R v Stefanac

1. [1]

   BEECH-JONES CJ at CL: I have read the judgments of each of Hamill J and N Adams J. The judgment of Hamill J comprehensively sets out the background to the appeal and the issues that arise. I agree with his Honour’s reasons for dismissing ground 3 of the notice of appeal. In relation to the balance of the appeal I agree with N Adams J and the sentence her Honour proposes.

2. [2]

   HAMILL J: On Wednesday 22 September 2021, Brandon Branko Stefanac was sentenced to an aggregate term of imprisonment of 8½ years, with a non-parole period of 5 years, for 12 serious offences involving the sexual abuse of two 13-year-old children. The children must not be identified and I will refer to them by the pseudonyms “Annalise” and “Laura”. [1] The offences were committed between late April and the middle of July 2020. In addition to the 12 offences, the respondent asked that a further 18 offences, related to the charged offences, be taken into account in sentencing. The respondent pleaded guilty at an early stage and received a 25% discount which was, in accordance with authority, applied to the individual indicative sentences.

3. [3]

   The Director of Public Prosecutions (“the Director”) appeals against the asserted inadequacy of the aggregate sentence imposed by Judge English. The Director raises three grounds of appeal, which are in the following terms:

   1. (1)

      Her Honour erred by failing to properly apply the totality principle.

   2. (2)

      The sentence pronounced is manifestly inadequate.

   3. (3)

      The sentencing Judge failed to properly take into account the standard non-parole period applicable to the offences contrary to s 66C(2) of the Crimes Act 1900 (NSW) being sequences 30, 4, 36, 37, 31, 33, 35, 38, 41 and 46.

4. [4]

   The appellant does not submit that the individual indicative sentences nominated for the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were manifestly inadequate, although it does submit that those sentences were lenient, particularly those to which a standard non-parole period attached. [2] Rather, the Director submits that the total aggregate sentence failed to encompass the entirety of the criminality engaged in by the respondent and, further, that the sentence did not vindicate the dignity of the two individual victims. Both parties argued the appeal by first addressing ground 3, asserting that the sentencing Judge failed properly to take the standard non-parole period into account, before moving to interrelated complaints concerning an alleged error in the application of the totality principle (ground 1) and the general complaint that sentence was manifestly inadequate (ground 2).

5. [5]

   While the sentence imposed by Judge English might be considered to be lenient – and some may consider it to be very lenient – I do not accept that it falls outside the wide discretionary range entrusted to the sentencing Judge when all relevant circumstances are given appropriate weight. Further, I am not persuaded that the grounds asserting specific or patent legal error on the part of the sentencing Judge – grounds (1) and (3) – are established on a fair reading of the whole of the sentencing judgment. I would dismiss the prosecution appeal. While it is unnecessary to decide the issue, I would add that there are also strong reasons in this case to exercise the residual discretion to dismiss the appeal.

6. [6]

   These are my reasons for those conclusions.

The facts of the offences

1. [7]

   It is necessary to set out the facts of the offences as they were agreed before the District Court. The Director’s written submissions contained a helpful narrative summary of the agreed facts, which were also recounted in the sentencing judgment. The Director’s summary is sufficient for the purpose of exposing my reasons. I am grateful to counsel for that summary, which I now reproduce in full: [3]

2. [8]

   The conduct constituted grave offending on the part of the respondent and an egregious breach of trust of the two children he abused. Annalise was vulnerable and her parents, no doubt bewildered and at a loss as to how to help their daughter, allowed her to return to Sydney reposing great trust in the respondent. Instead of providing her with a safe haven, he abused that trust and become enmeshed in an intensely sexual relationship with a 13-year-old child. While this was not an example of predatory paedophilic behaviour of the kind too often seen, and while the sentencing Judge described the offending as “opportunistic”, [4] this does not diminish the seriousness of the offending to an enormous degree. It must be remembered that Annalise was struggling with a number of personal issues at the time and the respondent accepted the responsibility of taking care of her.

Subjective and mitigating circumstances

1. [9]

   The respondent entered an early plea of guilty and received a 25% reduction in the otherwise appropriate sentence. A psychologist’s report was tendered on his behalf and this was balanced and insightful. Judge English made a number of favourable findings that militated in favour of a lenient disposition of the matter. None of these findings were challenged. These included:

Maximum penalties, standard non-parole periods and Judge English’s findings as to objective seriousness of the offences

1. [10]

   The aggravated sexual intercourse offences, pursuant to s 66C(1) of the Crimes Act 1900 (NSW), each carried a maximum penalty of 14 years and a standard non-parole period of 9 years. The maximum penalty for the sexual touching offences, pursuant to s 66DB(a) of the Crimes Act, was 10 years with no standard non-parole period.

2. [11]

   The Director’s submissions contained a helpful table setting out the 12 charged offences, noting the Form 1 matters taken into account, and the individual indicative sentences nominated by the sentencing Judge pursuant to ss 54A and 54B of the Crimes (Sentencing Procedure) Act. Again, with gratitude to the appellant’s counsel, I reproduce that table: [9]

3. [12]

   Her Honour made clear, if briefly expressed, findings of the relative objective seriousness of each of the offences for which the respondent stood to be sentenced. However, those pithy findings – made necessary perhaps by some of the applicable sentencing legislation – must be read in the light of the whole of the sentencing judgment. For example, her Honour found the offending to be “opportunistic” rather than “predatory”. Her Honour accepted (in relation to the offences involving Laura), that the respondent did not set out to “ply these girls with alcohol” but that he did not monitor their consumption as a responsible adult should have and “[c]learly … took advantage of the resultant drunken state of the girls”. [10]

4. [13]

   Judge English described the offending against Annalise as a “gross breach of trust” and commented on that victim’s particular vulnerability. [11] Her Honour found the offences occurred in the child’s home and that the respondent’s moral culpability was high, noting the respondent took advantage and exploited the situation. Her Honour made it clear that that the fact that the complainant was “willing” and that the offences were “consensual” was “irrelevant” and “not a factor in mitigation”. As her Honour said, Annalise was a child and could not consent and that she did “not have the maturity to appreciate the nature and consequences for her as a result”. [12]

5. [14]

   The remarks relevant to the assessment of the objective gravity are sprinkled throughout the judgment. There is no suggestion by either party to the appeal that they were wrong, although there was some criticism of her Honour’s remark that there was “no physical abuse or force used”. However, that observation was almost immediately followed by the remarks about consent to which I have just referred. Her Honour merely remarked that features such as physical abuse and force “would have increased the seriousness of the offending”. [13]

6. [15]

   As to where the offences fell on the putative scale of objective seriousness, her Honour said:

7. [16]

   The Director did not challenge these findings. In fact, they are called in aid in relation to the suggestion that the Judge failed properly to apply the standard non-parole period.

Grounds of appeal

1. [17]

   The sentencing proceedings were held on 21 September 2021 and Judge English imposed sentence the next day. Given the workload of the District Court, it was for all intents and purposes the equivalent of an ex-tempore judgment. The suggested specific errors asserted under grounds 1 and 3, and the criticisms made of her Honour’s remarks in sentencing the respondent, must be considered in this context.

2. [18]

   The sentencing judgment set out with clarity the relevant objective and subjective circumstances of the case and the principles of law that were applied. It was, as counsel for the appellant acknowledged, a difficult sentencing exercise. Subject to those matters raised in arguing the specific grounds of appeal, no criticism was directed to the findings of fact made or to the principles of law applied. I will follow the lead of counsel for both parties and deal with ground 3 first, before moving to grounds one and two which the parties agreed are interrelated and dependent upon one another.

3. [19]

   There is no substance to ground 3, which asserts that Judge English failed properly to apply the standard non-parole periods to those offences to which it applied.

4. [20]

   The arguments turned on the following paragraph of the judgment on sentence:

5. [21]

   The Director suggested that the “only available construction” to be put on that passage is that her Honour embarked on a “two-tiered approach” to sentencing on the ten s 66C offences. It was submitted (in writing) that the passage used “remarkably similar” language to that used by the same sentencing Judge in Ryan v R [2019] NSWCCA 200 at [30]. [16] It was submitted that her Honour’s reference to the lack of threats or violence demonstrated error because lack of consent was not an ingredient of the s 66C offences. It was also submitted, at least implicitly, that the numerical difference between the indicative non-parole periods on the s 66C offences (ranging between 3 years and 3 years 9 months) and the standard non-parole period (9 years) indicated that her Honour failed to use the standard non-parole period as a legislative yardstick as required by the High Court’s decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and s 54B(2) of the Crimes (Sentencing Procedure) Act. [17]

6. [22]

   In response to the respondent’s written submissions, the Director’s argument was refined on the hearing of the appeal. Mr Quilter (counsel for the respondent) referred to several cases where appeals were dismissed despite the sentencing Judge using language that arguably suggested that they commenced with the standard non-parole period and “departed” from it for stated reasons. [18] At the hearing, the Director did not press the submission that there was a “two tiered sentencing process”, but argued that “this is one step or no step. This is a [departure] from the standard non-parole period without any other indication as to how it was used.” [19] Counsel still placed reliance on the use of the word “depart” or “departure” in reference to the standard non-parole period even though that language had been held to “pass muster” in other cases. [20]

7. [23]

   The Director’s reliance on the single paragraph from the sentencing judgment suffers the same vice as arguments made in a number of earlier cases. For example, in GP v R [2016] NSWCCA 150 Payne JA said at [60] that the “submission impermissibly analyses the impugned paragraphs divorced from their context in the judgment. It ignores the careful and detailed consideration of all features relevant to the determination of sentence that preceded them.” Again, in Bustescu v R [2020] NSWCCA 113 the Court held that error in the application of the standard non-parole period would not be inferred from a “single sentence of the sentencing remarks ... without the demonstration of a clear basis for [the inference of error]”. [21] In Hunter v R [2020] NSWCCA 285 Harrison J held the Court would be “slow to conclude or assume” error from apparently innocuous references to the standard non-parole period. [22]

8. [24]

   I am unable to accept the appellant’s submissions under this ground. Sentencing judgments ought not to be parsed or deconstructed as if it were an exercise in linguistics. Judge English’s remarks read fairly and as a whole do not give rise to the construction contended for by the Director. There is nothing to suggest that the impugned passage was a comprehensive statement of the reasons her Honour “departed” from the standard non-parole period. If it was, it could be argued that her Honour failed to consider the respondent’s lack of relevant past offending, or his troubled childhood, or the finding of special circumstances. None of those matters were mentioned in the passage relied on as demonstrative of error.

9. [25]

   The reliance placed on Ryan v R was inapposite, as (I think) counsel ultimately accepted on the hearing of the appeal. The error established in Ryan v R was of a different character. The only real similarities were that Judge English was the sentencing Judge and that her Honour employed the phrase “depart from the standard non-parole period”. In Ryan v R, her Honour used the phrase in asserting there was no basis to impose any lesser non-parole period. This Court held this was contrary to the High Court’s decision in Muldrock v The Queen because her Honour “appears to have given determinative significance to the standard non-parole period”. [23] There was nothing to suggest that Judge English adopted a two-tier approach to the process in the respondent’s case and the single paragraph relied on by the Director did not purport to comprehend all of the reasons her Honour indicated individual non-parole periods so far below the standard non-parole period. As in GP v R and the other cases referred to, the impugned remark must be read with the rest of the judgment. Considered in that way, her Honour fulfilled the requirement to provide reasons under s 54B(3) of the Crimes (Sentencing Procedure) Act 1999. [24]

10. [26]

    The implication that the passage of which complaint is made comprised all of her Honour’s reasons for indicating the individual non-parole periods ignores the rest of the judgment. That passage followed almost immediately upon Judge English’s analysis of the respondent’s subjective case, including the psychologist’s report and opinions, together with the fact that the respondent had (in essence) no previous convictions, presented with an admirable employment history, endured a loveless and troubled childhood and would find serving a gaol sentence more onerous than other inmates. All of those matters warranted consideration, along with the legislative guideposts, in determining the appropriate sentence and non-parole period to be imposed. Her Honour set out the standard non-parole periods and obviously took them into account. The failure to repeat the words of the High Court in Muldrock or similar words to the effect that the standard non-parole period is an important statutory “benchmark or guidepost” does not establish that her Honour did not approach the matter in accordance with well-established authority.

11. [27]

    Similarly, her Honour’s reference to the lack of violence and threats must be read in the context of her other remarks. I accept that this aspect of the Director’s argument has some force, but her Honour specifically said consent was no defence and that the conduct was exploitative and abusive. She referred to the respondent grabbing “hold of Laura’s throat and squeezed tightly so that she could not breathe” and, at another stage, put “his hands on Laura’s upper thighs … forcing her to stay there”. [25] I am unable to accept that one infelicitous remark establishes that her Honour erred in failing to take account of the standard non-parole period applicable to the offence or was not conscious of the degree of force used in the commission of the offences.

12. [28]

    The complaint made under ground 3 turns on a single paragraph of a lengthy judgment delivered the day after the case was argued. Reading that paragraph in the context of the whole sentencing judgment, the complaint cannot be sustained.

13. [29]

    I would reject ground 3.

14. [30]

    The parties submitted, jointly and correctly, that grounds 1 and 2 should be considered together. The appellant submits that the failure properly to apply the totality principle resulted in an aggregate sentence that is manifestly inadequate.

15. [31]

    At the heart of the Director’s argument is that the degree of “notional accumulation” of the individual indicative sentences within the total aggregate sentence was insufficient. It was submitted (correctly) that “any sentence for the offending against Laura could hardly contemplate, or at least only in a very limited sense the offending against Annalise, and vice versa.” Further, the appellant relied on the fact that the offending against Annalise fell into three distinct time frames.

16. [32]

    Reference might be made to the highest of the indicative sentences compared against the total aggregate sentence (8½ years with 5 years non-parole) to prove the point. So, for example, on sequence 46 (an aggravated sexual intercourse, by unprotected penile-vaginal intercourse, committed against Annalise) Judge English indicated a sentence of 7½ years with a non-parole period of 3½ years. The appellant submitted that the notional accumulation of 12 months on the total sentence and 1½ years on the non-parole period could not contemplate the criminality in the 11 other offences. The Director referred to sequence 4 (an aggravated sexual intercourse, by penile-vaginal intercourse, committed against Laura) where the same indicative sentence was imposed to make this point in their written submission. A similar argument can be founded based on sequence 37 (another aggravated penile-vaginal intercourse, committed against Annalise) for which Judge English indicated the highest indicative sentence (7½ years with a non-parole period of 3 years and 9 months).

17. [33]

    There is considerable force in these submissions, particularly with respect to the total sentence (as opposed to the non-parole period). A similar argument was made, and accepted, in a case argued on the same day as the present appeal: see R v McKenzie [2022] NSWCCA 119 at [104]-[109] (N Adams J, with whom Beech-Jones CJ at CL agreed) and [2], [10] (Hamill J).

18. [34]

    On the other hand, as the respondent submitted, the sentencing Judge specifically referred to the totality principle and the need for partial accumulation and this involved a discretionary judgment in relation to which judicial minds may reach different conclusions, neither of which is wrong: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64].

19. [35]

    The respondent also relied on the fact that the severity of a series of partially accumulated sentences may be more onerous than the statement of its parts. In R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 the Court (Spigelman CJ, Whealy and Howie JJ) put the matter this way:

20. [36]

    Against that, in applying the totality principle and ensuring the result of accumulation is not crushing, [26] there must be no “suggestion that what is in effect being offered is some kind of discount for multiple offending”. [27]

21. [37]

    The principles relating to totality and the related concepts of concurrency and accumulation are easy enough to state, but the practical application of the principles is often controversial. That is one of the reasons why intermediate appellate courts are hesitant before interfering with the broad discretion entrusted to the sentencing Judge.

22. [38]

    When an aggregate sentence is imposed, the question for the appellate court is not whether the individual indicative sentences disclose error but whether there is error in the aggregate sentence and non-parole period. Clearly enough, if error is disclosed in the indicative sentences, that may inform that ultimate question. However, the appeal is against the aggregate sentence.

23. [39]

    I do not accept the Director’s submission that the indicative head sentences were particularly lenient. The individual sentences must be assessed bearing in mind that there was a 25% reduction for the early plea of guilty and the fact that the respondent was (essentially) a first offender with a solid employment history and dysfunctional childhood. While the discount for the plea was properly applied to the indicative sentences, the notional starting point for the aggregate sentence is around 11½ years. [28] I do accept that the indicative non-parole periods were lenient but they were not manifestly wrong and, ultimately, as I have said, the appeal is directed to the aggregate sentence. The aggregate non-parole period was required to reflect the minimum period the respondent was required to spend in custody, reflecting the seriousness of the offending. [29] In doing so it was to reflect the Judge’s finding of special circumstances, the reasons for that finding and the difficulties the respondent was having, and will continue to have, in custody.

24. [40]

    Having considered the seriousness of the offending, including the number of offences and the need to recognise the harm done to the two young victims, I am unable to conclude that the aggregate sentence was manifestly inadequate in the sense that it was plainly unreasonable, unjust or “manifestly wrong”. [30] In reaching that conclusion, I have taken into account the respondent’s personal background and circumstances, his lack of relevant prior convictions and the onerous conditions of custody which bear more heavily upon him for the reasons explained by the sentencing Judge. [31]

25. [41]

    I am unable to accept grounds 1 and 2.

Residual discretion

1. [42]

   The respondent also tendered evidence and made arguments concerning the exercise of the residual discretion, a matter upon which the prosecutor would bear the onus. The evidence and arguments were persuasive. They include the delay in the appeal coming on for hearing, the personal circumstances of the respondent, the disruption of his progress in custody and recent threats he has received in gaol. However, it is unnecessary to consider the matter further in view of the conclusions I have reached in relation to the prosecution appeal.

Orders

1. [43]

   I would make the following order:

   1. (1)

      The Prosecution appeal against sentence is dismissed.

2. [44]

   N ADAMS J: I have had the advantage of reading the judgment of Hamill J in draft. I agree with his Honour that no error has been shown in relation to ground 3 for the reasons provided by his Honour. I am not persuaded that Judge English embarked on a two-tier approach as the Director contends.

3. [45]

   As for grounds 1 and 2, I have arrived at a different conclusion to Hamill J on the question of whether the sentencing judge erred in her application of the totality principle resulting in the imposition of a manifestly inadequate aggregate sentence. I would allow the Crown appeal. I am grateful to Hamill J for his summary of what occurred before the sentencing judge, her Honour’s reasons on sentence, and the respective submissions of the parties in this Court. My reasons for arriving at a different conclusion assume familiarity with Hamill J’s judgment. I propose to adopt the same pseudonyms for the two children as his Honour has.

4. [46]

   As Hamill J has observed, the Director did not challenge any of the findings of the sentencing judge. Nor is it contended in this Court that the indicative sentences were manifestly inadequate. In those circumstances, the nub of the Director’s appeal is that the aggregate sentence imposed by Judge English does not reflect the objective criminality of the sexual offending against two 13-year-old children. This being so, my reasons will be confined to addressing the question of whether error is established in the application of the totality principle.

5. [47]

   The totality principle applies when an offender, such as the respondent, is to be sentenced for two or more offences. It also applies to the imposition of an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”): JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39]. The sentencing judge was required to first arrive at an appropriate (indicative) sentence for each offence and then have regard to issues of concurrence and accumulation: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. In Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41, Howie J described the approach to determining the degree of concurrence and accumulation between sentences as follows at [27]:

6. [48]

   The consideration of whether her Honour erred in the application of the totality principle in this matter thus involves an assessment of the extent to which some or all of the indicative sentences could comprehend and reflect the criminality involved in the other offences.

7. [49]

   The respondent stood to be sentenced for 12 child sexual assault offences relating to two 13-year-old children. Of those 12 offences, ten were offences contrary to s 66C(2) of the Crimes Act 1900 (NSW) carrying a maximum penalty of 14 years’ imprisonment and a standard non-parole period of 9 years’ imprisonment. The remaining two offences were sexual touching contrary to s 66DB(a) of the Crimes Act carrying a maximum penalty of 10 years’ imprisonment with no standard non-parole period prescribed. A further 18 offences were taken into account on Forms 1 pursuant to s 32 of the Sentencing Act.

8. [50]

   Turning first to consider the criminality in relation to the child Annalise, as the sentencing judge acknowledged, the offences against her were an egregious breach of trust in relation to a vulnerable victim. As noted in the agreed facts set out at [7] above, Annalise told police that the respondent had sexual intercourse with her most of the times she was intoxicated. He would provide her with alcohol. She referred to him as “Daddy No 2”. He was 44 years old and a father figure to her at the time of the offences. He met her when she was aged between 7 and 9 years old. She was 12 years old when she moved in with him on 19 September 2019 and she turned 13 on 21 October 2019. Her Honour was unable to be satisfied beyond reasonable doubt that the sexual offending commenced whilst she was still 12. The respondent was sentenced on the basis that Annalise was 13 years old at the time the offending against her commenced.

9. [51]

   The offending in relation to Annalise took place over three time periods. The first period (sequences 31-34) comprised the months immediately after she moved in with the respondent when he first assumed responsibility of parenting her. The second period was on and around 24 April 2020 which included the sexual assaults on both Annalise and Laura during the sleepover. The third period was from 6 to 12 July 2020 and was referable to the sexual assaults on Annalise which the respondent recorded on CCTV.

10. [52]

    Annexed to the statement of agreed facts are extracts of some text messages exchanged between the respondent and Annalise. As her Honour noted in her sentencing remarks, many of the messages included sexual content, including a discussion about a vibrator, which the respondent describes by using a dolphin emoji. [32] Police seized a pink vibrator from his premises when they executed a crime scene warrant on 21 July 2020. The brand of the vibrator was “Dancing Dolphin”.

11. [53]

    In text messages on 22-23 April 2020, the respondent told Annalise to use the vibrator during an exchange of messages when he was at work and clearly annoyed that she kept texting him. Her texts show that she was very upset about something. The respondent told her to “go fuck” herself multiple times and that he was “done” “forever”. When Annalise expressed her love for him, he told her to use the vibrator. She messaged him back, “[c]an you stop being so mean to me” and “[c]an you please stop, I’ll do anything”. In addition to telling her to use the vibrator the respondent also instructed her, “[j]ust do your chores” and was critical of the quality of her housework and “priorities”. The text messages show that the “relationship” was one in which the respondent, on the one hand, acted like her father telling her to do her chores whilst, on the other hand, answered her requests for affection with suggestions that she use a vibrator instead.

12. [54]

    As for the offences against Laura, they were committed when she came over to visit Annalise for a sleepover. The respondent purchased alcohol for both of them when they asked him to. Each of them drank about 11 drinks as well as some “straight” Jack Daniels. Laura felt drunk and dizzy. Annalise was so drunk she fell over and hit her head on a couch. The respondent had penile-vaginal intercourse with both children when they were in that intoxicated state. In sexually assaulting Laura, he grabbed hold of her throat and squeezed so that she could not breathe. An offence of choking was taken into account on a Form 1 in relation to one of the offences pertaining to her. When the respondent was repeatedly putting his fingers in Laura’s vagina, she described it as “really rough”. As the agreed facts set out at [7] above disclose, the next day, she walked home and cried. Her vagina was bleeding and red for about the next three days. It was she who complained to police on or about 17 July 2020.

13. [55]

    It is to be accepted that there was no evidence that the respondent deliberately got the two children drunk so he could sexually assault them. But the fact remains that he purchased alcohol for them; they could not purchase it themselves. He was aware that they were intoxicated and had penile-vaginal intercourse with both of them in that state. Not only were the two children incapable of consenting at law due to their young age, they were also most likely too intoxicated to consent in any event.

14. [56]

    As the sentencing judge noted, neither of the victims provided a victim impact statement in this matter. Sentencing courts no longer require evidence in order to take into account that child sexual abuse can have profoundly traumatic and long-term effects on its victims, as Spigelman CJ (with whom Simpson J and Harrison JJ agreed) confirmed in DBW v R [2007] NSWCCA 236 at [39]. In R v Gavel [2014] NSWCCA 56 this Court (Leeming JA, Johnson and Hall JJ) said the following when addressing the question of harm to the victim (at [110]):

15. [57]

    More recently in Culbert v R [2021] NSWCCA 38, this Court considered an argument that the sentencing judge had erred in finding that s 21A(2)(g) of the Sentencing Act was engaged by reason of the harm occasioned to the victims of child sexual assault offences as disclosed in victim impact statements. In dismissing the appeal, Adamson J (with whom R A Hulme J agreed) wrote at [115]:

16. [58]

    Although there were no victim impact statements before the Court in this matter, her Honour applied the principles derived from decisions such as R v Gavel and observed the following [33] :

17. [59]

    Similarly, her Honour went on to state: [34]

18. [60]

    The report of Ms Kris North, psychologist, relied upon by the respondent on sentence, opines that his “loneliness and need to share an emotional connection with another person contributed to his subsequent sexual relationship” with Annalise. Ms North also noted that the respondent described sharing a “relationship” with the victim, despite acknowledging he knew this was wrong due to her age. It was not submitted before the sentencing judge that it was a mitigating factor that the child victim was in a “relationship” with the offender which was “consensual”. Nor could it be. Basten JA highlighted the fallacy in such an approach in R v Nelson [2016] NSWCCA 130 at [16]-[27] when he observed the following at [23]:

19. [61]

    The sentencing judge was well aware of these sentencing principles. Her Honour observed the following in relation to the offences pertaining to Annalise: [35]

20. [62]

    Given that there were two child victims, the expert evidence was that the respondent “would likely satisfy the criteria for Pedophilic Disorder, nonexclusive type (DSM-5 302.2)”. Ms North opined that the respondent had “deviant sexual interests” given his sexual arousal toward the victims, the multiple incidents and the duration of the offending. She noted that he lacked appropriate coping strategies to manage his sexual urges, consistent with his report of knowing his behaviour was wrong but being unable to stop it.

21. [63]

    The respondent was also diagnosed with Major Depressive Disorder, Single Episode, Unspecified (DSM-5 296.20) at the time of interview. Ms North considered it “likely” he was also depressed at the time of the offending. She opined that his feelings of guilt for what he had done had exacerbated his symptoms of depression by the time she saw him. Her Honour said this about the respondent’s depression:

22. [64]

    Overall, in relation to Annalise, the respondent stood to be sentenced for eight offences contrary to s 66C(2) of the Crimes Act, with Form 1 matters. The discounted indicative head sentences for these eight offences were terms of imprisonment of: 7 years and 6 months; 7 years and 6 months; 7 years; 6 years and 6 months; 6 years and 6 months; 6 years and 6 months; 6 years and 6 months; and 5 years. The discounted indicative sentences for the two sexual touching offences were 2 years and 1 year and 6 months respectively. Thus, the indicative sentences in relation to Annalise total 56 years and 6 months’ imprisonment.

23. [65]

    In relation to Laura, the respondent stood to be sentenced for two offences contrary to s 66C(2) of the Crimes Act, both with Form 1 matters. The discounted indicative head sentences were 7 years and 6 months and 7 years respectively totalling 14 years and 6 months’ imprisonment.

24. [66]

    When her Honour came to apply the totality principle and consider the extent to which one indicative sentence could comprehend and reflect the criminality for the other offences, her Honour was sentencing the respondent for three separate periods of offending in relation to Annalise and separate offences in relation to Laura. Although it is to be accepted that some significant degree of concurrence was appropriate in relation to the offences committed on Annalise, the aggregate sentence needed to reflect the three periods of offending. Furthermore, the offences pertaining to Laura required additional accumulation.

25. [67]

    Although the indicative sentences in relation to Annalise total 56 years and 6 months’ imprisonment and those pertaining to Laura total 14 years and 6 months’ imprisonment, her Honour imposed an aggregate non-parole period of 5 years with an aggregate head sentence of 8 ½ years for all offences.

26. [68]

    In these circumstances, I am respectfully unable to agree with Hamill J’s conclusion at [40] that having regard to the seriousness of the offending, including the number of offences and the need to recognise the harm done to the two young victims, the aggregate sentence reflects a proper application of the totality principle in the circumstances of this case. In so finding, I have had regard to the favourable findings her Honour made in relation to the respondent’s subjective case, which are not challenged in this Court.

27. [69]

    As the portions of her Honour’s sentencing remarks I have extracted show, her Honour was clearly aware of the relevant sentencing principles, including the need to have regard to the profound and long-lasting damage done to child victims of offending such as this. I can find no patent error in her Honour’s reasons. The sole basis upon which I am satisfied that error is disclosed is in relation to the application of the totality principle.

Residual discretion

1. [70]

   The Court retains a residual discretion to decline to interfere with a sentence on a Crown appeal even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. It is for the Crown to satisfy the Court that this discretion to decline to intervene and re-sentence the respondent should not be exercised in this case: CMB v The Attorney-General for New South Wales [2015] 317 ALR 308; [2015] HCA 9 at [33], [54].

2. [71]

   The Crown submitted that this Court should not exercise its discretion to decline to intervene in this case and identified the following matters as pertinent to this question. First, there was no unreasonable delay in the institution of the appeal by the Crown or in notifying the respondent. Secondly, in its conduct in the proceedings below, the Crown did not contribute to the errors it now contends for on this appeal. Thirdly, the respondent’s current non-parole period will not expire until 20 July 2025.

3. [72]

   Finally, the Crown submitted that the Court should intervene to re-sentence the respondent to provide further governance and guidance to sentencing courts on considerations of totality and general deterrence in sentencing for multiple sexual offences involving multiple child victims.

4. [73]

   On behalf of the respondent, it was submitted that several factors militated against the intervention of this Court. First, the issue of delay; the respondent was arrested on 21 July 2020 and committed for sentence on 9 June 2021. This Crown appeal means that his case is still not finalised. Secondly, the respondent submitted that the imposition of a longer sentence would risk disrupting his rehabilitation, being the work, education and Bible study he has commenced in custody. Reliance was also placed on the respondent’s “extremely severe” depression and the challenges of custody during the Covid-19 pandemic.

5. [74]

   The respondent swore an affidavit on 11 May 2022 that was tendered both on the question of the exercise of the residual discretion and in the event of re-sentence. The respondent described how his time in gaol has been in “SMAP protection”. While in custody, the respondent has worked as a “Covid cleaner”, in textiles and in bunting. He enjoys the work. The respondent has also started a literacy and numeracy course. He has put his name down to do a First Aid and a warehousing course. The respondent’s evidence was that he wants “to do as many courses as I can to help better myself when I get out”.

6. [75]

   The respondent described that he was taking medication variously for a heart condition, blood pressure and chronic back pain. As for his mental health, the respondent said he had been “especially anxious” since being notified of the Crown appeal and that, despite his efforts to “get better”, “it’s all come crashing down now”. Finally, the respondent said that he generally tried to keep to himself out of a fear of other inmates. He described some instances of inmates saying things to him such as, “kill yourself” and “she’s 13 you dog”.

7. [76]

   The respondent’s solicitor, Dawoud Ayache, from Legal Aid NSW, affirmed an affidavit on 11 May 2022. Relevantly, he annexed a Custodial Report from Corrective Services NSW which confirmed that the respondent is housed in SMAP (Special Management Area Placement), had a C1 classification status, had a history of heart disease and that there were no entries recorded under “punishment details”.

8. [77]

   I have considered these submissions and the respondent’s evidence. I accept that the respondent is doing well in custody and that all inmates have experienced very difficult conditions in custody during the Covid-19 pandemic. Although I propose to have regard to these matters when re-sentencing the respondent, I am satisfied that the Crown has discharged its burden. I do not propose to exercise the residual discretion. The aggregate sentence imposed fails to denounce the serious offending in relation to the second child, Laura. It is appropriate that this Court intervene to correct a sentence which is unreasonable and plainly unjust.

Re-sentence

1. [78]

   None of the findings of the sentencing judge have been challenged in this Court and I would adopt them all.

2. [79]

   The respondent’s lack of relevant criminal history entitles him to some leniency. He has always been employed. He spent years caring for his sick partner. He had a dysfunctional childhood and was the victim of sexual abuse at the hands of his brother. Her Honour accepted the respondent was remorseful.

3. [80]

   The psychologist’s report did not establish any causal connection between the respondent’s childhood dysfunction or his psychological conditions and the offending. The respondent suffers from depression and anxiety. Like her Honour, I am satisfied that incarceration is more onerous on the respondent due to the impact of Covid-19 and his depression, anxiety and physical ill health.

4. [81]

   The sentencing Judge was appropriately guarded in her assessment of the respondent’s prospects of rehabilitation, both because of the nature of the offending and the diagnosis of “pedophilic disorder, non-exclusive type”. Her Honour accepted that his risk of re-offending would be “significantly reduced” if he attended the “appropriate treatment regimes” recommended by the psychologist. I would re-sentence the respondent on the same basis. I have also had regard to the positive steps he has taken in custody.

5. [82]

   The Crown did not contend that the indicative sentences were manifestly inadequate. On that basis, I would not propose higher indicative sentences. The indicative sentences are as set out at [11] of Hamill J’s judgment. The 25% discount for the early pleas of guilty has been applied to them.

6. [83]

   I would allow for significant concurrence in relation to the offences pertaining to the victim Annalise (being mindful that they covered three time periods) and those pertaining to Laura, but I would allow for a significant degree of accumulation as between the two sets of offences.

7. [84]

   I would not depart from her Honour’s finding of special circumstances. Her Honour varied the statutory ratio from 75% to 58%. Although that is a significant variation, I propose to do the same, rounding slightly to avoid a sentence measured in years, months and days.

8. [85]

   I would propose the following orders.

   1. (1)

      Crown appeal allowed.

   2. (2)

      The aggregate sentence imposed by Judge English on 22 September 2021 is quashed; in lieu thereof, the respondent is sentenced to an aggregate sentence of 12 years’ imprisonment to commence on 21 July 2020 and expire on 20 July 2032 with an aggregate non-parole period of 7 years to expire on 20 July 2027.