R v Egan

1. [1]

   MACFARLAN JA: Subject to the observations (with which I agree) in Bellew J’s judgment, I agree with the judgment of Hall J.

2. [2]

   As to the question of special circumstances, I agree with Bellew J that whether circumstances are “special” ultimately depends on whether there is at least evidence that the offender’s prospects of rehabilitation will be enhanced by an extended period of parole and that there was no such evidence in the present case (see [161] of his Honour’s judgment). It is unnecessary to determine in this case whether the evidence must go further and indicate a likelihood of successful rehabilitation.

3. [3]

   HALL J: The Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912, appeals a sentence imposed upon the respondent on 23 March 2016 by the Penrith District Court.

4. [4]

   The respondent stood for sentencing in relation to two charges of sexual intercourse with a person under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900, he having adhered to pleas of guilty to the offences entered in the Local Court. The charges were brought by way of two Court Attendance Notices each alleging an offence by the respondent as occurring on 1 September 2003.

5. [5]

   At the relevant time, the maximum penalty for an offence under s 66A(1) was 25 years’ imprisonment with a prescribed standard non-parole period of 15 years.

6. [6]

   The respondent was sentenced to a term of imprisonment of three years with a non-parole period of 18 months in respect of each offence. The sentences were made concurrent and to commence on 23 March 2016. Under the sentence imposed he becomes eligible for release to parole on 22 September 2017.

7. [7]

   On 1 April 2016 a Notice of Appeal, relying on the sole ground of manifest inadequacy, was signed by the Deputy Director of Public Prosecutions. A copy of the Notice of Appeal was served upon the respondent on 6 April 2016. It noted that additional grounds may subsequently be added.

8. [8]

   The Crown subsequently pleaded additional grounds of appeal. The three grounds of appeal are in the following terms:

9. [9]

   The Crown read the affidavit of Catherine Anne Williams, solicitor, affirmed 8 July 2016 in the event that the Court intervened and re-sentenced the respondent. There was no objection to the affidavit on that basis.

10. [10]

    The respondent relied upon his own affidavit sworn 5 August 2016 on the same basis.

Facts

1. [11]

   A Statement of Agreed Facts (Agreed Facts) was tendered on sentence and was admitted as part of the Crown bundle of documents (Exhibit 1).

2. [12]

   The respondent was 21 years of age at the time of the offences committed by him. He was a family friend of the victim who was then 9 years of age.

3. [13]

   The Agreed Facts recorded the following:

4. [14]

   At the sentencing hearing a Victim Impact Statement dated 21 March 2016 was tendered. It became part of Exhibit 1.

5. [15]

   In support of the respondent’s subjective case the following reports were tendered and were together marked as Exhibit 2 (together with testimonials):

   1. (1)

      The report of Jodie Bower, treating psychologist, dated 28 September 2015.

   2. (2)

      Report of Dr Richard Furst, Consultant Forensic Psychiatrist dated 9 January 2016.

6. [16]

   There were a number of character references that attested to the respondent’s good character.

Respondent’s Evidence

1. [17]

   The respondent gave evidence on sentence. In the course of his evidence he indicated that on or around 19 May 2013 he communicated with the victim through Facebook in which he apologised for the hurt he had caused (Exhibit 3). At the time that he wrote the Facebook message he said that he did not confess the offences to police by reason of the fact that he did not know whether he would be causing more stress or pain to the victim.

2. [18]

   The respondent was arrested on 30 June 2015 and spent 21 days in custody prior to being granted bail. A document written by the respondent setting out his experience in the prison system was also tendered on sentence (Exhibit 4).

3. [19]

   The respondent was asked a number of questions in evidence-in-chief about the Facebook message that he sent to the victim as follows:

4. [20]

   The respondent was then asked by the sentencing judge:

5. [21]

   The respondent has had the continued support of his family. His mother and father, three sisters and two brothers, attended the sentence hearing.

Remarks on Sentence

1. [22]

   The sentencing judge made a number of findings in relation to the objective seriousness of the offences which his Honour determined to be below mid‑range: ROS 4 and 9. They were:

   1. (1)

      The fact that the respondent showed the victim a pornographic movie prior to committing the offences showed some limited planning;

   2. (2)

      The position of trust in respect of the victim’s family permitting the victim to be alone with the respondent and his breach of trust;

   3. (3)

      The age of the victim and his relationship with the respondent, but noted that the age of the victim was not an aggravating factor within s 21A(2) of the Crimes (Sentencing Procedure) Act 1999;

   4. (4)

      That the offence was a “one off” offence;

   5. (5)

      That there was limited force and no threats were made;

   6. (6)

      That the offences were of short duration, particularly in relation to the second offence which was for a three second period;

   7. (7)

      The emotional harm caused to the victim as reflected in his Victim Impact Statement which represented an aggravating factor; and

   8. (8)

      The central role of general deterrence in sentencing for offences of sexual intercourse with children.

2. [23]

   The sentencing judge allowed a discount on sentence of 25% for the respondent’s guilty pleas.

3. [24]

   His Honour also took into account the fact that the respondent had no criminal antecedents and on the evidence before him, including testimonials, he accepted that the respondent was a person of otherwise good character who had excellent prospects of rehabilitation.

4. [25]

   The sentencing judge observed that he had shown genuine contrition and remorse. In that respect his Honour observed:

5. [26]

   The sentencing judge noted that the respondent had been gainfully employed until a recent date prior to his arrest, that he had been a good and supportive friend to many people and that he was supported by his family.

6. [27]

   The sentencing judge referred to the fact that the psychologist, Ms Bower, in her report dated 28 September 2015, had noted that the respondent had commenced psychological counselling prior to his arrest for the offending. The sentencing judge observed:

7. [28]

   The sentencing judge commented at some length on the matters reported on by Dr Furst. Dr Furst’s report records a history obtained from the respondent of having continued contact with the victim’s family which had caused him to feel shame and guilt, and which led to depression and anxiety. The respondent’s account to Dr Furst, as the sentencing judge noted, was that he had experienced depression and worthlessness for some years, and that he continued to feel guilt about what had occurred. It was noted that he had told Dr Furst that he was not sure why he had offended but believed that at the time he was confused as to his sexual orientation.

8. [29]

   Dr Furst had considered that, whilst the respondent probably did not meet the criteria for a diagnosis of major depressive disorder or bipolar disorder, his depression was in keeping with a persistent depressive disorder as well as a generalised anxiety disorder.

9. [30]

   Dr Furst noted that the respondent appeared to be of average intelligence, was alert and cooperative on assessment, continued to experience feelings of failure, ongoing guilt and had presented as insightful and remorseful.

10. [31]

    The sentencing judge had regard to Dr Furst’s observations on the issue of the risk of reoffending. Dr Furst noted that he had no other criminal antecedents, had had no offending since 2003, and had no history of violence. Dr Furst stated that there were no indications of sexual deviance or any sexual fantasies involving prepubescent children.

11. [32]

    In his assessment, Dr Furst observed that the respondent had a solid employment history as well as family support. He was not substance dependent and had no apparent anti-social attitudes. In his report, Dr Furst concluded:

12. [33]

    On the basis of his assessed good prospects of future employment and that he had engaged in psychological therapy over a two-year period prior to Dr Furst’s examination, with significant gains made, Dr Furst made a positive prognosis in terms of any mental health problems and for successful rehabilitation.

13. [34]

    The sentencing judge in his assessment observed:

14. [35]

    The sentencing judge made a finding of special circumstances based on a combination of the offender’s youth at the time of the offences, his depression and the fact that it would be his first time in custody: ROS pp 8-9.

15. [36]

    The sentencing judge had regard to the standard non-parole period as a legislative guidepost and assessed the objective seriousness of the offences as below the mid-range. In departing from the standard non-parole period, his Honour also had regard to the respondent’s early plea of guilty, the lack of any criminal record, and that fact that he was a person of otherwise good character.

16. [37]

    The sentencing judge considered the issue of accumulation of sentences and stated:

17. [38]

    His Honour accepted that the respondent was likely to spend his time in protective custody and that the facilities within the gaol system that would be available to him would be reduced as a consequence. However, his Honour stated that he was not able to be certain as to what degree the facilities would be reduced: ROS p 9.

Crown Submissions

1. [39]

   The Crown provided an outline of argument in its written submissions filed 11 July 2016 in relation to each of the grounds of appeal. These were supplemented with oral submissions at the hearing on 12 August 2016.

Ground 1: His Honour erred in failing to partially accumulate the sentences imposed

1. [40]

   The submission for the Crown was that there should have been a partial accumulation of sentences in respect of each offence.

2. [41]

   The Crown noted that the partial accumulation of sentences for multiple sexual offences committed on the one victim on the same occasion has been held to be open to the discretion of a sentencing judge: R v LG [2012] NSWCCA 249.

3. [42]

   The Crown contended that the sentencing judge erred in imposing wholly concurrent sentences, notwithstanding that it involved an exercise of discretion. Failure to accumulate, the Crown argued, led to the consequence that the total sentence imposed did not appropriately reflect the totality of the offending conduct: CWS at [46].

4. [43]

   The Crown disputed that the two sexual acts were similar in nature and submitted that they were discrete and independent offences, albeit occurring on the one occasion.

5. [44]

   It was further submitted that the criminality of each of the offences was serious and that one sentence could not be seen to encompass the criminality of both.

6. [45]

   The Crown referred to the need in the application of the principle of totality, and the not unrelated principle of proportionality, to ensure that in sentencing what is being offered is not some kind of discount for multiple offending based upon the observations in R v AB [2011] NSWCCA 229 per Johnson J at [120]. The Crown submitted that the appearance of such a discount existed in this case given the absence of any degree of accumulation.

Ground 2: His Honour was in error in having regard to the respondent’s future protection status in imposing sentence

1. [46]

   The respondent, as noted above, relied at the sentence hearing upon his typed document which outlined his experience during the 21 days he was remanded in custody.

2. [47]

   In this Court he relied upon his own affidavit sworn 5 August 2016 in relation to his experience in protective custody subsequent to the imposition of the sentences imposed upon him.

3. [48]

   The Crown observed that there was no evidence before the sentencing judge to indicate that the restrictions placed on the respondent when he was first in prison as a remand prisoner would continue upon his conviction. It was submitted that his Honour was wrong to consider that the respondent would continue to spend his time in protective custody and that the facilities in the gaol system would be reduced as a consequence: at [53].

4. [49]

   The Crown relied upon authority for the proposition that it was not open to a sentencing judge to make an assumption, in the absence of concrete evidence, that offenders who serve sentences in protective custody are deprived of access to privileges: R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [32].

5. [50]

   The Crown, as earlier noted, relies upon the affidavit of Catherine Anne Williams, solicitor, sworn 8 July 2016. Ms Williams referred to information she received which confirmed that the respondent was being housed at the Metropolitan Special Program Centre (MSPC). Annexure A to the affidavit is a statement by the Senior Assistant Superintendent of the MSPC. The statement confirms that on 25 March 2016 the respondent was placed on a Special Management Area Placement (SMAP) order for a period of six months which was due to expire on 24 September 2016.

6. [51]

   The statement records that, as an inmate housed at MSPC 3, he has access to education, programs and other services on Monday to Friday from 1:00pm to 4:00pm. Inmates have free access to the education unit library during those times. On reception, inmates are assessed for suitability for employment.

7. [52]

   The statement confirms that the respondent has twelve hours per day out of cell time, with access to exercise in the gym and other recreational activities. He is presently employed in the role of a cleaner.

8. [53]

   The Crown submitted that the sentencing judge was in error in taking into account any undue hardship resulting from the respondent serving his sentence in protective custody.

Ground 3: The sentences imposed were manifestly inadequate

1. [54]

   The Crown acknowledged that Ground 3 requires it to establish that the sentences imposed were unreasonable or plainly unjust, having regard to the principle that there is no single “correct” sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consistent with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321 at 325; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58].

2. [55]

   The Crown submitted that the sentences imposed by the sentencing judge failed to adequately reflect the circumstances of the offences. It submitted that the sentences failed to reflect the paramount importance of denunciation and general deterrence in sentencing for these types of offences: CWS at [59].

3. [56]

   The Crown submitted that the sentences imposed were manifestly inadequate and fell well short of account for the respondent’s criminality.

4. [57]

   The finding of special circumstances was not challenged, but the extent to which the statutory ratio was varied, it was submitted, exacerbated the inadequacy of the sentences. The overall variation for each offence was fifty per cent and this resulted in the criminality of the offences not being reflected in the sentences imposed.

5. [58]

   On the issue of delay between the commission of the offences and conviction, a matter to which it was submitted the sentencing judge had had significant regard, the Crown cited authority for the proposition that an offender who remained silent in the hope that his or her offences will not be discovered, should not benefit from having the delay taken into account on a sentence: R v Spiers [2008] NSWCCA 107 at [37]-[38]. The Crown submitted that there was, in any event, no inordinate delay between the complaint to police in May 2014 and the respondent being charged in June 2015. It was noted that the Facebook apology occurred approximately one year prior to complaint, namely in May 2013.

6. [59]

   The Crown observed that the delay of thirteen years enabled the respondent to demonstrate rehabilitation in that he has not reoffended during that period. The absence of reoffending, it was noted, was a matter taken into account by the sentencing judge in evaluating the respondent’s excellent prospects of rehabilitation.

7. [60]

   The Crown acknowledged that reliance on asserted comparative cases is limited and not without difficulty. Reference was made to a number of sentencing decisions as possibly providing some guidance, being cases involving “isolated offences” contrary to s 66A of the Crimes Act.

8. [61]

   The factual circumstances attending s 66A offences vary widely. The Crown referred in its written submissions to six sentencing decisions including decisions of this Court in relation to such offences: MLP v R [2014] NSWCCA 183; AWKO v R [2010] NSWCCA 90; RR v R [2011] NSWCCA 235; Kite v Regina [2009] NSWCCA 12; SW v R [2013] NSWCCA 255; and R v Ronald King [2009] NSWCCA 117. As noted below, the Crown emphasised that the six cases were not relied upon as providing “numerical equivalence”. I do not propose here to undertake a detailed analysis of each of the six cases to which the Crown drew attention. It is sufficient to indicate the nature and circumstances with which each case was concerned:

9. [62]

   The appellant had been convicted by a jury of an offence under s 66A in that he had sexual intercourse with a person then under the age of 10 years. The victim was the appellant’s daughter who was then aged nine. In this case, a Muldrock error had occurred. The appellant had been sentenced to a head sentence of 16 years imprisonment, which was confirmed on appeal but the non-parole period was reduced to 11 years: MLP v R (2006) 164 A Crim R 93; [2006] NSWCCA 271.

10. [63]

    There were a number of particular aggravating circumstances associated with the offence including physical injury inflicted upon the victim and the events having occurred with two other children in the vehicle at the time. The Court expressed the view at [28] that on any view the offending was objectively serious and whilst the offending was of short duration, its subjective seriousness was at a high level. The resultant effect upon the victim was not limited.

11. [64]

    In the course of his Honour’s decision, Bellew J, with whom Macfarlan JA and Adamson J agreed, stated that consistency in sentencing is not demonstrated by and does not require numerical equivalence. What is sought is consistency in the application of the relevant principles: at [41]. Further, his Honour observed, the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence: at [42].

12. [65]

    The appellant pleaded guilty to one offence of sexual intercourse with a child under 10 years of age, contrary to s 66A. He was sentenced in the District Court to a term of imprisonment consisting of a non-parole period of 8 years 3 months 13 days, with a parole period of 4 years 5 months 15 days.

13. [66]

    The complainant was aged 6 years. The appellant was aged 33 years at the time of the offence. The sentencing judge had characterised the offence as being “at least” in the mid-range of objective seriousness. The offence which the respondent committed involved a gross breach of trust. Whilst it was a spontaneous, single event, the offence of intercourse was described as of a degrading nature and held to be well within the sentencing judge’s discretion.

14. [67]

    The Court granted leave to appeal but the appeal was dismissed.

15. [68]

    In this case the appellant was found guilty by a jury. He was sentenced to a term of imprisonment consisting of a non-parole period of 9 years and a balance of term of 3 years.

16. [69]

    On the application for leave to appeal against sentence, it was noted that the sentencing judge had assessed the objective gravity of the offence, taking into account the fact that it was isolated and opportunistic and the form of sexual intercourse was enforced fellatio rather than penile/vaginal intercourse. By majority it was held that the ground of appeal concerning sentence was not made out.

17. [70]

    In the course of his judgment, Johnson J observed that the Court, on the application for leave to appeal, would be falling into error if the construction was to be adopted that the sentencing judge was in some way required to explain why she imposed a sentence upon the appellant which was significantly different from the sentences imposed in two other cases referred to by her Honour.

18. [71]

    It was further noted that the victim involved was a five year old child, an age well removed from the age limit of 10 years which demarcates a s 66A offence. Additionally, the specific nature of the offence and the harm done to the victim as a result of the offence, were matters to be taken into account: at [147].

19. [72]

    The appellant sought leave to appeal in respect of sentences imposed upon him for two offences of sexual intercourse with a person under the age of 10 years contrary to s 66A. He was sentenced on each offence to 8 years and 4 months with a non-parole period of 5 years.

20. [73]

    The total sentence was one of 8 years and 10 months consisting of a non-parole period of 5 years and 6 months.

21. [74]

    The complainant was six years old at the relevant time. In that case Blanch J, with whom Grove and Kirby JJ agreed, stated that the difficulty in re-sentencing was the same difficulty that faced the sentencing judge, and that was to balance the subjective features relating to the appellant against the undoubtedly serious nature of the offences.

22. [75]

    The Court intervened and quashed the sentence imposed on the first count and instead imposed a sentence of a non-parole period of 4 years and 6 months with a balance of term of 3 years. On the second count the sentence was quashed and a sentence of 4 years 6 months was imposed with a balance of term of 3 years.

23. [76]

    The appellant pleaded guilty to having sexual intercourse with a child under the age of 10 years contrary to s 66A. The victim at the time was aged five or six years.

24. [77]

    The appellant was sentenced to imprisonment comprising a non-parole period of 5 years with a balance of term of 2 years and 7 months.

25. [78]

    The appeal alleged Muldrock error: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

26. [79]

    The Court was not persuaded that Muldrock error had been demonstrated.

27. [80]

    As to the objective gravity of the offence, it was noted that the appellant was aged 51 years and was in a position of trust which allowed access to the male victim. It was noted that a significant feature of the case was that it involved a very young victim, of an age well removed from the age limit of 10 years which demarcates a s 66A offence. It was noted that the age of the victim, far removed from the statutory ceiling of 10 years, may be described aptly as a highly aggravating factor: at [47].

28. [81]

    The offence was held to be a significant act of violation that inflicted pain and grave and long lasting consequences on the victim: at [51].

29. [82]

    It was held that there was no merit in the complaint as to the sentencing judge’s discretionary assessment of objective gravity: at [54].

30. [83]

    Application for an extension of time to bring a sentence appeal has expired.

31. [84]

    The respondent in this case was sentenced for an offence contrary to s 66A of having sexual intercourse with a child under the age of 10 years. There were three offences on a Form 1.

32. [85]

    The sentencing judge imposed a term of imprisonment of 2 years and suspended the sentence upon the respondent entering into a bond for a period of 2 years.

33. [86]

    The Crown appealed, alleging that the sentence was manifestly inadequate.

34. [87]

    The offence involved a girl of the age of four years. The respondent was aged 23 years at the time of the offence.

35. [88]

    It was held that the sentence imposed was manifestly inadequate and to a very substantial degree: at [64]. This was chiefly by reason of the error in assessment of the seriousness of the sexual intercourse offence. However, there was also insufficient regard to the matters on the Form 1.

36. [89]

    The sentence imposed was quashed and, taking into account the matters on the Form 1, the respondent was sentenced to a term of imprisonment comprising a non-parole period of 4 years 6 months and a balance of term of 2 years and 6 months.

37. [90]

    The Crown in the present proceedings referred to the relevant principles that apply to a Crown appeal and acknowledged that the primary purpose of such an appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons, and that this Court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1].

38. [91]

    The Crown submitted that uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences, it was submitted, give rise to a sense of injustice.

39. [92]

    The Crown submitted that the sentences imposed were manifestly inadequate and fell well short of account for the respondent’s criminality.

40. [93]

    The Crown submitted that though the Court retains a residual discretion it should intervene to resentence the respondent. It submitted the sentences imposed were indicative of manifest inadequacy, inconsistent with sentencing standards expected by the community and the need for strong denunciation of offences of the type in question involving young children.

Submissions for the Respondent

1. [94]

   In the written submissions on behalf of the respondent, it was contended that there were a number of unique features to the case. They were stated to include:

2. [95]

   In relation to Ground 1, failure to accumulate sentences, the submissions observed that the sentencing judge referred to a number of factors on the question of accumulation. They included:

3. [96]

   It was submitted that there was no indication that the sentencing judge proceeded on a principle that there must be concurrency of sentences. On the contrary, it was noted that his Honour referred to specific matters to support his approach.

4. [97]

   It was submitted for the respondent that this is a case where the criminality of the first offence can be encompassed in the criminality of the second offence. It was argued that it is necessary to refer to the “wider context” to develop that point: RWS at [13]. In that respect, the submissions related the evidence to the specific offences and the circumstances in which they occurred. It was submitted in that regard that the offences were “…related in that they are components of the one transaction or event. The criminality of the first offence is inextricably linked to the second offence in terms of timing and nature of conduct”: RWS at [13].

5. [98]

   It was submitted further that the Agreed Facts indicated that the respondent was responsive to the distress of the victim in respect of the second offence and stopped his conduct after three seconds. It was acknowledged that in doing so however, he may have had some concern as to alerting others, but that the conduct nevertheless ceased and was of a very short duration.

6. [99]

   It was submitted that the sentencing judge was in the best position to assess the “whole incident” as one of short duration and that the second offence, in particular, was a very short event, referring in this respect to the Remarks on Sentence at 4.2. The duration of an event, it was acknowledged, was not necessarily determinative of the objective seriousness but that in this case the short duration was but one of a number of matters considered by the sentencing judge in exercising his discretion.

7. [100]

   It was further submitted that the sentence of three years in respect of each offence served, at the same time, adequately captures the “gravamen” of the offending conduct, and that the imposition of actual imprisonment (involving a non-parole period of one and a half years) sends a clear message to the community that no matter what the circumstances in these type of offences there will be a term of imprisonment imposed: RWS at [17].

8. [101]

   In relation to Ground 2, the circumstances of the respondent’s custody, reliance was placed on the respondent’s affidavit filed on 8 July 2016. The “information document”, Annexure A, confirmed that the respondent has been the subject of a Special Management Area Placement. The order, as noted above, was made for a period of six months duration to expire on 24 September 2016. It was also noted that there was no evidence that there will be a change in the circumstances after that day, and that it would be therefore reasonable to assume that he will spend the whole of his sentence in protective custody.

9. [102]

   The submissions for the respondent noted that the sentencing judge took into account the medical opinion of Dr Furst that the respondent’s depressive disorder and his anxiety disorder would be exacerbated by the conditions of custody. The sentencing judge had before him the respondent’s typed statement (Exhibit 4). The respondent was not cross-examined on the matters raised in the statement.

10. [103]

    Accordingly, reliance was placed upon the fact that there was evidence before the sentencing judge upon which he was entitled to act. However, as noted above, on the question of the conditions of custody, the sentencing judge, though accepting that there would be a reduction in the facilities available to the respondent, stated that he was not able to be certain as to what degree such facilities would be reduced: ROS p 9.

11. [104]

    In relation to Ground 3, that the sentences imposed were manifestly inadequate, it was submitted that the sentences are in fact adequate to denounce the conduct and to send a message to the community as had been submitted in relation to Ground 1. It was noted that the sentencing judge had accepted that the respondent’s Facebook apology had been sent as a private message to the victim and that it represented a “heart-felt apology” sent before any complaint had been made to police and before the complainant made disclosure to his family: RWS at [30].

12. [105]

    The submissions took issue with the Crown’s contention as to the inadequacy of the non-parole period following the finding of special circumstances. Emphasis was given to the principle that with offenders such as the respondent who have excellent prospects of rehabilitation, the prospects for his rehabilitation should not be “crushed” by long periods of actual imprisonment that may affect his capacity to return to the community in a productive manner.

13. [106]

    In relation to the issue of delay, it was noted that there was no evidence that there was any calculated strategy in the present case by the respondent which resulted in delay occurring. The evidence shows that the respondent offended when he was a young man in circumstances he still found difficult to explain and that he in fact has carried the burden it has produced on him for many years and that he sought out the victim and apologised to him “for all the right reasons”: RWS at [37].

14. [107]

    It was submitted that this was a case where there were “extraordinary circumstances” presented by the evidence before the sentencing judge who, in sentencing the respondent, it was contended, had struck the correct balance.

Consideration

1. [108]

   In offences such as those in question in this appeal, it is well established that the issue of general deterrence plays a central role in sentencing, a matter expressly referred to by the sentencing judge. Offences that involve an act constituting a species of sexual intercourse with children will invariably attract heavy custodial sentences, as his Honour expressly recognised and recorded.

2. [109]

   The sentencing judge assessed the objective seriousness of the subject offences as below mid-range. The Crown on the appeal did not directly challenge this finding (T2: 30-36). However it observed that the sentences imposed by the District Court fell at the lower end of the range for offences under s 66A of the Crimes Act.

3. [110]

   In assessing the relevant objective and subjective factors, a number of matters should be brought into account. They include:

   1. (1)

      Unlike some cases arising under s 66A, this is not a case in which there was any evidence that the respondent exhibited any predatory sexual conduct towards children either before or since the subject offences;

   2. (2)

      There was limited force involved in his offences and no threats were made;

   3. (3)

      Although not a determinative factor, the very short duration of the second offence;

   4. (4)

      This is a case involving strong and genuine remorse by the respondent. The high water mark of the evidence in that respect is the Facebook message sent by the respondent to the victim on 19 May 2013 which, the respondent stated in evidence, he sent conscious of the fact that it could lead to police action being taken against him, as in fact occurred; and

   5. (5)

      The evidence strongly indicates that the respondent is unlikely to reoffend in respect of either sexual or non-sexual offences.

4. [111]

   By reason of the matters (1) to (5) above, on any re-sentencing of the respondent, the need for specific deterrence is not a significant factor influencing this Court’s determination of the sentences to be imposed.

5. [112]

   As to Ground 1, the two offences though constituting a single episode, nonetheless involved separate sexual assaults and, on the evidence, culpability of one offence cannot be said to fully embrace the culpability of the other. Whilst the second offence was of short duration (possibly approximately three seconds), the criminality of it was nevertheless separate from the other offence. It is for that reason and upon that basis, that I have concluded that the imposition of wholly concurrent sentences for the two offences contravenes sentencing principles: Cahyadi v R (2007) A Crim R 41; [2007] NSWCCA 1 at [12] and [27]. Ground 1 should accordingly be upheld.

6. [113]

   As to Ground 2, it is clear that the evidence before the sentencing judge was insufficient for his Honour to conclude, in effect, that the respondent would not have available the facilities within the general gaol system. The sentencing judge stated that he was not able to be certain as to the degree that the facilities would be reduced, which indicates that his Honour may have only given limited weight to the issue of protective custody in sentencing the respondent. Nonetheless I consider that Ground 2 has been made out.

7. [114]

   Ground 3 was argued by the Crown as the primary ground upon which it relied, namely, that the sentence for each of the offences of three years with a non-parole period of 18 months was manifestly inadequate.

8. [115]

   In this case the sentencing judge was required to determine the objectively serious nature of the two offences charged under s 66A having regard to the matters contained in the Agreed Facts. This required consideration of the unique circumstances of the offending conduct, including the ages of the victim and the respondent, and the relationship between them (a trust relationship) and the harm occasioned to the victim.

9. [116]

   The sentences imposed did not, in my opinion, at all sufficiently reflect the objective seriousness of the offences. This conclusion is reinforced by the fact that at the relevant time, the standard non-parole for an offence under s 66A was a period of 15 years and the effective non-parole period imposed by the sentencing judge amounted to 10% of that period. Further the offence carried a maximum penalty of 25 years’ imprisonment.

10. [117]

    The sentences imposed in cases under s 66A fall within a fairly broad range. That, of course, reflects their factual circumstances and the consequential variation in the objective seriousness in each case as well as the subjective factors. The Crown, with respect, correctly stated in its oral submissions that:

11. [118]

    A ground of manifest inadequacy in sentence asserts, in effect, that the result embodied in the sentencing orders is unreasonable or plainly unjust constituting error of the last type or category mentioned by the High Court in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40.

12. [119]

    Such a ground asserts a failure by the sentencing judge to properly exercise the discretion which the law reposes in the court of first instance: House v The King, supra, at 505; Hili v The Queen, supra, at 538.

13. [120]

    In Hili v The Queen, supra, the Court observed at [58]:

14. [121]

    As noted above at [55] the Crown emphasised that its central argument on the appeal was based upon the need for the imposition of sentences that adequately reflect the principles of general deterrence and denunciation and that the sentences imposed were manifestly inadequate. A sentence of three years, it was contended, neither reflected the principle of general deterrence, nor was it sufficient to constitute a denunciation.

15. [122]

    These proceedings, being a prosecution appeal, brought pursuant to s 5D of the Criminal Appeal Act, makes it necessary for the Crown to show error in the sentence passed in the court below – either specific error or manifest inadequacy.

16. [123]

    Whilst the objective seriousness of the subject offences was, in my opinion, properly assessed as below the mid-range of seriousness, the sentences imposed were manifestly inadequate. Ground 3 has accordingly been established and this Court should intervene and resentence the respondent.

17. [124]

    In expressing that conclusion I note that a claim of manifest inadequacy requires this Court to be satisfied that the sentences were unreasonable or plainly unjust: Markarian v The Queen, supra, at [25].

18. [125]

    Whilst the Court retains a residual discretion, even if error has been demonstrated and manifest inadequacy established, I have concluded that there is no reason as to why this Court should exercise the residual discretion not to interfere: CMB v Attorney-General for New South Wales (2015) 89 ALJR 407; [2015] HCA 9 at [36]. In that case French CJ and Gageler J observed at [32] and [33]:

19. [126]

    In R v O’Connor [2014] NSWCCA 53, Adamson J commented upon the residual discretion as follows:

20. [127]

    There was no delay in the institution of the present appeal. I accordingly have concluded that this Court should intervene. In R v Mulligan [2016] NSWCCA 47 Harrison J (with whom Leeming JA and Johnson J agreed) observed:

21. [128]

    The dominant consideration in this appeal is the manifest inadequacy of the sentences imposed. An exercise of this residual discretion would not give effect to the need to give effect to the important principle of general deterrence in relation to the particular offences charged in this case. As earlier stated, the principle of general deterrence assumes particular importance with offences under s 66A of the Crimes Act. Such an outcome could not be justified as a proper exercise of discretion.

22. [129]

    In this case it has been necessary to closely consider the factors that warrant a degree of leniency in determining the sentence to be imposed by this Court bringing into account any relevant aggravating and mitigating factors in accordance with the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999. The factors relevant to determining the objective seriousness of the offences have been discussed above. The relevant mitigating factors to be taken into account include:

    1. (1)

       The evidence that the respondent is unlikely to reoffend: s 21A(3)(g).

    2. (2)

       That the respondent has good prospects of rehabilitation: s 21A(3)(h). Indeed in this respect, as earlier noted, the steps already taken by the respondent to obtain specialist counselling and treatment has resulted in significant rehabilitative progress leading to Dr Furst’s prognosis that, in the longer term, the respondent has strong prospects for rehabilitation.

    3. (3)

       The remorse shown by the respondent for the offence. The evidence established that he has accepted responsibility for his actions and has acknowledged the injury caused by his actions: s 21A(3)(i).

23. [130]

    It has long been accepted that it is appropriate for a sentencing court to give weight to matters such as genuine regret and remorse and any rehabilitative steps taken by an offender: R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 per Grove J, with whom Spigelman CJ and Sully J agreed, at [49]. See also R v Johnston [2005] NSWCCA 80 at [28]. In some circumstances involving delay close consideration may need to be given to rehabilitation that occurred over the period between the date of the offence(s) and the date the proceedings are brought before the Court: R v Wake (unrep) 9/7/97, 60115/97 NSWCA (per Gleeson CJ).

24. [131]

    On the evidence in this case the respondent has successfully undertaken multiple counselling sessions with specified treating practitioners as detailed in Ms Bower’s report dated 28 September 2015 including 11 psychology sessions conducted by Ms Bower herself in the period 17 December 2014 to 21 September 2015.

25. [132]

    Ms Bower noted in her report that the respondent actively engaged in the therapeutic process with regular attendances and appeared to have implemented recommended cognitive and behavioural strategies in his daily life. The reports of Ms Bower and Dr Furst noted his genuine remorse for his actions in relation to the offences in question.

26. [133]

    The respondent’s actions in initiating contact with the victim on 17 May 2013 for the purpose of apologising to him is consistent with such genuine remorse and rehabilitation. The fact that he took the initiative to contact the victim and apologised before investigation and charge distinguishes this case from others of the kind in question.

27. [134]

    I do not consider that the matters relied upon by the sentencing judge, namely, the respondent’s youth at the time of the offences, his depression and the fact that the sentence imposed will result in his first time in custody, were sufficient to support a finding of special circumstances thereby enabling the statutory ratio between the non-parole period to the total term to be varied from the statutory ratio (75%).

28. [135]

    This Court has previously accepted that in some circumstances a finding of special circumstances may be made upon the basis of evidence that strongly supports an offender’s likely rehabilitation thereby providing for a longer parole period than would result from an application of the statutory ratio: see R v Carter [2003] NSWCCA 243 at [20]; R v Tuuta (2014) 239 A Crim R 399; [2014] NSWCCA 40 at [57]; and RLS v R [2012] NSWCCA 236 at [120].

29. [136]

    However, where such a variation based on a finding of special circumstances would result in a variation of the statutory ratio of the non-parole period to the total term such that the sentence imposed would not adequately reflect the objective seriousness of the offence or offences in question then a sentencing court may decline to make such a finding. It is for that reason that I have concluded that, in this case, a finding of special circumstances should not be made.

30. [137]

    Finally, I note that the sentencing judge in the Court below did not receive assistance in being referred to the full range of relevant sentencing decisions, including decisions of this Court. Had his Honour received such assistance I consider that it is likely that a different sentencing outcome would have occurred.

31. [138]

    I propose the following orders:

    1. (1)

       The appeal is allowed.

    2. (2)

       The sentences imposed by the District Court on 23 March 2016 are quashed.

    3. (3)

       That the respondent is re-sentenced upon the following basis:

32. [139]

    The total effective sentence in respect of Counts 1 and 2 accordingly is a total sentence of 5 years and 9 months comprising an effective non-parole period of 4 years and 3 months and a parole period of 1 year and 6 months.

33. [140]

    Accordingly, the first date upon which the respondent will be eligible for parole will be 22 June 2020.

34. [141]

    BELLEW J: I have had the advantage of reading in draft the judgment of Hall J. I agree with his Honour’s conclusion that each of grounds 1, 2 and 3 have been made out, and that there is no basis upon which this Court should exercise its discretion and decline to intervene.

35. [142]

    I wish to make some observations regarding two particular aspects of the remarks of the sentencing judge.

The duration of the offending

1. [143]

   In the course of assessing the objective seriousness of the offending, his Honour said (at ROS 4):

2. [144]

   It is to be inferred from what followed thereafter that this finding was one of the matters which led his Honour to conclude that the offending was below the mid-range of objective seriousness.

3. [145]

   In MLP v R [2014] NSWCCA 183, with the concurrence of Macfarlan JA and Adamson J, I observed (commencing at [31]):

4. [146]

   In doing so, I made reference to the decision in R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 where this Court (Leeming JA, Johnson and Hall JJ) observed (commencing at [105]) that offending of this nature has profound and deleterious effects upon victims for many years, if not for the whole of their lives.

5. [147]

   In the present case, the sentencing judge found beyond reasonable doubt (at ROS 8) that the emotional harm caused to the victim was indeed substantial, to the extent that it was an aggravating factor. In these circumstances, the fact that the offending may have been of short duration was of little or no consequence.

The finding of special circumstances

1. [148]

   The evidence before the sentencing judge included a report of Dr Richard Furst, Consultant Forensic Psychiatrist, of 9 January 2016. Dr Furst concluded that the respondent met the criteria for the diagnosis of:

2. [149]

   In response to being asked to express his opinion as to the respondent’s risk of recidivism, Dr Furst said:

3. [150]

   Dr Furst recommended a treatment plan which included ongoing consultations by the respondent with his general practitioner, and ongoing psychological counselling or treatment.

4. [151]

   A report of Jodie Bower, Psychologist, of 28 September 2015 was also before the sentencing judge. The respondent had previously presented to Ms Bower for therapy with a diagnosis of depression and general anxiety. Ms Bower treated the respondent between December 2014 and September 2015 and reported (inter alia):

5. [152]

   Against this evidentiary background, the sentencing judge made a finding of special circumstances in these terms (at ROS 8):

6. [153]

   In written submissions filed prior to the hearing of this appeal, the Crown did not take issue with that finding. Counsel appearing for the Crown before this Court, who was not the author of the written submissions, initially maintained that same position. Having been referred to some of the evidence, counsel described the finding of special circumstances as “generous”. For the reasons that follow, it is my view that the finding was not open.

7. [154]

   There is no statutory definition of “special circumstances”. However, a finding that special circumstances are made out is integrally linked with the determination of an appropriate non-parole period, that being the minimum period for which an offender must be kept in detention in relation to the offence: R v Dashti [2016] NSWCCA 251 at [84] per the Court (Beazley P, Garling and Fagan JJ).

8. [155]

   A wide range of factors are capable of constituting special circumstances: Dashti (supra) at [89]. However, as a fundamental proposition, circumstances must be sufficiently “special” for the statutory ratio to be varied. Circumstances which are not properly regarded as “special” should not be elevated into that category: R v Fidow [2004] NSWCCA 172 at [22] per Spigelman CJ (R S Hulme and Adams JJ agreeing) citing R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [68] per Spigelman CJ (Mason P, Grove and Sully JJ, Newman AJ agreeing).

9. [156]

   In the present case, and irrespective of whether the three factors identified by his Honour are considered singularly or in combination, they do not, in my view, support a finding of special circumstances.

10. [157]

    To begin with, youth, a lack of criminal antecedents, and the fact that it is an offender’s first period in custody, do not automatically amount to special circumstances. Whether they do so will depend upon the particular case. In R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23 Spigelman CJ (with whom R S Hulme J and Smart AJ agreed) said at [15]:

11. [158]

    In R v Christoff (2003) 140 A Crim R 45; [2003] NSWCCA 52 Sheller JA (with whom James J and Smart AJ agreed) said (at [67]):

12. [159]

    Finally, in R v Kaliti [2001] NSWCCA 268; (2001) 34 MVR 160 Wood CJ at CL (with whom owHohOHowie J agreed) said (commencing at [10]):

13. [160]

    The respondent in the present case could not properly be described as a “youth”. He was, at the date of sentence, 34 years of age. He is now 36 years of age. The fact that he may have been younger at the time of the offending was of no consequence in terms of a finding of special circumstances. Moreover, although this is the respondent’s first time in custody, Ms Bower expressed the opinion that he had the resilience to cope with imprisonment. It follows that neither of these factors supported the finding of special circumstances made by his Honour.

14. [161]

    Further, and perhaps even more fundamentally, whether circumstances are “special” will ultimately depend upon whether the evidence supports a finding that there are significant positive signs which show that if the offender is allowed a longer period on parole, his or her rehabilitation is likely to be successful: R v Carter [2003] NSWCCA 243 at [20] per Dunford J (Ipp JA and James J agreeing); R v Tuuta (2014) 239 A Crim R 399; [2014] NSWCCA 40 at [57] per Bellew J (Bathurst CJ and Hoeben CJ at CL agreeing). In the present case, none of the factors relied upon by the respondent supported such a conclusion, nor was such a finding made by the sentencing judge. In terms of the respondent’s depressive condition, the general tenor of the report of Dr Furst was that the respondent had undergone significant rehabilitation already. Nothing in Dr Furst’s report, nor in that of Ms Bower, suggested that the respondent’s rehabilitation was likely to meet with more success if he was allowed a longer period on parole.

15. [162]

    Finally, the discretion to treat matters as amounting to special circumstances is constrained by the requirement that the non-parole period appropriately reflect the criminality of the offending: Christoff (supra) at [68] per Sheller JA, citing Simpson (supra) at [63]. It follows that even if special circumstances are made out, a sentencing court is not permitted to reduce a non-parole period to a level below that which is necessary to punish the offender, and act as a deterrent to the offender or others: R v Cramp [2004] NSWCCA 264 at [34]. In my view, the extent of the variation adopted by his Honour in the present case contravened that principle. A non-parole period is to be viewed as a mitigation of punishment in favour of rehabilitation through conditional freedom by parole. Ultimately, the non-parole period actually imposed must be the minimum period of custody appropriate to all of the circumstances of the offence: R v Zolfonoon [2016] NSWCCA 250 at [77] per the Court (Beazley P, Garling and Fagan JJ) citing Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 and Power v The Queen (1974) 131 CLR 623; [1974] HCA 26. In my view, the non-parole period imposed by the sentencing judge in the present case did not reflect the importance of general deterrence. In fact, it acts as no deterrent at all. The minimum period of custody which was appropriate in the present case was substantially greater than that which his Honour imposed.

16. [163]

    It follows that in my view, none of the matters relied upon by the sentencing judge, and nothing in the respondent’s subjective case generally, justified a finding of special circumstances.

17. [164]

    Moreover, even I was persuaded that a finding of special circumstances was supported by the evidence, there are necessarily cases in which the need for general deterrence outweighs considerations which may otherwise have justified a longer period on parole: R v Stone (1995) 85 A Crim R 436 at 443 per Sully J (Levine J agreeing). The present is such a case. The sentencing judge correctly observed (at ROS 8) this Court has repeatedly said that general deterrence has a central role to play in sentencing for this type of offending, such that substantial custodial sentences must be imposed, particularly in cases where the offender was in a position of trust. There was, however, a significant disparity between his Honour’s observations in that respect and the sentence which was ultimately imposed upon the respondent.

18. [165]

    I agree with the orders proposed by Hall J.