Hordern v R

1. [1]

   BASTEN JA: On 7 July 2017 the applicant was sentenced in the District Court for two aggravated indecent assaults on young girls, one being aged two years, nine months and the other four years. He was also sentenced for a breach of an extended supervision order. Culver DCJ imposed an aggregate sentence of 9 years 4 months, with a non-parole period of 7 years. The sentence was backdated to 16 October 2015, being the date on which the applicant was arrested.

2. [2]

   Each of the aggravated indecent assaults carried a maximum penalty under s 61M(2) of the Crimes Act 1900 (NSW) of 10 years imprisonment, with a standard non-parole period of 8 years. One may doubt whether the standard non-parole period provides useful assistance, this being an offence in which, were the standard non-parole to be imposed, a sentence involving a balance of term of one-third of that period would exceed the maximum sentence for the offence. Because the standard non-parole period applies to an offence “in the middle of the range of [objective] seriousness” [1] its operation in relation to this offence is obscure. Nevertheless, the maximum penalty remains an important guidepost.

3. [3]

   The applicant (who appeared for himself in this Court) relied upon four grounds of appeal. Ground 2 complained that his rehabilitation “will be adversely affected by the length of the sentence” and ground 3 that he had “taken measures to address [his] offending behaviour since [his] sentencing”. As addressed in submissions, each ground related to his conditions of imprisonment, the applicant relying principally upon circumstances which had arisen, or at least manifested themselves, after he was sentenced. They did not provide a sound basis on which to challenge the sentencing; leave should be refused to raise either as a ground of appeal. The issues they raise may, however, be considered on resentencing, although, as counsel for the Director noted, similar concerns had been raised and addressed, at least in part, at the sentencing hearing.

4. [4]

   Ground 1 alleged error on the part of the sentencing judge in finding that “there was a degree of planning involved in the offence.” Ground 4 alleged that the sentence was manifestly excessive. For reasons explained below, there should be a grant of leave to appeal with respect to ground 1. Because that ground should be upheld, ground 4 need not be addressed.

Challenge to fact-finding: legal principles

1. [5]

   Ground 1 involved a challenge to a finding of primary fact by the sentencing judge in circumstances where there had been a plea (and therefore no trial), and no oral evidence called at the sentence hearing. It is necessary to determine how this Court should approach that ground.

2. [6]

   There are different views as to how this Court should deal with a challenge to a factual finding by a trial judge in the course of sentencing, being a finding adverse to the offender, which must therefore be proved beyond reasonable doubt. In Clarke v R [2] , with the agreement in principle of Hamill J [3] , I rejected as unsound authority stating that factual error can only be found where there is error of law or something very close to it:

3. [7]

   This reasoning supports the proposition that a court hearing a criminal appeal under the standard statutory provision [10] should not adopt a constrained approach to its jurisdiction to determine an application for leave to appeal against sentence and, if leave be granted, an appeal. In addition to the considerations noted above, it may be helpful to expand on the following points.

4. [8]

   First, the jurisdiction of the Court is based on statute. [11] The statute in question, s 6(3) of the Criminal Appeal Act 1912 (NSW), imposes no express constraint on the grounds on which the Court may intervene. Because the jurisdiction is described as an “appeal” the Court will not intervene except in a case where error is established. [12] However, the nature of the appeal is not described; there is no justification in the statute to imply some further limitation. Where, as here, the court is usually confined to the materials before the primary judge, the appeal will ordinarily be treated as an appeal by way of rehearing, requiring “demonstration of some error on the part of the primary judge before the powers of the court to set aside the primary judge's decision were enlivened.” [13]

5. [9]

   In fact, the Court is not necessarily limited to evidence before the sentencing judge; s 12(1) of the Criminal Appeal Act confers a number of specific powers, and “any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters”. The proviso prohibiting any increase in a sentence by reason of evidence not given at trial recognises the availability of such powers in sentencing appeals. [14] The provision provides support for the conclusion that an appeal against sentence is an appeal by way of rehearing.

6. [10]

   Secondly, two basic principles of statutory interpretation preclude such an approach. The High Court unanimously held in Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Company Inc [15] that “[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.” Further, a statute conferring a power which would curtail human rights or freedoms (of which personal liberty is the most basic [16] ) should not be read restrictively of that liberty unless such an intention is clearly manifested. [17] There is no statutory language which requires, either expressly or by necessary implication, that the term “appeal” be understood as not permitting this Court to intervene with respect to a sentence founded upon a mistaken view of the facts. Accordingly, that construction is unavailable.

7. [11]

   Thirdly, to require this Court to reject an appeal against sentence when satisfied that the sentencing judge was mistaken as to a primary fact would create incoherence in the law. At least since 1883 (that is before the enactment of the Criminal Appeal Act) there has been executive power to reconsider a sentence on the basis of potential factual error. [18] This function is now to be found in Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW). If, pursuant to a direction under that Part, this Court can be required to review a sentence based on a mistaken view of the facts taken by the sentencing judge, it would be anomalous if the Court could not undertake the same exercise in hearing a conventional appeal for which it has granted leave under s 5(1) of the Criminal Appeal Act.

8. [12]

   Fourthly, only a year after the Criminal Appeal Act was enacted, in Skinner v The King, [19] Barton ACJ stated:

9. [13]

   That passage was referred to with approval in Lacey, [20] Kentwell [21] and Betts. [22] In Lacey the joint reasons stated that “for a convicted person's appeal against sentence to succeed there must be evidence that the sentencing judge had acted on a wrong principle or given undue weight to some of the facts proved in evidence.” To give weight to a fact not proved in evidence must be a material error.

10. [14]

    Fifthly, it should be repeated that O’Donoghue adopted the approach identified in Kyriakou in this Court [23] which was described by the Full High Court as one which “does not accurately express the role of an appellate court when a challenge is made to such a finding of fact by a trial judge”, whilst refusing special leave because not persuaded that this Court had “failed to examine for itself the critical issue of fact.” [24]

11. [15]

    As noted by Hamill J in Clarke, there are authorities in this Court which adopt a more constrained approach to mistaken fact-finding on a sentence appeal. However, most merely repeat statements in earlier cases; none provides a reasoned justification for such a position by reference to principles of statutory interpretation or general law principles underlying the administration of criminal justice.

12. [16]

    Since Clarke, the following decisions have adverted to this issue. First, in Turnbull v Chief Executive of Office of Environment and Heritage, [25] where the parties “accepted that it was incumbent upon the applicant to demonstrate that a finding was not ‘open’,” [26] Button J remarked: “I consider that the test is a straightforward one that balances, on the one hand, the autonomy and evaluative judgments of sentencing judges, and, on the other hand, the role of this court in ensuring that idiosyncratic or irrational findings do not go uncorrected.” [27] He did not address the issues of interpretation, or the High Court authority, discussed above.

13. [17]

    In Xiao v R, [28] a five judge bench considering a sentencing appeal involving insider trading convictions, said:

14. [18]

    The Queensland Court of Appeal recently referred to the differing lines of authority in R v Strbak. [30] The Court made two further points:

15. [19]

    It is worth elaborating on the final observation. In some cases, weight has been placed upon the canonical statement in House v The King [32] setting out the limited basis upon which the discretionary exercise of sentencing may be reviewed on appeal. The thrust of the statement in House was not directed to factual error, but the exercise of discretionary judgment. Nevertheless, the suggestion that factual error can only be reviewed on a constrained basis is inconsistent with the references in House, (i) to there being “some error” made in “exercising the discretion”, (ii) to the judgment being based “upon the facts” and (iii) the identification of error where the judge “mistakes the facts”. Given the statements in Skinner, which was expressly referred to in House, [33] it is implausible that House was intending to identify some limited conception of factual error.

16. [20]

    For the reasons set out in Clarke, and elaborated upon above, I am comfortably satisfied that the constrained approach is clearly wrong and should not be followed. In circumstances where the liberty of the individual is at stake, there is no reason to deliberately perpetuate error, once identified. The administration of criminal justice does not require this Court to conclude that an offender must serve a longer sentence than would have been imposed, absent a factual error by the sentencing judge.

Findings of trial judge

1. [21]

   On the day of the offending, 15 October 2015, the applicant lived with a friend in Blacktown. He had a criminal record involving prior offences against young girls and, in 2009, a judge in the Common Law Division (Fullerton J) had imposed an extended supervision order accompanied by stringent conditions, pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW). The order was apparently not before the sentencing judge (or this Court), although a plea had been entered to a charge of failing to comply with the requirements of the order.

2. [22]

   However, the agreed facts demonstrated that the extended supervision order involved the applicant wearing a bracelet which allowed his whereabouts to be monitored. Further, he was subject to a schedule of movements which, on that day, required that he be at his home until 11.45am when he was to go to a shopping centre until 1.30pm. He was also subject to a curfew.

3. [23]

   At about 11.30am on 15 October, the applicant sent a text message to a neighbour with whom he had, some six weeks earlier, discussed obtaining a new throttle body for the neighbour’s car and, as the applicant was a mechanic, he had offered to install it. The neighbour was the father of the two young girls who were the victims of the offences. There was an exchange of text messages which, in the context of the applicant’s prior offending and established tendency to engage in paraphilia (specifically, sexual attraction to pre-pubescent children), led the sentencing judge to conclude that the offending was “part of a planned or organised criminal activity” and thus an aggravating factor pursuant to s 21A(2)(n) of the Sentencing Act.

4. [24]

   The prosecutor had submitted that the planning commenced some six weeks before the offending when the applicant had first approached his neighbour to offer assistance in fixing his car. However, the judge stated: [34]

5. [25]

   This somewhat ambivalent finding is to be taken as a rejection of the proposition that the evidence permitted a finding that, six weeks prior to the offending, some planning had commenced. Later, in reaching a conclusion that there had been planning, the judge stated more explicitly that any planning was “reasonably limited and I do not extend that timeframe back to the six weeks when the first offer to fix the car was made.” [35]

6. [26]

   In fact, neither the agreed facts nor any other material before the sentencing judge warranted a finding beyond reasonable doubt that the applicant knew of the young girls being in the premises until, at about 12.40pm, after working for 20 or 30 minutes on the car, the applicant had (with his neighbour’s permission) gone inside his neighbour’s house to wash his hands. A short while later, he asked to be allowed to wash his hands again. On that latter occasion the older girl saw the applicant go to the kitchen and wash his hands with soap and then enter the bathroom where her younger sister could be seen. She saw him take her sister, place her on her back on the bathroom floor, pull down her pants and underwear and kiss ‘the area of [her] vagina”. The elder girl, who was sitting in an armchair outside the bathroom, saw what was happening and told the applicant to stop. He then pulled the older girl’s pants and underwear down whilst she was seated in the armchair and kissed the area of her vagina. She again told the applicant to stop. These incidents constituted the two indecent assaults the subject of the charges.

7. [27]

   If the first occasion on which it could be established that the applicant knew of the young girls in the house was that on which he first entered to wash his hands, a few minutes before the offences took place, the criminal activity was opportunistic, and did not warrant a finding of the aggravating circumstance of planned criminal activity.

8. [28]

   There was no express finding as to when the applicant knew that there were, or might be, very young girls in the apartment. After addressing a number of factors relied upon by the prosecutor, the judge concluded that a combination of circumstances rendered it “not a reasonable hypothesis that the offender was merely opportunistic upon entering the townhouse.” She continued: [36]

9. [29]

   The factors relied upon to justify this conclusion were identified by the sentencing judge in the following terms: [37]

10. [30]

    Before assessing these features, it is convenient to identify an earlier factor which appears to have been taken into account, namely that the applicant –

11. [31]

    The applicant challenged that finding, on the basis that there was no evidence that he would not charge the neighbour for the part which had cost him $50. The Director did not take issue with that assertion.

12. [32]

    Turning to the listed features, the judge placed reliance upon the fact that by walking a short distance across the road, the applicant had contravened his schedule of movements for the day, a factor she considered to be “highly significant in this context.” That factor was to be considered in the context that the neighbour had offered to bring the car across the road to the applicant’s residence, but the applicant had insisted that he not do so “because it is easier to take the engine out if it is cold.” The judge continued: [39]

Ground 1: factual error

1. [33]

   The logic of this last passage in the reasoning is not persuasive. If one assumes that the applicant knew the girls were in the house and intended to make his way into the house at some stage so as to molest them, there was of course logic to the reasoning. However, even as an element of a circumstantial case, it could only bear weight if the judge were entitled to give no weight to the applicant’s explanation. There are two reasons for finding the rejection of that evidence unwarranted.

2. [34]

   First, the exchange of text messages relied upon for this finding did not reveal the applicant insisting upon coming across the road. The exchange came in two parts, the first at 11.30am and the second at 12.04pm. The first exchange commenced with the applicant advising that he had the throttle body and asking:

3. [35]

   This exchange did not support a firm conclusion that the applicant was insisting on being allowed to deal with the car outside the neighbour’s house.

4. [36]

   Further, the judge treated as a matter of “common sense” the risk of “an engine being so hot that it could not … be removed from the car.” She further referred to the applicant saying “he would prefer to have engine cold”. [40] It is by no means clear that the judge understood the mechanical steps proposed. It was not a question of being easier, as she expressed it, “to take the engine out if it is cold”; it is clear that it was the throttle body which the applicant said is “much easier to get off when it’s cold.” Without more evidence as to the nature of the applicant’s concern, it should not have been dismissed as a mere “preference”.

5. [37]

   Those matters aside, it is not clear why the fact that the applicant must have known that he was breaching his supervision order made it more likely, rather than less, that he was intending to commit an offence.

6. [38]

   The relevant facts were all contained in a written statement of agreed facts. It follows that this Court is in as good a position as the sentencing judge to make a finding as to whether the sentencing judge was in error. Further, the impugned finding is not an inference to be derived from a jury verdict; it is a finding which is reasoned over several pages of the judgment. In my view, the sentencing judge should not have been satisfied beyond reasonable doubt that the events on the day involved planned criminal activity, for two primary reasons. First, the critical text messages do not provide a firm foundation for the inference of manipulative activity by the applicant identified by the primary judge. Secondly, they were insufficient to prove, in the absence of other relevant evidence or agreed facts, that the applicant knew the girls were in the house prior to entering on the first occasion to wash his hands. Indeed, if the criminal activity had been planned prior to that occasion, it is necessary to explain why no assault occurred at that time.

7. [39]

   It follows that the circumstance of aggravation was not made out and should not have been taken into account. As explained in Kentwell, where the Court has identified specific error, the sentence imposed below must be set aside and the appellate court is required to exercise the sentencing discretion afresh. [41] The duty to resentence is not engaged if, “in the separate and independent exercise of its discretion” the Court concludes that no different sentence should be imposed. [42]

8. [40]

   As this conclusion requires that the Court consider resentencing the applicant, it is not necessary to determine separately whether, independently of the error, the sentence was manifestly excessive. As will be explained below, this was a difficult sentencing exercise.

Resentencing

1. [41]

   It is appropriate to consider the terms of the sentence imposed by the sentencing judge, almost two years ago. There is some evidence of post-sentence conduct which must also be taken into account, although it has limited bearing on the appropriate sentence. The judge allowed a discount of 20% for the pleas of guilty, which was taken into account in indicating the sentences which would have been imposed had she not proceeded to an aggregate sentence.

2. [42]

   With respect to each count of indecent assault a sentence of 6 years was indicated with a non-parole period of 4.5 years. There was, understandably, no finding of special circumstances and therefore no basis to vary the relationship between the non-parole period and the head sentence. With respect to the breaches of the extended supervision order, a fixed term of 2 years was indicated. It follows, given the discount, that the starting point for the indecent assault offences was 7 years 6 months and the starting point for breaching the order was 2 years 6 months.

3. [43]

   As explained in DL v The Queen: [43]

4. [44]

   The discount for the pleas of guilty, and the refusal to find special circumstances were not challenged and were, in any event, appropriate findings.

(1) sentence for breach of extended supervision order

1. [45]

   The extended supervision order may properly be characterised as a form of conditional liberty. The fact that the assaults were committed whilst the order was in force was therefore an aggravating factor in relation to each assault, pursuant to s 21A(2)(j) of the Sentencing Act. Although there appears to have been a technical breach of the order in the applicant being in premises across the road from his own residence, and not being at the shopping centre at the time of the offending, the aspect of breach relied upon by the prosecutor below was the commission of the indecent assaults. Given the basis upon which the applicant stood to be sentenced for the breach of the order, which constituted a circumstance aggravating the other offending, there is a risk of double punishment for the one aspect of conduct.

2. [46]

   The sentencing judge took that matter into account, her attention having been drawn to the decision of this Court in Archer v R. [44] Archer was sentenced for an offence of wounding with intent to cause grievous bodily harm, and the murder of his former partner. At the time of the offending, he was subject to an apprehended violence order designed to protect his former partner. This Court accepted that his conduct constituted a breach of the order and the fact of the breach was an aggravating circumstance with respect to the murder.

3. [47]

   In sentencing the applicant the judge suggested that the separate sentence for the breach of the apprehended violence order in Archer had been entirely accumulated upon the sentence for the murder. [45] In fact that was not so. The sentence in Archer for wounding was accumulated by six months upon the sentence for breach of the order, and there was a further accumulation with respect to the sentence for murder of the victim for whose protection the order had been made. Because the sentencing judge imposed an aggregate sentence, it is not clear what role the sentence for the breach of the extended supervision order played in the ultimate sentence.

4. [48]

   There is a further consideration with respect to the contravention of the extended supervision order. When the order was imposed, as Fullerton J noted in her conclusion, a breach rendered the applicant liable to conviction and punishment by imprisonment for 2 years. On 7 January 2015, with the commencement of the Crimes (High Risk Offenders) Amendment Act 2014 (NSW), the maximum penalty was increased to 5 years imprisonment. In the District Court it was assumed that the increased penalty applied not only to a breach of an order made after the commencement of the new penalty provision, but also in relation to an order made before the commencement. That may be so on a literal reading of Sch 2, Pt 8 of the Crimes (High Risk Offenders) Act 2006 (NSW) (“High Risk Offenders Act”), cl 14 of which states that the amendments “extend … to persons subject to an extended supervision order … immediately before the date of commencement of the amendments”: cl 14(c). However, the same clause states that the amendments extend to “offences committed before the date of commencement of the amendments”: cl 14(a). A literal reading of the latter provision might mean that the new penalties applied to a breach of s 12 of the Act (which is an “offence”) committed prior to the commencement of the increased penalty. An alternative reading would limit the operation of cl 14(a) to underlying offences warranting the imposition of an order. Whether cl 14(c) could also be read down was not the subject of submissions and may be put to one side.

5. [49]

   Nevertheless, it is not known whether notice was given to the applicant in 2009 as to the penalty for breach (beyond the statement in the judgement that it carried a 2 year penalty), nor whether any notice had been given of the increased penalty applicable from January 2015. One would expect some notice to have been given to those subject to such orders. This was not an incremental increase in the available penalty, it was a fivefold increase in the number of penalty units and a 150% increase in the maximum term of imprisonment.

6. [50]

   In these circumstances, I would not propose a penalty for the breach of the extended supervision order in excess of the maximum penalty available prior to January 2015.

7. [51]

   There were prior breaches. The applicant had been charged and convicted for failing to comply with the order on three occasions, namely in relation to offences committed in January 2011, April 2011 and August 2012. Although sentences of imprisonment were imposed on each occasion, his criminal record contained no further sexual assaults on children. Nor are there admissions of further sexual assaults which were not the subject of charges. The earlier history of opportunistic assaults suggests one cannot be sure that there have been none since October 2009, but the Court must act on the premise that the extended supervision order has been effective in its primary purpose, until the present offending in October 2015. Because the last breach was not merely non-compliance with the zone in which the applicant was required to remain, nor non-compliance with the curfew, the breach was serious; without it the opportunity for the indecent assaults would not have arisen.

8. [52]

   The criminal history reveals that the applicant had been sentenced in March 2013 to imprisonment for 16 months with a non-parole period of 12 months for breach of the order. He has no entitlement to leniency with respect to that offence.

9. [53]

   In all the circumstances considered above, a sentence of 2 years imprisonment for breach of the order would be appropriate, which after applying a discount of 20% for the early plea is imprisonment for 18 months.

10. [54]

    As there is a lack of transparency in imposing an aggregate sentence, I do not propose such a sentence, but would impose a fixed term of 18 months imprisonment for breach of the order.

(2) indecent assaults – relevant considerations

1. [55]

   As noted above, the important guideline with respect to these offences was the maximum penalty of 10 years imprisonment. Because of his prior offences of a similar nature, the applicant is entitled to no leniency. However, the determination of an appropriate sentence is difficult, for two reasons.

2. [56]

   First, the objective seriousness of the offending is not easily assessed. The trial judge accepted the prosecutor’s submission that objective gravity fell above the mid-range of seriousness. In doing so she took into account (i) the age of the victims; (ii) the type of physical contact; (iii) each offence being committed in the presence of the other victim; (iv) the commission of the offences in the home of the victims, and (v) the limited aspect of planning involved.

3. [57]

   The judge held, correctly, that the exposure of young children to sexualised behaviour can have long term detrimental effects, in that it can rob children of their innocence, sexualise them before they have psychological maturity, displace the sense of trust a child should have in adults and may create confusion that lasts into adulthood. [46] The judge also noted a submission by the prosecutor that sexual abuse of children of very tender years “will inevitably give rise to psychological damage emanating from at least the confusion in the mind of the victim of abuse”, referring to the judgment of this Court in SW v R. [47] The facts in SW may well have supported such a finding. The offence involved anal abuse of a five year old boy involving penetration which caused immediate pain and discomfort, which lasted for some time. There was expert evidence before the Court which “emphasised the grave and long-lasting consequences for this victim arising from this offence.” [48] However, care should be taken in generalising from the circumstances of that offence and the evidence before the Court in that cases, as if a principle of law were involved.

4. [58]

   In particular, this Court did not have the benefit of any psychological evidence, either relating to the victims or to the effects of sexual abuse generally, which might have indicated particular long term consequences. Statements made by sentencing judges in other cases with respect to specific outcomes of a kind which experts may have difficulty in predicting, should be treated with caution. In SW, Johnson J accepted the causal link between an offence and psychological harm:

5. [59]

   More important in assessing the objective seriousness of the offending is the risk of serious long-term harm, which is reflected in the maximum sentence. That is a material consideration even in cases where the evidence does not demonstrate immediate distress, or subsequent abnormal behaviour, as in SW.

6. [60]

   According to the agreed facts, the applicant went into the kitchen to wash his hands with soap, then entered the bathroom and assaulted the younger girl, then left the bathroom to assault the older girl and re-enter the bathroom, from whence he emerged as the father came inside, by which stage either the applicant or the girls had pulled their pants up. The facts asserted that the father entered the house “around 2 to 3 minutes after the offender had gone inside”. It follows that the period of each act of offending must have been less than a minute.

7. [61]

   Indecent assault lies in the lower range of offences involving sexual conduct towards children. Any element of penetration would have involved a more serious offence. Taking account of the circumstances noted above, regarding the ages of the victims and the degree of physical contact, and giving some weight to the fact that the assault on the younger girl was witnessed and perceived to be wrong by her older sister, and that the offences were committed in their home, the objective gravity should be assessed as falling in the middle of the range of objective seriousness for that offence. The moral culpability of the applicant is aggravated because the conduct involved a breach of the extended supervision order, and by the capacity of the offending to cause lasting harm, whether or not it did so in the individual cases.

8. [62]

   It is necessary to have regard to factors personal to the applicant. The sentencing judge, by reference to mental health assessments of the applicant, accepted unchallenged diagnoses that he suffered from “paedophilia, likely autistic spectrum disorder and persistent depressive disorder being chronic dysthymia.” [49] She also noted that Dr Furst had identified “the most relevant clinical disorder in terms of his current alleged offences, offending and future risk issues [as being] his paedophilia which is a paraphilic disorder of sexual arousal characterised by deviant fantasies, thoughts and behaviour in the form of sexual attraction to pre-pubescent children, especially young girls.” [50]

9. [63]

   That assessment, as the trial judge noted, gave rise to a tension; the psychiatric conditions which had the capacity to reduce his moral culpability were those which created the high risk of recidivism and engaged a need to protect the community. [51]

10. [64]

    The seriousness of the risk was identifiable from the judgment of Fullerton J in imposing the extended supervision order. The judgment was before the sentencing judge and before this Court. Fullerton J noted:

11. [65]

    The difficulty in sentencing an offender whose moral culpability is reduced by mental illness or intellectual disability, which in turn increases his dangerousness to society, was addressed in Veen v The Queen [No 2], [52] and by this Court in R v Windle. [53] The joint reasons of the majority in Veen [No 2] observed: [54]

12. [66]

    In dissent in Veen [No 2], Wilson J identified an ambiguity in the proposition that “the protection of the public from an offender with a propensity to commit violent or serious crime may legitimately result in a heavier sentence being imposed than would be the case if such propensity had not been present.” [55] The ambiguity lay in the fact that “if the propensity had not been present then it is probable that considerations personal to the offender would justify a measure of leniency and result in a sentence which was less than the maximum punishment which the facts of the offence, viewed objectively, would warrant.” Referring to these statements in Windle, I observed:

13. [67]

    There is a further factor to which regard should be had in seeking to resolve this dilemma. Although protection of the community remains a purpose of sentencing, as identified by s 3A(c) of the Sentencing Act, account should be taken of the role of the Crimes (Serious Sex Offenders) Act 2006 (NSW) under which the extended supervision order applicable to the applicant was made. The objects of that Act, now the High Risk Offenders Act, are as follows:

14. [68]

    The Act includes within its purview, offences of a sexual nature, including offences under Pt 3, Div 10 of the Crimes Act within which fall the offences which the applicant has a propensity to commit. With respect to such offences, the Supreme Court may make either a continuing detention order or an extended supervision order: ss 5C and 5B respectively. The primary criterion for a continuing detention order is the satisfaction of the Supreme Court “to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order”: s 5C(d). The equivalent criterion with respect to an extended supervision order is satisfaction to a high degree of probability that the offender poses “an unacceptable risk of committing another serious offence if not kept under supervision under the order”: s 5B(d). It is not necessary to find that the risk of committing such an offence is “more likely than not” in order to determine there is an “unacceptable risk”: s 5D.

15. [69]

    In principle, there might be three significant aspects of this legislative regime, relevant to sentencing. First, the availability of such orders could reduce the tension between punishment for a past offence and imprisonment for the protection of the community against future offences, by providing a different process to address the latter problem. Secondly, there can be greater transparency in identifying the purpose of the detention or supervision, in accordance with orders imposed from time to time for the protection of the community. Thirdly, the availability of such orders allows for contemporaneous assessment of the risk to the community, by the Supreme Court, at the time of the offender’s completion of his punishment for past offending, thus reducing the need for speculation at the time of sentencing as to the likely situation many years in the future. However, the Sentencing Act imposes an obstacle to reliance on these powers in sentencing:

16. [70]

    As noted in Muldrock v The Queen: [56]

17. [71]

    Accordingly, it remains necessary to give effect to the need to impose a sentence for a past offence sufficient to protect the community from future offending. As the Court further noted in Muldrock, by reference to Veen [No 2]:

(3) indecent assaults – personal factors

1. [72]

   The psychiatric conditions suffered by the applicant have been referred to above in relation to his moral culpability. They are also relevant to the conditions of his imprisonment. The applicant tendered an affidavit in which he referred to the depot injections received on a fortnightly basis to control inappropriate sexual thoughts which, according to his self-report, was largely effective. He also stated that he was receiving medication for PTSD, but could not be adequately treated whilst in custody.

2. [73]

   He raised a number of further issues in submissions; although some of the material was factual, no objection was taken on behalf of the Director. He stated that he had been subject to physical and verbal abuse and sexual harassment in gaol, despite being on protection. The conditions of his imprisonment mean that he is held in a cell by himself, with limited or no association. He is allowed into the yard for 90 minutes exercise per day. It may be accepted that, for a person requiring anti-psychotic medication and suffering from a depressive disorder, the conditions of his imprisonment are more severe than those to which other prisoners are subject.

3. [74]

   The Director proffered evidence that the applicant had been penalised for possession in prison of prohibited goods, which appear to have been a bag of tablets which were prescribed medication, but which he had not consumed. There were 73 capsules in the bag. The significance of this event does not appear from the material provided to the Court and it may be disregarded.

(4) indecent assaults – resentencing

1. [75]

   In the circumstances outlined above, it may be accepted that the same sentence should be imposed for each of the indecent assaults. The aggravating factor of planning should be set aside. Otherwise, the prior offending deprives the applicant of any entitlement to leniency.

2. [76]

   Given their objective seriousness, although not being in the high range, an appropriate sentence is one of 6 years 3 months, which, when reduced by 20% for the early guilty plea, would be a sentence of 5 years imprisonment, with a non-parole period of 3 years 9 months. In the District Court, the prosecutor accepted that the sentence for the breach of the order should not be accumulated on the sentences for the indecent assaults. That submission should be accepted and applied in this Court.

3. [77]

   The sentences for the first indecent assault (count 2) and the extended supervision order breach should commence on 16 October 2015, when the applicant was first taken into custody with respect to these matters.

4. [78]

   The degree of accumulation, and thus the commencement of the second indecent assault sentence, should take into account the fact that, although the offences were committed in close proximity to each other, both in time and place, there were two separate victims.

5. [79]

   Taking these varying factors into account, the second sentence for indecent assault (count 4) should be accumulated on two years of the first sentence, so that it commences on 16 October 2017. The effective non-parole period will then be 5 years 9 months, commencing on 16 October 2015 and terminating on 15 July 2021, which will be the first date upon which he will be eligible for release on parole. The total effective sentence will be 7 years, and will terminate on 15 October 2022.

6. [80]

   The sentencing judge imposed a non-parole period of 7 years, but, in noting the date of eligibility for release on parole, continued: “whereupon you are to be released on parole.” That direction was not appropriate in circumstances where the non-parole period exceeded 3 years. Nothing turns on that, because the orders made by the sentencing judge must be quashed and the applicant resentenced.

Orders

1. [81]

   The Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal against the sentences imposed on him in the District Court at Parramatta on 7 July 2017, limited to grounds 1 and 4.

   2. (2)

      Allow the appeal and set aside the sentences imposed by Culver DCJ on 7 July 2017.

   3. (3)

      Resentence the applicant as follows:

   4. (4)

      Note that the first date on which the offender will be eligible for release on parole is 15 July 2021.

2. [82]

   HAMILL J: I agree with Basten JA that Ground 1 should be upheld. I agree with his Honour’s reasons for that conclusion. I agree expressly with his Honour’s analysis and conclusion as to the proper approach to be taken under the provisions of the Criminal Appeal Act 1912 (NSW) when an applicant for leave to appeal against sentence challenges a factual finding made by a sentencing judge. I have expressed my agreement with his Honour’s approach to this issue before. [57]

3. [83]

   I also agree with the presiding Judge’s assessment of the objective gravity of each of the offences and with the sentences (including the partial accumulation of those sentences) that his Honour proposes in re-sentencing the applicant.

4. [84]

   I agree with orders proposed by Basten JA.

5. [85]

   LONERGAN J: I agree with Basten JA and Hamill J that Ground 1 should be upheld.

6. [86]

   In the context of this appeal, I do not consider it necessary to express a view as to my agreement or otherwise with the analysis of Basten JA (and Hamill J) as to the proper approach to be taken under the provisions of the Criminal Appeal Act 1912 (NSW) when an applicant for leave to appeal against sentence challenges a factual finding made by a sentencing Judge; [6] to [20] per Basten JA, Hamill J specifically agreeing [82].

7. [87]

   The origin of this tension in views arises from the authority of R v O’Donoghue (1988) 34 A Crim R 397 at 401 where Hunt J said:

8. [88]

   As observed by Johnson J in Aoun v R [2011] NSWCCA 284 at [35]:

9. [89]

   Subsequent to Aoun, there have been further applications usefully collected by Latham J in Peters v R [2013] NSWCCA 324 at [42]:

10. [90]

    Analyses by Simpson JA in AB v R [2014] NSWCCA 339 at [44]-[59] and Button J in Turnbull v Chief Executive of the Office of the Environment and Heritage [2015] NSWCCA 278 at [26]-[36] provide cogently reasoned support for the orthodox view.

11. [91]

    However in my respectful view, this appeal can be disposed of favourably to the applicant without deciding whether O’Donoghue, and the cases which followed it were wrongly decided.

12. [92]

    Here, error in fact-finding is demonstrated by the sentencing judge because a finding was made for which there was no evidence at all – that is that the applicant “at least at the time of telling (the neighbour) that he would go over to (the neighbour’s) place and refusing the offer of the neighbour to bring the car to him …. was planning this contact with the children”. That was a finding that could not be made because there was no evidence at all that the applicant knew at that stage that there were children in the house.

13. [93]

    In assessing the offending at the upper level of gravity, the sentencing judge included as an aggravating factor that there was “… that limited aspect of planning …” but that aggravating factor was not made out on the evidence and should not have been taken into account. Accordingly the sentence imposed must be set aside and the applicant resentenced.

14. [94]

    I agree with the assessment of Basten JA of the objective gravity of the offences and the proposed sentences.

15. [95]

    I agree with the sentence proposed by Basten JA and I agree with the orders proposed.