R v Lau

1. [1]

   ADAMSON J: I agree with Bellew J.

2. [2]

   BELLEW J: Alex Chak Lau (the respondent) pleaded guilty in the District Court to multiple counts of sexual and related offending, the details of which are set out in full below. The sentence proceedings took place on 12 November 2021 and were limited to the tender of documentary evidence and submissions. No oral evidence was given. Following the conclusion of the sentence proceedings, the sentencing judge reserved her decision.

3. [3]

   On 7 December 2021, her Honour imposed an aggregate sentence of 10 years’ imprisonment with a non-parole period of 6 years and 6 months.

4. [4]

   On 20 December 2021, the Director of Public Prosecutions filed a notice of appeal. The single ground of appeal relied upon is that the sentence imposed was manifestly inadequate.

THE CHARGES AGAINST THE RESPONDENT AND THE FINDINGS OF THE SENTENCING JUDGE

1. [5]

   The written submissions of the Crown included a table setting out each offence to which the respondent pleaded guilty, a precis of the Crown case, the applicable maximum penalty, any applicable standard non-parole period, the indicative sentence, and the finding of the sentencing judge as to objective seriousness. That table has been broken down and reproduced below, supplemented by the reasons of the sentencing judge in respect of each episode of offending.

2. [6]

   In order to understand the scope of the respondent’s offending, it is convenient to note at this point that it involved eight separate victims. As there is some inconsistency in the material in relation to the ages of some of the victims, I have adopted approximations of their age where necessary:

3. [7]

   There was one further offence of possessing child abuse material [9] which was not committed against any named victim and which, in that sense, stands apart from the balance of the offending.

4. [8]

   Comprehensive agreed facts were tendered on sentence which were summarised by the sentencing judge in her Honour’s reasons. On some occasions, her Honour’s summary did not accurately record aspects of the facts which had been agreed. On other occasions, the summary either omitted agreed facts which were material to the task of assessing the objective seriousness of the offending, or otherwise failed to properly set out the true nature of the offending. In addressing her Honour’s reasons below, I have indicated the instances in which such errors and omissions occurred.

5. [9]

   The sentencing judge said the following in respect of this offending: [10]

6. [10]

   Her Honour’s summary of the offending omitted any reference to the agreed facts that having removed his penis from his pants, the respondent put it on the victim’s face, then put it on her mouth, and then slightly into her mouth past her lips. [11]

7. [11]

   The sentencing judge said the following in respect of this offending: [12]

8. [12]

   The agreed facts record [13] that there were in fact five children in the bedroom at the time of the offending, not four as her Honour stated.

9. [13]

   The sentencing judge said the following in respect of this offending: [14]

10. [14]

    Contrary to what was recorded by the sentencing judge, the agreed facts stated that it was the respondent's wife, and not the respondent, who had collected K and J from their grandparents’ home. [15] Further, her Honour omitted to record the fact that K and J had showered together, and that it was when K left the bathroom that the respondent entered. [16] Finally, her Honour’s statement that the respondent “came into the bathroom whilst drying J” did not accurately reflect the agreed fact that the respondent had in fact entered the bathroom and said to the victim that he would dry her. [17]

11. [15]

    The sentencing judge said the following in respect of this offending: [18]

12. [16]

    The sentencing judge said the following in respect of the offending in sequence 7: [19]

13. [17]

    Her Honour's summary of this offending omitted a number of material facts which were agreed. They included the fact that the victim had specifically asked the respondent to stop touching him, and that the respondent ignored that request and continued to touch, and then masturbate, the victim. [20]

14. [18]

    In respect of sequence 8 (the Form 1 offence attached to sequence 7) her Honour said the following: [21]

15. [19]

    Again, her Honour’s summary of this offending omitted a number of material facts, including the precise circumstances in which the respondent had sought “help” with the computer, from which the only available inference was that he had deliberately deceived the victim in order to facilitate his offending. [22]

16. [20]

    The sentencing judge said the following in respect of this offending: [23]

17. [21]

    The sentencing judge said the following in respect of this offending: [24]

18. [22]

    Her Honour found the offending in sequence 12 to be “just below mid-range”, on the basis that it was “similar to that in sequence 9”. Sequence 12 was an offence of detaining a person for advantage. Sequence 9 was an offence of indecent assault. The two offences were therefore entirely different. Moreover, her Honour's finding in respect of the offending in sequence 9 [25] was that it was “around, or just above, mid-range”. As set out above, her Honour’s finding in respect of the offending in sequence 12 was that it was “just below mid-range”. There is a significant inconsistency between these conclusions.

19. [23]

    The sentencing judge said the following in respect of this offending: [26]

20. [24]

    Her Honour’s summary of this offending omitted the agreed fact that the respondent had used his thumb and forefinger to pull the victim’s foreskin back. [27]

21. [25]

    The sentencing judge said the following in respect of this offending: [28]

22. [26]

    The sentencing judge’s summary of this offending omitted the material fact that after the respondent had broken into the victim’s house, the victim told him multiple times to leave and/or to stop the offending, and that those requests were completely ignored by the respondent who simply continued his offending. [29] Further, her Honour’s classification of offending in sequence 26 as “enter dwelling house” overlooked that what had in fact been charged was the aggravated form of that offence.

23. [27]

    The sentencing judge said the following in respect of this offending (which was incorrectly referred to as sequence 1 in her Honour’s reasons): [30]

24. [28]

    The sentencing judge said the following in respect of this offending: [31]

25. [29]

    Her Honour’s summary of this offending omitted to refer to the agreed fact that prior to assaulting the victim, and in the course of taking the step of checking if ML was asleep, the respondent had gone to the lengths of pretending to tuck ML in, as well as the agreed fact that the respondent moved his hand up the victim’s leg, reaching the point of his thigh. [33]

26. [30]

    This sequence was referred to in the reasons of the sentencing judge (and in the agreed facts) as sequence 21. By reference to the Charge Certificate [34] it was in fact sequence 20 (and the sole offence committed against the victim JC). The sentencing judge said the following in respect of this offending: [35]

27. [31]

    The sentencing judge's account of the conversation which took place between JC and the respondent during the course of this offending was partly at odds with the agreed facts, which recorded [36] that the victim had said “What’s going on?” and the respondent had replied ‘I’m just tucking you in, Don’t worry’ about it.

28. [32]

    I should also say that, in my view, her Honour’s finding that this offending “did not involve any skin on skin contact” had a tendency to draw a distinction without a difference. In the context of this particular offending, there is no material divergence between skin on skin contact on the one hand, and placing lubricant on a victim's genitalia on the other.

29. [33]

    The sentencing judge said the following in respect of this offending: [37]

30. [34]

    The summary of this offending by the sentencing judge incorrectly stated that the victim had been asleep in ML’s room at the time of the offending. The agreed facts recorded [38] that the victim “was asked to sleep in the spare room, which was unusual as normally he slept in [ML’s] room”. That agreed fact was not without significance in terms of an assessment of the objective seriousness of the offending, the clear inference being that it was the respondent who had specifically brought about those circumstances in order to assist in the commission of the offending.

31. [35]

    The sentencing judge said the following in respect of this offending: [39]

32. [36]

    Her Honour's summary of the offending in sequence 21 omitted a number of agreed facts which were material to the assessment of objective seriousness. They included the fact that when the respondent entered the room and sat next to the victim, he attempted to touch the victim’s penis (but was not able to do so in light of the position in which the victim was sitting), that he touched the victim’s testicles on two occasions, and that having left the room, he then returned and put his hand on the victim’s inner thigh for a second time. [40]

33. [37]

    The sentencing judge said the following in respect of this offending: [41]

34. [38]

    The sentencing judge said the following in respect of this offending: [42]

THE VICTIM IMPACT STATEMENTS

1. [39]

   Victim impact statements of CWH and JB were tendered before the sentencing judge. [43]

2. [40]

   By reference to the statement of CWH, her Honour observed that: [44]

3. [41]

   By reference to the statement of JB, her Honour observed that: [45]

The evidence

1. [42]

   As I have noted, the respondent did not give oral evidence in the sentencing proceedings. A report of Dr Sathish Dayalan, Forensic Psychiatrist, was tendered in his case on sentence. [46] In terms of the respondent’s offending, and based on the history provided to him by the respondent, Dr Dayalan reported: [47]

2. [43]

   In terms of matters bearing upon the respondent's prospects of rehabilitation, Dr Dayalan said: [48]

3. [44]

   Dr Dayalan made a formal diagnosis of (inter alia) paedophilia, [49] before going on to say: [50]

4. [45]

   Also tendered was a letter from the respondent to the sentencing judge in which the respondent said the following: [51]

5. [46]

   I interpolate that the practice of tendering material of this kind in sentence proceedings in the absence of the offender giving evidence has been the subject of repeated adverse comment by this Court. [52] The respondent’s statement was deserving of little or no weight.

6. [47]

   A testimonial was also tendered from ML [53] who expressed his support for the respondent.

The findings of the sentencing judge

1. [48]

   In respect of the respondent’s subjective case, the sentencing judge said the following: [54]

2. [49]

   Her Honour made no finding as to the respondent’s likelihood of re-offending, in circumstances where that is a separate and distinct consideration from an assessment of an offender’s prospects of rehabilitation and one which must be addressed by a sentencing judge. [55]

3. [50]

   In finding special circumstances, her Honour said: [56]

4. [51]

   In considering aggravating factors, her Honour said: [57]

5. [52]

   It is not entirely clear from this passage of her Honour’s reasons what submissions were accepted or rejected, and what aggravating factors were or were not taken into account.

6. [53]

   Finally, in addressing questions of accumulation, concurrence and totality, her Honour said: [58]

Submissions of the Crown

1. [54]

   Although the Crown before this Court made reference to what were said to be errors in the reasons of the sentencing judge, it was submitted that one of the difficulties in asserting patent error stemmed from the fact that her Honour's reasons were inadequate. Whilst that asserted inadequacy was said to be a matter which “fed into” the imposition of a manifestly inadequate sentence, the Crown put its case on the basis of latent error, and advanced five principal submissions in support of that position.

2. [55]

   First, the Crown submitted that generally speaking, the respondent had demonstrated a grave breach of trust and/or breach of authority which formed an integral part of the overall factual context in which he was to be sentenced.

3. [56]

   Secondly, the Crown pointed to the fact that aspects of the respondent’s offending involved bare skin touching of the victims’ genitalia, including on some occasions, masturbation, and on other occasions, fellatio.

4. [57]

   Thirdly, the Crown emphasised the vulnerability of the victims stemming from a number of circumstances, including the fact that on some occasions the offending had occurred in their beds when they were asleep.

5. [58]

   Fourthly, the Crown emphasised the significant age difference between the victims and the respondent. The Crown pointed, in particular, to the fact that the respondent was between 36 and 45 years of age during the period of the offending, that some of the victims were between 7 and 8 years of age, and that others were in their early teens. The Crown also emphasised that the youngest victim had only just turned 7 years of age. It was submitted that these various age differences highlighted a significant “power imbalance” between the respondent and his victims, a fact which, in the Crown’s submission, supported a conclusion that the actions of the respondent were predatory.

6. [59]

   Fifthly, the Crown submitted that the respondent’s subjective case was unremarkable. It was submitted, in particular, that the respondent had not demonstrated any real remorse and that in light of his statements to Dr Dayalan, no positive conclusion could be reached about his prospects of rehabilitation.

7. [60]

   In terms of the Court’s residual discretion not to intervene in the event that the sentence was found to be manifestly inadequate, the Crown relied on a number of factors in support of the submission that such discretion should not be exercised in the present case.

8. [61]

   First, it was submitted that there had been no relevant delay in bringing the appeal. In this regard, the Crown pointed to the fact that:

9. [62]

   Secondly, it was submitted that, the Crown had made unequivocal submissions on sentence that there should be substantial accumulation to reflect the multiplicity of offending, committed on a number of different victims, over a significant period of time. It was submitted that in these circumstances, it could not be said that the Crown had contributed in any way to the imposition of a manifestly inadequate sentence.

10. [63]

    Thirdly, the Crown submitted that the inadequacy of the sentence was so great that it risked undermining public confidence in the criminal justice system. It was submitted that the non-parole period imposed was entirely disproportionate to the seriousness of the offending. It was further submitted that the reasons of the sentencing judge failed to properly explain why a finding of special circumstances was made.

11. [64]

    Finally, it was submitted that there was nothing about the present case which rendered it an inappropriate vehicle for laying down principles for the guidance of sentencing judges.

Submissions of the respondent

1. [65]

   Counsel for the respondent submitted that it was clear from the reasons of the sentencing judge [59] that her Honour was cognisant of the fact that any sentence was required to properly reflect the totality of the respondent’s criminality. In this context, counsel emphasised that a sentencing judge at first instance is to be allowed as much flexibility in sentencing as is consonant with consistency of approach. [60]

2. [66]

   Counsel further submitted that although the offending occurred over a broad period of 8 years, the majority of it was confined to the period between 2010 and 2012, and that it should be viewed in that light. It was submitted that given the number of offences, it had been important for the sentencing judge to avoid imposing a crushing sentence. It was further submitted that several of the offences, had they been charged on their own, would in all likelihood have resulted in the imposition of a form of custodial sentence to be served in the community.

3. [67]

   Counsel also pointed to the fact that a substantial degree of concurrency was warranted, in circumstances where some instances of offending were committed against the one victim within the same (or similar) time frame. Counsel also stressed the need to avoid double counting in terms of any aggravating factors which were said to be applicable.

4. [68]

   In terms of the respondent’s subjective case, counsel submitted that the respondent:

5. [69]

   It was submitted that when all of these circumstances were taken into account, this Court would conclude that the Crown had not established that the sentence was manifestly inadequate. In support of that proposition, counsel referred to this Court’s decision in R v Feuerstein. [61]

6. [70]

   In terms of the residual discretion, counsel submitted that the mere fact that there had been no relevant delay in bringing the appeal, and/or the fact that nothing said or done by the Crown had contributed to the sentence, did not, without more, support the conclusion that the Court should not exercise the residual discretion. It was further submitted that when regard was had to the respondent’s entitlement to a discount of 25% in light of his plea of guilty, the sentence was not one which would give rise to a risk of public confidence in the criminal justice system being undermined.

The principles applicable to Crown appeals

1. [71]

   The appeal by the Crown is brought pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). In order to enliven the Court's discretion pursuant to s 5D, the Crown must demonstrate error in one or more of the respects identified in House v The King. [62] Bearing in mind how the Crown put its case, it is not necessary that a specific error be identified. The nature of the sentence itself may disclose that an error has occurred. [63]

2. [72]

   The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of Courts having the duty of sentencing convicted offenders. [64] However, the power to intervene also extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing. [65] This Court cannot merely substitute its opinion as to the appropriate sentence, for that of the sentencing judge [66] and may only interfere where error, either latent or patent, is demonstrated. [67]

3. [73]

   Even if the Court determines that the sentencing judge erred in the exercise of the sentencing discretion by imposing a sentence which was manifestly inadequate, the Crown must then satisfy the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised. [68]

The reasons of the sentencing judge

1. [74]

   The Crown before this Court ultimately eschewed any assertion of patent error on the part of the sentencing judge. Notwithstanding that, and bearing in mind that it is part of the role of this Court to provide guidance to sentencing judges, it is necessary for me to make a number of observations of the reasons of the sentencing judge. In doing so, I make it clear that I have not taken any of these observations into account in reaching my conclusion as to the Crown appeal. I have formed my judgment solely on the basis upon which the matter was argued before this Court by the parties, as set out above.

2. [75]

   First, and as I have already observed, the factual basis upon which the respondent was to be sentenced was set out in comprehensive agreed facts which were tendered to the sentencing judge. Her Honour adopted the practice, for the purposes of determining the circumstances of each instance of offending, of summarising the agreed facts. That summary formed, in each case, part of the basis of her Honour’s conclusions as to the objective seriousness of the offending. Whilst summarising agreed facts may be appropriate and sufficient in many cases, some matters will always remain paramount. To begin with, it is obviously essential that any summary be factually correct. There were instances in the present case where this was not so. Further, it is essential that any summary of agreed facts include a reference to all material facts which bear upon the assessment of the objective seriousness of the offending. There were several instances in the present case where material facts were omitted from her Honour’s reasons. As a consequence, in some cases the true nature of the offending was not set out.

3. [76]

   Secondly, in summarising the facts of the offending and setting out conclusions as to the objective seriousness in each case, the sentencing judge adopted a formulaic approach which involved:

4. [77]

   The final step in that approach necessarily involved her Honour accepting the submissions of one party and rejecting those of the other, be it wholly or partly. The difficulty is that when doing so, her Honour gave no reasons explaining why she reached the various conclusions as to objective seriousness that she did and, more specifically, why she apparently accepted the submissions of one party over those of the other. Whilst I accept that the assessment of the objective seriousness of an offence is a matter for a sentencing judge, her Honour’s reasons were inadequate in terms of that assessment. In Taylor v R, [69] Wilson J made the following observations which are apt in the circumstances of the present case:

5. [78]

   In my view, her Honour’s reasons fell short of what was required. Any path of reasoning which her Honour may have adopted in reaching her various conclusions about the objective seriousness of each episode of offending was not exposed. The requirements of sentencing are not satisfied by a bare recitation of facts, and a reference to objective characteristics of offending. [70] However, that is effectively all that her Honour did. In my view, no proper assessment of the circumstances of the offending, or its objective seriousness, was undertaken, particularly in circumstances where some facts were misstated, and others entirely omitted.

6. [79]

   Thirdly, the inadequacy of the reasons is compounded by the fact that her Honour expressed her conclusions as to objective seriousness in terms of where each instance of offending fell on a notional range. Whilst an assessment of objective seriousness is obviously a necessary element of the sentencing task, what is required is that a sentencing judge fully identify the facts, matters and circumstances which he or she concludes have a bearing upon such assessment. [71] Articulating such assessment in the terms in which her Honour did was not necessary. [72] It added nothing substantive to any analysis.

7. [80]

   Fourthly, in some instances there was a displacement between her Honour’s conclusion as to the objective seriousness of the offending, and the indicative sentence. For example, the offending in sequence 10 carried a maximum penalty of 14 years imprisonment. Having found that the offending was “just below mid-range”, her Honour adopted a starting point (in terms of the indicative sentence) of 3 years’ imprisonment, which she reduced by 25% on account of the respondent’s plea of guilty. By way of further example, the offending in sequence 11 (to which a Form 1 was attached) carried a maximum penalty of 20 years imprisonment. Having found that the offending was “mid-range”, her Honour adopted a starting point (in terms of the indicative sentence) of 6 years’ imprisonment which she reduced by 25% on account of the respondent's plea of guilty. The indicative sentences are not, of course, themselves amenable to appeal, but they may be a guide as to whether the aggregate sentence reflects error. [73]

8. [81]

   Fifthly, her Honour made various references to instances of the offending being “brief”, [74] being “relatively brief”, [75] occurring “for a short time”, [76] and being of “some short duration”. [77] In the context of considering the question of totality, her Honour observed that “all the offences were relatively brief”. [78] On a fair reading of her Honour’s reasons as a whole, the only available conclusion is that her Honour treated what she regarded as the brevity of the offending as a factor which reduced its objective seriousness.

9. [82]

   Although the time over which the individual instances of offending took place may not have been an entirely irrelevant consideration, it was of limited significance. It has been observed by this Court on numerous occasions that offending of this nature is capable of having profound, long-term, and generally deleterious effects upon victims, both physically and psychologically. [79] The victim impact statements tendered in this case provide a ready example of those effects. As Leeming JA said in Cowling v R: [80]

10. [83]

    Sixthly, her Honour’s assessment of the application of any relevant aggravating factor(s) set out above [81] was entirely lacking in specificity, and fell substantially short of what was required. [82]

11. [84]

    Seventhly, in a number of instances her Honour was required to take into account offences set out in a Form 1, in accordance with the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). In the majority of those cases, her Honour approached that aspect of the sentencing task by:

12. [85]

    The proper approach to sentencing for an offence to which a Form 1 attaches was set out by Spigelman CJ in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [85] where his Honour said (inter alia):

13. [86]

    Those instances of her Honour’s approach to the Form 1 offences in the present case to which I have referred above do not sit comfortably with the observations emphasised in that passage of the judgment of Spigelman CJ. Further, although the Sentencing Act confers a discretion on a sentencing judge to take a Form 1 offence into account if (inter alia) it is considered appropriate to do so, [86] there was no suggestion in the present case that it was not appropriate. Consistently repeating that it was served no real purpose.

14. [87]

    Eighthly, it will be apparent that the offending in sequence 2 occurred in the home of the victim, in respect of which her Honour said: [87]

15. [88]

    Section 21A(2)(eb) of the Sentencing Act provides that it is an aggravating factor if:

16. [89]

    Why her Honour did not regard the offending in sequence 2 as being aggravated by the fact that it had occurred in the victim's home was not explained. I accept that merely because the offending was committed in the victim’s home does not, of itself, automatically lead to the conclusion that it was aggravated. A sentencing judge is required to consider the entirety of the circumstances in which the offending took place in order to determine whether or not s 21A(2)(eb) applies. However, her Honour’s finding that the offending was not aggravated by the fact that it had been committed in the victim’s home was in my view an error. In Jonson v R [88] Bathurst CJ identified that s 21A(2)(eb) of the Sentencing Act was a reflection of the fact that:

17. [90]

    It is difficult to determine why that would not apply to the offending in sequence 2. It would also appear that her Honour did not turn her mind to the question of whether, in the circumstances, some or all of the offending which occurred in the respondent’s home [89] may also have been aggravated by the application of s 21A(2)(eb), given the reference in that provision to the offending occurring in the home “of any other person”.

18. [91]

    Finally, her Honour made a finding of special circumstances under s 44(2) of the Sentencing Act, and reduced the ratio between the non-parole period and the total term of the sentence to one of 65%. Having regard to her Honour’s reasons, [90] it would appear that this finding was based upon the following facts:

19. [92]

    A number of observations should be made in relation to this finding.

20. [93]

    To begin with, and fundamentally, circumstances which are not properly regarded as "special" should not be elevated into that category. As Spigelman CJ said in R v Fidow: [91]

21. [94]

    Further, bearing in mind her Honour’s reasons for finding special circumstances in this case, this Court has said that the fact that an offender is facing or serving imprisonment for the first time is unlikely to justify finding of special circumstances. [92] The question of special circumstances is primarily directed to whether a longer period on parole is likely to assist in the offender’s successful rehabilitation and re-integration into the community. [93]

22. [95]

    Moreover in my view, her Honour's reference (in the context of finding special circumstances) to the respondent’s favourable record in custody as being a matter which entitled him to “some leniency” tends to reflect a degree of confusion between factors which might properly be taken into account in the general assessment of an offender’s subjective case, and those which might specifically justify a finding of special circumstances.

23. [96]

    Finally, and in any event, it is difficult to understand how it could be said that the evidence in this case supported a conclusion that the respondent's prospects of rehabilitation would be enhanced if he were allowed a longer period of parole, so as to justify a finding of special circumstances. The evidence of Dr Dayalan was to the effect that the respondent had apparently expressed some reluctance to accept the fact that he even needed treatment.

Was the sentence imposed manifestly inadequate?

1. [97]

   In my view, the conclusion that the sentence imposed on the respondent was manifestly inadequate, in the sense of being unreasonable or plainly unjust, is overwhelming. To explain why this is so, it is convenient to commence by supplementing the overview I have previously set out [94] with a broad analysis of the offences by grouping them into categories.

2. [98]

   Category 1 comprises four counts, two involving sexual intercourse, and two involving aggravated sexual assault, committed on three separate victims, as follows:

3. [99]

   Category 2 comprises 9 separate counts of indecent assault [95] committed against six separate victims [96] , carrying a maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years, in four of which the respondent asked for an additional matter to be taken into account on a Form 1. [97]

4. [100]

   Category 3 comprises four separate offences, each committed against the same victim (CWH) and each of which carried a maximum sentence of 14 years imprisonment, namely:

5. [101]

   Category 4 comprises sequence 23, an offence of possessing child abuse material, namely two videos of children engaged in sexual activity, which carried a maximum penalty of 10 years imprisonment. For the reasons already expressed, that offence stands separately from the majority of the offending.

6. [102]

   The first of these offences was committed between 1 January and 31 December 2008, and the last between 1 January 2013 and 31 December 2014. Whilst I accept that there was a concentration of offending within a specific time frame encompassed by that overall period, it remains the case that the offending spanned several years. It involved no less than 8 separate victims, ranging in age from 7 to early teens. It was committed at a time when the respondent was substantially older than all of his victims. There is considerable force in the Crown’s submission as to the level of power imbalance which resulted from a combination of these circumstances.

7. [103]

   Whilst some instances of offending were less objectively serious than others, I am unable to accept the effect of the submission advanced on behalf of the respondent that any of the respondent’s offending is properly regarded as minor. Moreover, the fact (if it be the fact) that some of the offences would, if dealt with on their own, have resulted in a sentence which did not require the respondent to serve a period of full time custody, is not to the point. Whilst the gravity of the offending differed as between separate instances, the entirety of the respondent’s offending was serious and was pervaded by a gross breach of trust. A number of instances involved actual sexual intercourse. One instance of offending occurred in the victim’s home. Many other instances occurred in the respondent’s home, into which he had welcomed the victims. Some offences reflected a degree of planning. All reflected the respondent behaving in a manner which was both manipulative and predatory.

8. [104]

   Reference to particular instances of offending tend to emphasise specific aspects of the respondent’s criminality. For example, when committing the offending in sequence 2 the respondent was not in possession of a camera by mere happenstance. Taking a camera into the room in which the victim was sleeping, in her bed and in her own home, was an obviously deliberate act, born of some degree of planning and pre-meditation. Taking a photograph whilst having oral sexual intercourse with a 7 year old girl reflects a level of depravity and moral corruption which requires no further comment.

9. [105]

   Aspects of the respondent’s offending in sequence 12 are significant for a different reason. One can only imagine the fear and trepidation by which the victim would have been overcome upon realising that he had been locked by the respondent inside his motor vehicle, unable to escape being sexually assaulted. The significance of the fact that this offending occurred in circumstances where the respondent was supposed to be ensuring that the victim was conveyed safely to his own home will be self-evident.

10. [106]

    Other instances of the respondent’s offending make it clear that part of his modus operandi was to deliberately engage in acts of trickery and deception in order to bring about circumstances which would facilitate his offending. The offending in sequence 8 provides a ready example. The respondent’s request to the victim to assist him to fix a computer was a complete ruse, obviously designed to create a situation which would allow the respondent to be alone with the victim and commit the offence.

11. [107]

    There were other instances in which the respondent, having been presented with a set of circumstances, seized upon and manipulated them in a way which allowed him to offend. A good example of this is the offending in sequence 30. The agreed facts record that ML asked the respondent if he would drive the victim home. When the respondent agreed, he specifically rejected a request from ML that he be allowed to come as well. The reason for the respondent having done so will be obvious.

12. [108]

    Further, inherent in the respondent’s offending generally was a gross level of disrespect towards his victims. For example, telling the victim, in the course of the offending in sequence 16, that there was something “wrong” with him because he could not achieve an erection was insolent. It also serves as an unequivocal indication that the respondent was motivated purely by self-interest, and a wanton desire for his own sexual gratification, irrespective of the harm which might have been inflicted on his victims as a consequence.

13. [109]

    In circumstances where, for the reasons I have discussed further below, the respondent’s subjective case was largely unremarkable, all of the factors to which I have referred serve to demonstrate that the sentence imposed on the respondent is manifestly inadequate. The sentence completely fails to give effect to a number of fundamentally important purposes of sentencing, including the need for adequate punishment, general deterrence, denunciation and recognition of the harm done to the victims. [98]

The residual discretion

1. [110]

   I am not satisfied that this Court should exercise its discretion to decline to intervene. Although not determinative, there has been no delay in the appeal being brought, and nothing said or done by the Crown at first instance contributed, in any way, to the sentence which was imposed. In my view, the manifest inadequacy of the sentence is so marked that the intervention of this Court is required in order to maintain public confidence in the criminal justice system. [99]

RE-SENTENCE

1. [111]

   For the purposes of re-sentencing the respondent, and in light of the matters to which I have already referred, I am unable to adopt the summaries of the sentencing judge as to the circumstances of each instance of offending. It is unfortunately necessary for me to set out the agreed facts in each case. However, in terms of assessing the objective seriousness of the offending, and to avoid unnecessary repetition, it is convenient to set out a number of general observations. To the extent that such matters apply to the individual instances of offending, I have taken them into account. For the reasons previously expressed, these observations do not apply to the offending in sequence 23.

2. [112]

   First, and consistent with fundamental sentencing principles, I have had regard to the maximum penalty (and, where applicable, any standard non-parole period) in each and every case.

3. [113]

   Secondly, as I have observed, the respondent generally engaged in a gross breach of the position of trust in which he was placed. That breach of trust, the nature of which was inherently predatory, was present across the entirety of his offending. Although a breach of trust may be an aggravating factor [100] , the position of trust in which the respondent was placed in the present case arose, in a number of instances, from other factors which of themselves are aggravating factors. In all of these circumstances, and consistent with what I understood to be the position of the Crown before this Court, I have treated the respondent’s breach of trust as a circumstance which forms part of the overall offending, rather than as a separate aggravating factor. In doing so, I am obviously mindful of the need not to engage in any double counting.

4. [114]

   Thirdly, one offence [101] occurred in the victim’s home. For the reasons previously expressed, that was an aggravating factor. [102] There were other instances of offending which occurred in the home of another victim. [103] However, I have not treated that as an aggravating factor in those instances. In my view, to do so would be to engage in double counting given the inherent nature of those offences.

5. [115]

   Fourthly, a number of offences occurred in the respondent’s home, [104] in circumstances where the victims had effectively been invited there by the respondent. Given the reference in s 21A(2)(eb) of the Sentencing Act to offending which is committed in the home of the victim or any other person, and for the reasons previously expressed, I am of the view that each of those offences should be treated as being aggravated by that fact.

6. [116]

   Fifthly, s 21A(2)(l) of the Sentencing Act provides that an offence is aggravated if “the victim was vulnerable, for example, because the victim was very young”. Whilst all of the victims would fall into that category, I have treated their vulnerability as part of the background to the offending, rather than as a specific aggravating factor, particularly in circumstances where the vast majority of offences incorporate an element as to the age of the victim in any event. [105] At the same time, in taking age and vulnerability into account in that way, I have had regard to the fact that the age of a victim, relative to the age range encompassed by the offence, is relevant, the general principle being that the younger the child, the more serious the offending. [106]

7. [117]

   Sixthly, I have taken into account the age difference between the respondent and his victims, which is a relevant factor generally. [107]

8. [118]

   Seventhly, I have taken into account the degree of physical contact involved. [108]

9. [119]

   Eighthly, although some of the offending was committed in the presence of other children, [109] the evidence does not establish that they were aware of the offending taking place at the time. Accordingly, I do not consider that s 21A(2)(ea) of the Sentencing Act has any role to play. [110]

10. [120]

    Finally, in the case of offences to which a Form 1 attaches, I have proceeded in accordance with the principles previously set out.

11. [121]

    I turn now to the individual instances of offending.

Sequence 2 – Sexual intercourse with a child under the age of 10 years

1. [122]

   The background to this offending was that the parents of the victim (KL) were friends of the respondent and his wife. KL and her family visited the respondent's home in December 2008 at a time when KL was 7 years of age, and shared a bedroom with her sister JL.

2. [123]

   The agreed facts were as follows: [111]

3. [124]

   This offending was obviously serious, involving as it did actual oral intercourse. It necessarily involved some degree of planning, given that the respondent entered the bedroom in possession of a camera. The only available conclusion is that he intended to photograph his offending, which involved actual intercourse.

Sequence 5 – Indecent assault of a child under the age of 16 years

1. [125]

   The background to the offending in both of these cases was that between 25 March 2009 and 7 May 2009, JL and KL’s parents were overseas and had arranged for JL and KL to stay with their grandparents. At the time, JL was 7 or 8 years old.

2. [126]

   The agreed facts in relation to sequence 4 were as follows: [112]

3. [127]

   There is a clear inference from the agreed facts that the respondent had waited until KL had left the bathroom before coming in, an act consistent with an attempt to avoid detection.

4. [128]

   The offending in sequence 5 occurred against a background of JL and KL’s family staying overnight at the respondent's residence in the process of moving interstate. At the time, JL was 8 years of age. The agreed facts were as follows: [113]

5. [129]

   This offending involved the respondent loosening the victim's pyjama pants and underwear in order to facilitate skin on skin contact across the front part of the victim’s vagina.

Sequence 6 – Indecent assault of a child under the age of 16 years

1. [130]

   The agreed facts of this offending (which occurred immediately following the offending in sequence 5) were as follows: [114]

2. [131]

   Leaving aside the inherently serious nature of what the respondent did, it is apparent from the agreed facts that when JL commenced to wake up the respondent immediately pushed her head away and told her to go back to sleep. That was an unequivocal attempt to play down what he had done, in the hope that JL would not realise its significance.

Sequence 8 – Indecent assault of a child under the age of 16 years (Form 1)

1. [132]

   Both of these offences were committed against CWH who was a school friend of the respondent's son.

2. [133]

   The agreed facts in relation to sequence 7 were as follows: [115]

3. [134]

   To begin with, the respondent offered to allow the victim to use the shower adjacent to his own bedroom, as opposed to the main bathroom which was being used by his son. In doing so, the respondent created circumstances which facilitated his offending.

4. [135]

   It must have been evident to the respondent, at an early stage, that the victim was resisting his advances. Immediately after the respondent touched the victim, the victim queried what he was doing. Rather than cease at that point, the respondent proceeded to touch the victim on the genitalia, take hold of his penis, and commence to masturbate him. At that point the victim implored the respondent to stop. Far from complying with that request, the respondent escalated the offending by repeatedly trying to put the victim's hand on his own penis. The respondent continued masturbating the victim for a period of time. In emphasising the respondent’s failure to comply with requests of his victims to stop his offending, I do not wish to be taken to be suggesting that such behaviour is worse than instances of predatory conduct where an offender grooms a victim for later sexual activity. However, the failure to comply with requests to stop was a characteristic of some of some of the respondent’s offending.

5. [136]

   Any sentence for the offending in sequence 7 must be increased having regard to the offending in the Form 1 (sequence 8), the agreed facts of which were as follows: [116]

6. [137]

   The respondent’s act of effectively forcing the victim into his bedroom under the guise of needing help with his computer was, for the reasons previously stated, deceptive and manipulative. The offending, involving as it did masturbation of the victim, was obviously serious.

Sequence 10 – Detain for advantage (sexual gratification)

1. [138]

   CWH had received an after school detention on the same day as the respondent was at the school for the purposes of participating in a parent/ teacher conference relating to one or other of his children.

2. [139]

   The agreed facts were as follows: [117]

3. [140]

   This offending was particularly serious. It is evident from the fact that the respondent offered to drive the victim home, and that he then chose to park in the corner of the carpark of a nearby preschool, that this was premediated offending. Moreover, the detention involved the respondent locking all of the car doors and engaging the child lock button, obviously to ensure the victim could not escape. The victim attempted to escape but he could not open the door. His attempted escape was an unequivocal communication of his resistance. Rather than act on that and cease the offending, the respondent continued to masturbate the victim before beginning to masturbate himself. The comment made by the respondent to the victim was appalling.

Sequence 27 – Indecent assault of a child under the age of 16 years (Form 1)

1. [141]

   The agreed facts were as follows: [118]

2. [142]

   This offending has a number of similar characteristics to the offending in sequences 9 and 10. Once again, the victim tried to escape. Rather than act on that clear indication from the victim, the respondent proceeded to fellate him.

Sequence 30 – Sexual intercourse with a child between 10 and 14 years of age

1. [143]

   The agreed facts were as follows: [119]

2. [144]

   Given that the request to drive the victim home came from the respondent's son, it could not be said that this offending was planned. However, it is evident that the respondent saw the request as an opportunity to further offend, and seized on it by refusing to allow his son to accompany him. Parking the vehicle in a dark spot in the carpark can only be construed as a conscious attempt by the respondent to avoid detection. It is also significant that some pain was caused to the victim by the respondent's actions, which involved fellatio.

Sequence 26 – Aggravated enter dwelling with intent to commit a serious indictable offence of indecent assault of a child under the age of 16 years

1. [145]

   The agreed facts were as follows: [120]

2. [146]

   In terms of the offending in sequence 26, it must have been evident from the victim's reaction, upon finding the respondent in the loungeroom of his home, that he wanted the respondent to leave. Rather than act on what he had been told by the victim, the respondent replied in terms which, given the nature and extent of the offending which had occurred up to that point, were both vile and despicable. The victim’s subsequent actions and statements must have made it abundantly clear to the respondent that the victim did not wish him to be in his house. Notwithstanding that, the respondent then engaged in the offending in sequence 14 which involved skin to skin contact with the victim’s penis and testicles. At one point, the victim tried to push the respondent's hand away, from which it must have been obvious that he was not consenting to what was occurring. The respondent replied by using his size and strength to overpower the victim and continue his offending. Yet again, the victim asked the respondent to stop. Yet again pointed out the fact he was in his own house. Yet again he again told the respondent, in no uncertain terms, to leave. Yet again, the respondent ignored these requests and continued to masturbate the victim. The respondent's offending in both cases was obviously serious, and his treatment of the victim was disdainful.

Sequence 16 – Break and enter and commit the serious indictable offence of indecent assault of a child under the age of 16 years

1. [147]

   The agreed facts were as follows: [121]

2. [148]

   This offending involved skin on skin contact perpetrated by the respondent upon the victim. The comment made by the respondent to the victim was demeaning.

Sequence 29 – Indecent assault of a child under the age of 16 years

1. [149]

   The victim of this offending, RH, was a friend of ML and attended the same school. RH was also a friend of the victims JC and IB.

2. [150]

   The agreed facts were as follows: [122]

3. [151]

   The fact that the respondent took the step of checking to ensure that ML was asleep can only be construed as an attempt to ensure, as far as he was able to do so, that ML would not become aware of the offending. Whilst the contact was limited to contact with the victim's knee and thigh area, the only available inference from the facts is that the offending ceased when the victim pretended to wake up.

Sequence 21 – Indecent assault of a child under the age of 16 years

1. [152]

   The victim of this offending, JC, was in the same school friendship group as the respondent's son, ML, and the victims RH and IB.

2. [153]

   The agreed facts were as follows: [123]

3. [154]

   As I observed when dealing with this offending in the context of her Honour’s reasons, its objective seriousness should be assessed on the basis that there was skin on skin contact.

Sequence 19 – Aggravated sexual assault of a child under the age of 16 years

1. [155]

   The victim of this offending was IB who was a pupil at the same high school, and a member of the same friendship group, as ML. As a consequence of that friendship, the victim spent time with the respondent's family which included going on two family holidays.

2. [156]

   The agreed facts were as follows: [124]

3. [157]

   There was some degree of planning involved in this offence, as evidenced by the agreed fact that the victim was asked to take the unusual step of sleeping in the spare room. The obvious conclusion to be drawn is that this circumstance was created by the respondent in an effort to facilitate his offending in a way which would ensure that it was not detected. The overwhelming inference is that had the victim not questioned the respondent about his conduct, the respondent would have continued.

Sequence 22 – Indecent assault of a child under the age of 16 years (Form 1)

1. [158]

   The victim of this offending, BH, was in the same year at school as ML.

2. [159]

   The agreed facts were as follows: [125]

3. [160]

   This offending involved consistent skin on skin contact by the respondent, to the point where, having touched the victim, the respondent left the room only to return and resume his offending.

Sequence 18 – Indecent assault of a child under the age of 16 years

1. [161]

   The victim of this offending was ID, a school friend of ML.

2. [162]

   The agreed facts were as follows: [126]

3. [163]

   The seriousness of this offending is reflected, in part, in the fact that the respondent must have realised from the outset that the victim felt uncomfortable. Rather than respect the victim, the respondent sought to reassure him that it was “fine”. That statement was entirely manipulative, and was obviously made for the purposes of allowing the respondent to continue his offending. The respondent’s self-interest prevailed yet again.

Sequence 23 – Possession of child abuse material

1. [164]

   The agreed facts were as follows: [127]

2. [165]

   The material in the respondent's possession was limited to the two videos to which I have referred. However, objective seriousness of offending of this nature is determined not only by the amount of material, but also by (inter alia) what is depicted. It was agreed that what was depicted in the two videos were “children under the age of sixteen years engaged in sexual activity”. Given that description, the offending was, by its nature, serious.

The respondent's subjective case

1. [166]

   The respondent read his affidavit of 31 May 2022, and that of his solicitor, Mr Portokalli of the same date, on the question of re-sentence. Those affidavits assert that the respondent:

2. [167]

   In his affidavit the respondent asserted that there have been a number of long lockdowns since he was taken into custody, and that there had been times when he had been “locked in the wing for 4 or 5 days at a time” due to “staff shortages”.

3. [168]

   In circumstances where the affidavits read by the respondent were filed the day before the hearing, the Crown sought and was granted leave to file and rely upon evidence in response. Pursuant to that leave, the Crown filed an affidavit of Adam Wilczek of 14 June 2022. The effect of Mr Wilczek’s evidence is that he made a number of enquiries with Corrective Services NSW, the aim of which was obviously to verify (or otherwise) what the respondent had asserted in his affidavit. Two matters have emerged.

4. [169]

   First, Mr Wilczek has deposed to the fact that having been provided with material from Justice Health, he has not identified any documents on which the Crown seeks to rely. There is therefore no challenge to the respondent’s assertions regarding his reflux condition. The fact that the respondent suffers from that condition and has had some difficulties obtaining medication is confirmed by a further affidavit of Mr Portokalli of 14 June which was filed in response to that of Mr Wilczek. I have taken this aspect of the respondent’s health into account. Although it is, in one sense, relatively minor, it has some bearing on the conditions of the respondent’s custody.

5. [170]

   Secondly, in an email of 31 May 2022, Mr Wilczek posed a number of questions to the Manger of Security at the South Coast Correctional Centre regarding the respondent’s conditions of custody. Bearing in mind what the respondent had asserted in his affidavit, Mr Wilczek was informed that:

6. [171]

   The Court has not received any further submissions from the parties as to what conclusions are sought to be drawn from the evidence as to the respondent’s conditions of custody. In circumstances where none of the deponents were cross-examined, it is difficult to resolve any issues which have arisen. I am certainly not prepared to conclude that the respondent has deliberately told untruths in his affidavit in relation to his custodial conditions. It is widely accepted that the Covid-19 pandemic has had an ongoing, and generally negative, effect on the custodial conditions of inmates in correctional centres in this State and that is a relevant matter to take into account on sentence.

7. [172]

   The respondent pleaded guilty at the first available opportunity and is entitled to a discount of 25% to reflect the utilitarian value of that plea.

8. [173]

   There is no dispute that prior to the respondent’s arrest the only entries in his criminal history were in July 1995, when he was convicted of being found in a gaming house and fined, and in June 2006, when he was convicted of driving with a high range prescribed concentration of alcohol and fined and disqualified from driving. The absence of any significant record of previous convictions is a mitigating factor, [128] although its significance is less, given the nature of the offending.

9. [174]

   I have already set out the relevant parts of Dr Dayalan’s report. [129] The respondent’s prospects of rehabilitation depend, at least to some extent, on his level of insight into his offending. Based on the opinion of Dr Dayalan, that insight is limited, to the point where the respondent appears reluctant to even accept that he needs treatment. Whilst the respondent’s willingness to work in custody, his preparedness to undergo courses of study, and his continuing contact with his family are all positive, I remain of the view that in light of his expressed attitude towards treatment, his prospects of rehabilitation must be viewed as guarded. I am similarly guarded, for the same reasons, about the likelihood of his reoffending.

10. [175]

    There are some expressions of remorse by the respondent in the report of Dr Dayalan, [130] as well as in the respondent’s statement. [131] All of them are untested. Whilst there is no requirement that an offender give evidence in proceedings before remorse can be taken into account, [132] it remains the case that in such circumstances, the Court may give less weight to any expression of remorse contained in material which is not tested by cross-examination. [133] I have already made reference to the fact that the respondent’s statement is deserving of little or no weight. I am not prepared to make any finding in the respondent’s favour as to remorse because the evidence does not support it.

11. [176]

    Bearing in mind the observations I have previously made, [134] I am not persuaded that the evidence justifies a finding of special circumstances, particularly given that the respondent appears to be less than fully committed to undertaking the treatment which is necessary for his successful rehabilitation. In any event, the non-parole period which will be imposed will be sufficiently lengthy to allow the respondent to reintegrate into the community.

12. [177]

    I am not persuaded that the judgment of this Court in Feuerstein is of any real significance as a guide to assessing the sentence for the respondent’s offending. Quite apart from the fact that there are factual differences in the offending and the respective subjective case, a single case is generally of limited utility in determining an appropriate sentence.

13. [178]

    I have had particular regard to the need for general deterrence, denunciation and protection of the community. It has been observed by this Court, on more than one occasion, that a message must be sent to those who offend against children intentionally and repeatedly that their actions will not be tolerated, and that they will receive significant punishment. [135] The sentence imposed by the sentencing judge carries no such message, and provides no deterrent.

14. [179]

    Finally, whilst there is a necessity to have regard to, and apply, principles of totality, I am mindful of the observations of Sully J in R v Wheeler: [136]

15. [180]

    Such observations have been endorsed by this Court in R v Harris [137] and R v Van Ryn. [138]

ORDERS

1. [181]

   For the above reasons I set out the following indicative sentences: [139]

2. [182]

   I propose the following orders:

   1. (1)

      The Crown appeal against sentence is allowed.

   2. (2)

      The aggregate sentence imposed on the respondent in the District Court of New South Wales is quashed.

   3. (3)

      In lieu thereof, the respondent is sentenced to an aggregate term of 15 years imprisonment commencing on 6 November 2019 and expiring on 5 November 2034.

   4. (4)

      Specify a non-parole period of 11 years and 3 months imprisonment, commencing on 6 November 2019 and expiring on 5 February 2031.

3. [183]

   LONERGAN J: I agree with Bellew J.