Ocek v R

1. [1]

   WARD P: I have had the considerable advantage of reading in draft the comprehensive reasons of N Adams J with which I agree. I also agree with the orders her Honour has proposed.

2. [2]

   STERN JA: I agree with the proposed orders and the reasons provided by N Adams J.

3. [3]

   N ADAMS J: The applicant, Barbaros Ocek, seeks leave to appeal out of time against the sentence imposed on him by Tupman DCJ on 17 April 2018 for a multitude of sexual offences: R v Barbros Ocek [2018] NSWDC 349. The extent of the applicant’s offending was summarised by her Honour at [5] of her sentencing reasons as follows:

4. [4]

   The applicant was sentenced to an effective sentence of 20 years imprisonment with a non-parole period of 15 years backdated to commence on 24 July 2014. By the time of the hearing of this appeal, he had already served over nine years of his non-parole period.

5. [5]

   In addition to the complexity of the sentencing process, this matter had an unfortunate procedural history in the Local and District Courts. Although the applicant pleaded guilty in the Local Court, he raised a number of factual disputes which led to changes of lawyers and lengthy adjournments before the matter could be finalised in the District Court. The proceedings in this Court have also been complicated by the fact that the applicant, who appears self-represented, prepared his own written submissions and affidavits. In fact, the Court of Criminal Appeal Registrar expressed concern at a callover that some of the applicant’s submissions on this appeal sought to traverse his plea. The applicant was afforded the opportunity to file an appeal against conviction for more abundant caution. Despite this, during the hearing of the appeal, in response to questioning by the presiding judge, the applicant confirmed that he did not appeal against his convictions and only sought to appeal against his sentence.

6. [6]

   By way of overview, the applicant was on parole for violent sexual offending in 2011 when he set up a false online persona to groom young girls (usually aged 12-14 years but some were older) for sexual activity. His modus operandi was to contact teenage girls on social media using false names and profile pictures representing himself to be a teenage male, mostly between the ages of 16 and 19 years old but in the case of one victim representing himself to be 12 years old. He was in fact aged between 41 and 43 years old at the time. All 11 victims were manipulated into providing sexualised images to him and engaging in sexual content online. Significantly, of his 11 victims, he succeeded in persuading two of them to meet in person and sexual activity followed. When arrested he was in possession of a significant amount of child abuse material, including that relating to some of his victims.

7. [7]

   The applicant came to the attention of the NSW Police Child Exploitation Internet Unit in June 2011 after they received complaints that he was grooming 13 and 14 year old girls on social media sites. Police were not able to obtain statements from any victims, so an undercover police officer posed as a 13 year old girl online and the applicant was caught engaging in grooming conduct with the officer. He was arrested, charged and sentenced by Arnott SC DCJ on 10 May 2013 for using a carriage service to groom a person under 16 years for sex, using a carriage service to send indecent material to a person under 16 years and possessing child abuse material. His overall effective term of imprisonment was 2 years with an effective minimum term of 15 months.

8. [8]

   Following his release on a Recognizance Release Order (RRO) on 29 December 2013, the applicant was placed on the Child Protection Offenders Register (the Register). On 1 April 2014, he signed an acknowledgement of his responsibilities as a registrable person pursuant to s 12C of the Child Protection (Offenders Registration) Act 2000 (NSW) (the CPOR Act). Despite being on conditional liberty and on the Register, the applicant went on to commit further similar offences almost immediately upon his release, although he was not able to lure any of his victims to meet with him before he was arrested again.

9. [9]

   The applicant was arrested and charged on 24 July 2014 with the offences upon which he was sentenced by Judge Tupman. Some of those offences were committed before he was sentenced by Judge Arnott (including the sexual assaults on two victims) and others were committed following his release. The relevant offending thus occurred in the periods before and after his incarceration: between 1 January 2012 and 31 May 2012 and then again between 14 January 2014 and 24 July 2014.

10. [10]

    Following the applicant’s arrest on 24 July 2014, he was refused bail and has remained in custody since that time. After a period of charge negotiation, the applicant pleaded guilty to 38 offences in the Local Court and was committed for sentence. A number of factual disputes were foreshadowed at the time of those pleas. There was a further delay in the finalisation of his matter when the applicant sacked both his first and second set of lawyers (funded by Legal Aid NSW). As will be seen below, three of the applicant’s 11 grounds of appeal pertain to criticism of those lawyers.

11. [11]

    Annexed to the Crown submissions in this matter is a table listing the offences on the indictment, the Form 1 offences, the offence provisions, the maximum penalties and the indicative sentences, aggregate sentences and remaining sentences. I have reproduced that table below. As stated above, the overall effective sentence imposed on the applicant for counts 1-38 was a sentence of 20 years with an effective non-parole period of 15 years commencing on 24 July 2014. The effective head sentence expires on 23 July 2034. The applicant is first eligible to apply for release to parole on 23 July 2029.

Grounds of appeal

1. [12]

   The applicant filed a notice of intention to apply for leave to appeal against sentence on 20 April 2018. Extensions were granted by the Registrar until 1 March 2019 but they ultimately expired. An application for leave to appeal out of time was filed on 23 December 2022. The applicant now seeks leave to appeal on the following 11 grounds:

2. [13]

   By way of introductory explanation, it can be seen that both grounds 1 and 10(a) rely on misstatements made by the sentencing judge in her reasons. Ground 2 asserts error in the judge not mitigating the sentence for assaults he suffered in custody prior to the sentence. Ground 3 is a complaint about the police investigation. Grounds 5 and 9 assert that the sentence should be reduced for the effects of the Covid-19 virus (in circumstances where he was sentenced two years before the pandemic commenced). Ground 7 complains that there was over charging on the indictment. Grounds 10(b) and (c) contend for error in her Honour’s assessment of the applicant’s prospects of rehabilitation, remorse and his difficult childhood, and grounds 4 and 8 (and part of ground 7) contend that the sentence imposed is manifestly excessive. Grounds 6 and 11 contend that the applicant’s former lawyers (and the Office of the Director of Public Prosecutions (ODPP)) made numerous mistakes as part of the charge negotiation process and the drafting of the statement of agreed facts.

3. [14]

   The hearing of this appeal took the better part of a day and included oral testimony from some of the applicant’s former solicitors and barristers. Most of that time was spent by the applicant advancing his arguments on grounds 6 and 11. The applicant’s central complaints were that the reduction in charges in the Local Court was not as significant as his lawyers and the DPP contended, that the agreed facts in relation to count 3 were inconsistent with Facebook entries and that his lawyers were incompetent in not tendering relevant extracts of the Facebook entries between the victim on count 3 (RW) and the applicant before the sentencing judge. I will refer to the evidence said to be relevant to those grounds in my consideration of those grounds below.

4. [15]

   The Crown opposed the extension of time to bring this appeal on the basis that it lacks merit. It was submitted that the explanation for the delay is far from compelling and there is potential for further psychological suffering of the victims. Although that position is understandable, the fact remains that in order to determine whether an extension of time should be granted it is necessary to consider the merits of the appeal in any event.

5. [16]

   For reasons which will become apparent below, I would dismiss the appeal. I am not satisfied that any of the grounds of appeal should be upheld. Despite this, the applicant is serving a lengthy term of imprisonment and is self-represented. In order to achieve some finality in this matter I propose to grant the extension of time, grant leave to appeal and dismiss the appeal.

6. [17]

   The applicant relied on a significant number of documents in support of his appeal. It is not necessary to list all of them. They included the following affidavits (numbered as in the index provided by the applicant):

   1. (1)

      An affidavit sworn by the applicant on 7 December 2021 (concerning delay) (Document 2);

   2. (2)

      An affidavit sworn or affirmed by the applicant on 29 October 2022 (concerning instructions the applicant said he gave to legal representatives regarding Facebook conversations with RW, which is related to count 3) (Documents 7 and 8);

   3. (3)

      An affidavit sworn by the applicant on 27 July 2022 (concerning the hardships he experienced during Covid-19, which is related to ground 5) (Document 18);

   4. (4)

      An affidavit sworn or affirmed by the applicant on 17 October 2022 (producing 15 pages of Facebook conversations between himself and RW) (Document 36);

   5. (5)

      An affidavit sworn or affirmed by the applicant on 4 June 2023 (annexing various documents);

   6. (6)

      An affidavit sworn or affirmed by Simon Lipert dated 10 April 2018 (the applicant’s solicitor as at 10 April 2018 providing hearsay evidence as to the applicant’s assaults in custody) (Document 3); and

   7. (7)

      An affidavit affirmed by Joy Quinones affirmed 10 April 2018 (an employee of the applicant’s lawyers as at 10 April 2018 indicating that she had received a telephone call from the media about the applicant on 22 March 2018) (Document 4).

7. [18]

   The Crown’s position in relation to the material relied on by the applicant was set out in written submission as follows:

8. [19]

   In response to the allegations concerning the conduct of his lawyers, the Crown obtained affidavits from some of them. Although I am satisfied that there is no basis for any criticism of those lawyers, I propose to anonymise them given the allegations made against them by the applicant (Solicitor A did not provide an affidavit as he is now deceased):

   1. (1)

      Barrister A affirmed 22 June 2023;

   2. (2)

      Solicitor B affirmed 15 June 2023;

   3. (3)

      Barrister B affirmed 16 June 2023; and

   4. (4)

      Solicitor C affirmed 19 June 2023.

Facts of the offending

1. [20]

   The applicant was sentenced on the basis of a 71-page statement of agreed facts. These facts were summarised by the sentencing judge at [42]-[140] of her reasons which are available online. Given the nature of the applicant’s complaints, it is not necessary to summarise the facts in any detail. Further, her Honour was circumspect in her description of the facts given their highly sexually explicit nature. I propose to follow the same course and only provide sufficient detail to enable the complaints now made by the applicant to be understood and resolved.

2. [21]

   I do not propose to repeat the specific offence provisions when describing each count as I have already done so in the table extracted above.

3. [22]

   The applicant was released on parole for a violent sexual offence in 2011: Ocek v R [2009] NSWCCA 42. Shortly after his release on parole and having apparently successfully completed the CUBIT (Custody-Based Intensive Treatment) program in custody he set up a false Facebook profile depicting himself as a young male in his mid-teens. His modus operandi was that he would send a friend request to a girl aged between 12 and 14 years of age and start a conversation with them that would soon become highly sexualised. The young girls all thought they were corresponding with a teenage boy and responded to requests which became increasingly explicit. During the period of offending prior to the applicant being incarcerated in 2012, two of the young girls, RW and JW, separately met up with the applicant and sexual activity took place between each of them and the applicant.

The first period of offending: 1 January 2012 to 31 May 2012

1. [23]

   One of the young girls the applicant contacted via Facebook was RW. She was 13 years old when she first communicated with him online in 2011 by accepting his friend request. They commenced talking both online and on the telephone. The applicant started to sexualise the conversations. He asked her to send sexually explicit photos of herself and they talked about sex. RW turned 14 in late January 2012. Not long after her birthday she agreed to meet with the applicant.

2. [24]

   The applicant met RW at a park near her home in the Blue Mountains. When she got into his car she was expecting to meet the young man with whom she had been conversing online. When she got into the car she realised that he was a much older man, although at the time she did not realise how much older. I note that this aspect of the agreed facts is now challenged by the applicant under ground 11. He contends that contemporaneous Facebook entries “prove” that she knew who he was before she agreed to meet him.

3. [25]

   The agreed facts state that between 26 January 2012 and 20 May 2012 the applicant met with RW on seven separate occasions. Over that time, he committed 32 acts comprising 25 acts of sexual intercourse and seven indecent assaults. These acts form the basis of the one count of persistent sexual abuse of a child (as it was then described) contrary to s 66EA(1) of the Crimes Act 1900 (NSW). In addition to the sexual assaults, the applicant repeatedly provided RW with alcohol, recorded their sexual acts and gave her gifts as part of the grooming process.

4. [26]

   The agreed facts were, as would be expected, prepared based on RW’s statements to police. Relevant to ground 11, in RW’s first statement she referred to the assaults usually occurring on weekends as she did not see the applicant on school days. In her second statement, she specifically set out the seven occasions they met, and those occasions were included in the agreed facts. Under ground 11, the applicant now contends that if the first statement (that they only met on weekends) is accepted then there was not opportunity for him to have met with her on seven weekends during the period on the indictment.

5. [27]

   The agreed facts also include a number of extracts from the Facebook communications between RW and the applicant. I do not propose to extract them here. They are very sexually explicit, manipulative and demanding. They demonstrate why the case against the applicant was so strong. Part of the complaint under ground 11 is that the applicant’s lawyers should have put even more of this sexually explicit and threatening Facebook material before the court.

6. [28]

   The agreed facts record that the applicant repeatedly had penile-vaginal intercourse with RW and on one occasion penile-anal intercourse. He did not usually use a condom. The penetrative intercourse was usually vigorous and he often filmed the sexual activity between them. When RW either refused or was reluctant to accede to his demands he threatened to send the videos to her friends and family. At their third meeting, he told her that he wanted to marry her and later proposed to her. During their fifth meeting, he ignored her protests that she was too tired and had penile-vaginal intercourse with her as he held his hand around her throat making it difficult for her to breathe.

7. [29]

   The assaults stopped at around the time that the applicant was arrested in May 2012 for three similar offences for which he was incarcerated between 29 September 2012 and 28 December 2013. On 14 January 2014, shortly after his release from custody in relation to these offences, he contacted RW and started to press her to help him engage JW for further sex. He also tried to persuade RW to have sex with him again and asked who had reported him to police in 2012. It was as a result of this contact by the applicant that RW finally went to police in 2014.

8. [30]

   In 2012, JW was an acquaintance of RW. She was nine months older than RW being 14 or 15 years old at the time of the offending against her. Like RW, JW accepted a friend request from the applicant who was using the same false profile as he used with RW. Using the same modus operandi, he started speaking with JW online, sexualised the conversations and then asked her to send naked photos of herself in various positions touching herself sexually. JW complied. The applicant asked her to meet up with him in February 2012. She subsequently met with him on two occasions.

9. [31]

   The first time that JW met the applicant she was 14 years old. He digitally penetrated her as they were sitting in a car (count 11) and touched and licked her breasts (count 13). He filmed both of these acts. He then led her into bushland and committed three further acts of sexual intercourse including digital penetration, penetration with a vibrator and cunnilingus (counts 14 and 15 and Form 1). He also filmed this offending.

10. [32]

    The agreed facts disclose that the applicant was manipulative in his communications with JW, often comparing her favourably with RW, who he was seeing at the same time. JW was aware that he was in contact with RW. On the second occasion that he met with JW, he showed her a series of videos of him having sex with RW. The second meeting took place in her home. The applicant digitally penetrated her (Form 1) before penetrating her vagina with a vibrator (count 16) and later, after indecently assaulting her including by forcing her to masturbate him (Form 1), he digitally penetrated her anus (count 17).

11. [33]

    The offences against JW did not come to light until images of her were found on the applicant’s mobile telephone in 2014.

12. [34]

    The applicant became friends with KM online in January 2012 through a dating site and they remained in contact until 1 May 2012. She was 15 years old at the time. The applicant used the same modus operandi. He represented himself, with a false identity, as being a much younger male. After the applicant’s mobile telephones were examined in 2014, police found a large number of text messages (712) between himself and KM over 24 days. There were 214 text messages from him to KM soliciting sexually explicit photos or videos and giving very explicit instructions as to their content.

13. [35]

    As was common with the other victims, when KM did not provide the applicant with the quality or type of sexually explicit video he wanted, he became angry with her and threatened to post pictures or videos of her online or call her mother. He also told her that he wanted to marry her and groomed her to such an extent that she agreed that she would move in with him when she turned 16. It is noted that the applicant also told RW and JW that he wanted to marry them in circumstances when he was having sexual intercourse with each of JW and RW around the same time as he was grooming KM.

14. [36]

    AC was not a child at the time of the offence committed against her. She was 19 years old. She met the applicant online in 2012 after he used a false profile. She sent some photos to him of herself partially or fully exposed. In April 2012, he threatened to post those photos online if she did not send him more. This made her feel scared embarrassed and ashamed. Count 21 was a breach of s 249K(1)(a) of the Crimes Act of making an unwarranted demand with menaces with the intention of obtaining indecent images.

15. [37]

    The applicant was in contact with KB between 9 and 30 April 2012. She was 13 years old at the time. Again, he submitted a friend request to her using a fake profile pretending to be a young male. He repeatedly tried to solicit naked and suggestive photographs from her. She told him that she was not interested in any sex with him because she was only 13 years old.

The second period of offending: 14 January 2014 to 24 July 2014

1. [38]

   As stated above, the applicant was in custody in relation to three similar offences from 29 September 2012 to 28 December 2013.

2. [39]

   He was sentenced by Judge Arnott as follows:

   1. (1)

      Count 1 (use a carriage service to groom a person under 16 years) – the applicant received a term of imprisonment of 18 months from 29 March 2013 to expire on 28 September 2014 with an order that he be released on an RRO to be of good behaviour on or after 28 December 2013;

   2. (2)

      Count 2 (use a carriage service to transmit indecent material to a person under 16 years) – the applicant was sentenced to a fixed term of 6 months imprisonment commencing on 29 December 2012; and

   3. (3)

      Count 3 (possess child abuse material) – the applicant was sentenced to a fixed term of 6 months commencing from 29 September 2012.

3. [40]

   The effect of this sentence was that he served 15 months in custody from 29 September 2012 until 28 December 2013 and was subject to the RRO for a further 9 months until 28 September 2014: an effective total sentence of 2 years imprisonment.

4. [41]

   Upon his release he immediately continued offending in the same manner despite being on the Register and at conditional liberty.

5. [42]

   HP was 11 years old when the applicant first contacted her via a Facebook friend request in either late 2013 or early 2014. He pretended that he was 17 years old. The offending occurred between 1 April and 14 July 2014. HP refused the applicant’s initial requests for a nude photograph but he persisted. She finally agreed to send three full body frontal nude images. He requested more explicit sexual photos and videos. Her Honour noted the following in relation to this offending at [175]-[176]:

6. [43]

   HP was identified as a victim after the applicant’s telephone was seized in May 2014. After she was spoken to by police, she reported this to the applicant who told her not to speak to them and that if she did, he would never speak to her again. Even though the applicant’s telephone had been seized he remained in contact with HP who continued to send him photos and videos. He threatened to show these videos to others if she did not make more. She sent the applicant 281 videos in total most of which show her performing sexual acts on herself, including with an object, at the applicant’s request.

7. [44]

   These offences were committed between 1 February and 1 June 2014 when NR was 13 years old. Again, the applicant contacted her via Facebook pretending that he was 16 years old. When she refused his repeated requests to send photographs of her naked body, he threatened to tell her mother that they had been in contact and told her she would go to jail. In response to those threats, she sent him a full-length nude photograph of herself. After further persistence by him, she ultimately sent him about 14 or 16 photographs of a similar type. She was too scared to tell her mother what had happened. The applicant told her that he knew where she lived and that he was going to punch her and send her to jail.

8. [45]

   These offences were committed between 1 January and 14 February 2012 when MWL was 14 years old. The applicant sent her a friend request holding himself out to be a young male. As with all of the other victims, he sexualised the conversation. He attempted to persuade her to meet him, but she declined.

9. [46]

   These offences were committed in the period 1 February to 30 April 2014 when CBJ was 12 or 13 years old. Police subsequently found a photograph of her school uniform on a telephone seized from the applicant in mid-2014 and interviewed her at that time. The applicant had submitted a friend request using a false identity in late 2013 or early 2014 very shortly after his release from custody. He asked her for photographs and sexualised the conversations between them. He became abusive to her after she suspected that he was using a fake photograph. When she would not comply with his demands he descended into “nasty sexual threats and comments”.

10. [47]

    These offences were committed in the period 15 to 23 July 2014 when KD was 12 years old. The applicant contacted her via social media using a fake identity and told her that he was 12 years old. He used sexually explicit language despite being aware of her age. On one occasion when she told him she was at a party with a cousin, he asked to send a naked photo of an eight year old girl because he had “never seen an eight year old vagina”. He encouraged her to take sexually explicit videos of herself. When she refused, he became angry and threatened to put sexually explicit photographs of her on the internet and call the police. He called her demeaning names including calling her a “slut”.

11. [48]

    These offences were committed during the period 1 March to 1 May 2014 when PM was either 16 or 17 years old. The applicant contacted her on a social media application pretending to be an 18 year old boy and suggesting they had a mutual friend. Very early in their contact he pressured her to send photographs of herself to him. She sent some photographs and sexually explicit videos. The applicant then bombarded her with requests for more material of a similar character and tried to pressure her into meeting him. He threatened to post the images she had sent him publicly unless she sent more photos and videos. She was frightened that he would carry through with this so she sent some further videos. They ceased contact on 30 May 2014, which was the day that the applicant was contacted by police regarding his failure to comply with his reporting conditions.

12. [49]

    When the applicant was released on his RRO on 29 December 2013, he was placed on the Register and was obliged to disclose telephone numbers, email accounts and social media accounts being used by him. On 30 May 2014, police seized telephones in his possession and uncovered text and social media messages requesting erotic images and sex. His failure to disclose these social media accounts is the subject of a Form 1 offence for count 1.

13. [50]

    On 24 June 2014, police conducted a search of the applicant’s premises and located another mobile telephone with 9,490 images and 302 videos depicting female children and adolescents. Some images include the complainants in counts 22 to 25 and 37 and 38 engaged in sexual activity. Count 1 concerned the failure to disclose the use of the telephone number associated with this telephone. Count 2 concerned the possession of this material.

14. [51]

    A subsequent re-examination of the phones that had been seized in May 2012 revealed even more sexual material. This re-examination of his phone by police is the subject of complaint under ground 3. After re-examining the reports from the phones seized in 2012, police contacted a number of people who the applicant had been in contact with online or by phone and it was only then that the extent of the applicant’s offending was revealed.

The proceedings on sentence

1. [52]

   The proceedings on sentence were initially listed for a two-day disputed facts hearing at Sydney District Court on 5 and 6 June 2017. That factual dispute was not ultimately pressed.

2. [53]

   On 5 June 2017, an indictment was presented and the applicant pleaded guilty to the 38 counts, having already pleaded guilty in the Local Court. The very lengthy Statement of Agreed Facts, signed by both the applicant and a representative of the ODPP, was tendered. The Crown tendered a bundle of material which included documents setting out the charges, the statement of facts, the applicant’s criminal and custodial histories, the reasons for sentence of Judge Arnott and a chronology of the proceedings. Barrister B appeared for the applicant at that time. A number of victim impact statements were read but the proceedings had to be stood over so the applicant could obtain a psychiatrist’s report. The proceedings were stood over until 24 November 2017.

3. [54]

   The proceedings on sentence continued on 24 November 2017. Barrister B appeared on that occasion. The defence case was presented. The applicant did not give evidence, but the following documents were tendered on his behalf:

   1. (1)

      Report of Dr Richard Furst, consultant forensic psychiatrist, dated 17 September 2017;

   2. (2)

      CUBIT Treatment Report prepared by Kate Solomon, psychologist, dated 14 January 2011; and a second CUBIT Treatment Report prepared by Tamara Sweller, forensic psychologist, dated 19 December 2013;

   3. (3)

      Report of Dr Ilana Hepner, clinical neuropsychologist, dated 9 March 2017;

   4. (4)

      Report of Laura Durkin, forensic psychologist, dated 27 March 2013;

   5. (5)

      A bundle of vocational and lifestyle course certificates;

   6. (6)

      Various Justice Health Documents (relevant to the issue of extra-curial punishment); and

   7. (7)

      An unsworn statement of the offender, dated 22 November 2017.

4. [55]

   Written submissions were filed and oral submissions were made that day. Of relevance to ground 2, Barrister B noted that the applicant was the subject of an assault whilst on “strict protection” when he was “choked” or “strangled” and that was “something that your Honour can take into account”. The solicitor for the Crown submitted that it was accepted that the applicant had been assaulted but not that it was as a result of these particular offences, so it was not a case of extra-curial punishment. Her Honour went on to observe that there was no evidence to suggest he was attacked because of the nature of these offences and that he would remain on strict protection. Barrister B subsequently noted that the applicant had made a statement to police about the assault and sought the opportunity to put that before the court on the next occasion. The matter was stood over until 16 February 2018. The matter did not proceed on that day.

5. [56]

   The next transcript in the appeal book is on 12 April 2018. By that stage, Barrister B no longer appeared, and Barrister C appeared. The matter was supposed to be listed for sentence that day but her Honour was not ready. A notice of motion had been filed on behalf of the applicant by his new lawyers seeking a non-publication order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the basis that the applicant was concerned that publication of his name in connection with the sentence may lead to him being assaulted in custody. Her Honour declined to make such an order but the exchanges between her Honour and Barrister C on that day form the basis of ground 2.

6. [57]

   The police statement that had been referred to by Barrister B on the previous occasion was tendered by the Crown: statement of Detective Senior Constable Mark Delaney dated 11 April 2018. That statement noted that the applicant had been assaulted in custody in September 2016 but the reason for that assault differed as between the assailant and the applicant and no further action was taken. Her Honour was satisfied that the applicant was assaulted due to being a child sexual assault offender generally rather than anything to do with his specific charges.

7. [58]

   During a further exchange as to why a non-publication order should be granted, her Honour observed the following:

8. [59]

   This passage is relied upon by the applicant in support of his contention under ground 2 that her Honour erred in not mitigating his sentence on the basis of extra-curial punishment.

Remarks on sentence

1. [60]

   As stated above, her Honour’s reasons for sentence are available online. They are, by necessity, very detailed. I have already summarised the facts for most of the offences and have listed the sentences imposed for each offence in the table. I do not propose to summarise her Honour’s findings in relation to each of the 38 offences unless it is necessary to do so to consider a ground of appeal.

2. [61]

   As for the two periods of offending, her Honour observed this at [12]:

3. [62]

   It is to be noted that this passage shows that from the outset her Honour was aware that the most serious charges involving actual sexual intercourse were committed in early 2012 before the applicant was imprisoned. This is relevant to ground 10(a).

4. [63]

   Her Honour accepted (at [17] and [18]) that the applicant was entitled to a 25% discount for his pleas of guilty in the Local Court. In addressing the applicant’s subjective case, her Honour noted the material before her at [19] as follows:

5. [64]

   Regrettably, there are a number of typographical errors in her Honour’s reasons published online. This is just one of them. I am satisfied that the reference to “David Nein(?) March 2017” should read “dated 9 March 2017” and is a reference to the report of Dr Ilana Hepner, clinical psychologist, dated 9 March 2017. This typographical error gave rise to the complaint under ground 10(b).

6. [65]

   Her Honour accepted some but not all of what the applicant told Dr Furst and the psychologist about his personal circumstances: see at [21] and [23]. She accepted that he was a 46 year old man with a Turkish background who had some family in Australia from whom he was estranged. She seemed to accept that he was employed in his twenties and then ran his own telecommunication business as a sub-contractor for seven or eight years. He had a relationship with a woman for about ten years which failed because they both drank alcohol and smoked cannabis excessively. He started drinking excessively and using sleeping pills from 2003. As for other matters in those reports, her Honour observed the following at [22]:

7. [66]

   Her Honour’s reluctance to accept this aspect of the applicant’s account to Dr Furst forms part of the complaint made under ground 10(c).

8. [67]

   Her Honour summarised the applicant’s criminal history: see at [24]-[26]. In addition to the violent sexual assault he committed in April 2002, she noted that he has convictions for driving offences, stealing and an indecent assault (in 1990), possessing a prohibited drug, entering enclosed lands, larceny of a motor vehicle, break, enter and steal and contravene a DVO. She noted that for the 2002 offences (aggravated sexual assault and inflict actual bodily harm and sexual intercourse without consent) he was sentenced to an overall term of imprisonment of 8 years and 6 months. She noted that he was towards the end of this parole period when he committed the 2012 offences.

9. [68]

   Her Honour then noted the sentence imposed by Judge Arnott at [27] in these terms:

10. [69]

    Her Honour returned to the subject of the sentence imposed by Judge Arnott at [223] when considering the application of the totality principle in this matter at which time she observed the following:

11. [70]

    As set out above at [40], the sentence imposed by Judge Arnott was an effective total sentence of 2 years with a custodial component of 15 months. Her Honour correctly stated the non-parole period at [27] but understated it by three months at [223] (assuming the transcript correctly records what her Honour said). This understating by three months at [223] is the subject of the applicant’s complaint under ground 1.

12. [71]

    Her Honour went on to note that the applicant was the subject of an RRO at the time of the commission of the 2014 offences: see at [27]. Her Honour then noted the following in relation to Dr Furst’s diagnosis at [28]-[30]:

13. [72]

    Her Honour accepted Dr Furst’s recommendations regarding treatment and accepted that the best treatment for the applicant’s rehabilitation would be with anti-libidinal medication: see at [31]-[32]. She accepted Dr Furst’s opinion as to the risk of re-offending, at [34]-[35], which was as follows:

14. [73]

    As for the applicant’s remorse, her Honour noted that the applicant told Dr Furst that he accepted his guilt and made some expressions of remorse and victim empathy but noted Dr Furst’s observation that the applicant had done so on the previous occasions. She referred to the applicant’s statement and observed the following at [36]-[38]:

15. [74]

    In the context of discussing the applicant’s prospects of rehabilitation, the sentencing judge said this at [39]:

16. [75]

    The italicised portion of [39] is the subject of complaint under ground 10(a).

17. [76]

    Her Honour went on to note that the applicant continued to offend even after being charged by police in May 2014 for failure to comply with his reporting conditions before finding this at [40]:

18. [77]

    Relevant to the complaint of manifest excess in relation to count 3 (ground 4) and the s 66C(3) offences: counts 11, 14, 15, 16 and 17 (ground 8), I note that her Honour made the following findings of objective seriousness and comments in relation to those matters.

19. [78]

    At [96]-[104], her Honour assessed the objective seriousness of count 3. She noted the maximum penalty of 25 years imprisonment and that there were 32 separate sexual offences committed over a two month period on seven different occasions. Her Honour noted the significant age difference between the complainant and the applicant and that the sexual offences covered the whole range of sexual activity. It was noted that the applicant only used a condom once. He engaged in planning in addition to the grooming. That grooming included giving RW gifts but also telling her that because of the gifts she was obliged to agree to continue having sexual intercourse with him. He filmed many of the events and then threatened to send them to her family unless she continued to agree to have sex with him. Her Honour then observed the following at [100]-[101]:

20. [79]

    Her Honour concluded by making the following assessment as to the objective seriousness of count 3 at [104]:

21. [80]

    As for the s 66C offences, her Honour summarised her findings in relation to the offences against JW at [136]-[143] noting that they included a variety of offences both State and Commonwealth. At [137], she described all of the offences as “clearly enough serious” and noted that the maximum penalty for each of these s 66C offences is 10 years. At [141], her Honour noted that the complainant was only 14 or 15 years old at the time and that the applicant groomed her for the actual physical contact that occurred. Her Honour noted that the applicant filmed the activities and therefore produced child abuse material. She was satisfied that the complainant was clearly initially reluctant. There were also several forms of sexual intercourse in which he engaged, and he filmed it all. He was considerably older. Her Honour then concluded her consideration of the s 66C offences by finding the following at [142] and [143]:

22. [81]

    Her Honour also noted the victim impact statements that had been provided to her by some of the victims at [217]-[221] as follows:

Ground 1: Complaint about totality

1. [82]

   Under his first ground of appeal the applicant complained that the sentencing judge erred by not taking into account the 15-month sentence imposed by Arnott SC DCJ “by saying that he had served 12 months for exactly the same offences committed in exactly the same period”.

2. [83]

   The applicant explained his complaint under this ground in his written submissions in this way: “The error that has occurred is H.H has only taken into account 12 months of that 15 month sentence s 6(3) of Criminal Appeal Act. I am seeking a resentence of those 3 months.”

3. [84]

   This ground relies upon the misstatement at [223] I have extracted above. I am not satisfied that it establishes that her Honour proceeded on an incorrect basis as to the applicant’s previous non-parole period. That is because she correctly stated that non-parole period at [27] and she had a copy of Judge Arnott’s reasons before her with the correct effective non-parole period in any event. But even if, contrary to my finding, this misstatement at [223] was made because her Honour genuinely believed that the applicant had previously spent three months less in custody than he did, I am not satisfied that any such error could have the capacity to influence the sentences imposed.

4. [85]

   Since Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 this Court is required to intervene and re-sentence an applicant if error is established, but only if that error has the capacity to influence the sentence: Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Basten JA); Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [145] (N Adams J, Leeming JA agreeing), Benn v R [2023] NSWCCA 24 (“Benn”) at [82] (Gleeson JA, N Adams J and Ierace J agreeing). I am not satisfied that the misstatement has the capacity to influence the total sentence imposed.

5. [86]

   The misstatement as to the applicant’s previous non-parole period occurred in the context of her Honour’s consideration of the totality principle. She stated at [223] that it was necessary for the sentence she imposed to reflect “the total criminality involved in all of this offending”. Her Honour went on to note the “added twist” that she had to take into account that for the same period covered by this offending, the applicant was imprisoned for “exactly the same offences committed in exactly the same time period”. Her Honour went on to expressly state that the offending which Judge Arnott dealt with was “part of the total criminality involved to take into account”.

6. [87]

   Given the scope of the applicant’s offending, the number of victims and the myriad of charges, I am not satisfied that the understatement of the applicant’s previous non-parole period at [223] was an error which had the capacity to influence the sentence. Contrary to what the applicant appears to be contending, the question of backdating the sentence to commence part way through his previous non-parole period did not arise in this matter because the applicant had already been released on his RRO before he was arrested again. Even if he had, it would have been within her Honour’s discretion to have commenced the sentence at any time during that pre-existing sentence: Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145. As it stands, her Honour was simply noting that the offending took place over a period of time during which the applicant had already been sentenced for similar offending.

7. [88]

   No error is disclosed under ground 1.

Ground 2: Failure to have regard to extra-curial punishment

1. [89]

   This ground asserts that the sentencing judge erred in not having regard to the extra-curial punishment he experienced when he was assaulted in custody whilst on remand on strict protection. The applicant contends that the sentencing judge erred by not taking into account the seriousness of the assault and saying that prisons are comprised of only child abusers and paedophiles.

2. [90]

   The applicant relies on Documents 3-9 in support of ground 2. Those documents appear to be part of the material that was tendered in support of the application for non-publication order for the applicant on 12 April 2018 referred to above at [56].

3. [91]

   Document 6, which is four pages of Justice Health records, was also tendered as part of Exhibit 1 in the sentence proceedings. Those notes record that the applicant reported an assault to a nurse on 23 September 2016 who noted “minor pressure marks on his neck (Redness) visible”. Another record dated 27 September 2016 recorded the applicant’s complaint about an assault that lasted about 8-10 seconds. This was also referenced in the reports of Dr Richard Furst and Dr Ilanna Hepner tendered at the proceedings on sentence.

4. [92]

   The applicant contends that the assaults said to have been inflicted on him in custody amount to extra-curial punishment in custody warranting mitigation of his sentence. The relevant principles are derived from decisions such as Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 where, after considering relevant authority, James J (with whom Tobias JA and Hulme J agreed) observed the following at [62]:

5. [93]

   There are two hurdles for the applicant to overcome in relation to this ground. The first is that it was not squarely raised before the sentencing judge. There was no evidence before the court as to the reason for the assaults in the proceedings on sentence on 24 November 2017. The material that the applicant now relies upon was only put before her Honour on 12 April 2018 in the context of an application for a non-publication order of the applicant’s name in the pending sentencing judgment. As Johnson J (with whom McClellan CJ at CL agreed) observed in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81], in sentencing appeals to this Court:

6. [94]

   The second hurdle is that there was insufficient material before her Honour at first instance to establish that the assaults were the result of these specific offences. As Wilson J (with whom Leeming JA and Davies J agreed) recently confirmed in Melville v R [2023] NSWCCA 284 at [80], albeit in the context of public opprobrium rather than physical assaults:

7. [95]

   The fact that an inmate is assaulted in custody, as regrettable as that is, does not of itself amount to extra-curial punishment. It will only do so if it is a loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his offence or at least by reason of the offender having committed the offence: Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 at [29] per James J with whom Hislop and Hoeben JJ agreed. The evidence before her Honour and this Court does not establish that to be the case.

8. [96]

   As noted above, when the incident was discussed on 12 April 2018 during the application for a non-publication order, the Crown prosecutor informed her Honour that the applicant told the police officer that the dispute occurred as a result of him being “the type of offender he was in custody for, ie a person charged with sex offences”, but the alleged assailant provided different information and no further action was taken.

9. [97]

   Even assuming that the issue of extra curial punishment was squarely raised before her Honour (as opposed to being the subject of an application for a non-publication order), it was open to her Honour to find that there was insufficient evidence to make such a finding. As for the comments made by her Honour during the application about assaults in custody generally (extracted above at [58]), although they are of little comfort to an inmate who is the subject of an assault in custody, they reflect the relevant law on this issue.

10. [98]

    No error is disclosed under ground 2.

Ground 3: Delay and error in forensic examinations

1. [99]

   The applicant submitted that there was delay by police in the forensic examination of all the electronic devices, which were not encrypted. In written submissions, he said he “lived with this uncertainty [and] the stresses in the prison system”. He adds, “I was compelled to contact [RW] with the continuous [sic] anxiety waiting for the knock on the door.”

2. [100]

   There are circumstances in which delay can be a mitigating factor on sentence, but they do not arise in this case. Price J (with whom Button and Fagan JJ agreed) explained the relevant principles in Elchiekh v R [2016] NSWCCA 225 at [56]-[58]:

3. [101]

   This is not a case in which the applicant’s expressed anxiety about delay warrants any mitigation of sentence. The relevant principles do not apply to a state of suspense or uncertainty experienced by an offender who remains silent and hopes that his offending will remain undetected. In any event, this complaint only pertains to those offences which relied upon an examination of the phone. That precludes all of the more serious offending which involved the sexual assaults committed on RW and JW. Nor is this a case where delay was demonstrative of any rehabilitation. On the contrary, the applicant continued offending almost immediately upon his release from custody.

4. [102]

   Although delay was not a mitigating factor, the sentencing judge was clearly aware that some of the offences for which the applicant was sentenced came to light after police re-examined phones that had been seized from the applicant in 2012, prior to him entering custody in respect of the sentence imposed by Arnott SC DCJ. Her Honour considered that aspect of the chronology to be relevant to the need to consider totality as between the sentence imposed by Arnott SC DCJ and the sentence for the present case.

5. [103]

   No error is disclosed under ground 3.

Grounds 5 and 9: Post sentence events

1. [104]

   Both grounds 5 and 9 seek mitigation of the applicant’s sentence for events which occurred after he was sentenced. Ground 5 seeks mitigation for the effects of the Covid-19 pandemic and ground 9 seeks mitigation for an assault in custody whilst at Silverwater Correctional Centre on 21 May 2022 while he was isolated with Covid-19 (he tested positive on 11 May 2022). He relied on an affidavit sworn 27 July 2022 setting out the hardships he suffered during 2020-2022.

2. [105]

   The applicant relied on a note prepared by Tuan Nguy, a forensic psychiatrist within Justice Health, dated 28 July 2022 (Document 19) recording a consultation. The document reads inter alia:

3. [106]

   At the hearing, the applicant submitted that there was a Justice Health complaint about a fight, but the applicant was not involved in a fight and has not broken any disciplinary rules in custody (T 49.42-8). He claimed that the assault on 21 May 2022 was connected to these offences in his affidavit dated 27 July 2022 (Document 18).

4. [107]

   The difficulty with these grounds is that her Honour could not have erred in failing to take them into account as they had not happened yet. As Johnson J observed in Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 (McClellan CJ at CL and Adams J agreeing) at [56]:

5. [108]

   No error is established under these grounds.

Ground 10: Factual error by sentencing judge and error in assessing subjective case

1. [109]

   There are in substance two errors alleged under this ground.

2. [110]

   First, the applicant contends that the sentencing judge erred in saying that actual sexual contact occurred “very soon thereafter” his release from custody (ground 10(a)). I have extracted this passage from her Honour’s reasons above at [74]. The applicant submitted that the offences involving actual sexual contact occurred in 2012 not after his release from custody on 29 December 2013.

3. [111]

   I am satisfied that when her Honour’s sentencing reasons are read as a whole it is clear that her Honour was aware that the sexual offending in relation to the complainants JW and RW occurred prior to the applicant being sentenced by Judge Arnott. So much is apparent from her Honour’s reference to the dates of all of the offences as she went through them but also by the fact that she expressly stated at [12] that the serious offending occurred prior to his incarceration.

4. [112]

   Further, I note that the slip relied upon by the applicant is to be found during her Honour’s consideration of the applicant’s prospects for rehabilitation. Her Honour’s conclusion (at [40]) was that they were “very poor”. Given the applicant’s persistent and prolific offending whilst on conditional liberty in the context of his criminal history, I am satisfied that, even if her Honour did momentarily forget the correct chronology when she came to consider rehabilitation (and I am not satisfied that she did), that slip was not such as to have the capacity to have any influence on the sentence: Benn at [82] (Gleeson JA, N Adams J and Ierace J agreeing).

5. [113]

   The second complaint under this ground is that the sentencing judge erred in her assessment of the applicant’s prospects of rehabilitation and failed to take into account relevant material on that question: grounds 10(b) and (c). Specifically, the applicant contends that her Honour erred by failing to take into account:

   1. (1)

      His difficult childhood involving sexual abuse;

   2. (2)

      His intellectual functioning;

   3. (3)

      His remorse letter; and

   4. (4)

      The program with Chaplain Walter Pospelyj (whose report comprises Document 22).

6. [114]

   It was further contended by the applicant that the sentencing judge did not mention or take into account Dr Ilana Hepner’s report.

7. [115]

   Her Honour clearly explained why she did not have regard to the applicant’s claim of a difficult childhood involving sexual abuse. I have extracted the relevant paragraph above at [65]. Her Honour could not be satisfied on the balance of probabilities, based on the applicant’s history of being manipulative and stating things that are untrue to benefit him, that the applicant had been the victim of child sexual abuse in the manner described. That was a finding that was open to her Honour on the material before her.

8. [116]

   The test to be applied to a challenge to factual findings made by a sentencing judge is whether the findings were open on the evidence before the sentencing judge: R v O’Donoghue (1988) 34 A Crim R 397; AB v R [2014] NSWCCA 339. Although that approach was questioned in both Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150 and Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353, it remains the approach taken in this Court: Azzopardi v R [2019] NSWCCA 306 at [36] to [39] (per R A Hulme J, Bathurst CJ and Fullerton J agreeing) and cases cited. It follows that, where there is a challenge to a finding by a sentencing judge, the relevant question is whether the finding was reasonably open.

9. [117]

   As for the complaint about the applicant’s “intellectual functioning”, Dr Hepner assessed his overall level of intellectual functioning as “unimpaired and rated in the Low Average to Average range”. There was no evidence that the applicant’s intellectual functioning was seriously impaired in any way and Dr Hepner concluded it was unlikely the applicant had acquired a brain injury. Her Honour considered Dr Furst’s report in some detail and I have extracted some of her findings in that regard above. It could not be said that her Honour did not have regard to the expert opinions concerning the applicant. In fact, on the question of rehabilitation prospects, Dr Furst assessed the applicant as belonging to a group of adult male sex offenders “generally considered to be at high risk of reoffending”.

10. [118]

    As for the failure to have regard to the applicant’s remorse letter, her Honour expressly referred to that letter in her remarks on sentence at [36] and I have extracted her findings in that regard above at [73].

11. [119]

    It is to be accepted that her Honour did not make express reference to the program with Chaplain Walter Pospelyj but she stated on a number of occasions that she had had regard to all of the material that was put before her. Her Honour expressly noted at [19] that she had “read all of those documents and have taken them into account. Some portions of them I will refer to specifically.”

12. [120]

    Finally, as for the complaint that her Honour did not mention Dr Ilana Hepner’s report, as I have already set out, that misunderstanding arose from the typographical error when her Honour referred to the evidence of the psychologist “David Nein” when she meant “dated nine” March. That was an express reference by her Honour to Dr Hepner’s report.

13. [121]

    No error is established under ground 10.

Ground 7: Overcharging on indictment

1. [122]

   The complaint made under ground 7 is that the “Indictment had 38 offences after negotiations with Madam Crown, at sentencing H.H. Tupman reduced this to 21 offences. Madam Crown was put on notice error has occurred by H.H with indicative sentences which formed the aggregate sentence was manifestly excessive”. Under this ground, the applicant relies on the numerous criticisms by her Honour during the remarks on sentence as to over-charging in relation to some of the charges.

2. [123]

   The applicant’s complaint under this ground (as emerges from his written submissions in relation to ground 1, is that: “I feel as though I’m being punished for H.H running so many offences concurrent” and that, “[t]hey could have been discontinued”. The applicant also contended that the inclusion of 38 offences on the indictment (to which he pleaded guilty) caused him “unfair duress”.

3. [124]

   Her Honour’s sentencing reasons disclose that in relation to some of the offences, specifically some of the possession of child abuse material and grooming offences, her Honour had considered those aspects of the offending in relation to other charges. On that basis, her Honour imposed entirely concurrent sentences for those offences.

4. [125]

   At [107], her Honour described the Form 1 charge of being in possession of the “very same child abuse material” the subject of count 4 as “very odd and completely unnecessary”. At [109], she described it as “hard to fathom” as it could not increase the criminality of count 4 before observing, “[a]ll it has done is to make this whole sentencing procedure more cumbersome and difficult to finalise. It is unfortunate that greater thought was not given when this was all negotiated”.

5. [126]

   At [114], her Honour made a similar complaint about count 5, which was a separate grooming charge in relation to RW. Her Honour stated this at [115]: “This is an entirely unnecessary charge again, just making more complicated the whole of this sentencing process”.

6. [127]

   At [129], her Honour noted that another grooming offence had been placed on a Form 1 for count 10 (the s 66EB offence) and described that as “entirely unnecessary” and “yet another entirely unnecessary offence pursued in this overall sentence”.

7. [128]

   At [130], in relation to count 12 (producing child abuse material in relation to JW), her Honour described that offence as “completely unnecessary to pursue” given counts 11 and 13 as they were part of the one criminal episode. Similarly, at [131], her Honour referred to the first of the offences on the fourth Form 1 as being “entirely unnecessary and should have been discontinued. It is part of the factual matrix of what occurred next and just makes this whole sentence a great deal more complicated than it ought to have been”.

8. [129]

   At [140], her Honour described count 12 (production of child abuse material) as “an unnecessary charge” because it formed part of the factual matrix for the more serious sexual intercourse offences against JW observing, “the sentence which I will be obliged to set for count 12 in those circumstances will always have to be ordered to be served concurrently because of this factual nexus. Once again, it has rendered the whole sentence more complex and complicated than it needs to be”.

9. [130]

   At [159], her Honour described count 20 (a State grooming offence) as “another unnecessary offence that did not need to be brought” as it was part of the grooming process relevant to count 18.

10. [131]

    At [183]-[184], her Honour described count 24 (in relation to HP) as “entirely unnecessary and again makes the whole sentence far too complicated, not the least because it is a State offence and cannot be sentenced in any aggregated way with the Commonwealth offences”. Again, her Honour expressed that she would be imposing an entirely concurrent sentence for that offence.

11. [132]

    Overall, her Honour expressed her frustration at the way the offences had been charged but in doing so she made it clear that she was imposing concurrent sentences for all of them. It is clear from her Honour’s sentencing remarks that the applicant did not receive any additional punishment for the charges that her Honour believed should not have been brought. Contrary to the applicant’s contention, she did not “reduce” the number of offences.

12. [133]

    It was well within her Honour’s discretion to impose concurrent sentences, and this benefited the applicant: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] per Howie J (Adams and Price JJ agreeing).

13. [134]

    No error is established under ground 7.

Grounds 6 and 11: Incompetence of counsel

1. [135]

   As stated above, the main focus of the applicant’s complaints at the hearing of this appeal concerned the conduct of his lawyers in the charge negotiation process in the Local Court (involving his first legal team) (ground 6) and the drafting of the statement of agreed facts in the District Court (involving his second legal team) insofar as they concerned count 3 (the sexual assaults on RW) (ground 11). He further complained under ground 11 that his second legal team were incompetent in failing to tender additional portions of the Facebook material to that extracted in the statement of agreed facts as they would have (apparently) established that there were mistakes in the agreed facts.

2. [136]

   The applicant’s complaints about his lawyers extended beyond these two grounds and were to some extent internally inconsistent. He accepts that he pleaded guilty to the charges in the Local Court (including count 3) in the exercise of a free and informed decision (T 14.7-15). He accepts that he signed the statement of agreed facts tendered at his proceedings on sentence (T 13.34-41). Significantly, at no time did he contend that the plea of guilty in relation to count 3 was entered contrary to his instructions.

3. [137]

   Although at one place in of his written submissions (page 11) he asserts in relation to his second legal team that he was, “threatened, tricked, not listen to, instructions ignored, when I knew I had evidence at hand”, he did not seem to press this complaint at the hearing of this appeal (especially when confronted with signed instructions to the contrary (T 12.6-40)). Rather, his complaints can best be categorised as a complaint that his lawyers advised him not to challenge certain facts when they should have been challenged. The applicant’s position was consistent with him having had time in custody to dwell on the procedural history of this matter leading to regret in relation to some of the (informed) decisions he made at that time.

4. [138]

   Before turning to consider these two grounds, it is pertinent to have regard to the relevant principles where incompetence of counsel is raised on an appeal against sentence. They were considered by Beech-Jones J (as his Honour then was) (with whom Leeming JA and Johnson J agreed) in Tsiakas v R [2015] NSWCCA 187. After noting (at [42]) the relevant decisions on incompetence of counsel in the context of a third limb miscarriage of justice in s 6(1) of the Criminal Appeal Act 1912 (NSW) (including Nudd v The Queen [2006] HCA 9; 80 ALJR 614 (Nudd v The Queen) and TKWJ v R (2002) 212 CLR 124; [2002] HCA 46), his Honour went on to observe the following at [43]-[44]:

5. [139]

   Having regard to his Honour’s examples of the sorts of cases in which a sentence proceeding might miscarry due to the conduct of counsel, I note that the applicant complains that “compelling material was available but not tendered, or its significance not appreciated” in relation to the Facebook material. It is otherwise difficult to see how the applicant’s complaint in relation to the charge negotiation process in the Local Court could amount to a miscarriage of justice in the District Court process in the denial of procedural fairness sense.

6. [140]

   The applicant required the deponents of the Crown’s affidavits for cross-examination. He briefly cross-examined Barrister A, Barrister B and Solicitor B (although he ultimately was unable to put any admissible questions to solicitor B). As I noted in Kees Langelaar v R [2016] NSWCCA 143 at [73] (Hoeben CJ at CL and Campbell J agreeing), albeit in the context of an assertion of incompetence of counsel in an appeal against conviction, there is authority for the proposition that affidavits from an applicant’s previous lawyers should not be read on an appeal as a matter of course. In Nudd v The Queen, Gleeson CJ observed the following on the question of whether counsel should be called as a witness in appeal proceedings against conviction (at [10]):

7. [141]

   The same point was made in Matthews v R [2013] NSWCCA 187, Vella v R [2015] NSWCCA 148 and Ahmu v R [2014] NSWCCA 312.

8. [142]

   Despite my reservations as to the necessity of recounting the detailed evidence of the applicant’s two legal teams in order to consider these grounds, I propose to do so given that the applicant is self-represented, serving a lengthy sentence and vehemently convinced of the correctness of his own argument.

Ground 6: Complaints about charge negotiation in the Local Court

1. [143]

   Under ground 6, the applicant contended that the ODPP “made an error in negotiations by the use of much heavier offences, that being 26 x s 61J(1) and 9 x s 66C(1) offences on a plea proposal in order for me to plead guilty to an offence of s 66EA(1)”.

2. [144]

   The nub of the applicant’s complaint is that the ODPP used “heavier offences” (26 s 61J(1) offences and 9 s 66C(1) offences) on a plea proposal in order to get him to plead guilty to count 3; the offence contrary to s 66EA(1). He submitted that there were twice the number of offences than he should have been charged with which gave rise to a gross miscarriage of justice in the plea process. He alleges he felt “backed in a corner” and this was not picked up by his lawyers (T 45.13-6). He complained that this was inadequate representation (T 49.19-21). The evidence adduced on this appeal established the following relevant to his complaint.

3. [145]

   Between late 2015 and early 2017, Barrister A was briefed by Legal Aid NSW to appear for the applicant. His charges were listed at Burwood Local Court. Barrister A was instructed primarily by Solicitor A (who has since passed away) who was at that time a solicitor at Legal Aid and, when Solicitor A was unavailable, by a Principal solicitor at Legal Aid.

4. [146]

   The plea negotiations were conducted prior to the introduction in 2018 of the early appropriate guilty pleas reforms: see Pt 3 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). The final date for service of the brief in the Local Court was 17 September 2015 but on 1 October 2015 there was a joint application for an adjournment. The proceedings were further adjourned on 12 November 2015 when a further complainant was found. Further charges were laid in January 2016.

5. [147]

   On 8 March 2016, the ODPP sent a draft statement of facts and a plea proposal to the applicant’s first legal team. After receiving this proposal, on 22 March 2016 Barrister A and Solicitor A conferred with the applicant at Long Bay Correctional Complex. During the near hour-long conference, the plea arrangement was explained to the applicant and he was asked to consider the proposed agreed facts. Part of the plea arrangement was to replace 26 counts of aggravated sexual assault (s 61J of the Crimes Act) with one count of persistent child abuse. Barrister A explained the former charge had a maximum penalty of 20 years and the latter of 25 years. When asked, he advised the applicant it was a good offer and explained why in the context of, inter alia, concurrent, cumulative and partially concurrent sentences. He canvassed the JIRS statistics on s 66EA and explained the value of a discount on sentence for a plea of guilty in the Local Court.

6. [148]

   The general effect of Barrister A’s advice was that the applicant should plead guilty in the Local Court to preserve his discount on sentence of 25% but only if the charges were reduced in number and the facts were amended by agreement with the DPP. Barrister A advised the applicant that the decision to plead guilty or not guilty was his (the applicant’s) and the different outcomes were explained to him.

7. [149]

   An amended draft statement of facts and a plea proposal were provided on 20 April 2016 following negotiations.

8. [150]

   On 8 July 2016, further charges were laid in accordance with the plea proposal.

9. [151]

   On 12 July 2016, Barrister A and Solicitor A met the applicant at Parklea Correctional Centre where the applicant instructed them that he still wished to raise matters in the proposed statement of facts. He indicated he wished to subpoena certain material to support his contest with the statement of facts. Barrister A advised him that it would be sensible to settle the statement of facts without recourse to subpoena, then consider the utility and necessity of such a step.

10. [152]

    On 24 August 2016, Barrister A and Solicitor A met with the applicant at Burwood Local Court and reviewed the statement of facts, signed by the ODPP solicitor the day prior. The statement of facts contained several paragraphs marked “[disputed]”, reflecting the applicant’s instructions that he disputed some of them. The applicant signed that document and was committed to the Sydney District Court for sentence on 24 August 2016.

11. [153]

    One of the documents subsequently tendered by the Crown at the proceedings on sentence before Judge Tupman (Exhibit B) was a schedule headed, “Ocek Table of Disposition of Offences”. It lists all of the charges that the applicant initially faced with a “disposition” column indicating whether the charge was withdrawn, placed on the indictment, placed on a Form 1 or placed on a s 166 Certificate. Exhibit B records that the applicant initially faced 125 charges. 91 of those 125 charges were withdrawn and a further 15 charges laid as part of the charge negotiation process. The applicant makes two separate complaints about the initial charges that were withdrawn.

12. [154]

    The first complaint is that in Exhibit B the notation next to the nine charge numbers 92-100 (which charged the applicant under s 66C(1) of the Crimes Act in relation to RW) is the comment “[s]hould be s 66C(3) as RW is 14”.

13. [155]

    The Crown accepted during the appeal that the s 66C(1) charges were laid in error (T 59.49-50). That is because, as reflected in the agreed facts, although the applicant started grooming RW when she was only 13, he did not have sexual intercourse with her until after her fourteenth birthday. At the time of that offending, s 66C of the Crimes Act was, relevantly, in these terms:

14. [156]

    The applicant put to Barrister A in cross-examination that the nine s 66C(1) charges relevant to RW were incorrect and asked him whether he accepted that it was not a “good deal” to take the offer from the DPP in light of that (T 21.7-23). Barrister A accepted that those s 66C(1) charges should have been s 66(3) charges but said that the plea offer was a “good deal” because “the purpose of the plea arrangement … was to reduce a number of charges to as few as possible” and that the s 66C(1) charges were withdrawn in any event so there was no consequence (T 21.39-48).

15. [157]

    The complaint about the s 66C(1) charges is not a recent one. The applicant relied on a letter to the Grants section of Legal Aid dated 12 December 2017 (Document 33) in which he wrote that a “[g]reat mistake or miscarriage of justice has occurred”, and that the “police or D.P.P have made a huge mistake and charged me with 9 counts of s 66C(1) sexual intercourse with a person aged over 10 and under 14”.

16. [158]

    This complaint made by the applicant about his lawyers not telling him that the s 66C(1) charges were incorrect before they were withdrawn is incapable of causing any miscarriage in the sentencing process. The matter is of no consequence as the matters were all withdrawn in the Local Court. Any suggestion that the ODPP deliberately overcharged the applicant in order to get him to plead guilty is baseless as is any suggestion his lawyers were incompetent in this regard.

17. [159]

    The second complaint is that in relation to the acts of sexual intercourse with RW, the applicant was charged under s 61J of the Crimes Act as well as under s 66C(3) of the Crimes Act. At the relevant time, s 61J of the Crimes Act was, relevantly, in these terms:

18. [160]

    During the hearing, the applicant submitted that the doubling up of (initially) 26 s 61J offences and 26 s 66C offences (nine s 66C(1) and 17 s 66C(3)) offences) for the same 26 incidents was unfair and made the plea offer look better than it was (T 45.5-40). The applicant also submitted that Judge Tupman did not know about the initial charges that were withdrawn but it was pointed out to him during the hearing that Exhibit B was tendered before her Honour (T 62.2-11). It was also clarified during the hearing that the s 66C(3) charges were laid as alternative counts to the s 61J counts. The following exchange is informative of the applicant’s position in this regard:

19. [161]

    Again, this second complaint is without any foundation. The applicant pleaded guilty to one count of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act which included a variety of offences, not only the sexual intercourse counts. The applicant was unable to establish how the fact that some of the charges that were withdrawn were alternative counts made his sentencing process unfair in any way.

20. [162]

    No error is established under this ground.

Ground 11: Dispute over agreed facts concerning count 3

1. [163]

   The applicant contended under this ground that there was a “Factual error by Madam Crown on statement of facts in relation to meeting Ms RW on 7 occasions”.

2. [164]

   The applicant’s main complaints about the agreed facts for count 3 were that the offending against RW did not occur on as many occasions as is contained in the agreed statement of facts (T 28.6-15) and that whereas the agreed facts suggest that he threatened to disseminate explicit videos and pictures of RW unless she had sex with him again, in fact he made those threats to get his phone back (T 34.7-12). The applicant sought the tender of certain Facebook material (extracted below) in support of these arguments.

3. [165]

   The applicant accepted that he signed instructions for Barrister B (extracted below at [175]) but complained that he “was rushed” and later realised that there was something wrong and “mistakes [had been] made” by Barrister A and Solicitor A in the Local Court (T 34.22-27). He felt the process was rushed and he did not think they could stop to rectify things.

4. [166]

   The main complaint under this ground concerned the applicant’s assertion that his lawyers were incompetent in not putting certain Facebook entries before the court. He also relied on a police statement of GG dated 19 March 2015 (Document 38 in the applicant’s tender bundle). Before addressing the specific complaints under this ground, I will first summarise some of the evidence adduced on the appeal relevant to this ground.

5. [167]

   Email correspondence between Barrister A and Legal Aid show that after the applicant was committed for sentence, during October and November 2016, he continued to raise more challenges to the agreed facts he had already signed and was telephoning Legal Aid daily about further disputes. On 4 October, the ODPP sent a proposal to resolve the disputed facts.

6. [168]

   On 11 November 2016, Barrister A and a Principal solicitor at Legal Aid conferred with the applicant via AVL and he raised additional disputed facts, particularly concerning the initial complainants RW and JW. In an email to Solicitor A on 22 December 2016, Barrister A reported his recent advice to the applicant as follows:

7. [169]

   On that same day, Solicitor A wrote to the ODPP and included the following:

8. [170]

   At around this time (the chronology is unclear), Solicitor A informed Barrister A that the Legal Aid file had been transferred to new legal representatives as Mr Ocek withdrew his instructions for both Barrister A and Solicitor A to continue to represent him.

9. [171]

   In February 2017, police served further Facebook material as requested by the applicant.

10. [172]

    On 27 April 2017, the applicant’s second legal team was engaged: Barrister B and Solicitor B.

11. [173]

    On 2 June 2017, Barrister B and Solicitor B attended the applicant at the Metropolitan Remand & Reception Centre and obtained signed instructions concerning adherence to his plea and the consequential impact on the discount provided for the guilty plea as well as regarding the signing of the agreed facts. Barrister B deposed that it is his practice that, when instructions are obtained, he writes them out in front of his client and then reads them back to the client to ensure that no undue pressure or threat has been made in the provision of those instructions. He then asks his client to sign and date the documents.

12. [174]

    The applicant’s written and signed instructions from 2 June 2017 (Annexure A to Solicitor B’s affidavit) provided the following:

13. [175]

    On 2 June 2017, the ODPP was advised that the disputed facts had been resolved.

14. [176]

    During cross-examination at the hearing of this appeal, the applicant confirmed the written instructions he provided to his lawyers and signed on 2 June 2017 (T 12.9-13.28). He agreed that he signed every page of the statement of agreed facts on sentence and Form 1s on 5 June 2017, the day Barrister B appeared for him at the sentence hearing. In response to a question from the Crown appearing on this appeal, he stated the following:

15. [177]

    As set out above, the applicant’s proceedings on sentence before Judge Tupman continued on 5 June 2017 but were stood over part heard until 24 November 2017.

16. [178]

    On or about 28 July 2017, the applicant made a complaint to the NSW Legal Aid Commission relating to the conduct of Barrister B and Solicitor B which was dismissed. On 26 October 2017, in response to the applicant’s complaint and request of transferal of legal aid, Legal Aid denied the application because “the reasons given were not compelling enough”.

17. [179]

    Following this, Barrister B and Solicitor B continued to represent the applicant in his part-heard sentence proceedings.

18. [180]

    On 22 November 2017, an AVL conference was held between Barrister B, Solicitor B and the applicant. The applicant sought to reagitate the facts by suggesting they indicated the conduct occurred on too many occasions. Solicitor B’s conference note (Annexure B to his affidavit) records that Barrister B told the applicant that “[you]’ve had a measure of success and don’t understand why you’re mentioning it”. The applicant said, “can we not reverse those? Mistakes made”, to which Barrister B responded that it could only be reversed if the applicant pleaded not guilty.

19. [181]

    The applicant also stated during that conference that he believed the Facebook messages should be tendered as they show that he did not threaten RW. Barrister B advised him against this as it would not “assist [the applicant] in any way” and said that “they [the Crown] believe by examining [Facebook messages] [there] may be other charges”. The applicant also said “we had consensual sex all afternoon” to which Barrister B responded “[you] threatened her [with] knife that consensual? Judge will assess I don’t have to”.

20. [182]

    On 24 November 2017, Barrister B, instructed by Solicitor C, appeared for the applicant before Judge Tupman at the part heard sentence proceedings. The applicant was conferred with in the cells on three occasions throughout the day. Barrister B made case notes recording the fact that the applicant wanted the Facebook entries tendered on his sentencing proceedings. The contemporaneous notes of that conference record that counsel’s advice was that the material would not assist him and that it would increase his sentence. The notes record counsel saying to the applicant about the Facebook entries:

21. [183]

    As stated above, after the proceedings on sentence that day the matter was stood over to 2018. Around the end of 2017 or the beginning of 2018, Solicitor B withdrew from representing the applicant which meant Barrister B’s involvement also ceased. The applicant’s third barrister appeared on 12 April 2018 (as described above at [56]).

22. [184]

    Before turning to consider Barrister B’s evidence concerning the allegations made against him, it is pertinent at this stage to extract some of the entries that the applicant claims his lawyers were incompetent in not putting before the court. The material before the Court shows that there was an ongoing difficulty in persuading the applicant that any advantages to challenging the signed agreed facts which might be able to be established by the tender of the Facebook entries were significantly outweighed by the prejudicial nature of that material to his plea.

23. [185]

    In his affidavit of 29 October 2022 (Documents 7 and 8) in which he annexes selected portions of the Facebook material, the applicant stated this about the conferences with Barrister B and Solicitor B on 24 November 2017:

24. [186]

    I note that the Facebook extracts relied upon by the applicant are selective and the extract below comes from the version relied upon by the Crown on this appeal. I have attempted to avoid detailing the nature of the applicant’s sexual offending in these reasons given their explicit nature but, regrettably, it is not possible to highlight how misplaced the applicant’s persistent position that he would have got a lesser sentence if the Facebook entries were tendered without extracting some of them. The following extracts are taken from messages between RW and the applicant between 25 March 2012 and 1 April 2012:

25. [187]

    The applicant submitted that these Facebook messages with RW show that he was threatening her to get her to return his phone, rather than to have further sexual relations with him. He relied on these messages to show that his legal advisers were incompetent for not advising him to tender the messages. The following statement by the applicant during the hearing captures the essence of his complaint:

26. [188]

    As for the police statement of GG relied upon under this ground, she was a friend of RW and provided evidence of complaint. She stated that RW went on a date with “Alex” (the applicant’s online false persona). In her statement at [8] and [9] she states:

27. [189]

    Then at [10] GG states that RW told her that “somehow she had met up with this man three or more times” and at [12] that the man took her to Mardi Gras “and she felt that she was drugged”.

28. [190]

    The applicant contended that this statement should have been used to challenge RW’s credit and get the agreed facts amended. That was on the basis that in the Facebook entries RW told the applicant that she had a good time on the Mardi Gras weekend.

29. [191]

    Barrister B provided a comprehensive affidavit based on the available file notes and other documents in response to the allegations made against him by the applicant on this appeal. He disputed that the applicant was ever “forced” to sign anything. He set out in detail what happened in the cells on 5 June 2017 and explained that, in his opinion, the factual dispute raised was “extremely narrow in compass” and that given the facts had already been signed and the victims had already read their victim impact statements there was “simply no scope for a contested facts hearing after what had transpired.”

30. [192]

    As for the complaint about failing to tender the Facebook material, Barrister B deposed that he believed at the time that the tender would be counter­productive to receiving an advantageous sentence. He had instructions not to do so. As to the complaint that he failed to “give appropriate advice on the second statement of RW and how it interacted with the statement of GG”, Barrister B deposed that the applicant did not seek his advice about this issue and that to the best of his recollection and belief, the applicant never raised GG as a topic for discussion.

31. [193]

    Finally, as to the complaint that he failed to advise the applicant regarding the statement of facts for committal for sentence in relation to RW, Barrister B (who did not appear for the applicant until after those first facts were signed) explained the circumstances of RW’s two statements as follows:

32. [194]

    Barrister B gave the following evidence in cross-examination:

33. [195]

    In re-examination Barrister B gave evidence that he was firm in his evidence to the applicant on the issue of the Facebook material and the applicant gave him instructions not to tender it (T 33.8-10).

34. [196]

    Having considered all of the complaints made by the applicant, none of them has any merit.

35. [197]

    I am not satisfied that the applicant was pressured to sign the agreed facts such that the proceedings on sentence miscarried. It is abundantly clear that, in the face of a very strong Crown case, his lawyers were seeking to obtain the best result for him which included protecting the discount from his early plea and that he freely signed the agreed facts in the context of his lawyers’ advice.

36. [198]

    As for the Facebook entries, having read through them, they simply do not assist the applicant’s case. The applicant’s contention that Barrister B “had not brought himself up to speed” with them (T 34.5-9) must be rejected as the contemporaneous notes record him giving advice to the applicant about them. The applicant’s insistence that the Facebook entries showed that RW got certain dates wrong demonstrates a misunderstanding of the significance of those entries. Even if, contrary to the sound advice of his counsel, there had been a hearing on the disputed facts in which RW was cross-examined and her credit attacked, anything to be gained by that would be outweighed by the loss of a discount for his early plea of guilty.

37. [199]

    As for the fact that RW called the applicant “babe” at one stage during the Facebook exchanges, contrary to what the applicant might contend, that is not a mitigating factor. RW was a 14 year old child and the applicant was in his 40s and groomed her.

38. [200]

    As for the claim that the Facebook entries showed he was threatening RW to get a phone he gifted her back from her rather than pressuring her for sex, as the extract above shows, RW did feel that she had been pressured for sex and the ugly nature of the applicant’s threats to report her as a prostitute are incapable of mitigating his case in the manner in which the applicant contends.

39. [201]

    The fact remains that the Facebook messages included multiple threats to a child through other children to intimidate or publicly shame her. They demonstrate the scope of the applicant’s manipulative grooming. They included admissions to other serious offending, including offending the applicant had previously denied such as the “Mardis Gras incident”.

40. [202]

    As for the complaint that his legal representative failed to act on his instructions to reactivate his Facebook account, Barrister B advised the applicant of the difficulties and delays of doing so, including that reactivation required the support of the Federal Attorney General to the US Attorney General under the Mutual Assistance in Criminal Matters Act 1987 (Cth), and a possible 12-month delay. I note in this regard that Document 10 in the applicant’s tender bundle is a letter he wrote to Mark Zuckerberg on 4 March 2019 seeking a copy of his “list of friends” at the time his account was shut down.

41. [203]

    The applicant agreed in cross-examination that the instructions he gave to Barrister B in annexure A were given voluntarily and freely, the notes were accurate, he agreed after legal advice and understood the factual basis for the sentence (T 12.9-14.41).

42. [204]

    The applicant contended that the statement of GG casts doubts as to RW’s credit (T 49.30-32). It is difficult to see how that statement, which confirms that RW did not know she was meeting an adult male (contrary to the applicant’s submission in this Court), that she said that the man she met “raped” her and that she felt like she had been drugged on the Mardi Gras weekend could assist his case either.

43. [205]

    Overall, I am satisfied that the applicant’s lawyers did everything they could to act in the applicant’s best interests. The applicant continues to fail to understand that matters that he believes would help his case would in fact harm it.

44. [206]

    No error is established under this ground.

Grounds 4 and 8: Manifest excess

1. [207]

   Under grounds 4 and 8, the applicant complained that the indicative sentences for the s 66EA(1) offence (count 3) and the s 66C(3) offences with JW (counts 11, 14, 15, 16 and 17) are manifestly excessive. It was submitted that the sentence of 15 years imprisonment with a non-parole period of 10 years for count 3 was manifestly excessive.

2. [208]

   For count 3, the applicant contended that the sentencing judge found that the offending was in the medium range. He also relied on cases that were said to be comparable and considered Hitchen v R [2010] NSWCCA 77 and Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504 in some detail.

3. [209]

   The applicant also relied on R v Wright [2017] NSWCCA 102 for ground 8. In that case, an aggregate sentence of 3 years and 3 months with a non-parole period of 1 year and 10 months was imposed in respect of four offences contrary to s 66C(3) and one contrary to s 66EB(2) to which the respondent had pleaded guilty. Further offences were taken into account on a Form 1. The court found that the aggregate sentence was manifestly inadequate but declined to intervene in the exercise of its residual discretion.

4. [210]

   The relevant principles applicable when a sentence is said to be manifestly excessive have been re-stated by this Court on many occasions. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and N Adams J agreed) provided the following summary of the relevant principles to apply when considering a ground of appeal asserting manifest excess at 241:

5. [211]

   Although her Honour imposed a discrete sentence on count 3, she imposed an aggregate sentence under s 53A of the Sentencing Act for the offences against JW, some but not all of which were the s 66C(3) offences. Although the appeal is against the aggregate sentence, error in relation to an indicative sentence may be a guide as to whether there was an error in the aggregate sentence. As Wright J observed in Merheb v R [2021] NSWCCA 224 at [77] (Payne JA and Price J agreeing):

6. [212]

   Turning first to the claim that the sentence imposed on count 3 was manifestly excessive, I have extracted above her Honour’s findings at [104] as to why she arrived at the sentence she did. She assessed the objective seriousness as being “at the very least at the middle of the range of offences capable of being charged under this section and possibly into the top of the range”. Her Honour was only satisfied that it did not fall “at the very top of the range” for offences capable of being charged under s 66EA “largely because of the age of the complainant”.

7. [213]

   The applicant did not present a favourable subjective case on sentence. Beyond his early plea of guilty, there was little by way of mitigation available to him. He was diagnosed as suffering from a substance abuse disorder, paedophilia and a recurrent major depressive disorder with his most significant diagnosis being of paedophilia. He did not have favourable prospects of rehabilitation and nor was her Honour satisfied of any genuine remorse given that he had expressed remorse on previous occasions and gone on to reoffend.

8. [214]

   The applicant was on parole for a violent sexual assault at the time of the offending in relation to count 3. General and specific deterrence loomed large in the sentencing exercise.

9. [215]

   Against a maximum penalty of 25 years the applicant received a sentence of 15 years, after a discount of 25%. It is to be accepted that the starting point must have been 20 years imprisonment which is a stern sentence, but it included Form 1 matters and did cover considerable offending in the context of the production of child abuse material and threatening behaviour.

10. [216]

    Significantly, count 3 was only one of 38 counts that the applicant faced and his total non-parole period for the other 37 offences against ten other victims was only five years longer. Even if it was considered that the sentence on count 3 was manifestly excessive (which, on balance, I do not), the ultimate question is whether, after the application of the totality principle, the total effective sentence was manifestly excessive. In a complicated sentencing exercise such as this, complaints about individual sentences must be considered in the context of the overall sentenced imposed.

11. [217]

    Turning to the complaint under ground 8 about the sentences imposed for the offences contrary to s 66C(3) on JW, it is based on a false premise because the aggregate sentence imposed for the offences committed against JW concerned a number of different offences including the s 66C(3) counts. Despite this, as stated above, a complaint as to the severity of indicative sentences can inform the question of whether an aggregate sentence is manifestly excessive. The applicant received an aggregate sentence of imprisonment of 6 years with a non-parole period of 4 years in respect of counts 10-17 inclusive.

12. [218]

    The indicative sentences for the five offences contrary to s 66C (counts 11 (including five Form 1 matters), 14, 15, 16 and 17) were all 4 years imprisonment. The other offences which formed part of the aggregate sentence were grooming a child for unlawful sexual activity, producing child abuse material and indecent assault which all carried a maximum penalty of 10 years imprisonment. In the context of all of that offending, her Honour imposed an aggregate term of 6 years imprisonment with a non-parole period of 4 years.

13. [219]

    As is evident from the portion of her Honour’s remarks, which I have extracted above, her Honour explicitly addressed the principle of totality and made counts 11, 13, 14 and 15 notionally concurrent. These offences were serious and included sentencing for showing JW the child abuse material concerning RW.

14. [220]

    As for the applicant’s reliance upon the other decisions I have referred to above, they are of little assistance given the scope of the applicant’s offending in the context of the application of the totality principle.

15. [221]

    The applicant received a significant sentence, but he was being dealt with for significant criminality. The applicant has not established that the overall effective sentence imposed on him was plainly unjust.

16. [222]

    No error is established under either of these grounds.

Proposed orders

1. [223]

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

   1. (1)

      An extension of time to bring this appeal is granted.

   2. (2)

      Leave to bring this appeal is granted.

   3. (3)

      The appeal is dismissed.