Carr v R

1. [1]

   JOHNSON J: By Notice of Application for Leave to Appeal filed on 1 April 2020, the Applicant, Stephen Carr (a pseudonym), seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed at the Wollongong District Court on 27 September 2019 for a number of child sex offences.

2. [2]

   The Applicant is referred to by a pseudonym as the use of his real name would identify the victim, the daughter of the Applicant. In sentencing the Applicant in the District Court, his Honour Judge Haesler SC used the same pseudonym: R v Carr (a pseudonym) [2019] NSWDC 805. A similar approach will be taken in the description of the Applicant in the present judgment. The victim is entitled at law not to be identified in the judgment of the Court: s.578A Crimes Act 1900. She will be referred to by the pseudonym “Emma” in accordance with the approach of the sentencing Judge.

3. [3]

   The Applicant was sentenced to an aggregate term of imprisonment of eight years and six months comprising a non-parole period of five years and six months commencing on 26 September 2019 and expiring on 25 March 2025 with a balance of term of three years commencing on 26 March 2025 and expiring on 25 March 2028.

4. [4]

   The following table identifies the offences and maximum penalties for those offences, together with the indicative sentences nominated by the sentencing Judge for the purpose of s.53A Crimes (Sentencing Procedure) Act 1999:

5. [5]

   In passing sentence for the offence in Count 6, the Applicant asked the sentencing Judge to take into account on a Form 1 the following further offences, all committed between 1 January 2000 and 31 December 2000:

Grounds of Appeal

1. [6]

   The Applicant relies upon the following grounds of appeal:

2. [7]

   Mr Rogers, counsel for the Applicant, informed the Court that he was not advancing a ground which asserted that the aggregate sentence was manifestly excessive (T8, 9 June 2020).

Facts of Offences

1. [8]

   A Statement of Agreed Facts was placed before the District Court which his Honour utilised in his sentencing remarks.

2. [9]

   His Honour explained how Emma came to reveal her father's offences against her (at ROS[3]-[6]):

3. [10]

   Before moving to the particulars of individual offences, the sentencing Judge provided the following general description (at ROS[7]-[9]):

4. [11]

   His Honour then recounted the facts of the offences (at ROS[11]-[23]):

5. [12]

   His Honour returned to the revelation by Emma of the offences (at ROS[24]-[26]):

6. [13]

   The Applicant was arrested and charged with the offences on 13 November 2018 and was granted conditional bail on 14 November 2018. He remained on bail until sentence was passed on 27 September 2019.

The Applicant’s Subjective Circumstances

1. [14]

   The Applicant was 37 years old at the time of the offences. He was aged 56 years at the time of sentence.

2. [15]

   The Applicant’s criminal history was confined to driving offences committed in 1982.

3. [16]

   The Applicant did not give evidence at the sentencing hearing.

4. [17]

   A report dated 19 September 2019 of Mr Luke Brabant, forensic psychologist, was tendered in the defence case together with a report dated 15 August 2019 of Dr Paul Stevenson, psychiatrist, who had been treating the Applicant since 2015.

5. [18]

   A number of references were tendered in the defence case from the Applicant’s older and younger sisters and a work associate of the Applicant who knew him well.

Victim Impact Statement

1. [19]

   Emma read a victim impact statement to the Court. She recounted the effect of the offences committed by her father against her as a young girl aged 11 and 12 years and the detrimental consequences which had blighted her life since then.

2. [20]

   In the course of the statement, Emma stated that “being forced to live in the same house as him and having to see him every day was terrifying”. Emma said that the offences had “greatly affected the way [she was] able to develop relationships with people and [her] ability to judge people’s character”. Emma concluded the victim impact statement as follows:

The Sentencing Hearing and Sentencing Remarks

1. [21]

   The sentencing hearing with respect to the Applicant proceeded on 27 September 2019. Counsel for the Crown and the Applicant had furnished written submissions on sentence. After documents had been tendered and Emma had made her victim impact statement, counsel for the Crown and the Applicant addressed succinctly on sentence.

2. [22]

   His Honour adjourned for a period before returning to Court to deliver ex tempore sentencing remarks. It is appropriate to set out parts of his Honour’s sentencing remarks to assist an understanding of arguments advanced in this Court.

3. [23]

   After recounting the facts of the offences, his Honour explained the concept of objective seriousness of the offences before turning to the victim impact statement and then the maximum penalties for the offences and consideration of s.25AA Crimes (Sentencing Procedure) Act 1999 with respect to sentencing for historical child sex offences.

4. [24]

   His Honour then addressed the approach to be taken concerning the Form 1 offences and the relevance of delay since the offences were committed in passing sentence. With respect to delay (which bears on Ground 3), his Honour said (at ROS[43]-[47]):

5. [25]

   His Honour then turned to the Applicant's subjective case referring to letters from the Applicant's sisters as well as the psychological report of Mr Brabant and the report of Dr Stevenson, psychiatrist. His Honour said (at ROS[52]-[58]):

6. [26]

   The sentencing Judge then turned to the impact of imprisonment upon the Applicant. His Honour said (at ROS[59]-[62]):

7. [27]

   His Honour referred to the approach on sentence for multiple offences (at ROS[63]-[66]):

8. [28]

   In comments which came under close scrutiny during submissions before this Court, his Honour considered the Applicant's pleas of guilty and the issue of remorse (at ROS[68]-[70]):

9. [29]

   The sentencing Judge then referred to written and oral submissions which had been made on behalf of the Crown and the Applicant. His Honour said (at ROS[71]-[77]):

10. [30]

    His Honour then turned to a number of particular findings and conclusions (at ROS[78]-[85]):

11. [31]

    His Honour then nominated the indicative sentences and imposed the aggregate sentence mentioned earlier (at [3]-[4]).

The Applicant’s Grounds of Appeal - Claims that Insufficient Weight Given to Certain Factors and Sufficient Regard Not Paid to Other Factors

1. [32]

   It is appropriate to consider the four grounds of appeal together in circumstances where there is a common theme in the framed grounds which relates to the sufficiency or otherwise of attention said to have been given by the sentencing Judge to a particular factor or factors on sentence.

2. [33]

   Mr Rogers sought to distinguish the line of authority in this Court which has emphasised the difficulty confronting an applicant who advances a ground of appeal claiming that insufficient or inadequate weight was given to a particular factor on sentence. He submitted that the grounds of appeal relied upon by the Applicant contend, in effect, that error in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 is demonstrated in this case.

3. [34]

   Counsel submitted that the sentencing Judge had either given insufficient weight to the Applicant’s remorse and his health issues or had not paid sufficient regard to the period of time which had passed since the commission of the offences and the Applicant’s own background of being sexually abused as a child.

4. [35]

   Mr Rogers developed these submissions by reference to parts of the sentencing remarks. With respect to remorse, it was submitted that insufficient weight had been given to the Applicant’s admission of the offences made some years ago. It was submitted that the sentencing Judge’s criticism of his lack of insight into why he committed the offences was unhelpful and did not bear upon the issue of remorse.

5. [36]

   Counsel submitted that the sentencing Judge did not have regard to these aspects in an appropriate way in assessing the Applicant’s moral culpability which, it was submitted, was significantly reduced.

6. [37]

   Mr Rogers submitted that a proper basis had been demonstrated for this Court to intervene and resentence the Applicant in accordance with s.6(3) Criminal Appeal Act 1912.

7. [38]

   The Crown submitted that the Applicant’s grounds of appeal seek to challenge the weight given to various factors by the sentencing Judge and that these are matters lying within the exercise of discretion on sentence where this Court has been slow to intervene: Burrows v R [2017] NSWCCA 45 at [51]; Tuite v R [2018] NSWCCA 175 at [73]; Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [16].

8. [39]

   With respect to the first ground of appeal, the Crown submitted that the finding made by the sentencing Judge concerning remorse was open and that the Applicant had failed to demonstrate error in this respect.

9. [40]

   Concerning the second ground of appeal, the Crown submitted that the sentencing Judge had regard to the Applicant’s mental health issues and the sexual abuse of him as a child which had given rise to a range of health difficulties. The Crown pointed, in particular, to what the sentencing Judge had said at ROS[59]-[62] (at [26] above).

10. [41]

    With respect to the third ground of appeal, the Crown submitted that the sentencing Judge had regard to the absence of offending in the period since the commission of the offences by the Applicant with delay being taken into account in a manner that did not disclose error. The Crown pointed to ROS[78] (at [30] above).

11. [42]

    Concerning the fourth ground of appeal, the Crown submitted that the sentencing Judge had regard to the Applicant’s background and history of sexual abuse with these aspects being taken into account at various points including ROS[79] (at [30] above).

12. [43]

    The Crown pointed, as well, to other aspects of the offences which emphasised their objective gravity. Reference was made to what was said by this Court in R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at [110] concerning the profound and deleterious effects upon victims of child sexual offences. The Crown emphasised that the present offences involved the victim’s own father abusing his position of trust by committing offences against his daughter: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [104]. The Crown pointed to other features of the offences which served to explain the sentences imposed upon the Applicant.

13. [44]

    The Crown submitted that the Court should reject each ground of appeal.

14. [45]

    In approaching the present grounds of appeal, it is necessary to bear in mind that the Applicant must establish that the sentencing Judge has made an error in the exercise of sentencing discretion in accordance with the principles in House v The King at 505. Severity appeals under s.5(1)(c) Criminal Appeal Act 1912 are not rehearings. It is not enough that the appeal court considers (if it be the case) that, had it been in the position of the sentencing Judge, it would have taken a different course: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15].

15. [46]

    In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, Gageler J observed at [53] that a ground of appeal framed only in terms of “weight” was incapable of establishing an error in the first category of appellate intervention under House v The King and that it pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.

16. [47]

    This Court has emphasised the challenges confronting an applicant who contends that error in accordance with the principles in House v The King has occurred because of insufficient or inadequate weight being given to particular features on sentence. In Burrows v R, Wilson J (Macfarlan JA and Schmidt J agreeing) said at [51]-[52]:

17. [48]

    In Tuite v R, Hoeben CJ at CL (Button J agreeing) said at [73]:

18. [49]

    In Hanania v R [2012] NSWCCA 220, Button (Hoeben JA and myself agreeing) said at [33]:

19. [50]

    With respect to the first ground of appeal, the sentencing Judge had regard to the issue of remorse. Reference was made to the Applicant’s expressions of remorse made to his older sister (ROS[48]-[49]), to a friend (ROS[51]) and to Mr Brabant, the psychologist (ROS[54]). His Honour also found that the Applicant’s guilty pleas were a practical manifestation of remorse and contrition (ROS[68]). His Honour stated expressly that he took into account “the expressions of remorse that were made at various times” by the Applicant (see ROS[70] at [28] above).

20. [51]

    Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 provides for an offender’s remorse to be taken into account as a mitigating factor on sentence, but only if the offender has accepted responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

21. [52]

    Assessment by a sentencing court of the genuineness and value of remorse is likely to be better informed in circumstances where it is expressed by an offender directly in evidence at the sentencing hearing, as remorse is an intrinsically subjective matter, the evaluation of which depends upon the subtleties of human interaction: Alvares v (2011) 209 A Crim 297; [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [39]. The Applicant did not give evidence at the sentencing hearing so that his Honour was not able to make that direct assessment. That said, there were features of this case which led his Honour to make findings favourable to the Applicant concerning remorse.

22. [53]

    It was relevant for his Honour to refer to the fact that the Applicant “still has little insight into what he did” (see ROS[70] at [28] above). A person’s level of insight into offending behaviour is relevant to the question of remorse as well as prospects of rehabilitation: AK v R [2016] NSWCCA 238 at [97]. It is noteworthy that counsel who appeared for the Applicant at first instance accepted that, on the evidence placed before the sentencing Judge, there did not appear to be genuine insight into his offending behaviour (T6.28, 27 September 2019).

23. [54]

    Also relevant to the issue of remorse was the fact that the Applicant had been committed for trial from the Local Court and had a trial date fixed in the District Court. As the sentencing Judge observed (see ROS[68] at [28] above) “the guilty plea came late”. This is not a case where early pleas of guilty had been entered by the Applicant reflective of remorse.

24. [55]

    Concerning the second ground of appeal, the sentencing Judge identified and had regard to the Applicant’s significant history of trauma and diagnosis of post-traumatic stress disorder and depression (see ROS[56] at [25] above). Reference was made to treatment provided to the Applicant by Dr Stevenson since 2015 (at ROS[58] at [25] above]). His Honour referred extensively to these issues and the reports of Mr Brabant and Dr Stevenson (see ROS[59]-[62] at [26] above). These factors were taken into account on sentence.

25. [56]

    With respect to the third ground of appeal, the sentencing Judge had regard to the delay between the period when the offences were committed and the time when the Applicant stood for sentence. Having identified this aspect, his Honour had regard to it in a manner which does not disclose error (see ROS[43]-[47] at [24] above; ROS[78] at [30] above).

26. [57]

    Likewise with respect to the fourth ground of appeal, the sentencing Judge had regard to the Applicant’s history of abuse as a child and his health issues (which were overlapping issues) as factors taken into account in the process of instinctive synthesis before finally determining sentence. His Honour recounted the Applicant’s history of childhood sexual abuse and his resulting health difficulties (see ROS[52]-[58] at [25] above; ROS[74]-[75] at [29] above). The sentencing Judge had particular regard to these factors when applying the principles in Bugmy v The Queen and making findings that the Applicant’s moral culpability was reduced arising from his history of profound deprivation (see ROS[78] at [30] above). No error is demonstrated in this respect.

27. [58]

    The sentencing Judge was well aware of the gravity of the offences committed by the Applicant and the profound consequences of the offences upon his daughter, the victim (see ROS[76]-[77] at [29] above; ROS[81]-[85] at [30] above). In R v Gavel, this Court said at [110]:

28. [59]

    The Applicant’s course of criminal conduct extended over a period of time and was directed to his natural daughter. Sexual abuse such as this by a father against his own young daughter involves an abuse of trust of the highest order: ZA v R at [104]. The playing of pornographic movies to the victim as part of the offences added a further corrupting feature to the offences: R v Gavel at [96].

29. [60]

    The offences for which the Applicant was to be sentenced were representative counts: AK v R at [66]-[72]. His Honour took this feature into account in an appropriate way (see ROS[9] at [10] above; ROS[23] at [11] above).

30. [61]

    The offences were objectively serious. In each case, there was skin-on-skin contact involving the Applicant touching the outside of the victim’s vagina or breasts or forcing her to touch his penis.

31. [62]

    Also relevant is the fact that a finding of special circumstances was made so that the non-parole period constituted 64.7% of the aggregate sentence. It is apparent that a substantial degree of notional concurrency was allowed in determining the aggregate sentence.

32. [63]

    Sentencing is a discretionary process involving a process of instinctive synthesis leading to the formulation of a value judgment as to the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). In Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38, French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ said at [59] (footnotes omitted):

33. [64]

    The extensive extracts from the sentencing remarks appearing earlier in this judgment demonstrate the way in which his Honour identified a wide range of factors (some of which were conflicting) which were taken into account in the process of forming a value judgment as to the appropriate aggregate sentence to be passed in this case.

34. [65]

    The Applicant has not made good any of his grounds of appeal. The sentencing Judge’s careful and balanced sentencing remarks demonstrate the exercise of instinctive synthesis undertaken in this case, where all factors were taken into account in passing sentence.

35. [66]

    Each ground of appeal should be rejected.

Conclusion

1. [67]

   I propose the following orders:

2. [68]

   HARRISON J: I agree with Johnson J.

3. [69]

   HAMILL J: I agree with Johnson J.