Young (a pseudonym) v R

1. [1]

   BASTEN JA: I agree with Beech-Jones J.

2. [2]

   BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Beech-Jones J. His Honour’s account of the facts and the sentencing proceedings, for which I am indebted, relieves me of the need to set them out. I agree that, for the reasons given by his Honour, the applicant succeeds on ground 1 (in that the sentencing judge erred, in sentencing the applicant for Sequences 11 and 12, in applying a standard non-parole period which was not in force at the time of those offences), and ground 2 (in that the sentencing judge erred in the indicative sentences, at least for Sequences 27, 29 and 26, leading to error in the process of determining the aggregate sentence). I agree that leave to appeal must be granted, and that this Court must re-exercise the sentencing discretion. However, I wish to add some observations concerning the implications of Kentwell v The Queen (“Kentwell”), [1] and I have come to a different ultimate conclusion so far as concerns the outcome of the re-exercise of the sentencing discretion.

The implications of Kentwell

1. [3]

   In Kentwell, the High Court held that where the sentencing discretion at first instance is found to have miscarried, it is not for the Court of Criminal Appeal to assess whether, and to what degree, the error in the exercise of the discretion had influenced the outcome, but it must proceed to re-exercise the sentencing discretion independently and afresh. [2] I agree with Beech-Jones J that insofar as the passage in the judgment of Sully J in R v Simpson [3] to which he refers, or any other pre or post‑Kentwell authority in this Court, states, or might be taken as stating, that where the first four categories of House v The King [4] error are established, the Court then, before proceeding to re-exercise the sentencing discretion, first considers whether the sentence imposed at first instance was inside or outside of any appropriate range of sentences, or considers the extent to which the error found in fact affected the length of the sentence that was imposed, then they are inconsistent with Kentwell.

2. [4]

   However, there is a distinction between “re-exercising the sentencing discretion” (which is a decision-making process), and “resentencing” (which is the pronouncement of a new sentence as a result of that process). The High Court also made clear that if, in the exercise of its independent discretion, after taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, the Court of Criminal Appeal determines that the same, or a greater, sentence is the appropriate sentence for the offender and the offence, then it is not required to resentence the offender, and may dismiss the appeal: [5]

3. [5]

   That is because the result of the Court’s independent exercise of discretion is that no lesser sentence is warranted in law. In my view, what Kentwell dictates is that an appeal can be dismissed, notwithstanding discretionary error by the sentencing judge, on the basis that “no lesser sentence is warranted in law”, if, after re-exercising the sentencing discretion, the Court of Criminal Appeal concludes that it would have imposed the same or a greater sentence.

4. [6]

   In Sigalla v R, [6] in a judgment in which Hoeben CJ at CL and Cavanagh J concurred, I referred to the relevant passage in the judgment of Sully J in Simpson, which is extracted by Beech-Jones J below, [7] and continued (emphasis added): [8]

5. [7]

   Those passages did not involve the Court considering whether the sentence imposed at first instance was inside or outside of any appropriate range of sentences, but rather involved the Court exercising its own independent discretion, turning its own mind to the relevant considerations, albeit paying due regard to and permissibly (consistently with Turnbull v R (“Turnbull”), [9] as explained below by Beech-Jones J [10] ) adopting those findings and evaluations of the sentencing judge which were not found to be erroneous, ultimately deciding that a lesser sentence was warranted, and proceeding to resentence accordingly. The reference to the impact of totality was analogous to the reference in Kentwell to the position if the Court were to find, in its independent exercise of discretion, “that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences”, in which case it is not required to resentence; in the same way, a view by the appellate court that less concurrency and greater accumulation is appropriate may offset a conclusion that lesser individual sentences are appropriate, to produce a conclusion that the sentence it would impose, having regard to all the considerations, is no lesser sentence than that under appeal.

Re-exercise of the sentencing discretion

1. [8]

   Like Beech-Jones J, consistently with Turnbull, I approach the re-exercise of the sentencing discretion by adopting the sentencing judge’s findings so far as they were not impugned, and (as was common ground) his Honour’s evaluation of the objective seriousness of each offence. Although the applicant’s subjective case is otherwise unimpressive – the sentencing judge observed that: “Quite extraordinarily, only the most minimalistic evidence about your subjective circumstances has been placed before the Court. Apart from the bare facts of your age (you are now 58 years old), that you have no formally recorded prior convictions, that you are a paraplegic, and the impact that that circumstance has upon you as a prisoner, I know nothing about your background.” [11] – I give weight to the greater hardship or burden that he will endure while incarcerated as a paraplegic, including his vulnerability.

2. [9]

   The offending under consideration involved two discrete series of like offences, each series characterised by a different victim, and a different period, with twelve years elapsing between the last of the first series, and the first of the second. The first series of offences were committed against the applicant’s step daughter, “AB”, during the period 1997 to 2002, when she was aged 7 to 13, and he was aged 35 to 40 (“the AB offences”). The second series of offences were committed against “CD”, during the period January 2014 to November 2017, when she was aged 8 to 11, and he was aged 52 to 55 (“the CD offences”). One would expect, if individual sentences were imposed for each offence, that there would be significant but not complete concurrency in the sentences imposed for the AB offences, and also significant but not complete concurrency in the sentences imposed for the CD offences, but little if any concurrency between those sentences imposed for the AB offences and those imposed for the CD offences. Although it will be necessary to return to this in the context of totality, it is convenient initially to address the two sets of offences separately.

3. [10]

   Recognising that there is no single correct sentence, I do not disagree with the indicative sentences proposed by Beech-Jones J in relation to the offences against AB, except in relation to Sequences 18, 29 and 26.

4. [11]

   Sequence 18 was an offence under s 66A of the Crimes Act 1900 (NSW), of sexual intercourse with a person under the age of 10 years, carrying a maximum penalty of twenty years. It was objectively “slightly above mid-range”. It was committed in 1997, when AB was 8 years of age. It involved the applicant pulling down AB’s pants and underpants “slightly”, touching her on her vagina, moving his erect penis towards her vagina, touching her vagina with his penis, and penetrating her vagina slightly; then telling AB that he was going to tell her mother and blame it on her. Even making full allowance for the applicant’s subjective circumstances, I consider that a pre-discount sentence of not less than eight years is required for that count, involving as it did penile/vaginal intercourse with his 8 year old step daughter, who was under his authority and in his care.

5. [12]

   Sequences 29 and 26 were offences under s 66C(2), of sexual intercourse with a person above 10 and under 16 and under authority, each carrying a maximum penalty of ten years. Each of these offences was objectively “slightly above mid-range”, was committed in 2002, and involved the applicant inserting his penis into the vagina of his then 13 year old step daughter, in the context of agreed facts that, during the period 1997 to 2002, the applicant sexually abused AB by means of “digital and penile penetration” of her vagina, with the “abuse occur[ing] weekly”. Again, making full allowance for the applicant’s subjective circumstances, I consider that a pre-discount sentence of not less than five years is required for each of those counts.

6. [13]

   Thus, the notional individual sentences that I would indicate for the AB offences are:

7. [14]

   Wholly accumulated, those sentences amount to 22 years and one month. The longest individual sentence is eight years (Sequence 18). In my view, there must be some accumulation, to recognise the separate criminality of each offence and the repetition of the offending conduct. I consider that if the applicant were being sentenced only for the AB offences, an aggregate sentence of not less than twelve years, for these repeated grave offences against his step daughter, a person in his care and under his authority, when aged between 7 and 12, would be appropriate.

8. [15]

   As to the offences against CD, I do not disagree with the indicative individual sentences proposed by Beech-Jones J in respect of those counts which do not have a standard non-parole period (“SNPP”). However, the influence of the statutory guidepost provided by the SNPP leads me to a different view in respect of the offences which have one.

9. [16]

   Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) governs the sentencing of offenders for offences to which standard non-parole periods apply. In sentencing for such offences, the SNPP is a statutory guidepost, of considerable importance. [13]

10. [17]

    At the time relevant to its consideration by the High Court in Muldrock, s 54A(2) provided:

11. [18]

    Section 54B relevantly provided:

12. [19]

    The following propositions may be derived from what the High Court said in Muldrock:

    1. (1)

       A court is not required, when sentencing for a Division 1A offence, to commence by asking whether there are reasons for not imposing the standard non-parole period, nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness. [14] Division 1A does not require or permit a two-stage approach commencing with an assessment of whether the offence falls within the mid-range of objective seriousness by comparison with an hypothesised offence answering that description and, if it does, by inquiring whether there are matters justifying a longer or shorter period; [15]

    2. (2)

       Section 54B(2), read with ss 54B(3) and 21A, requires an approach to sentencing for Division 1A offences that is consistent with the approach described by McHugh J in Markarian v R, [16] namely that “[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.” The Court is obliged to take into account the full range of factors in determining the appropriate sentence for the offence; [17]

    3. (3)

       In so doing, the court is to be mindful of two legislative guideposts: the maximum sentence, and the standard non-parole period. The latter requires that content be given to its specification as “the non-parole period for an offence in the middle of the range of objective seriousness”. The objective seriousness of an offence is to be assessed wholly by reference to the nature of the offending, without reference to matters personal to a particular offender or class of offenders; [18]

    4. (4)

       The obligation in s 54B(4) to “make a record of its reasons for increasing or reducing the standard non-parole period” applies in sentencing for all Division 1A offences, regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle, or high range of objective seriousness for such offences. Although it is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending, it does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. [19] I add that, in the case of a plea of guilty, in using the SNPP as a guidepost, regard must also be had to any discount for the plea; and

    5. (5)

       The standard non-parole period represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case. The addition of awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence may mean that for some Division 1A offences there will be an upwards move in the length of the non-parole period. However, it does not serve as the “starting point” in sentencing for a midrange offence after conviction. [20]

13. [20]

    The relevant provisions of Division 1A have since been amended. Section 54A(2) now provides:

14. [21]

    Section 54B now provides:

15. [22]

    These amendments reinforce the propositions derived from Muldrock that:

    1. (1)

       A SNPP represents, for an offence which has one, the non-parole period that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness – before regard is hard to subjective considerations relevant to the particular offender (including any discount for a plea of guilty) (s 54A(2)); and

    2. (2)

       The SNPP is not a starting point, but a mandatory consideration to be taken into account in determining the appropriate sentence, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence (s 54B(2)).

16. [23]

    Thus the SNPP is not a starting point. But it is a mandatory consideration. A sentencing judge is bound to take into account, amongst all other relevant considerations, that if the offence were in the mid-range of objective seriousness, taking into account only the objective factors affecting the relative seriousness of that offence, and putting aside subjective considerations (including any discount for a plea of guilty), the proper non-parole period would be the SNPP. It logically follows that the proper head sentence, absent “special circumstances”, would be an additional one-third. In that way, the SNPP is an important guidepost, providing significant guidance to a sentencing judge.

17. [24]

    In this case, in which but for the circumstance that the applicant must serve his sentence as a paraplegic with consequential additional burden there is little in the way of subjective considerations, the influence of the SNPP, treated not as a starting point but as a significant guidepost, has led me to conclude that proper sentences are as follows.

18. [25]

    The point is most clearly made by reference to Sequence 5, which was an offence under s 61J(1), carrying a maximum penalty of twenty years, and a SNPP of ten years. Objectively, it was "above the mid-range". Attached to it were five Form 1 offences under s 61M(2) (indecent assault of person under age of 16), each carrying a maximum penalty of ten years. Treating the SNPP, which is meant to “represent the non-parole period for an offence in the middle of the range of objective seriousness”, as a guidepost, and given the “above the mid-range” objective gravity of this offence, and the requirement also to take into account five offences under s 61M(2), each carrying a maximum penalty of ten years, it would have required the most compelling subjective case to justify a non-parole period less than the SNPP, before discounting for the plea of guilty. As has been mentioned, the only significant subjective consideration is that the applicant must serve his sentence as a paraplegic. I have given that subjective consideration considerable weight in determining that, before discounting for the plea of guilty, I would have indicated a non-parole period of only ten years (equivalent to the SNPP, when the objective gravity and impact of the Form 1 matters would have suggested substantially more), and thus a head sentence of thirteen years and four months. Discounted by 25% for the plea of guilty, I would indicate a non-parole period of seven years and six months, and head sentence of ten years. The non-parole period is shorter than the standard non-parole period because of the additional hardship of the applicant’s incarceration as a paraplegic, and his plea of guilty, notwithstanding that the offence was “above the mid-range”, and that five additional offences must be taken into account.

19. [26]

    A similar approach informs my consideration of the other offences which have a SNPP, as follows.

20. [27]

    Sequence 2 was an offence under s 61J(1) (sexual intercourse with person without consent in circumstance of aggravation), carrying a maximum penalty of twenty years, and a SNPP of ten years. Objectively, it was "below the mid-range". Allowing for subjective considerations, before discounting for the plea of guilty, I would have indicated a non-parole period of six years and a head sentence of eight years; discounted by 25% for the plea of guilty to a non-parole period of four years and six months, and a head sentence of six years.

21. [28]

    Sequence 4 was also an offence under s 61J(1), carrying a maximum penalty of twenty years, and a SNPP of ten years. Objectively, it was "at the mid-range". Allowing for subjective considerations, before discounting for the plea of guilty, I would have indicated a non-parole period of eight years and a head sentence of ten years and eight months; discounted by 25% for the plea of guilty to a non-parole period of six years and a head sentence of eight years.

22. [29]

    Sequence 13 was an offence under s 61M(2) carrying a maximum penalty of ten years and a SNPP of eight years. Objectively it was "below the mid-range but not at the bottom of the range". The SNPP of eight years is somewhat anomalous in the context of a maximum penalty of ten years: the SNPP implies, absent “special circumstances”, an additional term of two years and eight months and a total term of ten years and eight months, which exceeds the maximum penalty, even for (only) a mid-range offence. Allowing for subjective considerations, before discounting for the plea of guilty, I would have indicated a non-parole period of three years and a head sentence of four years; discounted by 25% for the plea of guilty to a non-parole period of two years and three months and a head sentence of three years.

23. [30]

    As a result, the notional individual sentences I would indicate in respect of the CD offences are as follows:

24. [31]

    Wholly accumulated, these indicative sentences in respect of CD amount to 39 years and six months. The longest individual sentence proposed in respect of CD is ten years, with a non-parole period of seven years and six months (Sequence 5). Again, I consider that there must be some accumulation, to recognise the separate and repeated criminality of each offence. In my view, if the applicant were being sentenced only for the CD offences, an aggregate sentence of not less than thirteen years, for these repeated grave and exploitative offences against a child aged between 8 and 11, would be appropriate.

25. [32]

    It remains to consider the application of the totality principle, including that, as the sentencing judge recognised, given the applicant’s age and his paraplegia, each year of the sentence will represent a large portion of his remaining lifetime: he would be 71 upon expiry of the non-parole period of fifteen years imposed by the sentencing judge.

26. [33]

    As I have noted, wholly accumulated, the individual indicative sentences proposed above amount to 22 years and one month for the AB offences, and 39 years and six months in respect of the CD offences. That is 61 years and seven months in all. The notional aggregate sentence that I would impose for the AB offences is twelve years, and for the CD offences thirteen years. That is a total of 25 years, and already involves a high level of internal concurrency within each series. As also already noted, the two series of offences are discrete, not only as to the victim, but as to the time frame, with the CD offences commencing more than a decade after the AB offences ceased. Moreover, the CD offences were committed after AB, believing that the applicant had suffered enough by reason of his paraplegia, apparently occasioned as a result of an attempt at suicide following her complaint, and that as he was paralysed he would not offend again, told investigating police that she did not wish to pursue the matter further, with the result that the investigation was apparently discontinued. In those circumstances, there is little call for concurrency between the sentences for the AB offences and those for the CD offences.

27. [34]

    Regarded as a whole, the applicant is to be sentenced for two discrete series of offences of grave sexual abuse of two young children, one of them under his care and authority and the other under his influence, involving pressure on the first not to disclose, and deceit and manipulation of the second, each series independently warranting an aggregate sentence well in excess of ten years. In my view, an aggregate sentence of twenty years and non-parole period of fifteen years is appropriate.

Conclusion

1. [35]

   Although I have reached that conclusion by a different route, it follows that I would impose the same sentence as the sentencing judge, and that no lesser sentence is warranted. I would therefore grant leave to appeal, but dismiss the appeal.

2. [36]

   BEECH-JONES J: This is an application for leave to appeal from a lengthy aggregate sentence imposed for serious sexual offending against two children.

3. [37]

   Following his plea of guilty, on 12 June 2020 the applicant was sentenced for two sets of sexual offences. The first set of offences were committed against his step daughter, “AB”, during the period 1997 to 2002 when she was aged 7 to 13. The other set were committed against “CD” during the period January 2014 to November 2017 when she was aged 8 to 11. Associated with one of the offences committed against CD were a number of offences included on a notice filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (“Form 1” and the “Sentencing Procedure Act” respectively).

4. [38]

   On 12 June 2020 his Honour Judge Colefax sentenced the applicant to an aggregate term of imprisonment of 20 years imprisonment commencing on 14 January 2018 with a non-parole period of 15 years that is due to expire on 13 January 2033 (R v Young (a pseudonym) [2020] NSWDC 303).

5. [39]

   The specific offences, the indicative sentences specified for each of the offences pursuant to s 53A(2) of the Sentencing Procedure Act, their maximum penalty, any applicable standard non-parole periods, the associated Form 1 offences as well as the primary judge’s finding of the objective seriousness of the offences were as follows.

6. [40]

   In relation to AB:

7. [41]

   In relation to CD:

8. [42]

   Since the time of the commission of these offences, some of the provisions have been repealed and replaced (eg, s 61M; s 61O), some have had their maximum penalty increased (eg, s 66A) and some have had standard non‑parole periods specified (eg, s 66EB(3)). In that regard, for some of the indicative sentences, the sentencing judge specified an indicative non-parole period as required by s 54B(4) of the Sentencing Procedure Act. However, that was not necessary for Sequences 11 and 12. As explained below, the sentencing judge erred in acting on the basis that there were applicable standard non-parole periods for those offences. For that reason, the respondent conceded that the sentencing judgment was affected by at least one error of the kind stated in House v R (1936) 55 CLR 499 at 504-505 (“House”). I consider that concession was properly made and that other errors affected the sentencing process. It follows from the finding of error that leave to appeal will be granted and it is necessary to undertake the resentencing process (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; (“Kentwell”)).

9. [43]

   The publication of each child victim’s name or any other information that might identify her is prohibited (Crimes Act 1900, s 578A; Children (Criminal Proceedings) Act 1987, s 15A). For that reason, they are referred to as AB and CD. They are not their initials. Presumably because of the applicant’s relationship with AB he has been given the pseudonym “Young”.

Offences against AB

1. [44]

   Tendered before the sentencing judge was an agreed statement of facts in relation to each of AB and CD. The following narrative is taken from those agreed facts. In light of the necessity to re-exercise the sentencing discretion it is necessary to set them out in some detail. They are disturbing.

2. [45]

   According to the agreed facts, during the period 1997 to 2002, the applicant sexually abused AB by means of “digital and penile penetration” of her vagina and the “abuse occurred weekly”.

3. [46]

   The offence which was sequence 24 was committed at the beginning of 1997. The applicant entered AB’s bedroom and pulled his pants down, exposing his penis. He told her that if she had any questions about sex, she should ask him. The agreed facts record that AB was scared and “started to cry”. The applicant told her to grab his erect penis, which she did, and she stopped when she heard her mother’s car in the driveway. The applicant pulled up his pants and told her not to tell anyone. His conduct involved the commission of an act of indecency upon a victim under the age of 10 years, contrary to former s 61O(2) of the Crimes Act.

4. [47]

   The offence that constituted sequence 18 also took place in 1997. AB walked into her mother’s bedroom and saw her siblings in bed with the applicant who was reading a book. She joined them. While she was in the bed the applicant pulled down her pants and underpants “slightly” and touched AB on her vagina. According to the agreed facts, he then “grabbed his erect penis and moved it towards [AB’s] upper thigh area of her vagina”, touched her vagina and “penetrated her vagina slightly”. After the other siblings had left the room, the applicant told AB that he was going to tell her mother and blame it on her. The agreed facts record that AB was “scared she would get into trouble and she told [the applicant] not to tell her mother”. The act of penetrating AB’s vagina constituted an offence of having intercourse with a person under the age of 10 years contrary to s 66A of the Crimes Act.

5. [48]

   The offence that constituted sequence 25 occurred in 1999. AB was woken by the applicant who had his hands under her shirt and was rubbing her breasts. He then put his hand in her shorts and penetrated her vagina with his finger. According to the agreed facts, he “continued inserting his finger into her vagina for about 10 minutes”. This caused AB pain although throughout she pretended to be asleep. This conduct constituted an offence under former s 66C(2), namely, having sexual intercourse with a person of or above the age of ten years and under the age of sixteen years in circumstances of aggravation, specifically, while the victim was under his authority.

6. [49]

   The offence constituted by sequence 27 took place in 2002 when the applicant penetrated AB’s vagina with his fingers. She started to cry and ask for her mother. The applicant tried to placate her. According to the agreed facts “[AB] repeatedly told the [applicant] to stop and pushed his hand away”. This conduct also involved another offence under s 66C(2).

7. [50]

   The offending that constitutes sequence 29 also took place in 2002. AB’s mother was away from the home and the applicant told AB to sleep in his bed. While she was pretending to be asleep the applicant pulled her underwear down and inserted his penis into her vagina for what was, according to the agreed facts, “a short time”. The agreed facts also record that AB tried to move away from the applicant and eventually he stopped. This also constituted an offence under s 66C(2).

8. [51]

   The offence that constituted sequence 26 also took place in 2002. The applicant and AB were swimming at a public pool after it was closed. While they were playing in the pool, the applicant “moved her bikini bottom to the side and inserted his penis into her vagina”. The agreed facts record that this took place for about five minutes and caused AB pain. While it was occurring, AB called out to her mother. She left the pool. The agreed facts record that her vagina was “sore and uncomfortable”. This also constituted an offence under s 66C(2).

9. [52]

   Otherwise, under the heading “context” the agreed facts record that at some point the applicant told AB that he had a video tape of one of her siblings having sex, and if she told anyone what had happened he would show everyone the tape. They also record that, from about 2000, the applicant sexually abused AB about once a week by coming into her bedroom and putting his finger inside her vagina, and that, on some occasions, he took her hand and made her stroke his penis.

10. [53]

    The applicant and AB’s mother separated in early 2003. In 2006, AB disclosed the offences to her family and, at their encouragement, she reported them to the police. In July 2006, AB’s mother confronted the applicant about the allegations. According the agreed facts, “a short time later” he drove to a mine shaft where he was later found with critical injuries rendering him a paraplegic. Upon learning of this, AB concluded that he had “suffered enough” and she did not believe he would offend again. AB advised the police that she did not want to pursue the matter. She revised that opinion upon learning of his further offending after CD came forward in 2017.

Offences against CD

1. [54]

   The applicant met CD in 2014 when CD was eight years old and the applicant was fifty-one years old. As she walked her dog to the park they stopped and spoke. Over time, he cultivated a relationship with her. According to the agreed facts, he bought her gifts, drove her to and from school, and she stayed with the applicant at his house without supervision from her mother. In late 2017, the police spoke to CD’s mother and told her the relationship was inappropriate. They commenced investigating his conduct.

2. [55]

   In the circumstances described below, on 31 October 2017, CD self-harmed and she was taken to hospital. She told the police it was because of “online bullying”. Police examined CD’s electronic devices which revealed communications between her and the applicant.

3. [56]

   In November 2017 and January 2018, police executed search warrants at the applicant’s house, seizing various electronic devices. This yielded the evidence the subject of the charges against the applicant concerning CD. As most of the evidence in support of the charges was either videos or photographs, it meant that it was not possible to identify the precise dates they were committed within the period 1 January 2014 to 9 November 2017. During that period, the sentencing regime for some of the offences changed.

4. [57]

   The conduct the subject of sequence 12 involved the use of a child under the age of 14 to make child abuse material contrary to s 91G(1)(a) of the Crimes Act. The electronic material seized by the police yielded numerous photographs and videos taken by the applicant depicting CD in various stages of undress, in particular, showing her breast, vagina, buttocks and anus. They also showed the applicant committing sexual and indecent assaults upon her while she appears to be asleep. The material also revealed photographs taken in the applicant’s bedroom with an unknown female child whose legs were spread apart and her vagina exposed. In addition, some images showed the applicant had set up a camera inside his bathroom and recorded CD using the toilet with her breast, bottom and vagina visible. Those images were recorded in January 2015 and April 2015.

5. [58]

   The conduct of the applicant as depicted in the videos and images was also the subject of charges. There were three images showing the applicant using his right forefinger and right thumb to spread CD’s labia majora while she slept. This constituted sequence 2, being a charge of having sexual intercourse with a person in circumstances of aggravation contrary to s 61J(1) (“aggravated sexual assault”). The circumstance of aggravation was that CD was under the age of 16 (s 61J(2)(d)). Another image showed a closeup of CD’s buttocks with the applicant’s right-hand middle finger inserted into her anus. This conduct constituted sequence 4, being another count of aggravated sexual assault contrary to s 61J(1).

6. [59]

   Another image was located of CD’s anus with the applicant holding a peeled banana with one end inserted into her anus. This conduct constituted sequence 5 being a further count of aggravated sexual assault contrary to s 61J(1).

7. [60]

   The search warrant also revealed four images which showed the applicant removing or moving CD’s clothing to expose her vagina while she was sleeping. This conduct was the basis of sequence 6 being a charge of indecent assault on a person under the age of 16 contrary to former s 61M(2). It was included on the Form 1 attached to sequence 5. Another image showed CD laying on her stomach with the applicant’s left hand touching her buttocks and pressing down on her closed legs. This conduct formed the basis of sequence 7, which was another count of indecent assault on a person under the age of 16 contrary to former s 61M(2). This was also included on the Form 1 attached to sequence 5.

8. [61]

   The search warrant material also revealed an image of CD’s buttocks and the applicant again using his hand to touch them with his fingers spread across the skin to expose her anus. This conduct constituted sequence 9, being an indecent assault of a person under the age of 16 contrary to former s 61M(2) which was also included on the Form 1 attached to sequence 5.

9. [62]

   The search warrant material included two images in which the applicant lifted CD’s singlet while she was asleep, exposing her right breast. This was the basis for sequence 8, being a charge of indecent assault of a person under the age of 16 contrary to former s 61M(2). It was included on the Form 1 attached to sequence 5. Another two images showed the applicant from the waist down lying on a bed wearing only his underwear with his shirt pulled up, exposing his stomach and his catheter tube. CD was lying on the offender’s left side with her arms and her right hand resting on top of the applicant’s penis. This formed the basis of sequence 10 which was a further count of indecent assault of a person under the age of 16 contrary to former s 61M(2). It was included on the Form 1 attached to sequence 5.

10. [63]

    Police also located a video file and still images in which CD appeared to be asleep with the applicant’s hands rubbing her vagina above her clothing. This conduct constituted sequence 13, being a further charge of indecent assault of a person under the age of 16 years contrary to former s 61M(2).

11. [64]

    Sequence 14 was a charge of possess child abuse material contrary to s 91H(2). On one of the applicant’s electronic devices, police found four images which constitute child abuse material, two of which included penetration of a female child aged 10 to 12 years. On another device, police located over 500 videos and over 2000 images that constituted child abuse material. The images ranged from teenage girls in sexual poses to children under the age of 5 years being sexually abused by adult men.

12. [65]

    Sequence 11 was a charge of procuring a child for unlawful sexual activity contrary to s 66EB(2) of the Crimes Act. An analysis of both the applicant’s and CD’s electronic devices revealed that, during the period January 2014 to November 2017, the applicant and CD contacted each other on a regular basis and had a number of conversations. According to the agreed facts these conversations were “non‑sexual in nature”, such that CD considered the applicant as “something of a father figure”.

13. [66]

    However, the applicant also created fake online profiles to procure CD to perform sexual activity. One of those profiles was of a boy named Christopher who said he was in year 6. During various chat messages, “Christopher” repeatedly asked CD to send sexually explicit images and videos of herself, which she did. The alias “Christopher” also sent CD pictures of what purported to be his penis. He regularly made sexually explicit requests. For example, he instructed CD to insert a banana into her vagina.

14. [67]

    The applicant also used two other aliases, one being “A llad” and another being “B llad”. The agreed facts record that CD sent A llad various video image files which included naked images of herself. The messaging between CD and the applicant purporting to be “B llad” started on a regular basis on 3 October 2017 and continued even though on that day the police had attended the applicant’s premises. B llad sent CD several sexually explicit videos and images purporting to be of himself. He requested similar images from CD.

15. [68]

    On 27 October 2017, the applicant, posing as B llad messaged CD stating that he had a nephew and that he had given the nephew a copy of a video image supplied by CD in which she was naked. B llad told CD that both he and the nephew knew her “friend in the wheelchair” that is, the applicant, and that his nephew wanted more naked video images, otherwise he would show CD’s “friend in the wheelchair” the videos that had already been sent. The next day he repeated the threat. CD refused and threatened to kill herself. Eventually, she gave in and sent a video and told B llad, “I keep trying to kill myself because of you”.

16. [69]

    On 30 October 2017, “B llad” sent a message to CD suggesting he had rung the applicant. B llad threatened that if she blocked him from the chats, he would send the applicant the pictures. As an indication of the extent of the deception of CD, at about 9.00pm B llad sent her a sexually explicit threat which she then sent to the applicant telling him she was worried about it. As previously noted, at 6.00pm on 31 October 2017, CD attempted self-harm and was taken to hospital. She told the police that night that she was trying to kill herself because of bullying online.

17. [70]

    Following the execution of the search warrant on 13 January 2018, the applicant was interviewed and admitted to spending time with CD, including having her sleep in his bed. When he was asked about the photographs of CD being sexually assaulted that had been located, he said “I don’t remember”. The applicant was then charged. He has remained in custody ever since.

The Sentencing Judgment

1. [71]

   In the sentencing judgment, his Honour set out the maximum penalty and relevant standard non‑parole periods for each of the offences. As noted, it was conceded that there was an error in relation to the stated non‑parole periods applicable to some of the offences. His Honour then set out the facts of the offending and his assessment of the relative objecting seriousness of those offences which is set out in [40] and [41]. Otherwise, I note the following five matters about the sentencing judgment.

2. [72]

   First, his Honour noted that there was only minimal evidence about the applicant’s subjective circumstances. Thus, his Honour recorded the applicant’s age of 58 years, that he had no prior convictions and he was a paraplegic.

3. [73]

   Second, the sentencing judge described the applicant as a “cruel, cunning, determined and depraved sexual predator”.

4. [74]

   Third, his Honour noted that there was no expression of remorse by the applicant and concluded that his prospects for rehabilitation “are, at best, poor”. His Honour accepted that the event that left the applicant a paraplegic was an attempted suicide. However, his Honour was not satisfied that it was done out of remorse but simply undertaken out of “humiliation [at] being discovered and/or fear of imprisonment”.

5. [75]

   Fourth, his Honour allowed a discount of 15% for the utilitarian value of the applicant’s pleas of guilty in relation to the offence committed against AB and 25% for the pleas of guilty in relation to the offence committed against CD. There is no challenge to those discounts. They are reflected in the tables set out in [40] and [41].

6. [76]

   Fifth, there was evidence placed before the sentencing judge concerning the applicant’s paraplegia and its effect. A report from a neurologist described him as an “8th thoracic level paraplegic” and stated that he was unable to transfer, shower independently and “self-dress”. He was described as being at an increased risk of falls. Due to deficits in his bowel and bladder control, he used a catheter. He suffered from recurrent urinary tract infections. He also suffered from bilateral shoulder pain, sleep apnoea and depression. In a supplementary report, the neurologist described him as being at an increased significant risk of death due to COVID-19 infections. A Justice Health report described the applicant’s health risk in similar terms.

7. [77]

   In an affidavit sworn by the applicant and read at the sentence proceedings, he stated that the level of support he had received in custody had improved and, described his fears about contracting pneumonia or COVID. He stated that he felt vulnerable in custody being in a wheelchair. He said he had received threats from other prisoners.

8. [78]

   Although the sentencing judge did not describe this evidence, his Honour appears to have accepted it. Thus his Honour said that he had “specifically take[n] into account a submission made on the applicant’s behalf that there was a serious risk that imprisonment would have a gravely adverse effect” upon his health and that the relevant sentence may represent a “substantial proportion” of his remaining life.

Grounds of Appeal

1. [79]

   The applicant raised three grounds of appeal as follows:

2. [80]

   At the hearing of the application, leave was granted to amend ground 1 to include Sequence 11.

3. [81]

   Sequence 12 was an offence under s 91G(1)(a) of the Crimes Act of using a child under the age of 14 to make child abuse material. Sequence 11 was an offence under s 66EB (2) of the Crimes Act of procuring a child under the age of 14 for unlawful sexual activity. In the sentencing judgement, his Honour stated that both offences carried standard non-parole periods of 6 years imprisonment. The agreed facts in relation to both offences suggested that the acts constituting those offences occurred throughout the period 2014 to 2017, or they were at least not specific as to when they occurred during that period. With sequence 12, the agreed facts suggest that at least some of the child abuse material was prepared in January and April 2015.

4. [82]

   Prior to 29 June 2015 there was no standard non-parole period for offences under s 91G(1)(a) or s 66EB(2). On that day, the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) came into effect which made provision for, inter alia, the standard non-parole period of 6 years for both offences. Clause 2(3) of the Schedule 2 provided that those amendments did “not apply to offences committed before the commencement of the amendments”.

5. [83]

   As noted, the Crown conceded that his Honour was in error in sentencing the applicant on the basis that standard non-parole periods were applicable to Sequence 11 and 12 when the agreed facts did not identify these offences as having been committed on or after 29 June 2015 and there was no other basis upon which that could be concluded. The Crown also accepted that this meant that House error was established and the independent discretion to resentence was required to be exercised (citing CR v R [2020] NSWCCA 289 at [24] to [26]; Maxwell v R [2020] NSWCCA 94 at [80] to [83] and Kentwell), although the Crown submitted that no lesser sentence is warranted in law (Criminal Appeal Act 1912, s 6(3)).

6. [84]

   The Crown’s concession should be accepted. The sentencing judge clearly acted on a “wrong principle” (House at 505). Given the significance attached to non-parole periods in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and the length of the indicative sentences for sequences 11 and 12 it follows that discretion to resentence must be exercised without any “assess[ment of] whether and to what degree the error influenced the outcome” (Kentwell at [42]).

7. [85]

   In light of the applicant’s success on ground 1 is not necessary to address the complaint of manifest excess in ground 3. The same applies to ground 2 although I observe that the process for fixing indicative sentences for sequences 27, 29 and 26 clearly miscarried. Prior to allowance for the applicant’s plea the sentences for those offences were either close to or at the maximum, yet the sentencing judge found that their objective seriousness was either at the mid-range or slightly above the mid-range. No matter what view one took of the applicant’s subjective case, those assessments could not justify those indicative sentences.

Resentencing and Section 6(3)

1. [86]

   As noted, error has been conceded and found. Kentwell requires that the independent sentencing discretion be re-exercised. The Crown contends that the Court should find that no lesser sentence is warranted and thus the appeal should be dismissed.

2. [87]

   In light of the argument on appeal, the relative complexity of this matter and some recent authority in this Court, it is appropriate to note three related matters about s 6(3) and the independent exercise of the sentencing discretion.

3. [88]

   The first matter is to reiterate what Kentwell decided and what Kentwell rejected. A number of recent decisions in this Court (eg, Sigalla v R [2021] NSWCCA 22 at [150]) have cited the following passage from R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [100] per Sully J:

4. [89]

   This passage from R v Simpson was relied on by the respondent in Kentwell for the proposition that a finding of “specific error [on the part of the sentencing judge] does not enliven the Court of Criminal Appeal's discretion to re-sentence; first it must form "a positive opinion" that some other sentence is warranted in law” (Kentwell at [38]). That represents a literal reading of the above passage. However, that proposition was rejected in Kentwell. In Kentwell, French CJ, Hayne, Bell and Keane JJ noted that in Baxter v the Queen (2007) 173 A Crim R 284; [2007] NSWCCA 237, Spigelman CJ “took the opportunity to clarify” the above passage from R v Simpson to confirm that it meant that this Court “re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides” (at [40]).

5. [90]

   The plurality in Kentwell endorsed Baxter and enunciated the principle that has already been adverted to above, namely, that once it was found that a judge acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect their determination, mistook the facts or did not take into account some material consideration (ie the first four categories of House error) then the “Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome” but instead the sentencing “discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the [sentencing] discretion afresh” (at [42]). In that respect, their Honours observed that “[a] sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not ‘warranted in law’ unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence” (Kentwell at [42]).

6. [91]

   It follows that the above passage from R v Simpson is inconsistent with Kentwell. It further follows that, to the extent that the above passage from R v Simpson or any other pre or post‑Kentwell authority in this Court states, or might be taken as stating, that where the first four categories of House error are established, the Court then considers whether the sentence imposed at first instance was inside or outside of any appropriate range of sentences or the extent to which the error found in fact affected the length of the sentence that was imposed, then they are inconsistent with Kentwell.

7. [92]

   Second, in the period following Kentwell, consideration was given in this Court to what the relevance is, if any, of the findings in the sentencing judgment appealed from and the sentence imposed at first instance when determining whether “some other sentence … is warranted in law and should have been imposed”. In Turnbull v R [2019] NSWCCA 97 at [44] to [46] (“Turnbull”) Simpson AJA (with whom Ierace J agreed, Wilson J not deciding) stated:

8. [93]

   In RO v R [2019] NSWCCA 183, Bathurst CJ (at [1]), N Adams J (at [117]) and I (at [82]) agreed with that passage.

9. [94]

   The third matter concerns whether, in independently exercising the discretion to resentence in relation to an aggregate sentence, this Court is bound or limited by any of the indicative sentences specified by the sentencing judge. In Kentwell, the plurality described the task faced by this Court in applying this provision as follows (at [43]):

10. [95]

    Kentwell involved an aggregate sentence. This passage specifically contemplated that, in the course of the independent exercise of the sentencing discretion, this Court might conclude that a greater sentence is appropriate for “another or other offence”, that is, a greater indicative sentence.

Re-Sentencing

1. [96]

   Consistent with the above extract from Turnbull, I will approach resentencing by adopting the sentencing judges’ findings on remorse, prospects of rehabilitation and the discount afforded to the applicant for his pleas of guilty. Further, in argument it was accepted that it should be approached by adopting the sentencing judge’s findings of objective seriousness.

2. [97]

   In addition, two affidavits were read in this Court on the “usual basis” (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]). In his affidavit, the applicant states that he is currently housed at the Long Bay Prison Hospital. He states that since he was sentenced “conditions have been good for me”. However, he has a concern about the safety of the prison van used to transport him to occupational therapy; he is also concerned about the reclassification process and there is still equipment he requires such as a special air mattress. An affidavit annexing Justice Health’s response indicates that it has been accepted that his concerns about his transport are justified and are presumably being addressed. However, Justice Health considers that a placement at a correctional centre near Newcastle is more suitable than his remaining at the prison hospital.

3. [98]

   The greater hardship or burden that the applicant will suffer from being imprisoned as a paraplegic is undoubtedly a factor to be considered in sentencing (R v Quinn (No 3) [2016] NSWSC 169 at [52] Quinn v R [2018] NSWCCA 297 at [292]). The evidence suggests that the correctional facilities are sensitive to his special needs and seeking to accommodate them. Nevertheless, it can be expected that he will be vulnerable in custody, especially to threats from other inmates. Otherwise, I will act on the basis of the findings made by the sentencing judge noted above (at [78]).

4. [99]

   In relation to AB, the putative individual sentences that I would indicate are:

5. [100]

   In relation to CD, the indicative sentences that I would indicate are:

6. [101]

   There remains to consider the application of the totality principle which is still applicable to aggregate sentences. There are two distinct periods of offending. It is appropriate to approach sentencing on the basis that, if individual sentences were imposed, it can be expected that there would be substantial overlap between the sentences imposed for the offences committed against AB and substantial overlap between the sentences imposed for the offences committed against CD but only small overlap of the sentences imposed for the two sets of offences.

7. [102]

   The sentencing judge’s description of the offender noted above (at [73]) was entirely accurate. His abuse of his stepdaughter was an extremely grave abuse of trust. His abuse and deception of CD was perhaps more shocking. Even so, and with allowance for the effect of the applicant’s paraplegia, I consider that the appropriate aggregate sentence is 18 years imprisonment with a non-parole period of 13 years and six months.

8. [103]

   Accordingly, I propose the following orders:

   1. (1)

      The applicant be granted leave to appeal;

   2. (2)

      The appeal be allowed;

   3. (3)

      Set aside the aggregate sentence imposed by his Honour Judge Colefax SC on the applicant on 12 June 2020;

   4. (4)

      In lieu thereof:

   5. (5)

      Direct the applicant’s solicitor to notify the applicant of the existence of the Crimes (High Risk Offenders) Act 2006 and its application to the offences the subject of this application.