PS v R

1. [1]

   STERN JA: The applicant seeks leave to appeal sentences imposed upon him on two separate occasions.

2. [2]

   On the first occasion (the first sentence), on 15 September 2023, Shead SC DCJ imposed a sentence of 6 years 8 months imprisonment with a non-parole period of 4 years and 8 months, commencing on 19 July 2023, following the applicant’s guilty plea to one offence of intentionally sexually touching a child under the age of 10 years contrary to s 66DA(a) of the Crimes Act 1900 (NSW) (count one) and two offences of intentionally carrying out a sexual act towards a child under 10 years contrary to s 66DC(a) of the Crimes Act (counts four and seven). This offending occurred between 1 April 2019 and 29 February 2020. At the time of the offending, the child (whom I refer to in this judgment as the victim), was aged 8-9 years and the applicant was aged 45-46 years. The applicant had been in a relationship with the victim’s mother since around October 2018 and had been living with the victim’s mother and the victim since February 2019. Three offences contrary to s 66DC(a) of the Crimes Act, counts five, six and eight, were taken into account on a Form 1.

3. [3]

   On the second occasion, on 20 March 2025, Wilson SC DCJ imposed two further sentences (the second and third sentences). The second sentence was one of 3 years imprisonment with a non-parole period of 2 years, commencing on 20 July 2026, following the applicant’s guilty plea to one offence of grooming a child for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act. The third sentence was an order that the applicant be released without security to recognizance by himself for 3 years, on the condition that he be of good behaviour, following the applicant’s guilty plea to one offence of using a carriage service to menace, harass or cause offence contrary to s 474.17 of the Criminal Code (Cth).

4. [4]

   The offences the subject of the second and third sentences occurred after the applicant failed to appear at a sentencing hearing for the offences committed in 2019/2020 (at [2] above) and a bench warrant was issued for his arrest. The applicant had moved to the Central Coast and was using a false name to avoid detection and arrest. The grooming and use of a carriage service offending occurred between 1 February 2023 and 19 July 2023. The victim of the grooming offence was aged 13 or 14 years at the time of the offending which occurred whilst the applicant was in a relationship with his foster mother. The victim of the use of a carriage service offence was aged 14 years at the time of the offending. He was a friend of the victim of the grooming offence.

5. [5]

   As regards the first sentence, the applicant contends that:

   1. (1)

      Shead SC DCJ erred in characterising the charges as “representative charges” (ground one).

   2. (2)

      The sentence is manifestly excessive (ground two).

6. [6]

   As regards the second and third sentences, the applicant seeks that the commencement date of his sentences be reconsidered, if appropriate, having regard to the outcome of his application as regards the first sentence, but not so as to render the penalties more severe (ground three). In oral submissions the applicant’s counsel characterised this ground as consequential upon the success of his challenge to the first sentence.

7. [7]

   The applicant requires leave to appeal against his sentences under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). He also requires leave to file a notice of appeal against the first sentence out of time under the Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5).

8. [8]

   For the reasons set out below, leave to file a notice of appeal out of time against the first sentence and leave to appeal against the second and third sentences should both be refused.

Factual background

1. [9]

   There is no challenge to the factual findings of Shead SC DCJ (whom I will refer to as the sentencing judge). The background to the offending can thus be set out largely by reference to the findings of the primary judge, which to a significant extent were premised upon agreed facts for sentence. Given my conclusion that leave should not be granted to challenge the first sentence, it is unnecessary to give any consideration to the facts or offending upon which the second and third sentences were imposed.

2. [10]

   The applicant was born in February 1974. The victim was born in early 2011. The victim’s mother and father separated in or around 2013 and divorced in 2014. In around October 2018, the applicant formed a relationship with the victim’s mother. In February 2019, when the victim was 8 years old, the victim and his mother moved in with the applicant, the applicant’s adult son and another friend.

3. [11]

   In around August or September 2019, the applicant and the victim’s mother together purchased and began to operate a children’s indoor play centre and café business. This business ceased to operate in January 2020.

The offending

1. [12]

   Around mid-2019, the victim was naked and lying under the sheets in his bed watching YouTube videos about Minecraft when the applicant came into his bedroom and laid down next to him, underneath the covers. The applicant reached across and started touching the victim’s penis, rubbing it up and down, for about five to ten seconds. The victim moved the covers, got out of bed, and walked into the living room. The applicant came out and joined the victim, who told the applicant to “leave [him] alone”.

2. [13]

   In around August or September 2019, the applicant was at home alone with, and sitting with, the victim. The applicant said to the victim “Let’s watch some porn in the living room”. The victim sat down with the applicant on the couch in the living room. The applicant used his iPhone to open “Pornhub”, scrolled, then started a video and pulled down his shorts and underpants so that they were sitting above his knees. The applicant began masturbating, at which point the victim went to his bedroom to watch Minecraft videos on YouTube.

3. [14]

   Counts five and six were taken into account on a Form 1 in relation to count seven.

4. [15]

   At about 7:00pm in late 2019 or early 2020, the applicant drove the victim to the childcare centre he operated with the victim’s mother. He collected a number of sex toys from the car and carried them into the centre. He took the victim upstairs to a party room where he unpacked a blow-up sex doll and started to blow it up using a pump. After it was inflated, he set it aside.

5. [16]

   The applicant then picked up a tube with a replica vagina, put his penis in it, and masturbated using the replica vagina for a few minutes (count five). The offender then took out a dildo and inserted it into his anus for a few seconds. The victim said that the dildo was in a box which said it was “5 inches” (count six). The applicant then penetrated and simulated sexual intercourse with the blow-up doll for about 20 minutes, before masturbating whilst watching a Pornhub video (count seven). The applicant then got dressed, put the sex toys in a plastic bag and left the childcare centre with the victim.

6. [17]

   Count eight was taken into account on a Form 1 in relation to count four.

7. [18]

   In late 2019 or early 2020, the applicant was at home alone with the victim. The victim saw the applicant get his phone out and moved to see what the applicant was looking at. The applicant searched for pornographic videos on Pornhub and loaded a video. He watched the video with the victim for a short period of time before pulling his pants down. When the victim saw the applicant pull his pants down he got up and went to his room to watch Minecraft videos as “[he] knew it was coming” and that “porn and [the applicant] pulling his pants down does not make good things happen”.

Uncharged conduct

1. [19]

   The agreed facts for sentence before Shead SC DCJ included the following under a heading “The Interactions Between the Offender and the Victim”:

2. [20]

   The agreed facts also included, under the heading “Later Interaction” the following as regards an event which occurred after the offending the subject of count one:

3. [21]

   The agreed facts also included the following, under the heading “The ERISP with the Offender”, which occurred after the applicant was arrested on 8 April 2020:

The victim reports the offending

1. [22]

   On 4 April 2020 the victim reported to his father that the applicant watched porn in front of him, that sometimes he asked the victim to stay and that “…there’s more. He rubs himself”. The victim also reported that the applicant had tried to touch him on the penis twice but had only succeeded once, and that “…both times [he] ran away”. The victim’s father contacted the Department of Family and Community Services and the police, and the applicant was arrested and, as set out above, his phone was examined.

The remarks on sentence

1. [23]

   The sentencing judge outlined the facts which I have summarised above. Her Honour noted the victim impact statement from the victim’s father and observed that it was evident that the applicant’s actions “have had, and will continue to have, long-term effects” on the victim.

2. [24]

   Her Honour then set out the applicant’s relevant subjective circumstances. As regards the applicant’s background, the sentencing judge noted that Dr Lennings, a psychologist who had prepared a report dated 8 November 2021 which was tendered by the applicant on sentence, had noted that, on the applicant’s account, his childhood was dysfunctional and involved significant emotional neglect. The sentencing judge also noted that the applicant’s marriage had broken down, what the applicant told Dr Lennings about a number of psychosocial and psychosexual matters, and Dr Lennings’ opinion that the applicant may have a personality disorder.

3. [25]

   The sentencing judge noted both the applicant’s plea of guilty, and his account to Dr Lennings which included statements that: he did not talk about sex with the victim; he had bought sex toys for the victim’s mother, namely a dildo and a fleshlight, but he did not use them or show them to the victim; he did show a blow-up sex doll to the victim but he did not use the doll in the presence of the victim; he had bought the sex doll for the victim’s mother as a joke; and that the allegations against him were fabricated by the victim’s father and grandfather. The sentencing judge also noted that the applicant denied any physical contact with the victim to Community Corrections and said that he had been implicated due to the custody battle between the victim’s parents.

4. [26]

   The sentencing judge directed herself as to relevant authority. She directed herself that regard must be had to the age and vulnerability of the victim, the nature of the acts and form and length of the offending, whether there was a lack of opposition, whether the perpetrator was in a position of trust, s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which requires a sentencing judge to have regard to the trauma of sexual abuse on children, and as to the relevance of the Form 1 matters. No complaint is made by the applicant as to her Honour’s analysis of the relevant authority and legislation.

5. [27]

   As noted at [38]-[40] below, the sentencing judge also referred to, and directed herself as to, the relevance of uncharged acts.

6. [28]

   The sentencing judge identified that aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act were that the offending occurred in the victim’s home and that the applicant abused a position of trust and was in a position of authority.

7. [29]

   Under the heading of objective seriousness, the sentencing judge found that the applicant had a sexual interest in the victim, rejecting the applicant’s claims to the contrary. Her Honour found that count one fell just below the mid-range for offences of this nature which are inherently serious. Her findings included that:

8. [30]

   Her Honour found that count four fell at about the mid-range of offences of this nature. She found that the offender was directing his actions in this regard towards the victim and thereby obtaining sexual gratification. She also observed that:

9. [31]

   The sentencing judge found that count seven was a serious example of the broad range of conduct captured by s 66DC(a) of the Crimes Act. She found that the applicant took the victim, and the sex toys, to his place of work when no one was there because “he intended to engage in the sexual acts he ultimately did, in front of the victim, for his sexual gratification”. Her Honour found that:

10. [32]

    Her Honour also rejected the applicant’s claim that the victim behaved in a sexualised way as a result of a previous sexual assault by a third party. Her Honour found that the applicant made this claim in order to deflect blame.

11. [33]

    The sentencing judge took into account, as mitigating factors, that the applicant did not have any significant record of previous convictions, was a person of good character (noting that this consideration is of less significance in cases of child sexual assault), and was a low risk of reoffending and had pleaded guilty (albeit only one week before the first date of the applicant’s trial). Her Honour added:

12. [34]

    Her Honour found that some degree of accumulation of sentence was appropriate, but that this was constrained by the principle of totality. As the applicant had spent two days in custody in 2020 and had been bail refused since 21 July 2023, his sentence was backdated to 19 July 2023. Her Honour made a finding of special circumstances based on this being the applicant’s first time in custody, his need for assistance with reintegration given his unstable life and that a longer period of parole would allow for him to obtain appropriate counselling services and because he may not have access to courses in custody.

13. [35]

    As already indicated, her Honour imposed an aggregate sentence of 6 years and 8 months with a non-parole period of 4 years and 8 months. The indicative sentences were:

    1. (1)

       Count one: imprisonment for 6 years and 2 months, with a non-parole period of 4 years and 4 months;

    2. (2)

       Count four: imprisonment for 3 years and 1 month; and

    3. (3)

       Count seven: imprisonment for 3 years and 6 months.

Ground one

1. [36]

   The Crown’s written submissions before the sentencing judge referred to the matters set out at [19]-[20] above, under the heading “Uncharged conduct”, and contended that this conduct could not aggravate the sentence to be imposed but was “representative of a broader pattern of offending that deprives [the applicant] of a finding that the offence was an isolated act: Kelly v R [2018] NSWCCA 9”. In response, in his written submissions before the sentencing judge, the applicant conceded that such evidence goes to context but contended that the Crown had “elevated” this conduct in its submissions and that it should not be described as “uncharged acts”. Whilst agreeing that the conduct was inappropriate, he contended that there was “no evidence that the purpose of the conduct was to force the victim to observe the behaviour or to anyway take part”.

2. [37]

   As regards the evidence at [21] above, the sentencing judge said in a footnote in her remarks on sentence that she had “been careful not to take this into account, other than as an indication that the offending was not isolated, given that there is no charge for production of child abuse material”.

3. [38]

   Under the heading “Uncharged Acts”, her Honour stated at [78]-[79] of her remarks on sentence:

4. [39]

   As is clear, consistent with [37] above the sentencing judge is referring here to the conduct set out at [19]-[20], but not that at [21], above.

5. [40]

   Later, under the heading “Objective Seriousness”, the sentencing judge said:

6. [41]

   The applicant contends that, in so reasoning the sentencing judge erred because “representative” charges are only to be considered as such with the admission, consent or agreement of the offender, and the applicant never gave such admission, consent or agreement. The applicant relies in this regard upon the judgments of Spigelman CJ and Ireland J in R v JCW [2000] NSWCCA 209 and the judgment of Hidden AJ in Kelly v R [2018] NSWCCA 44. He contends that the evidence of uncharged acts as set out in the agreed facts on sentence went no further than to establish that the incidents of offending were not isolated, but they “were not representative acts to be considered as an aspect for punishment”. He submits that it is apparent from consideration of the remarks on sentence as a whole that, contrary to what the sentencing judge said, she did take the conduct described as “uncharged acts” into account as a circumstance of aggravation. When asked during the hearing to identify some indication in the remarks on sentence that her Honour had so erred, counsel for the applicant pointed to her Honour’s characterisation of count seven as a “serious example of the broad range of conduct captured by s 66DC(a)” and her Honour’s characterisation of the conduct comprising that offending as “gravely serious” and “planned, varied [and] deliberate”. He contended that, in so characterising the offending and the conduct constituting the offence, her Honour should be taken to have relied upon the applicant’s behaviour as a whole, including that disclosed by the uncharged acts. He takes no issue, however, with her Honour’s description of this conduct as “disgusting”.

7. [42]

   The applicant’s contention should be rejected.

8. [43]

   It is clear from the sentencing judge’s statements of principle and reasoning, extracted at [38]-[39] above that her Honour did not treat the conduct that she described as “uncharged acts” as a circumstance of aggravation. Her Honour clearly stated that that conduct should not be, and was not, used by way of aggravation. Her Honour’s citation of the decision in Wright v R [2019] NSWCCA 134 at [33] underscores this. In the paragraph cited, Ierace J (Bathurst CJ and Price J agreeing) stated that the relevance of a contextual course of conduct was “not to aggravate the offences, but rather, to deprive the offender of any claim to mitigation and attendant reduction of an appropriate sentence”, relying upon R v JCW [2000] NSWCCA 209 at [68] and AK v R [2016] NSWCA 238 at [67]-[73].

9. [44]

   It is well established that evidence of uncharged conduct can be relied upon in that way: R v JCW at [52] (Spigelman CJ) and Kelly v R [2018] NSWCCA 44 at [38] (Hidden AJ, Beazley P (as Her Excellency then was) and Garling J agreeing). In oral submissions counsel for the applicant accepted that, if her Honour only took the conduct described as “uncharged acts” into account in this way then there was no error. Indeed, he went so far as to accept that if the sentencing judge had not used the term “representative charges” in her remarks on sentence then “ground one wouldn’t exist”.

10. [45]

    Whilst the applicant contends that this Court should infer that the sentencing judge relied upon the uncharged acts as aggravating the objective seriousness of the offending, there is no foundation for that contention. The applicant’s submission in this regard was premised upon an underlying contention that the conduct constituting the offending itself could not, or would not, have been described by her Honour as a serious example, gravely serious, or as planned, varied and deliberate. The contention wholly fails to grapple with the nature and seriousness of the conduct set out in the agreed facts and with her Honour’s finding that that the offending conduct was motivated by the applicant’s desire for sexual gratification and that the victim was isolated and vulnerable. Moreover, her Honour’s description of the conduct as “varied” reflects that it involved penetration and simulation of sexual intercourse with a sex doll for an extended period, masturbation and watching pornography.

11. [46]

    In this regard, the sentencing judge’s use of the language of “representative charges” should not be taken out of context. It is crystal clear from her Honour’s analysis and reasoning in relation to the conduct that she described as the “uncharged acts” that she took the evidence at [19]-[20] above into account solely in the manner she described at [38] above.

12. [47]

    Ground one should be dismissed.

Ground two

1. [48]

   As was explained by Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]:

2. [49]

   The relevant principles governing an appeal on the ground of manifest excess are well established. The applicant must establish that the aggregate sentence imposed is "unreasonable or plainly unjust". The principles were summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill J and N Adams J agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

3. [50]

   Somewhat inconsistently with the principles set out above, the applicant’s contentions in support of ground two focus in part upon patent, not latent, error. In this regard, he relies upon four matters. First, he contends that the sentencing judge “failed to apply the ‘Bugmy’ principle to which the applicant was entitled”, referring to the judgment of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [42]-[44]. Second, he contends that there is a “qualitative difference” between a sexual act that is committed “with” a victim and one that is committed “towards” a victim, contending that a sexual act committed towards a victim must be at the lower end of the range of conduct contemplated by the legislature. Third, he points to one part of the victim impact statement which references “maternal intoxication” and contends that the “degree of mental harm to the child attributable to the applicant must be ameliorated by the recognition that the applicant was not the only adverse circumstance in the child’s life”. Fourth, he relies upon the alleged error of principle advanced in ground one.

4. [51]

   Whilst the matters relied upon by the applicant could contribute to a sentence being manifestly excessive, as is apparent from the principles discussed above, a ground of manifest excess will only succeed where the Court concludes that the sentence is unreasonable or plainly unjust, meaning, here, that it was manifestly too long having regard to the totality of the criminality involved. I would not reach that conclusion. As the sentencing judge found, the offending was objectively serious and involved discrete incidents and the sentencing judge found (and no complaint was made about this finding) that the applicant had neither insight into his offending nor had he demonstrated remorse. In this context, notwithstanding the mitigating factors taken into account by the sentencing judge, her finding that the applicant was at a low risk of reoffending, and the evidence of Dr Lennings as to the applicant’s difficult background, the first sentence was well within the bounds of what was reasonably available.

5. [52]

   In any event, none of the complaints advanced by the applicant in support of this ground should be accepted. Under the heading “The Offender’s Subjective Circumstances” the sentencing judge made detailed reference to the applicant’s background as identified in the report of Dr Lennings. I would readily infer from this that she took those matters into account in the instinctive synthesis as well as in support of her finding of special circumstances. Further, whilst the written submissions of the applicant before the sentencing judge relied upon Dr Lenning’s report, no submission was made that his moral culpability was reduced, or that diminished weight should be given to general or specific deterrence, on account of his background. Indeed, neither the applicant’s written nor his oral submissions before the sentencing judge made any reference to the circumstances of his childhood and upbringing.

6. [53]

   The applicant’s contention that counts four and seven are necessarily at the lower end of the range of conduct contemplated by the legislature because they were committed towards and not with the victim should be rejected. Section 66DC(a) makes it an offence to carry out a sexual act with or towards a child under the age of 10 years. As is clear from the analysis of Dhanji J (Hamill J agreeing) in Director of Public Prosecutions (NSW) v Presnell (2022) 108 NSWLR 407; [2022] NSWCCA 146 at [86]-[96], the offence under s 66DC(a) may contemplate a range of offending conduct. The objective seriousness of the conduct will turn upon all the circumstances of the offending. It does not turn upon whether the conduct is characterised as “with” the victim, “towards” the victim, or both. Having regard to all of the circumstances, her Honour did not err in her evaluation of the objective seriousness of the offending.

7. [54]

   There was also no error in the sentencing judge’s reliance upon the victim impact statement in finding that the applicant’s actions “have had, and will continue to have, long term effects” on the victim. The applicant placed particular reliance in his submissions upon the following part of the victim impact statement:

8. [55]

   Whilst this sentence refers to the victim’s perception of his mother being regularly intoxicated, it does so by way of explanation of why he felt that he could not seek his mother’s assistance to prevent the ongoing acts of the applicant. That does not alter the fact that it was the applicant’s conduct that was the overarching cause of the victim’s feeling of powerlessness. That this occurred in a context where the victim felt that he could not seek assistance or protection from his mother does not in any sense stand against, or undermine, the sentencing judge’s findings as to the impact of the applicant’s offending on the victim.

9. [56]

   Ground two should be dismissed.

Ground three

1. [57]

   In light of my conclusions on grounds one and two it is unnecessary to say anything about ground three.

Leave to file a notice of appeal out of time and leave to appeal

1. [58]

   None of the matters relied upon by the applicant demonstrates any error by the sentencing judge or that his sentence was manifestly excessive. Nor do the matters relied upon go beyond the merely arguable or raise any issue of principle. As regards the first sentence, the notice of appeal was filed over 21 months beyond the period of 3 months provided by the Supreme Court (Criminal Appeal) Rules, r 3.5(2)(b). No explanation for the delay was given. In these circumstances, I would refuse leave to file the notice of appeal against the first sentence out of time. I would also refuse leave to appeal against all three sentences.

Conclusion

1. [59]

   The orders I propose are:

   1. (1)

      Leave under the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to file a notice of appeal against the sentence imposed by Shead SC DCJ on 15 September 2023 out of time is refused; and

   2. (2)

      Leave to appeal against the sentence imposed by Wilson SC DCJ on 25 March 2025 is refused.

2. [60]

   DHANJI J: I agree with Stern JA.

3. [61]

   R A HULME AJ: I agree with Stern JA.