Hancock v R

1. [1]

   THE COURT: On 1 November 2024, McGrath SC DCJ sentenced the applicant to an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years for three offences of sexual intercourse with the applicant’s then 13 year old stepdaughter. A further count of sexual intercourse with the same victim (count 2) was taken into account on a Form 1 attached to count 3 in the indictment. Indicative sentences were nominated of 5 years (count 1), 6 years (count 3) and 6 years (count 4).

2. [2]

   An agreed statement of facts was tendered on sentence. The applicant was the victim’s stepfather. The applicant was 37 at the time of the offending. The victim was 13. At the time of the offending the victim’s biological parents had both died. The victim, her brother and two younger half siblings lived part of the week with the applicant and part of the week with an aunt.

3. [3]

   In count 1, after the family had watched the film “When Harry Met Sally” the victim imitated the noises made by one of the characters in the film in which she feigned an orgasm. The victim did not know at that time what an orgasm was. A few days or weeks later the applicant told the victim he wanted to show her what an orgasm was. The applicant was naked and on top of her. The applicant inserted his penis in the victim’s vagina and thrust in and out. The victim does not remember if the applicant ejaculated.

4. [4]

   In count 2, the applicant penetrated the victim’s vagina with a 20cm long vibrator. The applicant told the victim he wanted her to have an orgasm. The applicant then had penile/vaginal intercourse with the victim. This is the subject of count 3.

5. [5]

   In count 4, the applicant came home at lunchtime whilst the victim was home from school sick. The applicant removed his clothes and the victim’s underwear and had penile/vaginal intercourse with the victim. The applicant was not wearing a condom and ejaculated inside the victim.

6. [6]

   On 1 November 2024, the sentencing judge heard submissions on sentence and proceeded immediately to deliver ex tempore remarks on sentence that day.

7. [7]

   The sentencing judge commenced his remarks on sentence by observing that sexual offending against children is an offence of high objective seriousness and that sexual assaults upon young children, especially when committed by those who stand in a position of trust, “must be severely punished”. His Honour stated that the sentence to be imposed would reflect the importance of general deterrence in offending of this kind.

8. [8]

   The sentencing judge addressed the objective seriousness of the offences charged here. His Honour emphasised the age difference, the fact that the victim was 13 years old, the fact that this was not isolated offending, the fact that each offence involved penile/vaginal penetration, that count 4 involved ejaculation inside the victim without protection, that the offending took place in the victim’s home, that the offending involved an egregious abuse of trust by the victim’s step-father, the only parental figure left in her life following the death of her birth parents.

9. [9]

   The sentencing judge took into account the plea of guilty and applied a 10% discount having regard to the time the plea was entered.

10. [10]

    The sentencing judge took into account that the applicant had not committed any offences before the commission of these offences or in the many years afterwards. His Honour found that the applicant had prior good character and very good prospects of rehabilitation. His Honour accepted that the applicant had self-rehabilitated to a remarkable degree. The sentencing judge, however, found that the applicant was not especially remorseful. His Honour said:

11. [11]

    The sentencing judge took into account the applicant’s age at the time of sentence (70 years old). There were no findings of mitigation based on the principles of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 or Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

12. [12]

    The applicant advanced two grounds seeking leave to appeal:

13. [13]

    In relation to ground 1, the critical passage of the agreed facts for the purpose of ground 1 provided:

14. [14]

    In the course of submissions by the parties the sentencing judge demonstrated that he clearly understood this agreed fact. His Honour said:

15. [15]

    In the sentencing judge’s ex tempore remarks on sentence, delivered a few minutes later, the sentencing judge said:

16. [16]

    The outcome of ground 1 of this appeal turns on the extent, if any, the italicised words in paragraph [15] depart from the agreed facts in paragraph [13]. This sentence taken from the sentencing remarks contains the matters about which the applicant complains contain errors of fact.

17. [17]

    The applicant submitted that the test to be applied by the Court in assessing a challenge to a factual finding was House v The King (1936) 55 CLR 499 at 504; [1936] HCA 40 and that the test set out in R v O’Donoghue (1988) 34 A Crim R 397 at 401, whether the finding of fact was open to the sentencing judge, was incorrect and should no longer be followed. For that reason, this Court sat five judges. The applicant submitted that the correct approach was to assess error in a sentencing appeal by applying the test outlined in House v The King; that is, did the sentencing judge “mistake the facts”.

18. [18]

    The applicant also submitted that, whatever test was applied, error was established here because there was “no evidence” that the similar sexual offending the subject of the agreed facts was “sexual intercourse” nor that the period of the “uncharged conduct” was 12 months long.

19. [19]

    The Crown submitted that the test for a challenge to a factual finding set out in R v O’Donoghue was of long standing and correct. The test was submitted to be consistent with House v The King.

20. [20]

    The Crown submitted that, in any event, the applicant had mischaracterised the finding of the sentencing judge and that the judge’s ex tempore remarks on sentence should be read fairly, in context and without an eye attuned to error. When read in this way the applicant’s complaints could not be sustained.

21. [21]

    In relation to ground 2, the applicant submitted that the sentence imposed is manifestly too long and intervention was warranted because there must have been an error in approach.

22. [22]

    It is perhaps surprising that over 110 years after the passage of the Criminal Appeal Act 1912 (NSW) there remains any doubt about the correct test to be applied by the NSW Court of Criminal Appeal when considering a challenge made to a sentencing judge’s findings of fact. Although, as we will explain, the present case is a poor vehicle to explore the application of all aspects of that test, the challenge to the continuing application of the O’Donoghue test is of sufficient importance that its continued application should be addressed now.

23. [23]

    An appeal is available to a person convicted on indictment “with the leave of the court against the sentence passed on the person’s conviction”: Criminal Appeal Act 1912 (NSW), s 5(1)(c).

24. [24]

    The Criminal Appeal Act does not prescribe the grounds or basis for such an appeal. Nor, in contrast to other more recently introduced provisions, such as s 5F of the Criminal Appeal Act, does it state whether fresh, additional or substituted evidence may be relied upon by the offender.

25. [25]

    The Criminal Appeal Act does, however, confer powers in determining a sentence appeal:

26. [26]

    In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 the joint reasons of French CJ, Hayne, Bell and Keane JJ stated:

27. [27]

    The High Court in Kentwell accepted a statement of Spigelman CJ in Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284, clarifying a passage in an earlier judgment, R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [79]:

28. [28]

    Having explained the necessity, in the case of demonstrated error, to re-exercise the sentencing discretion, the joint reasons in Kentwell continued:

29. [29]

    There are, of course, certain, limited, cases where this Court simply adjusts a sentence rather than proceeds to resentencing, for example, where there has been an arithmetical error in fixing the sentence: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255; Green v R [2022] NSWCCA 230; Murray v The King [2024] NSWCCA 107.

30. [30]

    The process by which a court arrives at the sentence to be imposed on an offender has just as much significance for the offender as the process by which guilt or innocence is determined. Unless the legislature has limited the sentencing discretion, a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which the judge proceeds. In particular, the sentencing judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important: see, for example, The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.

31. [31]

    A plea of guilty admits the elements of the offence [1] : Olbrich at [4]. Determining the elements of an offence is critical in determining the subsequent application of the principles of autrefois acquit and autrefois convict: Island Maritime Limited v Filipowski (2006) 226 CLR 328; [2006] HCA 30.

32. [32]

    If convicted after a jury trial, the obligation of the sentencing judge is to find facts for the purposes of sentencing consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 378; The Queen v De Simoni (1981) 147 CLR 383 at 392; [1981] HCA 31 per Gibbs CJ. Beyond admitting the elements of an offence, a plea of guilty leaves at large the facts to be found by the sentencing judge on sentence.

33. [33]

    As to how the facts are found on sentence, it is a matter of interest that in NSW the Evidence Act 1995 makes clear that the Act does not apply in the absence of a direction given pursuant to s 4 of that Act: Wass v R [2022] NSWCCA 143 and the cases cited at [87]. The assumption underlying the section, that in the absence of the Evidence Act applying it will be easier to prove certain matters by applying “the law of evidence unaffected by that Act” is perhaps contestable but does not affect the present analysis. In R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413 at [61] Giles JA (Levine and Sperling JJ agreeing) said:

34. [34]

    As Giles JA explained, to facilitate sentence proceedings, facts may, and often are, placed before the judge in the form of a statement of facts agreed between the parties. There may, in some cases, be written or oral evidence given on sentence. Often, there will be expert evidence given orally or more usually in writing on sentence, from, for example, psychologists. Sometimes there will be written pre-sentence reports from other professionals. These reports may contain assertions of fact, often given directly by the offender to the maker of the report. There will often be written evidence attesting to the prior good character of the offender.

35. [35]

    There may be a dispute about some, or all, of the primary facts and the inferences to be drawn from these facts for the purposes of the sentencing hearing. The practice in relation to acceptance of documentary evidence in sentence proceedings has been the subject of detailed consideration. Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) a sentencing judge may place little weight on unsworn assertions when no evidence is given by the offender. We emphasise, however, that although a sentencing judge may place less weight on unsworn assertions, for example of remorse, there is no legal principle which requires a sentencing judge to do so: Towers v R [2025] NSWCCA 142 at [8]-[9]. Statements made by an offender to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, may be treated with circumspection: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] – [25]. It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. As Stern JA explained in Shortland v R [2024] NSWCCA 174 at [55], in every case it is for the sentencing judge to assess what weight should be given to such evidence.

36. [36]

    If oral evidence is given in sentencing proceedings, the sentencing judge will need to determine whether to accept that evidence in whole or in part. On appeal, the usual restraint in appellate intervention is warranted in relation to findings about oral evidence. In Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55], Bell, Gageler, Nettle and Edelman JJ explained that even in a case where the appellate function involves a rehearing, appellate restraint is warranted in relation to a trial judge's findings of fact unless those findings are "glaringly improbable" or "contrary to compelling inferences" if those factual findings "are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence".

37. [37]

    The obligations on the parties in facilitating fact finding by a sentencing judge are that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for an offender who seeks to have the sentencing judge take a matter into account in passing sentence to bring that matter to the attention of the judge and, if necessary, call evidence about it. We say "if necessary" because the calling of evidence would be required only if the asserted fact is controverted or not accepted by the opposing party: Olbrich at [25].

38. [38]

    As to the standard of proof for the purposes of a sentencing decision, in Olbrich, the High Court said:

39. [39]

    A sentencing judge must do much more than simply make findings of primary fact and draw inferences from those primary facts. Sentencing involves a process of "instinctive synthesis" by the sentencing judge of a number of different considerations: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. Many different factors, pulling in different directions, will need to be balanced: Elias v R (2013) 248 CLR 483; [2013] HCA 31 at [27]. A "two-tier process" whereby the sentencing judge "first determines a sentence by reference to the 'objective circumstances' of the case" and then "increases or reduces this this hypothetical sentence … by reference to other factors" is inconsistent with the "instinctive synthesis" approach and erroneous: Markarian at [51].

40. [40]

    In this context, it is significant that this process of instinctive synthesis entails and depends upon the exercise of a judicial discretion by the court imposing it: House v The King. The discretion which the law commits to sentencing judges is a wide one and has been described as being "of vital importance in the administration of our system of criminal justice": Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15].

41. [41]

    In NSW, s 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a court may impose a sentence on an offender:

42. [42]

    There are many important evaluative decisions that usually must be made by a sentencing judge, including, identifying the objective seriousness of the offence, the need for general deterrence, the need for specific deterrence and a raft of matters relevant to the offender’s personal circumstances. There are also many matters of detail requiring consideration in fixing an appropriate sentence. Section 21A of the Sentencing Procedure Act requires that the following matters be taken into account in imposing sentence:

43. [43]

    A number of the matters addressed by s 21A(2) and (3) involve questions of primary fact. Others are conclusions based on findings of primary fact and inferences drawn from those facts.

44. [44]

    In addition to these statutory considerations, a range of additional sentencing principles, perhaps the most important of which are totality and parity, (as explained by the High Court), need also to be applied.

45. [45]

    A number of the critical matters about which a sentencing judge may be required to form a view plainly call for matters of evaluative judgment. A classic example is the objective seriousness of the offending. In an oft cited passage in Mulato v R [2006] NSWCCA 282 Spigelman CJ said:

46. [46]

    As we will explain, whether an evaluative finding is “reasonably open” is an appropriate description of the appellate task in a sentencing appeal.

47. [47]

    The seminal case about the standard of appellate review of criminal sentencing, House v The King, involved an appeal from a sentence of imprisonment imposed by the Court of Bankruptcy (NSW Division). As a matter of historical interest, the High Court made clear that it was not addressing the appropriate test to be applied by the Court of Criminal Appeal. Notwithstanding this, House v The King has subsequently been treated by all levels of the judicial hierarchy as applicable to sentence appeals in the NSW Court of Criminal Appeal. In House v The King, Dixon, Evatt and McTiernan JJ said at 504-505:

48. [48]

    The House v The King standard of review is to be contrasted with what the High Court has described as the “correctness” standard explained in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9. In a number of recent cases, for example, GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32, the High Court has applied the correctness standard to what had earlier been held to be decisions to which House v The King was the appropriate standard of appellate review. In GLJ, Kiefel CJ, Gageler and Jagot JJ held the decision to grant a stay was an evaluative but not a discretionary decision and, thus the "correctness standard" as explained in Warren v Coombes applied:

49. [49]

    Of course, Warren v Coombes was a case where the High Court explained the obligations of the Court of Appeal in conducting an appeal by way of rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW). In Warren v Coombes the majority said:

50. [50]

    Perhaps understandably, given the application of the “correctness” standard in many recent cases to what was formerly thought to be evaluative decision making counsel devoted significant time in the present case to identification of sentence appeals in this State as involving demonstration of error. We accept the Director’s submission that in a sentence appeal in NSW error must be demonstrated. This Court does not conduct a rehearing. Kentwell (and numerous earlier High Court authorities) say as much.

51. [51]

    The real question in this case, however, is different. At the heart of this case is the meaning and continuing utility of a statement of Hunt J in R v O’Donoghue (1988) 34 A Crim R 397 at 401 in the following terms:

52. [52]

    As N Adams J explained in McLaughlin v R [2025] NSWCCA 13 at [142]:

53. [53]

    How O’Donoghue came to represent the test for deciding appellate challenges to factual findings in sentence appeals in NSW is a matter of considerable curiosity. O’Donoghue was concerned with an appeal against conviction, to be addressed under s 6(1), not s 6(3) of the Criminal Appeal Act. Further, O’Donoghue was dealing with a finding by a trial judge on a voir dire relevant to the admissibility of evidence. As the Director correctly pointed out on this appeal, however, O’Donoghue has been cited in this Court on many occasions since 1988 as authority for the proposition that a challenge to factual findings made by a sentencing judge is decided on whether the findings were “open” on the evidence before the sentencing judge.

54. [54]

    Doubt has been expressed in this Court about the approach in R v O’Donoghue in Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150, and Hordern v R [2019] NSWCCA 138; 278 A Crim R 353. In Hordern v R, Basten JA concluded at [20] that the “constrained approach” in R v O’Donoghue should no longer be followed. His Honour’s reasons for coming to this conclusion are set out at [5]-[19] in Hordern. An important part of Basten JA’s reasoning is that to require applicants to establish that a factual finding was “not open” to a sentencing judge goes beyond the error identified in House v The King of simply “mistak[ing] the facts” and applies a different test of an error of law.

55. [55]

    Two cases, in particular, were relied upon by the Director in this Court as providing an answer to the criticisms of the O’Donoghue test made in Clarke and Hordern. In AB v R [2014] NSWCCA 339, Simpson J, with whom Meagher JA and Wilson J agreed, took a different view and cited earlier High Court authority as supporting the approach in O’Donoghue. Simpson J held:

56. [56]

    It is true, as Simpson J points out in AB that Skinner v The King (1913) 16 CLR 336; [1913] HCA 32 perhaps provides some support for the O’Donoghue formulation, although Barton ACJ’s formulation of a sentencing judge having “overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence” is closer to the House v The King formulation of “mistaking the facts” and arguably inconsistent with the O’Donoghue test. AB, however, does not mention House v The King and does not assist in resolving the question of whether the O’Donoghue test is inconsistent with the House v The King test.

57. [57]

    The second case relied upon by the Director as providing reasoned support for the continuing utility of the O’Donoghue test was Ghobrial v R [2021] NSWCCA 221. In Ghobrial the question was whether or not “exceptional circumstances” had been established. The importance of this finding was that in the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 it had been said that, absent exceptional circumstances, a sentence of full-time imprisonment was to be imposed for the offence of armed robbery. Accordingly, the case is one far removed from a challenge to a finding of primary fact or an inference drawn from a finding of primary fact. Nevertheless, in supporting the continued application of the O’Donoghue test, Button J said:

58. [58]

    Although the fifth reason given by Button J is no longer the law (see Steven Moore (a pseudonym) v The King [2024] HCA 30, (2024) 98 ALJR 1119), the decision of Ghobrial is correct in that the question of whether or not “exceptional circumstances” had been established was a matter of evaluation and the appellate review of that decision was to be undertaken by reference to the test in House v The King. The citation of O’Donoghue for the proposition that a sentencing appeal is not an appeal by way of re-hearing is no doubt correct (see Kentwell) but, beyond that, Ghobrial provides no support for the constrained approach to appellate review of findings of primary fact for which O’Donoghue is sometimes cited.

59. [59]

    The debate about the difference between appeals being by way of rehearing and appeals requiring the demonstration of error has been settled by the High Court. Respectfully, we do not agree that these different characterisations, which can be very important in determining some questions, actually address the present question.

60. [60]

    We have concluded that when the key passage is fairly considered, the O’Donoghue test imposes a different and more stringent test for appellate review of factual error than House v The King. To say that “error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself” is to describe an error of law. It imposes a different and more stringent test than asking whether a sentencing judge “mistakes the facts”, which is an error warranting intervention according to the House v The King test.

61. [61]

    That the O’Donoghue test is one for determining an error of law may be seen by considering Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 where Hayne, Heydon, Crennan and Kiefel JJ explained that

62. [62]

    Accepting, as we do, that in a sentence appeal this Court corrects error and does not conduct a rehearing, correction of error includes correcting factual error. Shortly put, it is an error within the meaning of House v The King for a sentencing judge to “mistake the facts”.

63. [63]

    House v The King clearly identifies relevant error as including a case where the sentencing judge “mistakes the facts”. O’Donoghue provides a different and more stringent test: “Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way”.

64. [64]

    Finding that there is no evidence to support a particular finding is a materially different conclusion from one where there is evidence, but that evidence has been misunderstood or mistaken by a sentencing judge. If, in a sentencing hearing, evidence is led that 30kg of a prohibited import was seized but the sentencing judge makes a finding of fact that 40kg of a prohibited import was seized it is artificial in the extreme to talk of there being “no evidence” of the weight of the prohibited import seized. There is evidence of the weight of the prohibited import seized but the sentencing judge has mistaken the facts in acting on that evidence. It is true that one could perhaps analyse this example by concluding that there was “no evidence” of the precise quantity of prohibited import, 40kg. This approach would convert errors of fact into errors of law. More importantly, it would do away with the High Court’s finding in House v The King that mistaking the facts is an error warranting appellate intervention.

65. [65]

    It is not for this Court to reformulate the canonical description of the High Court in House v The King of the types of error warranting appellate intervention in sentencing appeals. As a matter of first principle, the O’Donoghue test is inconsistent with House v The King.

66. [66]

    As we will explain, there was eventually a large measure of common ground between the parties about the appropriate test to be applied when assessing challenges to factual findings in this Court. Nevertheless, O’Donoghue is a distraction from the correct test, that set out in House v The King and should no longer be followed. The risk is that application of the O’Donoghue formulation may involve a deviation by this Court from its obligation faithfully to follow the decisions of the High Court.

67. [67]

    We do not think that the other High Court case relied upon by the Director, Commonwealth of Australia v Sanofi [2024] HCA 47; [2024] 99 ALJR 213 has much to do with the present question. In that case there were concurrent findings of fact by a trial judge and a Full Court of the Federal Court. The question being addressed by the High Court was at [24]:

68. [68]

    In addressing that question the High Court held:

69. [69]

    In the course of oral argument in the present case, it emerged that the position of the parties was much closer than first appeared by reference to the written submissions. That is, both parties accepted that the test for appellate review of a factual finding in a sentencing appeal was whether the finding was “reasonably open”. Both parties accepted the House v The King test of appellate review as governing and each urged a test of whether a finding was “reasonably open” as being an appropriate and correct test for appellate review of factual findings. It is perhaps instructive to set out in more extensive detail than usual the course of argument:

70. [70]

    Later, the Director submitted:

71. [71]

    Mr Buchen SC, who appeared for the applicant, initially pointed out that “The O’Donoghue test doesn’t use the language of, was it “reasonably open”. The language in the O’Donoghue test is whether error may be demonstrated if there is no evidence to support a particular finding or if the evidence is all one way or if the judge has misdirected himself”. The closeness of the parties’ ultimate positions, however, was encapsulated in the following exchange:

72. [72]

    We have concluded that House v The King is the governing test for appellate review of sentencing decisions. We accept Mr Buchen SC’s submission that the O’Donoghue test does not use the language of “reasonably open”. As we have said, the O’Donoghue test is a distraction and should no longer be followed. Rather than seek to define the O’Donoghue test by using different language to make it consistent with House v The King it is preferable that this Court clearly state that the House v The King test is the test to be applied without any gloss by reference to O’Donoghue.

73. [73]

    We accept the Director’s submission that an appropriate and correct test in a sentence appeal to ascertain the existence of a mistake of fact for the purposes of House v The King is to ask whether the finding was reasonably open. If the finding was not “reasonably open”, a sentencing judge has mistaken the facts. Ordinarily, this will apply to a finding of primary fact or an inference drawn from a finding of primary fact. In either case, if the sentencing judge has mistaken the facts in the sense that the finding was not “reasonably open” and, if the error is material, House v The King error will have been established.

74. [74]

    So far as evaluative findings of fact made as part of the sentencing exercise are concerned, they may be shown to be in error only if not “reasonably open”. A principle of appellate restraint thus applies to evaluative findings. As the applicant in this case accepted, if a finding may be described as “reasonably open”, it is not an error. There will no doubt be cases on the borderline between findings of primary fact and inferences drawn from these facts not reasonably open and truly evaluative findings to which the “reasonably open” formulation may be applied. The present case is not the occasion to seek to resolve all such questions.

75. [75]

    Before leaving the question of the correct test, we wish to make clear that there are a number of existing principles which are unaffected by the “reasonably open” test.

76. [76]

    First, nothing we have said is intended to disturb the approach of appellate restraint to demeanour based credit findings about matters of primary fact made by a sentencing judge.

77. [77]

    Secondly, nothing we have said is intended to disturb the well established approach of an appellate court to reasons given ex tempore. Such reasons should not be overly scrutinised with an eye attuned to error, nor “picked over”: Tukuafu v R [2024] NSWCCA 84 at [133]; MF v R [2024] NSWCCA 42 at [48]. This approach is an acknowledgement of the considerable sentencing workload placed upon sentencing judges and to the desirability, where possible, of sentencing judgments being delivered ex tempore and the benefits to the criminal justice system when they are. The focus is upon the substance of the reasons, reading them fairly and as a whole: Monardo v R [2025] NSWCCA 199 at [130]-[131].

78. [78]

    Thirdly, nothing we have said is intended to disturb the well established approach to statements made by an offender to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court. In every case, it is for the sentencing judge to assess what weight should be given to such evidence. It is not to “mistake the facts” to give little weight to an untested statement made by an offender to a third party.

79. [79]

    Fourthly, in applying the House v The King test to findings of primary fact, it is only if the finding is material that error is established. In Vaiusu v R [2022] NSWCCA 283; 305 A Crim R 75 Kirk JA explained:

80. [80]

    The statement in Kentwell quoted by Kirk JA above was earlier addressed by Basten JA in Newman (a pseudonym) v R [2019] NSWCCA 157at [11]. There Basten JA explained that the High Court in Kentwell upheld the analysis of Spigelman CJ in Baxter v The Queen, [2007] NSWCCA 237; 173 A Crim R 284 at [19], to the effect that the Court had to re-exercise the sentencing discretion “when the Court has determined that the exercise of the discretion had miscarried”. As Basten JA concluded, an immaterial error does not lead to a conclusion that the exercise of the discretion has miscarried.

81. [81]

    In Benn v R [2023] NSWCCA 24 Gleeson JA explained the importance of materiality thus:

82. [82]

    In the now-definitive High Court case on materiality in cases of jurisdictional error, LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, the Court said at [7]:

83. [83]

    As most recently explained by this Court in Button v R [2025] NSWCCA 191, a statement made by the sentencing judge that at one point Mr Button was travelling within the roundabout at nearly twice the estimated rollover tipping point speed would be accurate if qualified by recognition that the tipping point speed there referred to was that at the entry to the roundabout, not later when driving within it. The statement impugned by Mr Button was incomplete unless it is qualified. The Court nevertheless held that, to the extent that there was an erroneous factual finding that the highest recorded bus speed was nearly twice the estimated rollover tipping point speed of 31km/h, it was not a material error (at [170]).

84. [84]

    The two grounds of appeal have been set out above.

85. [85]

    Although framed as a challenge to a factual finding, resolution of ground 1 requires first an exercise of characterisation. The statement of Agreed Facts provided that “these three incidents were not isolated and further sexual conduct occurred between the offender and the victim when she was 13 years old”.

86. [86]

    The sentencing judge’s finding was that “these offences were not isolated incidents so Mr Hancock is not being sentenced for individual aberrations of offending but for offences which took place against a background of similar offending around a period of about 12 months”.

87. [87]

    The factual “errors” said to arise from this passage are:

    1. (1)

       The nature of the further sexual contact was unknown;

    2. (2)

       How many times further conduct occurred was unknown; and

    3. (3)

       Over what period the further conduct occurred was unknown.

88. [88]

    Accordingly, so that argument goes, the sentencing judge erred in mistaking the facts in two ways:

    1. (1)

       It was an error to find that the further sexual conduct was “similar offending” to the sexual intercourse charged; and

    2. (2)

       It was an error to find that the further “sexual conduct” occurred for a period of about 12 months.

89. [89]

    It was submitted that “on one view” the finding should be understood as being that for approximately 12 months the applicant had engaged in sexual intercourse offences or similar with the victim and that the three charged occasions “were representative of a more significant pattern of like conduct”.

90. [90]

    We do not agree. This judgment was given ex tempore on the same day immediately after the oral submissions. During the course of oral submissions the sentencing judge said:

91. [91]

    His Honour clearly and correctly recited the terms of the agreed facts.

92. [92]

    To conclude that a few minutes later in his ex tempore reasons his Honour should be understood to have found something quite different, that for approximately 12 months the applicant had engaged in sexual intercourse offences with the victim, is to misstate the sentencing judge’s factual finding.

93. [93]

    The correct characterisation of his Honour’s finding was that the applicant was not entitled to have the three offences treated as isolated instances of offending because of the fact that he had engaged in “similar offending” with the victim when she was 13.

94. [94]

    “Similar offending” is plainly a reference to what the agreed facts stated. His Honour should not be taken to have found anything more. It was “similar offending” because it was sexual offending by the applicant against the 13 year old victim. The appropriate level of generality with which you interpret “similar offending” is an exercise not to be undertaken with an eye attuned to error. In circumstances where the sentencing judge repeated the agreed finding a few minutes earlier, we would not conclude that his Honour should be taken to have found that the applicant had engaged in sexual intercourse offences with the victim and that the three charged occasions “were representative of a more significant pattern of like conduct”.

95. [95]

    As the Chief Justice put this point in argument:

96. [96]

    A similar conclusion applies to the applicant’s complaint about timing. We do not accept that the sentencing judge “has drawn the worst inference” from paragraph 16 of the agreed facts. In context, his Honour’s finding is plainly a reference to the agreed facts. The sexual conduct occurred between the applicant and the victim when she was 13.

97. [97]

    The sentencing judge did not mistake the facts within the meaning of House v The King. We would reject ground 1.

98. [98]

    Ground 2 contends that the sentence imposed was manifestly excessive.

99. [99]

    Manifest excess, like manifest inadequacy is a conclusion. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this Court might have exercised the sentencing discretion differently.

100. [100]

     There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust. These principles are well established: see, for example, Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 and Hughes v R [2018] NSWCCA 2.

101. [101]

     We would reject ground 2. The maximum penalty for each offence was 10 years’ imprisonment. The applicant was the victim’s stepfather. The victim was an orphan and dependent upon the applicant. The offending was objectively serious and took place in the victim’s home, which is a statutory aggravating factor. Count 4 involved ejaculating into the victim's vagina, exposing her to the risk of pregnancy. The form 1 to be taken into account on count 3 was itself a serious offence.

102. [102]

     Three separate counts of penile-vaginal sexual intercourse with the applicant’s 13 year old stepdaughter are each deserving of condign punishment. The offending was not an aberration. The applicant engaged in other sexual conduct with the victim when she was 13 years old. General deterrence as a sentencing factor loomed large in this case. The applicant had a favourable subjective case because of his age and his demonstrated rehabilitation.

103. [103]

     The indicative sentences of five years, six years and six years for the three offences do not betray any error. There was a large measure of notional concurrency in the aggregate sentence imposed.

104. [104]

     The case principally relied upon by the applicant, R v Carey [2024] NSWCCA 90 is distinguishable from the present case. The offender in that case was “a kind of a father figure” but not, as in this case, the victim’s stepfather. Most of the offending did not occur in the victim’s home. The offending was of a different kind. Three of the counts involved digital penetration and one involved touching the victims’ clitoris. Even accepting that the aggregate sentence in this case appears stern when compared to Carey, it has not been shown the sentence imposed in the present case was manifestly excessive.

105. [105]

     The aggregate sentence imposed in this case of 9 years with a non-parole period of 6 years, was not manifestly excessive. we would dismiss ground 2.

Conclusion and proposed orders

1. [106]

   For the foregoing reasons, we make the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.