ET v R

1. [1]

   MITCHELMORE JA: I agree with Davies J.

2. [2]

   KIRK JA: I agree with Davies J.

3. [3]

   DAVIES J: The applicant pleaded guilty to four counts of assaulting a female and committing an act of indecency on a person under the age of 16 years contrary to s 76 of the Crimes Act 1900 (NSW) as that section was between 1958 and 1981. The maximum penalty in respect of counts 1 and 2 was imprisonment for 5 years and there was no standard non-parole period. The maximum penalty for counts 9 and 11 was imprisonment for 6 years and there was no standard non-parole period. The penalty for the offence was increased between 1961, when count 2 occurred, and 1975, when count 9 occurred.

4. [4]

   There was a Form 1 attached to each of counts 2 and 9 of another offence contrary to s 76, and there was a Form 1 of two further offences contrary to s 76 attached to count 11. On 10 November 2023 the applicant was sentenced by Judge Robinson in the District Court to an aggregate sentence of imprisonment for 4 years 6 months commencing 10 November 2023 and expiring 9 May 2028 with a non-parole period of 2 years 3 months expiring 9 February 2026.

5. [5]

   I will specify the indicative sentences when detailing the facts of the offending.

6. [6]

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

7. [7]

   For the reasons which follow, none of the grounds is made out and the appeal must be dismissed.

The offending

1. [8]

   The sentencing judge sentenced the applicant on the basis of a Statement of Agreed Facts. The following is a summary of those facts.

2. [9]

   The applicant was born in June 1942. The complainant in relation to counts 1 and 2, as well as in the offence on the Form 1 attached to count 2, was the applicant’s half sister, RS, who was born in June 1951. Count 1 occurred between 21 June 1958 and 20 June 1959 when the complainant was aged six years and when the applicant was aged 16 years.

3. [10]

   The offending took place at a house in Doonside where RS lived with her maternal aunt whom RS thought of as her mother. The applicant used to visit the house regularly.

4. [11]

   On the occasion of the first offence, RS was asleep in her room at the house. She awoke to a feeling of pain and something between her legs. She saw the applicant sitting next to her on the bed. He had one of his fingers inside her vagina. He told her to keep quiet and said something like, “This is what brothers do when they love their sisters”. He told her that if she were to tell anyone that no one would believe her, and that there would be consequences.

5. [12]

   The indicative sentence for count 1 was imprisonment for 1 year 10 months.

6. [13]

   What the applicant did to RS continued on many more occasions at Doonside until the complainant was aged about 10 years. The offending occurred mainly at night and became progressively longer over time. Threats were made to her if she told anyone. On occasions the applicant would masturbate himself while digitally penetrating RS. These were all uncharged acts.

7. [14]

   The offences charged as count 2 and count 3 (count 3 being on the Form 1) took place between 21 June 1960 and 20 June 1961 when RS was aged about 8. She would sometime visit her parents who were living at that time at Mount Victoria in the Blue Mountains. The first night of her stay during school holidays, the applicant was also visiting. That night he penetrated RS’s vagina with his fingers (count 2) and touched her breast area. He also took his penis out of his pants and made RS masturbate him until he ejaculated (count 3).

8. [15]

   The indicative sentence for count 2, taking into account count 3, was imprisonment for 2 years 4 months.

9. [16]

   That type of offending continued throughout RS’s stay at Mount Victoria, mostly at night but sometimes during the day when the applicant was alone with her. The difference between those incidents and the incidents at Doonside was that the applicant would make her do things to him including masturbating him as well as making her engage in oral sex upon him.

10. [17]

    Further offending occurred on her third visit to Mount Victoria. These were further uncharged acts.

11. [18]

    Their mother died in about January 2005 and RS saw the applicant at the funeral. She said to him, “Mum’s dead now. I don’t have to pretend anymore. I want nothing more to do with you”. The applicant replied, “What did I do?”. RS said, “You know exactly what you did”. The applicant said he was sorry.

12. [19]

    SM was born in December 1966 to the sister of the applicant. She was brought up by her grandparents who were the mother of the applicant and her then husband, A, the father and mother of RS. On 1 September 1975, the applicant came to visit his mother at Forbes for her birthday. This was the first time SM had met the applicant. She was eight years old.

13. [20]

    On the last day of the applicant’s visit he, SM and the applicant’s parents went on a day trip. It was a very hot day and after a while SM felt unwell. She returned to the car and lay down on the back seat with her head closest to the passenger side. She fell asleep. She woke some time later to the sound of one of the car doors opening. She turned her head to see the applicant getting into the backseat from the passenger side. He lifted SM’s head so he could sit down and put her head on his lap.

14. [21]

    After a short time he started rubbing her forehead with one of his hands. Then he started squeezing and pulling at her breasts (count 7 on the Form 1). She became scared and frightened and said, “Don’t, it hurts”. The applicant laughed mockingly, and SM cried. He then started kissing her on the forehead. He grabbed her right arm tightly and used his other hand to reach down across her body towards her groin and put his hand inside one of the legs of her shorts. He then pushed his finger into her vagina causing her terrible pain. She screamed, “Nan, Pop” as loud as she could and tried to get away from him. He had pinned her under his body weight and kept pushing his finger inside her vagina (count 9). After a while he stopped, he called her a “sooky girl” and pushed her off the seat onto the floor, and got out of the car.

15. [22]

    When they arrived home, SM had a bath. She was sitting in the bath crying. Her vagina was red and stinging. Her grandmother came in and asked her what was wrong and she said, “Uncle [ET] did things in the car”. Her grandmother then slapped her across the face knocking her back against the bathtub.

16. [23]

    The indicative sentence for count 9, taking into account the matter on the Form 1, was imprisonment for 2 years 6 months.

17. [24]

    When SM was aged about 13 or 14 sometime between December 1979 and November 1981, her mother took the family to stay with the applicant at his home at Sans Souci. They lived there for at least six months, possibly longer.

18. [25]

    Whilst living there, SM went to a school dance at the school she was attending. The applicant collected her in his vehicle when the dance was over. He asked her on the way home whether she had kissed any boys and wanted to know what things she had done with them. This caused her to become upset.

19. [26]

    She went to bed upset and later awoke to the sensation of the blanket being pulled down. She saw the applicant standing next to the bed pulling on the blanket. He tightly covered her mouth with one of his hands. He pulled down her pyjamas and underpants. He put his fingers into her vagina which immediately hurt (count 11). She tried to scream but could not.

20. [27]

    There were two separate incidents on the Form 1 attached to count 11. Count 10 occurred about a week prior to Christmas in 1978 when the applicant came to visit SM and her family in Narromine. SM shared a bedroom with her half sister K, and the applicant’s youngest daughter also slept on a roll-out mattress in that room.

21. [28]

    One night SM woke to the sound of the bedroom door opening. She saw the applicant standing in the doorway. He pulled a sheet up over his daughter and SM pretended to be asleep. The applicant came over and rubbed SM’s breasts. SM’s sister began to cry and the applicant ran from the room. That constituted count 10 on the Form 1.

22. [29]

    After the family returned to Narromine from living at Sans Souci, the applicant and his family moved to a farm somewhere near Dubbo or Parkes. On one occasion SM went with her family to visit the applicant at his farm. She was aged around 13 or 14 years.

23. [30]

    SM woke one night to the sound of floorboards creaking. She saw the applicant in her room. He reached under the blanket and fondled her breasts which hurt. (count 12). She started to cry. The applicant called her a “sooky girl”. SM saw her mother at the door and the applicant casually walked out of the room.

24. [31]

    SM and her family left the farm abruptly after SM’s mother and the applicant’s wife had an argument. That was the last time SM saw the applicant when she was a child. The indicative sentence for count 11 taking into account counts 10 and 12 was imprisonment for 2 years 6 months.

25. [32]

    SM made a statement to the police in October 2018. RS made statements to the police on 30 April 2019 and 1 October 2020. The applicant was arrested on 3 March 2020. He was taken to Dubbo police station where he participated in an ERISP.

26. [33]

    In the ERISP he said that he had a problem with his memory. He said that when he was in the army he was hit on the head with a grenade launcher, and he was shot in the stomach. He did not agree that he digitally penetrated RS at Doonside, nor could he remember digitally penetrating her at Mt Victoria, although he agreed that he visited her and her family at Mt Victoria. He denied ever assaulting SM.

Subjective matters

1. [34]

   The applicant did not give evidence at the sentence proceedings. He relied principally on a report from the psychologist, Jason Borkowski, and from an affidavit of his son who provided details of his mother’s health care needs which he said were being provided by the applicant. The applicant’s personal history is set out in Mr Borkowski’s report of which the following is a summary.

2. [35]

   The applicant was born in Parkes, the fourth of eight children of his parents’ union. He was raised by his mother until he was aged eight. His father was a “drover” and was absent from the home for lengthy periods. The applicant only got to know his father when the applicant was in his late adolescence. When he was aged eight, his mother developed an illness and as a result the children were removed to child services. He had minimal contact with his mother after that time, although he occasionally spent time with his mother in his mid to late adolescence. He appears to have lived in group homes until he was 15 when he ceased being cared for by child services. He denied any abuse or mistreatment within those settings. He thereafter lived in boarding house accommodation until he joined the army at the age of 18.

3. [36]

   Most of his early schooling was done in foster homes or group homes. He went to Castle Hill High School where he considered himself academically well adjusted and performed within the average range. There were no behavioural issues at school and he said he was involved with stable social groups.

4. [37]

   He left school after his second year of high school and obtained work in retail shops. He joined the Citizens Military Forces until he was able to join the army at age 18. He remained in the army for nine years and had two deployments to Vietnam. Whilst in Vietnam he was shot in the stomach. He fell backwards and hit the back of his head on a grenade launcher. Mr Borkowski noted that medical records provided no indication of neurological damage, but the applicant said that he had experienced long-term headaches.

5. [38]

   The applicant told Mr Borkowski that he was diagnosed with Post Traumatic Stress Disorder in his mid to late twenties. He believed that he started receiving pharmacotherapy for this condition when he was aged approximately 50. At the time he saw Mr Borkowski he was taking Endep and Prozac, both anti-depressants.

6. [39]

   The applicant met his wife when he was aged 21. They have remained together since that time. He spoke positively of the relationship and denied any notable discord, violence or abuse, and said that they had always had a stable and caring union. Other documents, discussed later, cast doubt on that. His wife is currently terminally ill with cancer. He and his wife have four children, and two others who were stillborn. The applicant remains in contact with their children and they have a number of grandchildren and great grandchildren.

7. [40]

   The applicant said that he had never used drugs. He reported patterns of occasional binge alcohol consumption in his early adulthood, but he said that stopped after he married, and he had rarely been intoxicated since that time. Again, other documents cast doubt on that. He denied any history of problematic gambling.

8. [41]

   The applicant has criminal convictions dating back to 1959 when he was aged about 16. He was convicted of two counts of Assault Female for which he was given a suspended 12 month sentence at an institution. He told Mr Borkowski in regard to “that offence”, he was swimming underwater at a pool with his eyes closed, and he swam into the legs of a female.

9. [42]

   His other convictions are for Assault in 1970, Malicious Injury in 1972 and Assault Female in 1975. For the two assaults he was put on a recognisance, and for the malicious injury he was fined and ordered to pay compensation. He told Mr Borkowski that he could not remember any details of those offences. The applicant sought to tender “new” evidence in support of ground 4. That will be dealt with later, but it is significant to note from that evidence that the offences of Assault and Assault Female involved the applicant’s wife as the victim. On the second occasion, the applicant admitted to hitting his wife twice, that he had “a couple of drinks”, there was a suggestion that she had broken ribs, and the parties separated, with the wife telling the Magistrate that “there is no chance of reconciliation”.

10. [43]

    I mention this evidence at this point because its variance with what the applicant told Mr Borkowski suggests that the secondhand evidence of the applicant cannot be accepted at face value. Even given the applicant’s claimed memory problems, it is difficult to accept that he would not have remembered twice being convicted and placed on a bond for assaulting his wife.

11. [44]

    Mr Borkowski assessed the applicant on the Static-99R protocol for sexual reoffending. His score of -1 meant that his risk of reoffence is “Below Average Risk”. Mr Borkowski also assessed dynamic risk factors using the Sexual Violence Risk-20 instrument. He has a large number of protective factors with only three risk factors, being his PTSD, his prior violence convictions and his disorganised and peripatetic childhood.

12. [45]

    Mr Borkowski’s conclusions were these:

Remarks on sentence

1. [46]

   Having set out a summary of what occurred in relation to each of the offences, the sentencing judge went on to assess the objective seriousness of each of the offences. Her Honour noted that offences of the type charged encompassed a broad range of activity including acts which would now be considered to be sexual intercourse and be represented by more serious charges. Her Honour said that relevant matters included the age of the victims, the disparity in age between the applicant and the victims, the duration of the offending, any use of coercion, threats or pressure, and whether the applicant was in a position of trust.

2. [47]

   The sentencing judge said that the act of digital penetration was an act of significant seriousness. Her Honour said that the applicant abused a position of trust he held towards both victims, and that the applicant acknowledged that to be a factor of some significance in determining objective seriousness.

3. [48]

   In relation to count 1, her Honour noted that the victim was only six years old, with the applicant being aged 15 or 16. The victim was vulnerable and defenceless, the offence occurred in her home, the conduct caused pain and was accompanied by threats of repercussion should she complain.

4. [49]

   In relation to count 2, the digital penetration was accompanied by the applicant touching the victim’s breast area. The victim was aged eight and the applicant was aged 17 or 18. It occurred at her parents’ house and was accompanied by threats of repercussions if she complained. The accompanying offence on the Form 1 of having the victim masturbate him to ejaculation was a reasonably serious example of offending conduct and would have an impact on the penalty to be imposed for the principal offence.

5. [50]

   The sentencing judge noted that the offending against this victim was not isolated to the counts charged, but they occurred in the context of ongoing, regulated, repeated, similar offending.

6. [51]

   In relation to count 9, the digital penetration caused the second victim considerable pain. She was eight years old and the applicant was aged 32. The victim was isolated, vulnerable and defenceless, and was unwell. The applicant took advantage of those matters. During the conduct she was pinned down under the applicant. The offending continued despite her yelling for help. After the offending, the applicant treated her with disregard by pushing her onto the floor. The associated offence on the Form 1 involved the applicant grabbing her breasts firmly which caused her pain. The sentencing judge held that as it occurred in the context of more serious offending, it would not have significant impact on the penalty imposed for the principal offence.

7. [52]

   In relation to count 11, the victim was aged 13 or 14 and the applicant was aged 37. It occurred in the applicant’s home where the victim was living. The victim was vulnerable and defenceless, the offending was accompanied by some force, and it caused her pain.

8. [53]

   Count 10 (on the Form 1) occurred when the victim was aged 12. The applicant was 36. It involved the applicant rubbing the victim’s breasts. The victim was defenceless and in a vulnerable position. Count 12 (on the Form 1) occurred when the victim was 13 or 14 and the applicant was aged 37. The offence involved the applicant fondling and pinching the victim’s breasts which caused her pain and made her cry. Her Honour held that those Form 1 offences would have some impact on the sentence for the principal offence.

9. [54]

   The sentencing judge then considered the Victim Impact Statements and the subjective material form Mr Borkowski’s report in some detail. Her Honour considered the applicant’s criminal history and his pleas of guilty which were made on the second day of what would have been the trial, had it started. That entitled him to a discount of 5%. Her Honour considered his prospects of rehabilitation and likelihood of reoffending, his youth at the time of the offending against RS, his present advanced age and the needs of his wife. Other findings will be dealt with in relation to the specific grounds of appeal.

Grounds of appeal

1. [55]

   When dealing with the applicant’s youth at the time of the offending, the sentencing judge first set out the principles identified by Hodgson JA in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4]-[6]. Her Honour then said:

2. [56]

   The applicant submitted that, although the sentencing judge took into account his age at the time of the offending, her Honour gave little, if any, consideration to how his youth reduced his moral culpability for the offence. The applicant submitted that the sentencing judge “did not properly consider how she applied those principles to the offending” except for saying that “forward considerations of rehabilitation” had different significance than would have applied had the sentence occurred at the time of the offending.

3. [57]

   The applicant submitted that the sentencing judge seemingly did not consider that the applicant had lived in boarding houses without a caring and engaged parental figure during his development. The applicant submitted that there was uncontested material upon which there was an unchallenged application of principles from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

4. [58]

   The applicant submitted that when proper account is taken of his age at the time of the commission of counts 1 and 2, the undiscounted sentences of 2 years and 2 years 6 months respectively were not reasonably open to the sentencing judge.

5. [59]

   The sentencing judge correctly observed that no submission was made on the applicant’s behalf by reason of his age and immaturity at the time of the offending for these counts. To the extent that the ground of appeal relies on that factor, the principles in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 suggest that it is not open to the applicant to raise this point on appeal.

6. [60]

   However, the Crown drew the matter to the sentencing judge’s attention, and her Honour dealt with the matter (at [55] above) including by saying that his age at the time reduced his culpability, and that general deterrence and denunciation would have less significance.

7. [61]

   The applicant’s written submissions to the sentencing judge noted his separation from his parents and “exposure to significant trauma in early adulthood”, and submitted that his background reduced his moral culpability, relying on Bugmy.

8. [62]

   The sentencing judge summarised in detail what was contained in Mr Borkowski’s report about the applicant’s childhood and adolescence. Mr Borkowski does not record any trauma until he was shot in Vietnam. The applicant denied any abuse or mistreatment within the care settings including the boarding house where he grew up for a period of his childhood and early adolescence. No family discord, violence, sexual abuse, or drug use was in evidence. He reported no behavioural or other difficulties at school.

9. [63]

   Nevertheless, the sentencing judge said this:

10. [64]

    The ground as framed appears to be a complaint about the extent of the reduction for moral culpability, which is a complaint about weight. That is a matter within the role of the sentencing judge as this Court has repeatedly pointed out. What is clear, however, is that on the two matters about which complaint is made in this ground of appeal, the sentencing judge reduced the applicant’s moral culpability, even in relation to the applicant’s youth where he had not sought it.

11. [65]

    Of the types of offending covered by the offence charged, digital penetration along with fellatio and cunnilingus would have to be amongst the most grave examples of the offence, and the more so when the victim was aged 6 and 8 and there were other aggravating factors. Those acts now all constitute sexual intercourse but did not do so at the time of the offending. Further, the sentencing judge was obliged to sentence in accordance with current sentencing practices which might have suggested, notwithstanding the two matters that reduced his moral culpability and his subjective case, that higher indicative sentences were called for. It cannot be concluded, however, that undiscounted indicative sentences of 2 years and 2 years 6 months respectively were not open to the sentencing judge.

12. [66]

    I would reject this ground.

13. [67]

    Her Honour said this under the heading “Remorse”:

14. [68]

    The applicant submitted that it was difficult to see how he could at the time of sentence express remorse when he could not remember the offending. He drew attention to his “earlier apology” at his mother’s funeral. The applicant submitted that, despite that apology, her Honour found no remorse.

15. [69]

    The applicant submitted that the plea of guilty had saved the complainants the stress and trauma of a trial and he was entitled to some consideration in that regard. Attention was drawn to what was said in Cameron v R (2002) 209 CLR 339; [2002] HCA 6 at [11], that a plea is usually evidence of some remorse. The applicant submitted that her Honour failed to consider the plea as a willingness to facilitate the course of justice.

16. [70]

    As with the submission concerning ground 1 that the applicant’s age should have been taken into account for counts 1 and 2, the present ground is put forward for the first time on appeal contrary to what was said in Zreika. No submission was made to the sentencing judge about remorse or that the applicant’s plea had facilitated the course of justice. This Court has said on a number of occasions that sentencing proceedings are adversarial proceedings: Edmonds v R [2022] NSWCCA 103 at [26]; Richards v R [2023] NSWCCA 264 at [58]. Where no submission is made on a topic or no issue joined, the sentencing judge would not ordinarily be expected to make a finding on that topic.

17. [71]

    Notwithstanding the absence of any such submissions, the sentencing judge examined the evidence to consider the issue of remorse, but concluded, not surprisingly, that no remorse had been established.

18. [72]

    Since the applicant pleaded guilty to the offending and signed the Agreed Facts, it may be concluded that he accepts that he committed the offences as outlined in those Facts. There is no statement by him to the Court or even to the psychologist acknowledging the offending, let alone any indication of regret or remorse for what he did to the victims.

19. [73]

    Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”) deals with remorse as a mitigating factor which the Court is to take into account. It provides:

20. [74]

    In Brzozowski v R [2023] NSWCCA 129, Simpson AJA said at [6]:

21. [75]

    Two things may be observed about what was described as an apology that the applicant made to RS at their mother’s funeral. First, it entirely fails to amount to remorse within s 21A(3)(i) and the way that provision has been interpreted. It needs also to be borne in mind in that regard that mitigating factors need to be established by an offender on the balance of probabilities. Secondly, although the applicant submitted that he could not be expected to apologise for something he could not remember, that submission does not take account of his plea, his agreement with the Agreed Facts, and his saying sorry to RS (but not SM) at his mother’s funeral when he claimed not to know what he had done to her.

22. [76]

    I would reject this ground.

23. [77]

    The applicant submitted that the sentencing judge did not acknowledge in the sentencing statistics put forward by the Crown that more than a third of offenders did not receive a custodial sentence. The applicant submitted that in the context of his strong subjective case, the historical perspective and the significant findings as to rehabilitation and low risk of offending, he was a real candidate for a non-custodial sentence.

24. [78]

    The applicant, whilst accepting that the sentencing judge had regard to issues of rehabilitation, reoffending, his criminal record, remorse, his youth at the time of committing the offences in counts 1 to 3, and his present advanced age, was critical of the sentencing judge for not referring to the specific provisions of s 21A(3), and for not giving discrete consideration to a non-custodial sentence having regard to “the additional features of the matter”. The particular additional features were not identified.

25. [79]

    The applicant submitted that although her Honour took into account the matter of the delay in bringing the charges, her Honour “did not give traction” to particular passages in R v Obbens [2022] NSWCCA 109 concerning delay, and which resulted in that case in a community correction order.

26. [80]

    The applicant submitted that the “highly unusual combination of factors” in the matter were not properly considered by her Honour.

27. [81]

    The principles relevant to a consideration of whether a sentence is manifestly excessive were set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. They are well-known and do not need to be reproduced here.

28. [82]

    The sentencing judge’s remarks on sentence were both comprehensive and thorough. Her Honour dealt with all of the issues that had been canvassed by the parties. In suggesting that the sentencing judge ought to have considered a non-custodial sentence, the applicant placed considerable emphasis on his upbringing, his youth at the time of the offending in relation to counts 1, 2 and 3, and the length of time that had passed since any of the offending. All of those matters were discussed and taken into account by the sentencing judge. In relation to delay, her Honour did not “give traction” to the passages in R v Obbens because her Honour was not asked to do so. Nevertheless, her Honour correctly applied well-known principles concerning delay.

29. [83]

    The criticism that the sentencing judge did not refer to the specific provisions of s 21A is captious, especially when the applicant acknowledges that her Honour referred to the mitigating factors referred to in the identified provisions, being pars (e), (g), (h), (j) and (k) of subs (3). To suggest some shortcoming in the judgment because particular statutory provisions were not mentioned by paragraph number is to exalt form over substance. It also runs counter to what this Court has said on a number of occasions about not approaching sentencing from the perspective of working through a checklist: Ghamraoui v R [2009] NSWCCA 111 at [23]; Vassiliou v R [2022] NSWCCA 91 at [49]; Whipp v R [2024] NSWCCA 79 at [61].

30. [84]

    As noted in relation to ground 1, her Honour reduced the applicant’s moral culpability by reason of his background, and separately for his age in respect of counts 1, 2 and 3. The applicant’s counsel expressly withdrew a submission that the applicant’s PTSD contributed to the later offending.

31. [85]

    In relation to whether or not a custodial sentence should be imposed, her Honour said:

32. [86]

    Her Honour had earlier held that the hardship to the applicant’s family was not exceptional. In the light of the concession made concerning a custodial sentence, the present submission that a non-custodial sentence ought to have been contemplated, is a further instance of a different case being run in this Court from what was put to the sentencing judge, contrary to Zreika. There is no ground asserting incompetence of counsel. It is well-established that a party is ordinarily bound by the conduct of their counsel: R v Birks (1990) 19 NSWLR 677 at 683 and 685.

33. [87]

    The offences constituted serious offending against two victims who were young and defenceless, and where a breach of trust was involved. As noted in relation to ground 1, the nature of the sexual act of digital penetration should be regarded as a serious instance of the offence charged in each case. In the case of RS, they were not isolated acts. In both cases, force, pain and threats were involved. In the case of SM, the applicant was aged in his 30s and for both counts involving SM he was almost 25 years older than her.

34. [88]

    Taking into account the requirement in s 21B of the Sentencing Act, both the indicative sentences and the aggregate sentence were entirely open to her Honour. The applicant also received the benefit of a very generous reduction of the non-parole period by the finding of special circumstances.

35. [89]

    I would reject this ground.

36. [90]

    The applicant sought leave to read two affidavits containing evidence not put before the sentencing judge. The applicant acknowledged that the evidence was “new” evidence and not “fresh” evidence, and that in the circumstances it was necessary for the admission of this evidence that the applicant demonstrate a miscarriage of justice occurred by the evidence not being before the sentencing judge.

37. [91]

    The first affidavit was that of the applicant’s solicitor, Ross Hill, who annexed to his affidavit copies of court papers for a conviction recorded against the applicant in 1975. As noted earlier, the applicant was convicted of the offence of assaulting a female on the 17 January 1975.

38. [92]

    The court documents disclose that the complainant was the applicant’s wife. The documents contain a transcript of what occurred. The applicant appeared for himself. The prosecutor informed the court that the applicant’s wife had been sent for x-rays because her doctor thought she may have broken ribs from the assault. The applicant told the court that he only struck his wife twice although the charge sheet said three or four times. He said he was under treatment for nervous anxiety, and had been on and off tablets. He said that he thought that was what caused him to hit his wife. The matter was adjourned for a few days to see the outcome of the x-rays. The prosecutor noted that the applicant was on a bond from 1970 for assaulting his wife.

39. [93]

    When the matter returned to Court some four days later, the applicant’s wife was present. She informed the Court that the applicant had moved out of the family home. She said she had seen Welfare and they were going to help her. She said there was no chance of reconciliation.

40. [94]

    The defendant said that he was sorry for what he had done. He said he had had a couple of drinks, they “had a go at each other”, and he ended up hitting his wife.

41. [95]

    The Magistrate placed him on recognisance self in the sum of $100 to be of good behaviour for two years.

42. [96]

    The other affidavit was from the applicant’s wife. In the affidavit she referred to the fact the applicant had been to Vietnam twice and was very affected by it. She said he had a breakdown and was suffering from PTSD. He had seen psychiatrists and had been on medication.

43. [97]

    She said things were occasionally difficult within the marriage, and she reported the assault on 13 January 1975. She said at the time the applicant was not taking his medication, and he was drinking. She said that the applicant moved out of the home for a month, that he saw a psychiatrist and a doctor, and she gave him an ultimatum to take his medication and give up drinking or he would lose his family. She said they reconciled, they moved to the country and their fourth child was born in 1978.

44. [98]

    She also said that since the applicant had gone to prison she was living alone. She had a carer that came to help her from Monday to Friday, but she struggled with doing daily activities, and she was on 24-hour oxygen.

45. [99]

    These two affidavits were admitted provisionally with a decision on their admissibility to be given in this judgment.

46. [100]

    The applicant submitted that the evidence demonstrated that he had told the magistrate at Waverley Court that he had anxiety and a nervous condition in 1975, although he accepted that he did not put it down to his war service. He submitted that the evidence from his wife shows that he had a breakdown when he returned from his second deployment to Vietnam. The applicant submitted that these mental health issues were relevant to the offending against SM. He submitted that the sentencing judge did not apply considerations from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 because there was a lack of evidence. The absence of this new evidence was said to constitute a miscarriage of justice.

47. [101]

    In Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483, Hamill J (Gleeson JA and Ierace J agreeing) summarised the principles relating to the admission of new evidence or fresh evidence on appeal as follows:

48. [102]

    In Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Simpson J (Davies J and Grove AJ agreeing) said at [121]:

49. [103]

    There was no evidence explaining why the evidence now sought to be relied upon was not put before the sentencing judge. Mr Hill does not say in his affidavit when he asked for the material from Waverley Court. Nor is there any explanation why the evidence contained in the affidavit of the applicant’s wife was not placed before the judge, particularly when Mr Borkowski’s report made clear the limitations of the applicant’s memory for certain matters. Plainly, all of this evidence was available to be placed before the sentencing judge. These matters go the issue of discretion, but ultimately it must be determined if the absence of this material has occasioned a miscarriage of justice.

50. [104]

    In my opinion, the applicant does not demonstrate a miscarriage of justice by reason of this evidence not being before the sentencing judge for a number of reasons. First, there was evidence in Mr Borkowski’s report, referred to at some length by the sentencing judge, about the applicant’s time in Vietnam, the injury he suffered, his PTSD, his feelings at the time of anxiety, anger, irritability and being uptight. The new evidence does not add anything of substance to what is in Mr Borkowski’s report.

51. [105]

    Secondly, although the evidence tends to provide a reason for the applicant to have been violent towards his wife (his anxiety, being off his tablets, his alcohol consumption, all of which might have their origins in his PTSD), there is nothing to make any link or material contribution to his sexual offending. That is the more significant when he started offending sexually, and did so repeatedly, years before he went to Vietnam and developed his mental conditions.

52. [106]

    Thirdly, the principles for sentencing relating to offenders suffering from mental illness were said in De La Rosa to be these, at [177]:

53. [107]

    Mr Borkowski’s conclusion was this, following his likely diagnosis of PTSD and Major Depressive Disorder:

54. [108]

    That conclusion seems to be something less than a contribution in a material way, a conclusion seemingly reached by the applicant’s counsel at the sentence hearing. The following exchange occurred relating to the applicant’s mental health:

55. [109]

    Fourthly, in any event, the sentencing judge considered the applicant had reduced moral culpability, with corresponding reduced significance of deterrence and denunciation by reason of his background. Further, the sentencing judge took his mental health into account as part of his subjective case as counsel had submitted and, in doing so, her Honour provided a generous reduction in the statutory ratio.

56. [110]

    I would reject the tender of the two affidavits and reject the ground of appeal.

Conclusion

1. [111]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.