Baldwin-Davies v R

1. [1]

   MITCHELMORE JA: I agree with the orders proposed by Basten AJA for the reasons his Honour gives in relation to ground 2. As to grounds 1 and 3, I agree with the reasons of Wright J.

2. [2]

   BASTEN AJA: The applicant seeks leave to appeal from an aggregate sentence of imprisonment for 12 years with a non-parole period of 7 years and 9 months imposed on him by Judge King in the District Court, for a number of sexual offences which occurred with a young female (then aged 14 years and 9 months) on one night in January 2022.

3. [3]

   For the reasons given by Wright J, grounds 1 and 3, alleging a failure by the sentencing judge to assess the objective seriousness of the various offences, or to give adequate reasons for findings as to objective seriousness, should be dismissed. I would add the following observations in support of the conclusion that leave to appeal on these grounds should be refused.

4. [4]

   There is no doubt that the objective seriousness of the offending is a central consideration in any sentencing exercise. Where the judge identifies the nature of the offending and the circumstances in which it occurred and refers to “objective seriousness” in express terms on four occasions in as many pages, it is inherently unlikely that the issue has been disregarded.

5. [5]

   The offender was charged with ten offences arising out of conduct occurring over a period of perhaps one hour, on one night. The judge stated: [1]

6. [6]

   Contrary to the submissions of the applicant’s counsel, these passages did not demonstrate an abnegation of the obligation to assess objective seriousness, but rather a pragmatic approach to the exercise which was justifiable in the circumstances. The submission proposed a triumph of form over substance.

7. [7]

   This approach is consistent with that adopted by N Adams J in Dorsett v R [2] in not dissimilar circumstances:

8. [8]

   In my view, leave to appeal should be refused with respect to ground 1 and 3.

Manifest excess

1. [9]

   Ground 2, asserting that the aggregate sentence was manifestly excessive, is more troubling. Indeed, the proper approach to assessing whether an aggregate sentence falls within an appropriate range involves an issue of principle and warrants a grant of leave to appeal.

2. [10]

   A determination to fix an aggregate sentence does not exonerate the judge from determining (and indicating) what individual sentences would have been imposed had that decision not been taken. Those individual sentences are to be adjusted by way of discount, which allows an appeal court to know the judge’s starting point. [3] In the present case the early guilty pleas attracted a discount of 25%. If there were any principled basis for relating the sum of the individual sentences to the aggregate sentence, an offender would know how his or her guilty pleas had been taken into account in the sentence actually imposed. However, the relationship is not fixed, so a simple exercise is not possible. On the one hand, despite the language of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (and, indeed, s 23) an aggregate sentence is not reduced by a discount for a plea of guilty. It is simply assumed that the offender has in fact obtained the statutory benefit provided for a plea of guilty: an aggregate sentence imposed after pleas of guilty cannot be directly compared with an hypothetical aggregate sentence imposed after a trial. Nevertheless, on the hypothetical basis that all other things were equal, but that the applicant had defended the charges at trial, his head sentence would have been in the order of 16 years, rather than 12 years.

3. [11]

   Reliance on comparative cases allows a sentencing judge (or an appellate court) to obtain guidance as to the proper range within which an appropriate sentence may fall in a particular case. Further, consistency of approach is an essential element of equal justice. As Gleeson CJ stated in Wong v The Queen [4] :

4. [12]

   The joint reasons of Gaudron, Gummow and Hayne JJ in Wong observed that the sentence imposed in a particular case does not constitute a precedent, continuing: [5]

5. [13]

   The joint reasons then noted, by reference to House v The King, [6] that there were two categories of error which might warrant appellate intervention in sentencing cases, namely a “specific error of principle” and the residuary category of manifest excess or manifest inadequacy, where the appellate court may infer that there must have been “some misapplication of principle, even though where and how is not apparent from the statement of reasons”. The joint reasons in Wong continued:

6. [14]

   As a practical matter, references to “precedent” and “principle” may seem strange in this context. In House v The King, the residual category identified the outcome as either “unreasonable or plainly unjust”, or it appears that the judge has “proceeded upon wrong principles or given undue weight to some of the facts”, in either case so as to conclude that “a substantial wrong has in fact occurred”. Such judgments can only be made by a process of deduction from a range of earlier sentences; the value to be affirmed is, in the words of Gleeson CJ, to maintain a level of “reasonable consistency”.

7. [15]

   That exercise may be undertaken by seeking to identify common elements which have been relied on by sentencing judges in explaining how a particular sentence was arrived at. As explained in Wong, the result is a form of “unifying principle”, the label adopted by the High Court, which may readily be applied.

8. [16]

   The comparative exercise usually relies upon statistical information as to past sentences for a particular offence, or the use of comparators, that is earlier judgments either of this Court or of sentencing judges, or both. Although the applicant relied upon sentencing statistics, they were of limited value and can be put to one side. The cases are of more assistance.

9. [17]

   Two factors affecting the use of comparative sentencing judgments must be borne in mind. One is the selection of the pool. In adversarial proceedings, there is a tendency for each party to rely on cases which favour its position. However, selectivity was not an issue in the present case, as the pool was broadly agreed upon. The second factor is the degree of detail which must be identified in respect of each case. It is often easier with appellate decisions to identify the factors which have been given significant weight in a judgment. However, the exercise remains impressionistic, and the following analysis focuses on what appear to have been key elements.

10. [18]

    A similar case to the present, relied on by the respondent, was Morrison v R, [8] involving a victim aged 13 years 3 months who was alone one evening on Manly Wharf, having walked out of her own home after an altercation with her mother and planned to sleep at a friend’s house: the friend did not arrive. The ensuing events were outlined in the judgment of this Court:

11. [19]

    Mr Morrison was charged with four acts of sexual touching (and convicted of three), together with two acts of aggregated sexual intercourse under s 61J(1) of the Crimes Act 1900 (NSW), one involving cunnilingus and the other penile-vaginal intercourse, of which he was also convicted following a trial. The latter two counts each carried a maximum sentence of 20 years imprisonment, with a standard non-parole period of 10 years. The trial judge imposed an aggregate sentence of 13 years imprisonment with a non-parole period of 8 years, 8 months; the sentence was set aside by this Court and replaced with an aggregate sentence of 10 years 6 months with a non-parole period of 7 years. That sentence appears to be within the same range as that imposed on the applicant, but the applicant was entitled to a 25% discount, so that his sentence is significantly greater.

12. [20]

    Importantly, each of the two major offences in Morrison carried a maximum penalty of 20 years, with a 10-year standard non-parole period, as compared with 12 years, with 5-year standard non-parole period, under s 66C(4), with which the applicant was charged. There were other points of distinction: but Morrison indicates that the applicant’s sentence may not have been within an appropriate range.

13. [21]

    The respondent also relied on Du Plessis v R, [9] which involved circumstances similar to Morrison, and with no discount for guilty pleas. Like Morrison, Du Plessis involved two counts of aggravated sexual intercourse without consent under s 61J(1). An aggregate term of 11 years, 6 months was reduced on appeal to 10 years. Again, the more serious charges and the absence of a discount suggest that the applicant’s sentence may not have been within an appropriate range.

14. [22]

    Of the ten cases relied upon by the applicant, eight were judgments of this Court and two of the District Court. Two involved sentencing following a trial; the other eight involved pleas of guilty. Significantly, only two involved events occurring on a single night, while eight involved an ongoing relationship. This is a matter of some importance: greater culpability will usually attend a deliberate, planned, ongoing relationship, than the opportunistic taking advantage of a young person on one occasion. In several cases, the victim was not only young but had some degree of cognitive or intellectual impairment.

15. [23]

    With two exceptions, the aggregate sentences varied between eight years, six months and four years. The two exceptions, each involving a sentence of 11 years, involved offending over six or 18 months.

16. [24]

    The first case involving an 11-year aggregate sentence was Director of Public Prosecutions (NSW) v Wolinski. [10] The case involved a Crown appeal from an aggregate term of six years, four months in respect of six counts of aggregated sexual intercourse with a child, and two counts of sexual intercourse, together with a form 1 including two offences of sexual intercourse with a child and three offences of aggravated sexual intercourse with a child. The offending took place over a period of some six months when the victim was 14 and 15 years of age. The offender was 24 and 25 years of age. The offending was demeaning, and on occasion aggressive. The offender had a significant criminal history, including a contravention of an ADVO made to protect the victim. A discount of 25% discount was applied in indicating individual sentences.

17. [25]

    Where there is a series of offences over a significant period of time, the aggregate sentence will be higher because there will be a lesser element of concurrency. Significantly, the indicative sentences on counts involving s 66C(4) of the Crimes Act varied from one year two months to four years three months, the latter including a matter on the form 1: the average sentence for the s 66C(4) offences was two years, ten months. Each figure was significantly below the indicative sentences of five and six years identified by the sentencing judge in the present matter.

18. [26]

    The second case involving an aggregate sentence of 11 years was PB v R. [11] That case involved the biological father of a 14- then 15-year-old girl committing offences over a period of 18 months. The offending took place in the victim’s home. Of the 11 offences, six involved aggravated sexual intercourse under s 66C(4). The error identified by this Court was a failure to have regard to the reduction in the applicant’s moral culpability by reason of the causal nexus between his autism spectrum disorder and the offending. The aggregate sentence was reduced by one year, but the indicative sentences, which involved limited discounts, the greatest being 20%, were not varied, and for the s 66C(4) offences were indicated as either 4 years 3 months or, in one case, 4 years. All were thus considerably below the indicative sentences in the present case.

19. [27]

    Of the two comparators relied upon by the applicant involving a single occasion, Franklin v R [12] was an unsuccessful appeal from an aggregate term of 8 years 6 months. It involved a 14-year-old victim and three counts of aggravated sexual intercourse, but the circumstances were sufficiently different from the current case to make it of limited assistance.

20. [28]

    The second, Rainbow v R, [13] involved a 14-year-old victim with a degree of intellectual impairment; the sentence was for a single offence of aggravated sexual intercourse, being penile-vaginal intercourse, with an aggravated indecent assault taken into account on a form 1. The offender was 36 years at the time of the offending and had a criminal record involving offences of violence. A sentence of 6 years with a non-parole period of 4 years (involving a 25% discount) was reduced on appeal to 3 years 6 months with a non-parole period of 2 years 6 months.

21. [29]

    GG v R [14] involved an offender entering pleas to two counts of aggravated sexual intercourse with his 15-year-old de facto stepdaughter, one count of grooming and one count of producing child abuse materials. A discount of 25% was allowed for three of the offences and 10% discount for another offence. An aggregate sentence of 7 years 9 months was upheld on appeal. The indicative sentence for producing child abuse material should be noted. The filming of sexual activity involved the offender installing CCTV cameras in the victim’s bedroom, which resulted in a collection of 249 video files of the victim engaging in sexual activity. He also bought sex toys for the victim and lubricated her anus and placed a sex toy into her anus whilst taking photos, on two occasions. On another occasion he had penile-vaginal intercourse with her whilst a sex toy was in her anus, causing her pain. There were other occasions on which he had penile-vaginal intercourse with the victim. Overall, the conduct was considerably more serious than that the subject of the present proceeding. Further, it involved ongoing conduct over several months. The indicative sentence for producing child abuse material (after a 25% discount) was 2 years 3 months.

22. [30]

    Sausa v R [15] involved a further case of a stepfather committing offences of digital penetration of his teenage stepdaughter over a three-year period. Following pleas of guilty, a 6-year sentence was imposed and confirmed on appeal. (The issue on appeal was limited to the failure of the sentencing judge to give effect to a finding of special circumstances in fixing the proportion of the sentence to be served as the balance of term.) Although the matter involved two offences of sexual intercourse contrary to s 66C(4), the circumstances of the individual offences were less serious than the present case.

23. [31]

    Kees Langelaar v R [16] involved multiple counts of sexual intercourse with a 15-year-old victim who moved into a home occupied by the offender and his family, as a friend of the offender’s older daughter. The offender and the victim developed a “close relationship” which involved him kissing her, sometimes passionately, and her wearing a t-shirt and underwear and sitting with her legs on his lap watching television. She gave evidence that there were numerous occasions when the offender put his fingers in her vagina. The offender was charged with six counts including four of aggravated sexual intercourse and one count of aggravated indecent assault, the last involving the complainant masturbating the offender to ejaculation. The final three counts of aggravated sexual intercourse occurred on one occasion. The first count involved him inserting his fingers in and out of her vagina for about five minutes; the second involved her resisting having sex with him, but fellating him instead. (The third was a charge of vaginal intercourse, of which the offender was acquitted.)

24. [32]

    The complainant had longstanding mental health problems. In circumstances, where the applicant was unrepresented, the primary arguments were directed to the convictions: these were dismissed, leave to appeal against sentence being refused. The aggregate sentence was imprisonment for 5 years, with indicative sentences of 2 years 6 months on two counts of digital intercourse, 3 years in relation to the count involving masturbation and 4 years in relation to the count involving fellatio.

25. [33]

    The following principles may be derived from these comparators. The first, unsurprisingly, is that higher aggregate sentences will be imposed in cases involving multiple acts over an extended period of time, at least in part because there will be lower levels of concurrency implicit in the aggregate term.

26. [34]

    Secondly, although there are more serious charges available for sexual intercourse without consent, sentences for offences under s 66C(4) will tend to be higher where there are elements of aggression involved.

27. [35]

    Thirdly, although breach of trust is a common aggravating factor in relation to offending within the family home or in a family situation, a high level of culpability may also be found where a stranger takes advantage of a vulnerable victim.

28. [36]

    Fourthly, although individual circumstances may lead to sentences in the order of five years (as in Rainbow) the individual sentences indicated in relation to an aggregate sentence are well below that figure, perhaps to avoid double counting in relation to a continuing course of conduct.

29. [37]

    Finally, although good character, as a factor supporting leniency, may be given weight in relation to an individual offence or event, even if demonstrating a substantial and inexcusable departure from moral standards, that is not the case where there is an ongoing course of conduct over weeks or even months. In several of the cases, the victim was mildly intellectually impaired or had cognitive impairment, as in the present case.

30. [38]

    As to the total sentence, neither party identified any case in which a starting point in the order of 16 years was imposed for a relatively confined number of offences committed on one occasion. Further, in cases involving the recording of sexual activity, particularly where the victim’s face and therefore identity is recorded, there is some, but not a substantial, increase in the aggregate sentence.

31. [39]

    As to the indicative individual sentences, it can be seen that the individual sentences indicated by the sentencing judge in this case for offences under s 66C(4) of 5 or 6 years after a 25% discount, (that is, with a starting point of 6 years 8 months or 8 years) are double or more than double the indicative sentences in the comparators.

32. [40]

    Bearing these considerations in mind, including the lower individual sentences indicated in the comparators, I am satisfied that the aggregate sentence in the present case was manifestly excessive. Accordingly, ground 2 should be upheld and the applicant resentenced.

Resentencing

1. [41]

   The circumstances, including the sentencing judge’s findings based on the testimony of the applicant have been set out comprehensively by Wright J and need not be repeated. The victim’s vulnerability was a function not only of her age but also her autism spectrum disorder - level 1. (Level 1 is sometimes described as “high functioning”, being the least severe category of ASD.) There is no doubt that the applicant’s conduct towards the victim was domineering, exploitative of her vulnerability, and humiliating. Although it may be assumed that, contrary to his evidence at the sentence hearing, his primary motivation was sexual gratification, there was also an abusive exercise of power and control.

2. [42]

   The precise length of the offending is not known, but the agreed facts were that Ms J (whose home it was), the applicant and the victim returned to the house at about 12:30am on 3 January and “continued to talk for some time”. They were “smoking mushrooms”. Ms J went to bed and the applicant and the victim later went to his flat at the back of the house. The victim said that the applicant was “drunk” and “high”. The recording on the applicant’s phone commenced at 3:51am and continued until about 4:20am, when the victim said, “Stop filming me”, and the recording ceased. Ms J woke at about 5:30am, saw the door of the flat was open and the applicant and the victim asleep. It was not established beyond reasonable doubt, and could not be inferred, that the offending continued for more than an hour. Nevertheless, the sentencing judge’s finding that the conduct was “opportunistic and predatory” should be accepted.

3. [43]

   The applicant’s subjective circumstances were almost entirely favourable. He had a good school record, a steady employment record, had managed (perhaps by denial) to deal with the trauma of his mother’s violent death when he was a teenager, and had only one blemish (a stalking offence) on his otherwise clear criminal record.

4. [44]

   The sentencing judge noted a conviction in January 2020 for the offence of stalk, intimidate and intend fear, which resulted in a 12-month conditional release order. The judge continued:

5. [45]

   The judge noted further:

6. [46]

   The largely unblemished record of a 37-year-old Indigenous man, facing his first sentence of imprisonment, was a point of distinction from many of the cases relied upon as comparators, favouring a lower sentence.

7. [47]

   The judge’s guarded findings as to insight, remorse, rehabilitation should be accepted. As the judge said, the offending was “inexplicable”, but “spontaneous”; there was no grooming or prior indication of sexual interest in the victim.

8. [48]

   As to objective seriousness, the relationship between the individual sentences indicated by the sentencing judge should be accepted, but the individual sentences for the s 66C(4) offences should be reduced from 5 years to 3 years and from 6 years to 4 years. Despite the potential for the recorded material to fall into the hands of third parties, there was no evidence that that was intended, nor did it in fact happen. (In two of the sequences the victim’s face was visible.) The three offences for breach of s 91G(2)(a) of the Crimes Act should be reduced from 3 years to 18 months. As to the two separate charges of sexual touching, contrary to s 66DB(a) of the Crimes Act, the first involved kissing and rubbing her breasts with an indicative sentence of 18 months. The seriousness flowed from the fact that he had induced the victim to remove her clothes and get into bed with him and the conduct was accompanied by his claim that he now “owned her”. The sentence indicated by the sentencing judge should stand. The second charge of sexual touching involved what appears to have been a brief incident of the applicant’s penis touching the victim’s genitalia, without penetration as she moved on top of him. The indicative sentence of 4 years should be reduced to 2 years.

9. [49]

   The judge’s finding of special circumstances should be accepted and the resulting relationship between the non-parole period and the balance of term maintained. In these circumstances, and taking account of the discount of 25% applied to the relevant indicative sentences, an aggregate sentence of 9 years 6 months is appropriate, with a non-parole period of 6 years and 4 months. That sentence would maintain the finding of special circumstances and the ratio of 65% accepted by the sentencing judge. The sentence will have commenced on 4 January 2022 when the applicant was taken into custody and the non-parole period will expire on 3 May 2028. The balance of term of 3 years and 2 months will expire on 3 July 2031.

10. [50]

    Accordingly, I propose the following orders:

    1. (1)

       Grant the applicant leave to appeal against the aggregate sentence imposed in the District Court on 20 November 2023.

    2. (2)

       Allow the appeal and set aside the aggregate sentence.

    3. (3)

       Resentence the applicant to an aggregate sentence comprising –

    4. (4)

       The applicant will be eligible for release on parole from 3 May 2028.

11. [51]

    WRIGHT J: The applicant, Mr Luke Baldwin-Davies, seeks leave to appeal, under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against a sentence imposed on him by King SC DCJ in the District Court of New South Wales.

Background

1. [52]

   On 23 March 2023, the applicant pleaded guilty in the Local Court at Port Macquarie to 5 charges of aggravated sexual intercourse with a child aged between 14 and 16 years, 2 charges of intentionally sexually touching a child aged between 10 and 16 years and 3 charges of use of a child aged between 14 and 16 years for the production of child abuse material. The matter was committed to the District Court.

2. [53]

   After a sentence hearing on 20 September 2023 in Port Macquarie, the applicant was sentenced on 20 November 2023 in the District Court at Sydney to an aggregate sentence of imprisonment for 12 years commencing on 4 January 2022 and expiring on 3 January 2034, with a non-parole period of 7 years 9 months, expiring on 3 October 2029.

3. [54]

   As required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the sentencing judge indicated that the applicant would have been sentenced to the sentences set out in the table below had separate sentences been imposed instead of an aggregate sentence. These indicative sentences were after the application of a 25% discount for the applicant’s early guilty pleas. The table also includes the maximum penalty and, if applicable, the standard non-parole period (SNPP) and the indicative non-parole period (NPP) for relevant offences.

Application for leave to appeal and grounds

1. [55]

   The applicant’s application for leave to appeal was filed within time on 20 August 2024 and originally raised only two grounds of appeal. Subsequently, the applicant served amended grounds of appeal dated 30 September 2024 containing three grounds of appeal and the Crown did not object to the amendment. The three grounds were:

2. [56]

   In order to address those grounds, it is necessary to review in some detail the sentencing judge’s remarks on sentence.

Remarks on sentence

1. [57]

   King SC DCJ commenced his remarks by identifying the maximum penalties and, where applicable, the standard non-parole periods for the 10 offences for which the applicant was to be sentenced. His Honour then noted that the applicant had been arrested on 4 January 2022, the day after the offending, and had been in custody since that time.

2. [58]

   The sentencing judge recorded that the facts were agreed between the parties and effectively made findings in accordance with the agreed facts. The findings included what is set out in the following paragraphs.

3. [59]

   The applicant was 37 years of age and the victim was approximately 14 years and 9 months of age at the time of the offences. The victim had been diagnosed with autism spectrum disorder (ASD) and “[i]n accordance with the diagnostic statistical manual, it was recommended that she be provided with Level 1 support.”

4. [60]

   The applicant had been in a relationship with Ms J, the cousin and close friend of the victim’s mother, and the applicant had met and spent some time with members of Ms J’s family including the victim and her mother. Before the date of the offending, the applicant’s relationship with the cousin had come to an end although they remained friends and the applicant moved into a granny flat at the rear of Ms J’s house. While the applicant was living in the granny flat, the victim visited Ms J and stayed with her for periods of up to a week. At the time of the offences, the applicant was aware of the victim’s age, that she had behavioural problems at school and home and that she had been diagnosed with ASD.

5. [61]

   More specifically, in August 2021, a psychologist noted a diagnosis for the victim of “complex comorbid developmental disorders of ASD Level 1, attention deficit hyperactivity disorder and oppositional defiant disorder” and reported that a functional assessment showed that she would require support “as if she had an intellectual disability”.

6. [62]

   On 2 January 2022, the victim was staying at Ms J’s house, in her own bedroom. That evening she attended a family function with Ms J and the applicant. They returned to Ms J’s house about 12:30 am on 3 January 2022. The three talked for some time and the victim drank a premixed gin drink in the presence of the applicant. The applicant and Ms J were “smoking mushrooms”. Ms J went to her bedroom while the victim and the applicant had a conversation. Following the conversation, the victim went to the granny flat where the offending occurred, some of which was recorded on the applicant’s mobile telephone.

7. [63]

   At the granny flat, the applicant directed the victim to take her clothes off and digitally penetrated her vagina (sequence 7).

8. [64]

   The applicant also instructed her to perform fellatio on him, which she did while he video-recorded it for a duration of 2 minutes and 17 seconds (sequences 8 and 13).

9. [65]

   Further, the applicant touched and rubbed the victim’s breasts and kissed her on the mouth and breasts (sequence 6). While doing this, the applicant told the victim that he owned her and she had to do what he said.

10. [66]

    The victim then lay on her back and the applicant digitally penetrated her genitalia three or four times (sequence 9).

11. [67]

    The applicant motioned for the victim to sit on top of him and she did so with his penis touching her genitalia as she moved on top of him (sequence 11).

12. [68]

    At about 4:10 am, the applicant took a photograph of the victim’s mouth near his penis and at about 4:11 am commenced video-recording her fellating his penis for about 90 seconds (sequences 10 and 14).

13. [69]

    The video recording continued and recorded a conversation including that the victim was asked who owned her pussy and she answered it was the applicant. They had penile/vaginal intercourse with the victim encouraging the applicant till she told him to stop filming her, which had gone on for 4 minutes and 21 seconds (sequences 12 and 15).

14. [70]

    Ms J woke up at about 5:30 in the early morning and noticed the granny flat door was open. She entered and discovered the applicant and a female naked together in the bed. Ms J slapped the applicant and, when she discovered the female was the victim, she screamed at her to leave the room. The victim went to the main house, still naked. The applicant then left the property.

15. [71]

    Later that morning, the victim’s mother came to collect her, and Ms J informed the victim’s mother about the victim being naked in the applicant’s bed. Police were contacted and the victim made a partial disclosure, in front of her mother, father and police officers, which was recorded on body worn video. The applicant’s DNA was later detected on the inside of the victim’s underwear. An examination was completed at hospital and the police interviewed the victim.

16. [72]

    Police arrested the applicant on 4 January 2022 and seized his phone. The photographs and videos taken of the offending were discovered in the deleted items folder on the applicant’s telephone.

17. [73]

    The sentencing judge then considered the offending and noted the following:

    1. (1)

       all of the offending occurred on the one night between 12:30 am and 5:30 am;

    2. (2)

       in respect of each of the offences contrary to s 66C(4), sequences 7, 8, 9, 10 and 12, the circumstance of aggravation relied on was that the victim had a cognitive impairment and this was also relevant to the other offending even though it did not form part of the elements of those offences;

    3. (3)

       the age difference between the victim and the applicant was noted; and

    4. (4)

       the offending involved the victim being directed to comply with the applicant’s desires and to acknowledge his dominance over her.

18. [74]

    His Honour then referred to his approach to expressing his findings as to objective seriousness:

19. [75]

    The sentencing judge then noted other relevant circumstances of the offending:

    1. (1)

       the applicant was in the position of a trusted person and each of the offences was an abuse of that trust; and

    2. (2)

       the offending was aggravated by the fact it occurred in the granny flat which was essentially part of the home which the victim used to visit on a regular basis and where she could expect to be safe from such conduct.

20. [76]

    His Honour then observed that the relevant acts included digital penetration, penile penetration, and fellatio and noted that, depending on the circumstances in which the act was committed, the objective seriousness might vary. The following assessments of the seriousness of the various offences were then made:

21. [77]

    The sentencing judge noted that there was no victim impact statement but inferred that the conduct would be likely to have a very significant effect on the victim in the future as she matures and understands the nature of the offending against her. Nonetheless, it was held that the anticipated consequences did not go beyond what can be ordinarily expected, such as to constitute an aggravating factor.

22. [78]

    His Honour then returned to the assessment of objective seriousness and said:

23. [79]

    King SC DCJ then turned to subjective matters.

24. [80]

    It was noted that the applicant’s criminal history included only one offence of stalking or intimidating, for which he received a 12-month conditional release order and which was apparently unrelated to the victim in this matter. It was said that he was otherwise of good character “until he went entirely off the rails on this occasion”.

25. [81]

    The sentencing judge then referred to the Sentencing Assessment Report, the Sex Offender Sentencing Consultation report, the psychological report of Allan Anderson, a number of certificates obtained by the applicant in custody, and references from Kirrily Slater and Taylah Broadrick.

26. [82]

    As to the references, his Honour noted the exact same wording occurred in parts of each reference. As a result, it was found that they were “almost proforma and carr[ied] little weight, even if genuinely expressed by their authors, which I don’t doubt”.

27. [83]

    It was also observed that the applicant, and the referees, appeared to be seeking to diminish the applicant’s responsibility by saying that “[t]his incident was the result of the use of illicit drugs (magic mushrooms), a hallucinogenic drug, mixed with alcohol”. Nonetheless, it was said that there was no evidence before the court that the applicant had consumed such a sufficient quantity of alcohol that he would be unable to remember the events of the night, nor was there any evidence that the “magic mushrooms” caused memory loss, or that the combination of alcohol and magic mushrooms caused memory loss. The sentencing judge then summarised some of the applicant’s evidence given on sentence as follows:

28. [84]

    The sentencing judge’s assessment was that the applicant was endeavouring to explain away his own conduct by claiming not to recall it or to not know what he had done and to have had no control over what he had done.

29. [85]

    His Honour also recorded that the applicant had said he was “terribly sorry to the victim and her family, that this should not have happened” and claimed to have drunk ten beers before getting home that night.

30. [86]

    King SC DCJ recorded that, in his view, one of the applicant’s comments in cross-examination was “so totally unbelievable as to reflect badly on any evidence given by him that is supportive or tends to assist in obtaining a lesser sentence”. The comment was:

31. [87]

    The sentencing judge did not accept that the applicant had somehow been unaware of what he was doing. In that regard, it was also noted that the Sentence Assessment Report included the observations that the applicant:

32. [88]

    As to his risk of reoffending, it was recorded that the sentence assessment officer assessed the applicant as being “a medium to low risk of reoffending, according to the Level of Service Inventory – Revised” and “a medium risk of sexual reoffending” according to the “Sex Offender Sentencing Assessment Report” which appeared to be the Sex Offender Sentencing Consultation report referred to above.

33. [89]

    It was noted that the applicant had no significant medical or psychiatric history.

34. [90]

    The sentencing judge then recorded the applicant’s personal history including that he was an Indigenous person and his mother had been murdered when he was 16 years old by her then boyfriend. It was accepted that this left him with unresolved trauma. In addition, it was noted that his mother had been a serious alcoholic and irresponsible in caring for him. As to his education, it was recorded that he finished Year 12 being a moderate student but excelling at sport. He has worked as a roof tiler and in fencing, then in the produce and liquor departments of Woolworths before commencing work in the solar power industry which he had worked in for the preceding 15 years.

35. [91]

    His drug use was said to include beginning to drink and use cannabis at age 17 and later dabbling in speed and cocaine.

36. [92]

    It was noted that the applicant has been married and he has children aged 16 and 13, as well as a stepdaughter from a previous marriage. He saw his 13-year-old child regularly.

37. [93]

    It was also said that the applicant described a happy childhood (presumably before his mother’s murder and despite her alcoholic neglect) with no physical or sexual abuse during his developing years. He did not report any mental illness in the family or in himself, although he did take anti-depressants for a period in 2016. The applicant has maintained a high level of fitness.

38. [94]

    The sentencing judge also recorded that the psychologist, Mr Anderson, assessed the applicant as being “a low risk of future reoffending”. In the circumstances identified, his Honour accepted that the risk of reoffending was “moderate to low”.

39. [95]

    As to the prospects of rehabilitation, King SC DCJ found that:

40. [96]

    His Honour took into account the problems in custody caused by the COVID-19 pandemic and recorded that there was nothing contained in the applicant’s past history “which satisfie[d] the considerations of Bugmy” or any other matter that might be relevant to reducing his moral culpability.

41. [97]

    His Honour concluded that:

42. [98]

    After taking into account the sentencing statistics and cases to which the parties had directed attention, the principles concerning sentencing for sexual offending against children and s 25AA(3) of the Sentencing Procedure Act and other matters to which he had already referred, his Honour said he would proceed by way of an aggregate sentence, with the indicative sentences discounted by 25% for the pleas. A finding of special circumstances was made which led to the non-parole period being 65% of the term of the sentence.

43. [99]

    His Honour then identified the indicative sentences as set out in the table above and specifically referred to totality before announcing the aggregate sentence and the non-parole period.

Grounds 1 and 3

1. [100]

   The first and third grounds of appeal both relate to the assessment of objective seriousness of the offences for which the applicant was to be sentenced and can conveniently be dealt with together. The first ground of appeal asserted two errors by the sentencing judge in the assessment of objective seriousness, namely:

   1. (1)

      a failure to assess the objective seriousness of sequences 6 and 11; and

   2. (2)

      a failure to assess the objective seriousness of sequences 7, 8, 9, 10 and 12.

2. [101]

   The third ground was to the effect that there had been a failure to provide adequate reasons for any findings that had been made concerning objective seriousness.

3. [102]

   The applicant referred to the principles, derived from authorities including JM v R [2014] NSWCCA 297; 246 A Crim R 528 (JM), relating to aggregate and indicative sentences and the assessment of objective seriousness in respect of each offence. It was submitted that there was a failure to assess the seriousness of each offence in the present case.

4. [103]

   More particularly, it was submitted that, in the remarks on sentence, there was no specific assessment of the objective seriousness of the acts of sexual touching, sequences 6 and 11, and no delineation between those acts and other sexual acts. It was submitted that the statement that “[t]he extent that any offence varies in terms of its seriousness from any other offence will be evident, and my finding therefore will be evident from the indicative sentences to be stated later in these reasons” was demonstrative of error and employed a form of backward reasoning.

5. [104]

   As to sequences 7, 8, 9, 10 and 12, the sexual intercourse offences, it was submitted that the sentencing judge’s discussion of differences between different forms of sexual intercourse did not expose in a transparent way the process of reasoning used to assess the seriousness of each offence. The two offences of digital penetration, sequences 7 and 9, were submitted to have involved different conduct yet resulted in the same indicative sentence without the basis for this being exposed. A similar submission was made based on the differences between the conduct involved in sequences 8, 10 and 12.

6. [105]

   Effectively in the alternative, the applicant submitted that, if the sentencing judge did make assessments of the objective seriousness of each offence, the reasons given were inadequate as the basis for the assessments were not disclosed.

7. [106]

   The Crown submitted that, when the remarks on sentence were read fairly as a whole, although there was no express assessment of objective seriousness of sequences 6 and 11, it could be inferred that such an assessment had been made because all the relevant factors had been outlined, including acknowledging that those sequences needed to be understood in the context of the entire incident. The Crown referred to various authorities including Daher v R [2018] NSWCCA 287.

8. [107]

   As to sequences 7, 8, 9 and 12, the Crown submitted that the applicant’s essential point was that there had been a failure to expose sufficiently the reasoning process which led to the assessments of objective seriousness made. Once again, it was submitted that the sentencing judge identified relevant factors and considered the different types of sexual conduct involved and the overall circumstances and was mindful of the obligation to assess objective seriousness for each offence. The fact that the sentencing judge nominated the same indicative sentence for some of the offences did not, it was submitted, demonstrate a failure to assess objective seriousness but rather was explained by the fact that many of the relevant factors were common to all of the offending.

9. [108]

   The reference to the varying seriousness of the offences being evident from the indicative sentences was submitted not to be a form of backward reasoning but rather, to be an acknowledgement that there would be some variation between the seriousness of the offending and that it was not intended to place the offences on a hypothetical scale.

10. [109]

    The leading authority on aggregate and indicative sentences under s 53A of the Sentencing Procedure Act remains JM and especially the principles collected by R A Hulme J at [39]. A recent comprehensive and useful discussion of these issues is also found in Dorsett v R [2024] NSWCCA 192 (Dorsett) at [134]-[157] (N Adams J, with Harrison CJ at CL and Dhanji J agreeing).

11. [110]

    When imposing an aggregate sentence for a number of offences, the criminality involved in, or the objective seriousness of, each offence must be assessed individually: JM at [39(4)]; Dorsett at [135]. This is required in order to assist in the application of the principle of totality and to allow victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence: JM at [39(4)]; Dorsett at [135]. The fact that the offences in question are all part of one sequence of continuing offending does not constitute a reason for not applying that principle.

12. [111]

    If the sentencing judge’s comment that “the offences are all in effect a sequence of continuing offending, and there is little utility in referring to the objective seriousness of each individual offence” were taken to mean that his Honour did not make an assessment of the objective seriousness of each offence in the present case, it would amount to an error of principle. In my view, however, when the remarks on sentence are read as a whole including the indicative sentences, it is apparent that the sentencing judge did assess the objective seriousness of each offence as part of the process of determining the indicative sentences for the various offences and did explain his reasoning.

13. [112]

    The fact that the objective seriousness of each offence was assessed is evident from the different indicative sentences imposed for the various offences and from the sentencing judge’s discussion of the relevant factors and comparative seriousness of the offences. Indeed, his Honour expressly stated that “[t]he extent that any offence varies in terms of its seriousness from any other offence will be evident, and my finding therefore will be evident from the indicative sentences”. Such a statement necessarily implies that the sentencing judge did make relative findings of objective seriousness when sentencing for the multiple offences involved in the present case. It is not a form of backward reasoning but a recognition that the indicative sentences imposed reflected, as was appropriate, the assessments of objective seriousness made by the sentencing judge.

14. [113]

    More particularly, as to the sexual touching offences, the indicative sentences for sequences 6 and 11 were 1 year 6 months and 4 years, respectively. It can be readily perceived that this reflects the different seriousness of the sexual touching involved in rubbing the victim’s breasts and kissing her on the mouth and breasts (sequence 6) compared with having the victim sit on top of him with his penis touching her genitalia as she moved on top of him (sequence 11).

15. [114]

    As to the sexual intercourse offences, sequences 7, 8, 9 and 12, the sentencing judge expressly stated that sequences 7 and 9 were to be regarded as “objectively less serious” than sequences 8, 10 and 12. This statement necessarily involves an assessment having been made of the objective seriousness of all those offences. Furthermore, the sentencing judge explained his reasoning for making the assessments, referring in particular to the nature of the intercourse, the risk of disease and the risk of pregnancy. The different assessments of objective seriousness were then reflected in the different indicative sentences: 5 years with a non-parole period of 3 years 3 months for sequences 7 and 9, and 6 years with a non-parole period of 4 years 6 months for sequences 8, 10 and 12.

16. [115]

    Finally, in relation to the three production of child abuse material offences arising out of the video-recording of the offending, sequences 13, 14 and 15, his Honour noted the different durations of the recordings but reasoned that the fact of recording, the subject matter and the potential for the recordings to become available many years into the future were more significant than the duration of the recording. Although the sentencing judge discounted the significance of the length of the recordings in comparison to the fact of the recording and the victim’s face being shown when considering the objective seriousness of those offences, the reasoning did not involve the proposition that the length of the recording was totally irrelevant to the assessment of objective seriousness. The fact that the indicative sentences were the same for all three video-recording offences where two involved fellatio showing the victim’s face and the other penile/vaginal penetration, was readily explained by the fact that the first two involved materially shorter recordings than the latter. It was clearly open for the sentencing judge to assess the objective seriousness of each of the sequence 13, 14 and 15 offences as being substantially the same, especially since the other circumstances were not materially different.

17. [116]

    In these circumstances, in my view, the sentencing judge’s comment that “there is little utility in referring to the objective seriousness of each individual offence” is properly to be understood as stating that there was little utility in referring to the objective seriousness of each offence by reference to where it might be placed on some notional scale extending from the least to the most objectively serious examples of the type of offending in question. It is well accepted that a sentencing judge is not required to assess objective seriousness by reference to a notional range: Dorsett at [145] and [149]-[155] and the authorities there cited. The sentencing judge’s comment is also consistent with N Adams J’s comment in Dorsett at [157]:

18. [117]

    In Baydoun v The King [2024] NSWCCA 65 at [42], Chen J (with Wilson and Huggett JJ agreeing) said:

19. [118]

    In short, the sentencing judge’s discussion of factors relevant to assessing objective seriousness and his findings as to the comparative seriousness for various offences, together with the different indicative sentences nominated, demonstrates that his Honour did not fall into error. In particular, his Honour did not make the error, identified in Dorsett at [137], of making a “blanket assessment” of objective seriousness for all the offences by simply indicating the same sentence for a number of offences.

20. [119]

    The present case is also an illustration of the principle that even where offences were given the same indicative sentence, it does not follow that error is thereby established: Dorsett at [138] citing Turner v R [2021] NSWCCA 5 (Turner). In Turner at [59], Garling J (with Payne JA and Davies J agreeing) explained that the mere fact that the same indicative sentence is fixed for multiple offences does not of itself and without more indicate an impermissible approach to determining the objective seriousness of the offence and “[t]his is particularly so in circumstances where … each of the offences were contrary to the same section of the Crimes Act and each was committed during a single sustained course of offending over a lengthy period of time”.

21. [120]

    That explanation is especially applicable in the present case where the same indicative sentences were in some cases nominated for offences contrary to the same section of the Crimes Act. In the present case, all of the offending occurred on the same night, against the same victim, in the same circumstances, as part of what was appropriately described by the sentencing judge as “a sequence of continuing offending” and “a spontaneously entered into sequence of serious offending against a cognitively impaired child, known to the offender to be cognitively impaired”. To take the sexual intercourse offences which were given the same indicative sentences as an example, the differences in the nature of the offending can properly be seen, given the sentencing judge’s quite detailed findings as to precisely what occurred, to have been balanced against the other circumstances of the relevant offending such as the degree of humiliation or control or direction involved. A similar point has already been made concerning the same indicative sentences nominated for the video-recording offences.

22. [121]

    For all these reasons, in my view, there was no failure by the sentencing judge to assess the objective seriousness of any of the offences, as contended under grounds 1(a) and (b). Nor was there a failure to provide adequate reasons for any findings made concerning objective seriousness, as contended under ground 3.

23. [122]

    While grounds 1 and 3 were arguable and leave to appeal should be granted in respect of them, those grounds should not be upheld.

Ground 2

1. [123]

   The second ground of appeal was that the aggregate sentence was manifestly excessive. For the reasons given by Basten AJA, I agree that the applicant should succeed on this ground.

2. [124]

   I therefore agree with the orders proposed by Basten AJA.