his Counsel’s involvement in a trial which was itself unexpectedly prolonged.

6. [11]

   In the above circumstances, I am satisfied the applicant should be permitted to bring his application for leave to appeal from his sentence out of time.

The agreed facts

1. [12]

   The applicant was sentenced on the basis of agreed facts. They can be summarised briefly.

2. [13]

   At the time of the offending, the applicant was 80 years old. The victim was aged 9 years and 11 months. She is his granddaughter.

3. [14]

   In late January 2023, arrangements were made for the victim to stay at the applicant’s home; a unit located in an apartment complex. The complex incorporated a private pool and spa facility, which was accessible only to residents in the complex.

4. [15]

   During the evening of her first full day staying with the applicant, the victim and the applicant attended the pool and spa facility. The applicant was wearing swimming shorts and the victim was wearing a two-piece swimming costume with long sleeves.

5. [16]

   The applicant and the victim entered the pool and swam around. Thereafter, the applicant left the pool and climbed into the spa. Around two minutes later, the victim also left the pool and walked over to a wall which had various buttons on it. She pressed the button which activated the jets in the spa. She then climbed into the spa with the applicant.

6. [17]

   For around 10 minutes, the applicant sat on a seat in the spa while the victim swam around. The victim then hugged the applicant, placing both arms around his neck.

7. [18]

   While hugging the victim, the applicant pulled her toward him so that their stomachs and chests were touching. They remained in this position for about 15 minutes. The applicant and the victim were captured in this position by a CCTV camera which was mounted on the wall opposite the spa.

8. [19]

   The applicant held the victim tightly with his hands on her buttocks. During this time, the applicant:

   1. (1)

      kissed the victim on the lips several times;

   2. (2)

      told the victim that he just wanted to touch her, and that she was to not tell her parents;

   3. (3)

      touched the victim’s buttocks on the outside of her swimming costume;

   4. (4)

      touched and rubbed the victim’s breasts on the outside of her swimming costume;

   5. (5)

      placed his hands inside the victim’s swimming costume and touched and rubbed her buttocks skin-on-skin in a cupping motion; and

   6. (6)

      placed his hands inside the victim’s swimming costume and touched her genital area. Then, he placed his fingers skin-on-skin on the outside of her genital area. As he did this, he asked the victim: “Do you like that?”

9. [20]

   The applicant eventually removed his hands from the victim’s swimming costume. She took this opportunity to push away from him. The applicant left the spa and went into the bathroom. The victim remained in the spa for a short while before getting out.

10. [21]

    The applicant and the victim then returned to his unit. The victim, feeling confused and uncomfortable about what had just occurred, sat in the shower and cried.

11. [22]

    Later that evening, the victim was sitting on her bed in the applicant’s spare bedroom. She was wearing shorts and a singlet. The applicant entered the room and sat on the edge of the bed. He kissed her on the lips and hugged her. As he was hugging her, he touched and rubbed her breasts with one hand on the outside of her singlet. He then said “good night” and left the bedroom. The victim was unable to sleep.

12. [23]

    The following day, the victim did her best to avoid the offender and kept to herself. She felt extremely uneasy about what had taken place in the spa.

13. [24]

    A day later, the applicant and the victim travelled in his vehicle to a local shopping centre. While parked at the shopping centre and still in his vehicle, the applicant said to the victim: “You’ve been avoiding me the past few days and I’m going to send you home. Ever since that night in the pool, you have got my heart racing, and it was amazing.” He told her he was feeling a “bit guilty” and that what happened was the fault of them both. Later that day, the applicant returned the victim to her family home.

14. [25]

    Several days after the above events, the victim told her sister and stepfather what had occurred, and the matter was reported to police. Some weeks later, the applicant was arrested.

The proceedings on sentence

1. [26]

   The primary Judge’s remarks on sentence were clear, comprehensive, and carefully reasoned.

2. [27]

   After recounting the agreed facts, the primary Judge considered the objective seriousness of the offences. In doing so, his Honour noted:

3. [28]

   His Honour made a number of other comments to similar effect in his remarks on sentence.

4. [29]

   In relation to Sequence 3, the primary Judge referred to the significant age difference between the applicant and the victim, and the power he would have had over her. While taking into account that the applicant used limited force in committing the offences, his Honour properly observed that some degree of force was inherent in the applicant’s offending and that the victim was very much at his mercy. After recounting submissions made by the applicant regarding the relatively short duration of the skin-on-skin touching, his Honour was satisfied that the offence “was still objectively serious.”

5. [30]

   The primary Judge noted that the offending captured by Sequence 2 was of shorter duration than that underpinning Sequence 3 but, nevertheless, the two had to be viewed together. Sequence 2 occurred after the victim had pushed the applicant away from her in the spa. Sometime later, it was the applicant who determined it was appropriate to go into her room and engage in the conduct described above.

6. [31]

   The primary Judge took into account the harm suffered by the victim as disclosed in her victim impact statement. His Honour also rejected the proposition that the applicant’s offences did not involve any underlying sexual gratification, instead finding that the applicant’s motivation was clearly sexual and that the offences were committed for his own sexual gratification.

7. [32]

   The position of trust the applicant held as the victim’s grandfather and the abuse of that trust for his own sexual gratification was found by the primary Judge to be a significant aggravating factor.

8. [33]

   Ultimately, the primary Judge reached the following conclusion on objective seriousness:

9. [34]

   Turning to the applicant’s subjective case factors, the primary Judge took into account, in mitigation:

   1. (1)

      the applicant’s good character and the absence of any prior convictions;

   2. (2)

      the applicant’s advanced age, which his Honour accepted:

   3. (3)

      the utilitarian benefit of the applicant’s plea of guilty in the Local Court, for which his Honour applied a reduction of 25% to what he considered to be an otherwise appropriate sentence;

   4. (4)

      some degree of remorse shown by the applicant;

   5. (5)

      certain mental health issues and cognitive decline that had been reported on, which his Honour considered “in the general mix of subjective factors”; and

   6. (6)

      the applicant’s good prospects of rehabilitation.

10. [35]

    Alluding to the applicant’s circumstances, the primary Judge determined not to impose the applicable standard non-parole period (8 years) and was satisfied that there were special circumstances warranting a departure from the ratio ordinarily contemplated by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

11. [36]

    The primary Judge went on to provide an indicative sentence for Sequence 2 of 9 months imprisonment with a non-parole period of 4 months and 15 days, and, for Sequence 3, an indicative 4 years and 9 months imprisonment with a non-parole period of 28 months.

12. [37]

    Having previously, and appropriately, addressed issues of totality, the primary Judge imposed an aggregate term of imprisonment of 5 years with a non-parole period of 2 years and 6 months.

Was the applicant’s sentence manifestly excessive?

1. [38]

   The logical starting point in answering this question is the serious nature of the offences to which the applicant pleaded guilty. The charges under s 66DA of the Crimes Act each carried a maximum penalty of 16 years imprisonment. They attract a standard non-parole period of 8 years: see s 54A(1) and the Table to Part 4 Division 1A of the Crimes (Sentencing Procedure) Act.

2. [39]

   No challenge is made to the primary Judge’s conclusion that the Sequence 3 offending fell within the mid-range of objective seriousness and that the Sequence 2 offending was “below the mid-range and towards the lower end”.

3. [40]

   There was no dispute between the parties regarding the well settled principles relating to appellate intervention on the grounds of manifest excess. In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, the plurality stated at [59]:

4. [41]

   To similar effect in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) observed at [443]:

5. [42]

   In advancing his single Ground of appeal, the applicant raised two essential complaints about the approach taken by the primary Judge.

6. [43]

   First, it was said that his Honour “should not have assessed the ‘rolled-up’ charge as a benefit”. Secondly, it was said that the general sentencing trend for similar offences supported the imposition of a more lenient sentence than that which was imposed.

7. [44]

   I am not satisfied that the sentence imposed by the primary Judge should be disturbed on either basis.

8. [45]

   I refer above to the observations made by the primary Judge regarding the “rolled-up” nature of the charges.

9. [46]

   The applicant submitted that the presentation of “rolled-up” charges was the product of a decision made by prosecuting authorities and should not have had any effect on the sentencing process; going on to say that “it is simply a different way to formulate the criminal activity and therefore there is no relevance to whether any contemplated benefit flowed”.

10. [47]

    The presentation of “rolled-up” charges was advantageous to the applicant. It restricted the maximum sentence available and ensured a complete concurrence of the separate sentences which might otherwise have been imposed: Johnston v R [2017] NSWCCA 53 at [68].

11. [48]

    Nevertheless, in assessing the seriousness of the offences to which applicant had pleaded guilty, the primary Judge was required to consider the overall offending conduct captured by the offences and not the number of charges: Khajehtaheri v R [2025] NSWCCA 6 at [20]. The primary Judge’s remarks on sentence make clear that his Honour understood this; he emphasised the need to “look at the overall offending conduct when assessing the seriousness of these two offences.”

12. [49]

    In these circumstances, I am not satisfied that the primary Judge’s observation regarding the potential leniency or benefit associated with the “rolled-up” charges discloses any error.

13. [50]

    In any event, there is a more fundamental problem with this aspect of the applicant’s argument. The oral submissions made to the primary Judge on the applicant’s behalf included the following exchange:

14. [51]

    Given this exchange, it is not now open to the applicant to raise a complaint about the primary Judge’s characterisation of the “rolled-up” charges as beneficial: Zreika v R [2012] NSWCCA 44 at [80].

15. [52]

    The applicant contended that the sentence imposed by the primary Judge sits uncomfortably with the sentencing trend for similar offences, and relied on the fact that his sentence lies at the upper range of a spectrum of statistics maintained by the Judicial Commission for offences under s 66DA of the Crimes Act.

16. [53]

    In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, Bell P observed at [42]:

17. [54]

    For the same reasons, I find the Judicial Commission statistics to be of limited assistance in assessing the applicant’s contention that his sentence is manifestly excessive. Stripped of their factual context, the statistics demonstrate only that the applicant’s sentence falls within the broad range of sentences which have historically been imposed for an offence against s 66DA of the Crimes Act.

18. [55]

    The applicant pointed to eight sentences imposed in recent years for offences contrary to s 66DA of the Crimes Act, seven of which were imposed by the District Court. Relying on these examples, the applicant submitted that “the general sentencing trend for this type of sexual touching offence is much lower than what was imposed on [him].”

19. [56]

    There are material differences between the circumstances considered in those cases and those relevant to the applicant’s offending. In each of the District Court cases relied upon, the sentence identified by the applicant was an indicative sentence provided in the context of what tended to be much larger aggregate sentences imposed. In at least one of those cases, the relevant offending contravened s 66DB of the Crimes Act, which carries a lesser maximum penalty and, in relation to which, no standard non-parole period is specified. Additionally, all of the cases addressed circumstances which were – to varying degrees – different to those which underpinned the applicant’s offending.

20. [57]

    While reference to comparable cases in sentencing can be of assistance when assessing the appropriateness of a sentence imposed, selecting a handful of cases said to be comparable does not generally assist: Wilson v R (Cth) [2020] NSWCCA 211 at [77]-[78]; see also Vandeventer v R [2013] NSWCCA 33 at [45].

21. [58]

    The cases relied upon by the applicant do not demonstrate that the sentence imposed by the primary Judge was “unreasonable or plainly unjust” in the sense described in Obeid nor do they suggest any latent misapplication of principle by the primary Judge.

22. [59]

    For the above reasons, I would:

    1. (1)

       Grant leave to file the Notice of Appeal out of time.

    2. (2)

       Grant leave to appeal against the applicant’s sentence.

    3. (3)

       Dismiss the appeal.