Culbert v R

HOEBEN CJ at CL:

The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the sentence imposed by his Honour Judge Weber SC (the sentencing judge) on 8 May 2020 in the District Court at Sydney.

The applicant stood trial on an indictment containing 19 child sexual assault offences committed against three victims spanning the period 1982 to 2000. The applicant was convicted of all counts on 10 September 2019 after a trial by jury.

In summary, the convictions were:

The applicant received an aggregate sentence of 16 years imprisonment with a non-parole period of 10 years and 8 months. The sentence was backdated to commence from 10 September 2019 (the date of conviction) and is to expire on 9 September 2035. The non-parole period is to expire on 9 May 2030.

The applicant seeks leave to appeal upon the following grounds:

A detailed “Summary of Evidence” was tendered as part of the Crown materials on sentence. The summary of evidence set out the factual background of the offences and was used by the sentencing judge for that purpose. In relation to the appeal, the applicant accepted that:

The victims, DG, EG and JG are sisters and the nieces of the applicant.

As a child, DG would spend many weekends with her aunt and the applicant. They would also visit her family home. The first two offences against her occurred at her house when she was about seven years old. She was watching television in her parent’s bed when the applicant came in and shut the door. He lay on the bed, exposed his penis, grabbed DG’s hand and placed it on his penis, causing her to move her hand up and down (Count 1). The applicant let her hand go and placed his hand under DG’s pyjama pants, put his finger between the lips of her vagina and moved his finger around (Count 2).

When DG was aged 10 or 11, the applicant took her to his workplace to show her around. He took off his overalls and boots in his office and ate lunch in his underpants. Following this, he pushed DG against a wall and nibbled on her vagina on the outside of her clothes. He made a growling sound. This lasted for about a minute (Count 3).

EG often stayed over at the applicant’s home to keep her aunt company. The offences against EG occurred over a three-month period when she was eight or nine years old.

On one occasion, when they were playing cards, the applicant invited EG to play another game and asked her to stand on a chair. EG stood on the chair and the applicant touched her on the vagina over her underpants. He told her not to tell anyone and it was their secret. He asked her how it felt. At the time EG’s aunt was asleep in another room (Count 4). This happened on other occasions. On one of these occasions, the applicant again told EG he wanted to “play their game” and rubbed her on the vagina after she stood on the dining chair. He asked her whether it felt good and whether she liked it (Count 5).

On another occasion, while playing cards, the applicant again asked EG to stand on the chair and commenced rubbing her vagina. He pulled down her underpants. The victim was worried as the applicant had never pulled her underpants down before. He put his hand under her nightgown, put his finger in her vagina and moved his finger in and out (Count 6). The applicant got on his knees and looked at her vagina. He kissed it and started to lick it (Count 7). The victim stopped playing cards with the applicant after this.

EG was in the house on another occasion, sitting on the floor in the sunroom. The applicant was sitting on a couch in that room. He told her to sit on his lap. After she sat on his lap, he began rubbing her vagina and pulled her pants to the side. He removed his penis from his pants. The applicant began rubbing his penis on her vagina and put it inside a little bit before taking it out (Count 8). EG told the applicant “it hurts, stop”. The applicant tried to put his penis inside a few more times.

On another occasion, the applicant took EG with him to the shops to buy dinner. He stopped the car on the side of the road where there were trees and no houses. He pulled out his erect penis, grabbed her hand and moved her hand up and down his penis (Count 9). The applicant leaned over and put his hand inside EG's underpants, touched her vagina and then inserted his finger inside her vagina in an “in and out” motion (Count 10).

On a different occasion, the applicant called EG to the basement. When EG was standing on the steps to the basement, the applicant put his hand inside her underpants, touched her vagina and put his finger inside her vagina (Count 11).

The last offence that occurred between the applicant and EG was on a night that she was sleeping over at his house. Her aunt was in the bedroom doing cross-stitch. EG was in the sunroom colouring in on the floor in front of the applicant when he told her to sit on his lap. He lifted EG’s clothing and removed her underpants, placing them next to the couch. He started to touch and rub EG’s vagina. The applicant unbuttoned his pyjama pants and removed his penis which was erect.

The applicant sat EG on his penis and pushed it inside her vagina causing her to feel pain. He held her by the waist. EG was telling him that it hurt and was trying to get off him. The applicant held her tight by the waist and kept pushing and forcing his penis inside her.

Eventually EG stopped trying to move off the applicant. When this happened, he started moving her up and down on his penis and moving it in and out of her vagina (Count 12). While this was happening, EG heard her aunt scream “What are you doing?” In one motion the applicant got up and pushed EG off him. EG grabbed her underpants and put them back on. Her aunt kept screaming after EG had gone to her bedroom.

Her aunt eventually came into her room and asked EG “[d]id [the applicant] put his thing inside you?” EG said “[n]o, no, no”. Her aunt told EG what the applicant did was wrong. She again asked whether he “[p]ut his thing inside you?”. EG said “Yes”. EG then fell asleep and was taken home the following morning.

Not long after this incident, when the applicant was alone with EG, he told her that he had a friend who had done the same to a little girl as he had done to her and that his friend had killed her because she had talked. He said “Do you want that to happen to you? If you say that to anyone, I will kill you”. The victim did not tell anyone what happened to her.

JG was three or four years old and staying at the house of the applicant on a weekend. She was near the edge of the pool when the applicant grabbed her hand by the wrist and put it down the front of his shorts. She felt his penis and then jerked her hand out of his shorts (Count 13).

When JG was five years old, she was staying at the applicant’s house and her aunt was making dinner in the kitchen. The applicant told her to sit on his lap, which she did. The applicant put his hand inside her pyjama pants and moved his fingers across her vagina a few times (Count 14).

In September 1995, not long after JG’s fifth birthday, she was at the applicant’s house in the yard. The applicant came up to her and told her to open her mouth. The applicant put his penis in her mouth and it became harder as he started thrusting it in and out of her mouth (Count 15). He eventually took his penis out of her mouth and walked away.

On an occasion when JG was six or seven, she was staying at the applicant’s house. She fell asleep in bed. She woke to find the applicant there. He put his hand over her mouth and told her to be quiet. He pulled down her pants, started to rub her vagina and inserted his finger into her vagina causing her pain (Count 16). While doing this, the applicant removed his penis from his pants, climbed on top of the victim and put his penis in her vagina (Count 17). He moved back and forth for a little while before pulling his penis out. The applicant told the victim it was their little secret and left the room. After the applicant left the room, JG “started to cry”.

When JG was eight or nine years old, and after the applicant had moved houses, she went to visit her aunt. Her aunt was not home, but the applicant was. He told her to go into the bedroom and get naked. She did this. He told her to rub her vagina, which she did (Count 18). The applicant got on top of her, put his penis in her vagina and had sex with her for a short period of time (Count 19).

The following table is a summary of the offences, the maximum penalties applicable to them, the findings of objective seriousness by the sentencing judge and the indicative sentences for each offence:

The sentencing judge took into account both the individual offending and “its totality”. Factors considered by his Honour were the age of the victims (considered within the range of each offence), the age difference between the applicant and the victims and the vulnerability of the victims. The sentencing judge did not take them into account as separate aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) by way of double counting.

The sentencing judge also considered the actual character of the assaults, including the degree of physical contact involved (per Corby v R [2010] NSWCCA 146). His Honour found that relevant to all offences was a breach of the position of trust by the applicant as the victims’ uncle (s 21A(2)(k) of the Sentencing Act.

The sentencing judge also found:

The sentencing judge identified aggravating factors relevant to particular counts including

His Honour’s assessment of the relative objective criminality of each of the offences is set out in the Table at [27] hereof. The sentencing judge took into account that the applicant had engaged in a course of conduct extending over a lengthy period of years. Accordingly, his Honour assessed the offending overall at above mid-range when considering the aggregate sentence he would impose.

The applicant was aged 69 at the time of sentence and was aged between 32 and 49 at the time of the offending. His Honour accepted that the applicant suffered from a number of health issues, most of which had been caused by a serious workplace accident which he had suffered in 2004. The medical evidence established the applicant had the following:

The sentencing judge found that his medical conditions were “being treated adequately within the custodial system” (Reasons [35]). His Honour noted the expert report of Dr Gerald Chew, a psychiatrist, who opined that the applicant suffered from depression but did not find it to be a factor which should be taken into account in the sentencing process.

The sentencing judge noted Dr Chew’s opinion that the applicant may have been sexually abused as a child but that circumstance could not be taken into account in the sentencing task. The sentencing judge said:

His Honour found that given his frail medical condition and his likely age on release any “such risk would likely be low”. The sentencing judge noted that there was an absence of any offending by the applicant since the year 2000, which supported the finding relevant to s 21A(3)(g) of the Sentencing Act.

The applicant identified certain matters which, if accepted, could satisfy the Court that special circumstances existed for the purposes of s 44 of the Sentencing Act. These were:

On the basis of that material, the sentencing judge found special circumstances so that the non-parole period represented 66 per cent of the aggregate sentence, as opposed to the statutory ratio of 75 per cent.

The sentencing judge took into account s 25AA(1) of the Sentencing Act which required that the sentence imposed must be in accordance with the sentencing patterns and practices at the time of sentencing and not at the time of the offences. This included having regard to the trauma of sexual abuse on children as understood at the time of sentencing.

There was, before his Honour in the sentence proceedings, a written submission by the applicant concerning the use which the court could make of VIS.

In those sentence proceedings, there was also a written submission by the Crown as follows:

In his reasons, the sentencing judge said:

The applicant submitted that a finding under s 21A(2)(g) of the Sentencing Act required as an aggravating factor that “the injury, emotional harm, loss or damage caused by the offence was substantial”. The applicant accepted that the evidence in relation to emotional harm could come from each of the VIS. The applicant noted that no additional medical, psychological or psychiatric evidence was provided to support the unsworn statements of the victims. The applicant submitted that for a VIS to give rise to an aggravating factor, the evidence of the harm to the victims had to be established beyond reasonable doubt. In putting forward that proposition the applicant relied upon R v Tuala (2015) 248 A Crim R 502; [2015] NSWCCA 8 (R v Tuala) and the principles set out therein by Simpson J. The applicant noted that those principles were recently applied in Gagan (a pseudonym) v R [2020] NSWCCA 47 at [23]-[30] (Gagan v R).

The applicant noted the warning by Simpson J that when relying on VIS “considerable caution must be exercised before the victim impact statement can be used to establish an aggravating factor to the requisite standard” (R v Tuala at [81]). The applicant submitted that while it was accepted that there were some cases where VIS had been used to ground a finding of substantial harm, the facts of this case did not warrant such a finding. The applicant submitted that the cases relied upon by the Crown (Muggleton v R (2015) 250 A Crim R 180; [2015] NSWCCA 62 at [40] (Muggleton v R) and Marrow v R [2015] NSWCCA 282 at [52] (Marrow v R), turned on their own particular facts.

In Marrow v R the applicant relied on the following observation of Adamson J:

The applicant submitted that in the circumstances of this case, the “harm” was not outside what would be expected by the Court in relation to child sexual assault offences and the research that informed the Court’s experience in recent times. The applicant submitted that if the sentencing judge had given too much weight to the VIS, error would be established in the appeal (RP v R [2013] NSWCCA 192 at [25]-[30]).

The applicant submitted that on the facts of this case, the harm disclosed was completely consistent with trauma and harm encompassed by child sexual assault offences and not sufficient to be “substantial” in terms of what s 21A(2)(g) of the Sentencing Act required. In support, the applicant relied upon R v Tuala where Simpson J said:

It was under this ground of appeal that the applicant submitted that the combination of s 25AA(3) of the Sentencing Act and the requirement that in the case of sexual offending against children, contemporary sentencing practices were to be followed and not those operative at the time of the offending may well give rise to an element of double counting. This proposition was not further developed other than to say that the potential for double counting existed but the applicant did not in terms put the proposition that double counting had in fact occurred in this case (AWS 57).

The Crown submitted that a VIS may be used by a sentencing judge to make a finding of substantial harm in accordance with s 21A(2)(g) of the Sentencing Act. The Crown submitted that in Gagan v R the Court acknowledged that there were cases where VIS had been used to ground a finding of substantial harm. On this issue, the Crown also relied on Muggleton v R at [40] and R v Wilson [2005] NSWCCA 219. The Crown accepted that while a VIS might be relied upon for that purpose, each case turned on its own facts and in particular, on the harm disclosed in the VIS.

The Crown substantially adopted the analysis of Simpson J in R v Tuala where her Honour said:

The Crown submitted that having regard to the three VIS and what was said by Simpson J at [79] above they should be accepted as a catalogue of diminished childhoods, nightmares, flashbacks, drug addiction and broken relationships born out of an inability to be intimate. Those VIS described the over-protectiveness of the victims of their children and a sense of shame and guilt for not complaining earlier, thereby being responsible for the sexual abuse of the two younger siblings.

In written submissions before this Court, the Crown summarised the contents of each VIS to demonstrate how they established substantial harm as required by s 21A(2)(g) of the Sentencing Act.

Based on those summaries of the VIS, the Crown made the following submissions:

There was no challenge by the applicant in the sentence proceedings to the occurrence of the matters described by the victims in their VIS. The issue in relation to the VIS at first instance and in this Court was whether the harm described qualified as “substantial harm” as required by s 21A(2)(g) of the Sentencing Act. In those circumstances, I am satisfied that the matters described by the victims in their VIS, both as to frequency and seriousness have been established beyond reasonable doubt.

I am also satisfied that it has been established beyond reasonable doubt that in two respects substantial harm in accordance with s 21A(2)(g) of the Sentencing Act has been established by the VIS. Those two respects are:

The other matters raised in the VIS, although extremely serious, can be properly characterised as inherent in offences of sexual intercourse, sexual assault and sexual indecency against a child. In that respect, they do not qualify as an aggravating factor under the Sentencing Act.

There is a foundational problem confronting the applicant in relation to that part of his submissions which assert that the operation of s 25AA of the Sentencing Act gives rise to an element of “double counting” with respect to the effects of child sexual abuse upon a victim. While the applicant acknowledged that the sentencing judge had to apply s 25AA, no submission was made, either in writing or orally, concerning the possibility of “double counting” when applying the section.

This gives rise to the problem identified by Johnson J in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (McClellan CJ at CL and Rothman J agreeing) which arises when a party seeks to rely upon a point in an appeal when the point was not taken at first instance.

There Johnson J said:

The difficulty is increased in this case because having been raised in a very general sense for the first time on appeal, the contention is that there is a potential for double counting without any particulars to establish that the possible risk eventuated.

In those circumstances, I would refuse leave to the applicant to rely upon that part of Ground 1. I would grant leave to the applicant to rely upon the balance of Ground 1 but otherwise dismiss the appeal.

The applicant submitted that the sentencing judge had used a somewhat mechanical and arithmetic approach when setting out the indicative sentences. The applicant described the process as follows:

During oral submissions in the appeal, the proposition was put to counsel for the applicant that while this submission provided an explanation for why the indicative sentences were high, it did not provide a basis for why the aggregate sentence was excessive.

In the course of those oral submissions on appeal, it was noted that the total length of the indicative sentences was in the order of 130 years. The applicant submitted that this, together with the “arithmetical” approach by the sentencing judge, was a strong indication that if the indicative sentences were excessive then so also was the aggregate sentence.

In Obeid v R [2017] 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J conveniently summarised the principles relevant to this ground of appeal. His Honour stated:

When those principles are taken into account and regard is had to the facts of this matter, it is apparent that the aggregate sentence imposed was not unreasonable or plainly unjust. Those facts are:

As emerged during oral submissions, even if there was an arithmetical element in the calculation of the indicative sentences, this did not necessarily demonstrate error in the aggregate sentence which was imposed.

Similarly, despite the total of the indicative sentences proposed being in the order of 130 years, the substantial difference between that figure and the aggregate sentence demonstrated that almost no notional accumulation had occurred in the fixing of the aggregate sentence and that there was a very high level of notional concurrency in all of the sentences.

A fundamental consideration in appeals under this ground is that the appeal is against the aggregate sentence and not the indicative sentences which represent a notional concept as distinct from a sentence actually imposed. In DS v R [2017] NSWCCA 37 at [64] (DS v R) Schmidt J (with whom Macfarlan JA and Wilson J agreed) said:

In line with that statement of principle, when regard is had to the fact that there was hardly any notional accumulation allowed for in the aggregate sentence, and that there was an extremely high level of notional concurrence, the fact that the indicative sentences may have been excessive does not assist the applicant in the absence of any successful challenge to the length of the aggregate sentence. As was made clear in DS v R, even if the indicative sentences were excessive, this does not necessarily result in the aggregate sentence also being excessive.

It follows from the above that the applicant has not demonstrated that the aggregate sentence imposed was unreasonable or plainly unjust. This ground of appeal has not been made out.

Before publishing this judgment, I have had the advantage of reading the judgment of Adamson J. I agree with her Honour’s factual and legal analysis of the issues raised by this appeal and their resolution as set out in her Honour’s judgment.

The orders which I propose are:

R A HULME J: For the reasons given by Adamson J, I also agree with the orders proposed by Hoeben CJ at CL.

ADAMSON J: I have read the reasons of the Chief Judge. I gratefully adopt the table of offences in those reasons which sets out each offence, the finding of objective seriousness and the indicative sentence, as well as the maximum penalty (the Table). My reasons for agreeing with the orders proposed by the Chief Judge are as follows.

On 10 September 2019, the applicant was convicted of all 19 counts on the indictment after trial by jury.

On 8 May 2020, Weber SC DCJ imposed an aggregate sentence on the applicant of 16 years’ imprisonment with a non-parole period of 10 years and 8 months. The term of imprisonment commenced on 10 September 2019 and will expire on 9 September 2035. The applicant will first be eligible for parole on 9 May 2030. As appears from the Table, the applicant was sentenced for 19 separate offences, the indicative sentences for which were specified by his Honour, as required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). All references to legislation in these reasons are references to the Act except where otherwise stated.

The applicant sought leave to appeal on the following two grounds:

At the sentence hearing on 14 February 2020, the Crown tendered the sentence summary sheet, which listed each count, the relevant section of the Crimes Act 1900 (NSW), the applicable maximum penalty and the time spent in custody in relation to the offences for which the applicant was to be sentenced. The Crown also tendered a copy of the indictment and a document entitled “Summary of Evidence”. The Crown tendered a document which showed that the applicant had no prior criminal history, as well as his custodial history which set out the time spent on remand for the offences. The Crown also tendered victim impact statements from D and E and J, the three victims of the sexual assaults, each of whom read her statement to the court.

It is sufficient for present purposes to record that D said, in her victim impact statement, that she has had difficulty with intimate relations because of the offending conduct. Although she has had six children, she has never put them in day care or allowed them to be alone with any adult. She has not permitted any of her children to stay overnight, including at their friends’ places because of her concern that they might be sexually assaulted. When D found out that the applicant had assaulted her younger sisters, she hated herself for not protecting them from him.

E, in her victim impact statement, deposed that she had always blamed herself and thought of herself as a “dirty girl”. She was scared that the applicant would kill her. She, too, harbours guilt for not telling anyone, which led to her younger sister, J, being sexually assaulted. She turned to drugs to alleviate the nightmares she experienced as a result of the assaults. When her first pregnancy miscarried, she believed that it constituted punishment, which she felt she deserved. She has been married for 20 years and has had children. She is very protective of her daughter, whom she never lets stay outside the home as she does not trust anyone else to look after her daughter.

In her victim impact statement, J said that her whole life had changed as a result of what the applicant had done to her. She was conflicted about her relationship with her aunt because she loved her aunt and tried to put on a brave face when she was with her. She felt disgusted with herself, blamed herself for what occurred and engaged in self-harm by cutting her wrists and other parts of her body. She has not allowed her children to have a normal childhood because she was not prepared to allow them to play outside unsupervised or go to a day care facility until they were old enough to communicate what had happened to them to her. She continues to have flashbacks, which affects her intimate relationship with her partner. Until recently her two children have slept in the same bedroom as J and her partner because of J’s fear of what could happen to them if she was not there to look after them. This, too, has affected her relationship with her partner.

The Crown tendered a Justice Health report by Dr Jacques Ette dated 14 October 2019 which set out the applicant’s current medical conditions, which include orthopaedic injuries sustained in a motor vehicle accident in 2004. The consequences of these injuries include osteoarthritis of his knees and spinal canal stenosis. The report recorded that he suffers from Type II diabetes mellitus, hypertension and hypercholesterolemia, intracranial atherosclerosis. He has a single kidney. He suffered depression in the past.

The applicant’s counsel did not object to any evidence adduced on sentence by the Crown.

The applicant’s counsel tendered a psychiatric report of Dr Gerald Chew dated 28 October 2019 which recorded that the applicant suffered from a depressive disorder consequent on his accident in 2004, which was made worse by being in custody. Dr Chew described the applicant as a “vulnerable man with multiple medical problems” and concluded that custody would be particularly onerous for him.

The applicant’s counsel also tendered three character references. His fiancée, who was, at the time of the sentence hearing, in the United States for family reasons, said:

A friend of ten years stated that he found the applicant to be a reliable and conscientious worker and friend, who was “always prepared to help out when required”. Another friend of three and a half years, stated that the applicant was helpful with a men’s shed and also in helping with the local church community.

The applicant’s counsel also tendered medical evidence regarding degenerative changes in the applicant’s lower spine, and left knee and patella, as well as the medication with which the applicant was then prescribed.

Both parties provided written submissions in advance of the sentence hearing. As referred to above, the Crown included a summary of evidence at the trial in its tender bundle.

In its written submissions in the Court below, the Crown said, of the victim impact statements:

In the applicant’s written submissions on sentence, his counsel referred to the role of the trial judge in determining the facts for the purposes of sentencing and referred to R v Isaacs (1997) 41 NSWLR 374 at 377-378 and Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [14] (Gleeson CJ, Gummow and Hayne JJ, Callinan J agreeing). The applicant’s counsel said, in her written submissions, “The Crown has prepared a summary of the evidence at trial”. No further elaboration was made in the written submissions about the accuracy or sufficiency of the Crown’s summary of evidence. The transcript of the trial was not included in the appeal books. In her written submissions filed in this Court, Ms Kluss acknowledged: “[t]here was agreement between the parties as to the findings which must be attributed to the jury’s verdicts and this aligned to [sic] the Crown opening and the evidence of the complainants.”

In her written submissions on sentence in the Court below, the applicant’s counsel said, in relation to the victim impact statements tendered by the Crown:

Neither party sought to augment by oral submissions what was said in writing regarding the victim impact statements. Nor did either party revisit the findings of fact for which the Crown contended in its summary. No oral evidence was given on sentence. Both parties confirmed that they relied on their written submissions.

At the conclusion of the submissions on 6 March 2020, his Honour began to deliver his sentencing judgment ex tempore. While his Honour was reciting the facts of the counts, Ms Phelps, counsel for the applicant at the sentence hearing, informed the Court that the applicant had been taken by ambulance to a nearby hospital. Accordingly, the Court adjourned the matter to 8 May 2020 for sentence.

At some time prior to 8 May 2020, Ms Phelps sent supplementary submissions to the Court on the effect of the COVID-19 pandemic on conditions in prisons. On 8 May 2020, his Honour heard oral argument on the supplementary submissions. Ms Phelps relied on these submissions in support of the contention that his Honour should find special circumstances and alter the statutory ratio accordingly.

His Honour correctly recorded the offences of which the applicant had been convicted and the applicable maximum penalties. His Honour noted, by way of background, that the applicant married the victims’ mother’s sister. The victims became, in effect, his nieces. They stayed at the applicant’s home during school holidays, which was where most of the offences were committed (counts 4-19 inclusive). Two of the offences were committed at the victim’s home (counts 1 and 2); one offence was committed at the applicant’s work (count 3); and two offences were committed when the victim was in the applicant’s car (counts 9 and 10).

His Honour noted that the first offence against D was committed in 1982 or 1983 when she was about 7 years old. The offending continued for 3 or 4 years, by which time E was about 8 years old. All the offences against E were committed between 17 March 1992 and 28 February 1993, while she was 8. The offences against J began in 1993, when she was about 4 and continued until 2000. Thus, the offending continued over a period of about 18 years.

At [8] of the reasons, the sentencing judge said:

His Honour proceeded to set out the circumstances and nature of the offending for the purposes of sentencing in the following passage:

Of the victim impact statements, his Honour said at [12]:

His Honour assessed the objective seriousness of each of the offences and took into account, in a way which was not challenged, the youth of the victim and that some of the offences were committed in the victim’s home. His Honour also took into account that the applicant, as the victims’ uncle, was entrusted with their care.

The sentencing judge returned to the victim impact statements at [31], as follows:

His Honour summarised the subjective evidence, which I have referred to above, and indicated that it was not a mitigating factor but would be taken into account on the question of special circumstances. The sentencing judge noted that the submission that the applicant would have to serve his sentence in protective custody was withdrawn. His Honour found that, having regard to the applicant’s age and period in custody, the risk of his re-offending was low. His Honour noted that, as the applicant protests his innocence, there could be no consideration of contrition, remorse or insight into the offending. The sentencing judge refused to take into account delay as being a factor that mitigated the appropriate penalty.

His Honour found special circumstances on the basis of the applicant’s advanced age, poor health, need for supervision, prospects of rehabilitation and the fact that it will be his first time in custody. His Honour outlined the purposes of specific and general deterrence and confirmed that he had taken them into account. His Honour found that no sentence other than a term of imprisonment would be appropriate. In accordance with s 53A(2) of the Act, the sentencing judge indicated that an aggregate sentence was being imposed and indicated the sentences he would have imposed for each count, but for the aggregate sentence.

Ms Kluss, who appeared for the applicant in this Court, submitted in writing that, as an aggravating factor, the harm to the victims had to be established beyond reasonable doubt. She contended that the contents of the victim impact statements was “completely consistent with the trauma and harm encompassed by offences of child sexual assault and not sufficient to be established as ‘substantial’ in terms of the nature of the offences and the maximum penalties to be established by the offences.”

Ms Kluss referred to Muggleton v R [2015] NSWCCA 62; (2015) 250 A Crim R 180 at [40] and noted that the finding of substantial harm in that case was based not only on victim impact statements but also on evidence from medical and psychological experts. She contended that because the victim impact statements were not sworn, they were insufficient of themselves to prove substantial harm beyond reasonable doubt.

Ms Kluss contended that, before substantial emotional harm could be taken into account as an aggravating factor, there must be evidence that the victim’s emotional response was significantly more deleterious than that which any ordinary person would have when subjected to the offending conduct.

The submission was also made on behalf of the applicant that s 25AA(3) of the Act operated to “provide an element of double counting” with respect to the deleterious effects of sexual assault on victims. Ms Kluss relied on s 25AA to submit that the sentencing judge was obliged to have regard to the trauma of sexual assault on children, as understood at the time of sentencing. She argued that, had the sentencing judge applied s 25AA correctly, his Honour would have appreciated that such trauma as was described in the victim impact statements was typical and that therefore it could not fulfil the requirements of s 21A(2)(g) that the harm be substantial. Ms Kluss submitted that the harm that was disclosed in the victim impact statements was not at a level that exceeded that which is presently understood as being a usual consequence of this type of child sexual abuse.

The Crown contended that, although much of the harm described in the victim impact statements could be regarded as a usual consequence of the offending conduct, it relied on two further factors to support the sentencing judge’s finding of substantial harm: first, the hypervigilance with which the victims cared for their own children; and second, the level of guilt felt by the two elder sisters (D and E) when they realised that their younger sisters had been the victims of similar offending. The Crown contended that a finding of substantial harm was not inconsistent with the requirements of s 25AA and was open to his Honour on the basis of the contents of the victim impact statements.

Section 21A(2)(g) of the Act identifies as an aggravating factor to be taken into account by the sentencing court:

The use to be made of victim impact statements in criminal proceedings is provided for in Division 2 of Part 3 of the Act. Section 30E(1)(a) relevantly provides that the court must consider the victim impact statement after conviction and before sentence. Prior to 27 May 2019, a court had the discretion to receive and consider such a statement if it considered it appropriate to do so: the former s 28.

In R v Thomas [2007] NSWCCA 269, Basten JA, at [36], lamented the lack of guidance given by the legislation as to how untested victim impact statements were to be taken into account on sentence but accepted that such statements could be used on sentencing, including to determine the extent of harm to victims for the purposes of s 21A(2)(g). His Honour held that the weight to be given to such a statement was a matter for the sentencing judge and, at [37], said:

While harm to a child victim of a sexual assault can be inferred, it was common ground that proof of substantial harm for the purposes of s 21A(2)(g) could be an aggravating factor. As it was a matter of aggravation, it had to be proved beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

As referred to above, Ms Kluss relied on s 25AA(3), which relevantly provides:

It has become a matter of common experience in this Court that the adverse psychological effects of sexual abuse on children tend to be long-lasting. For this reason, care must be taken to avoid double-counting by finding substantial harm when the harm suffered is no more than the consequences that typically flow from such offending: R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 at [106] (Leeming JA, Johnson and Hall JJ). The typical effects, as appear in judgments of this Court, include difficulties with intimate relationships, self-loathing, guilt, self-harm and a tendency to self-medicate. These are matters to which the sentencing judge was required to have regard when sentencing the applicant: see generally the discussion of s 25AA in Corliss v R [2020] NSWCCA 65 at [73]-[97] (Johnson J).

In the present case, the Crown sought to prove the aggravating factor of substantial harm by the tender of the victim impact statements. As referred to above, no objection was taken to the statements. The applicant’s counsel in the Court below accepted that the statements were admissible and sought only to persuade the sentencing judge not to attribute too much weight to the statements. The applicant submitted to the sentencing judge (as appears in the extract from the written submissions extracted above) that his Honour should not attribute too much weight to the victim impact statements.

Further, the applicant’s counsel referred his Honour to the passage in Basten JA’s reasons in R v Nelson [2016] NSWCCA 130 where his Honour referred to the proposition that not every abused child will be “profoundly [substantially] harmed.”

The applicant referred the sentencing judge to the relevant authorities. He did not submit in the proceedings on sentence that the victim impact statements were insufficient to establish that the victims had suffered substantial harm. Nor did the applicant adduce evidence that the harm suffered by the victims, as revealed by their victim impact statements, was not, on the basis that it was no more than could reasonably be expected from such offences, substantial harm within the meaning of s 21A(2)(g). Nor was it suggested that there was any principle of law which prevented such a finding based solely on victim impact statements and that expert evidence of harm was required. This Court has repeatedly said that it will not entertain points that could have been taken at the sentence hearing but which were not taken: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81] (Johnson J, McClellan CJ at CL agreeing). A similar argument was first made on appeal and rejected by this Court in Ollis v R [2011] NSWCCA 155 at [90]-[92] (Johnson J, Garling J agreeing), as follows:

The relevant principles as to the use that can be made of victim impact statements to establish substantial harm as a matter of aggravation were summarised, with reference to authority, by Leeming JA (Harrison and Hamill JJ agreeing) in Gagan (a pseudonym) v R [2020] NSWCA 47 as follows:

The extent of the harm suffered by the victims was described in considerable detail in their victim impact statements. Although the sentencing judge did not identify the two matters relied on by the Crown as justifying the finding of substantial harm, hypervigilance and guilt for the harm suffered by younger victim or victims, these circumstances were apt to elevate the harm suffered by the victims from the usual harm to be expected from such offences to the level of “substantial” harm, as required by s 21A(2)(g). In these circumstances, I am satisfied that it was open to the sentencing judge, having regard to the content of the victim impact statements and the submissions made at the sentence hearing, to find that the harm suffered by the victims was substantial.

Ground 1 has not been made out.

Ms Kluss argued that the indicative sentences were too high, having regard to the findings of objective seriousness. She submitted that his Honour had, for an offence “in the mid-range” of offences, indicated a sentence which was approximately half of the maximum. She contended that this tended to inflate the indicative sentences and failed to take account of subjective circumstances.

The relationship between objective seriousness and the maximum penalty is not a linear one. They are two matters that must be taken into account in exercising the sentencing discretion. An appeal lies, by leave, only against the sentence that has been imposed. In this case, his Honour chose to impose an aggregate sentence. Accordingly, there is no appeal against the indicative sentences, since these sentences were not actually imposed. However, it is well established that the indicative sentences may reveal error in the aggregate sentence in that, if the indicative sentences are too high, this might result in an aggregate sentence which is manifestly excessive: see the principles summarised in [40] of JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 (R A Hulme J, with whom Hoeben CJ at CL and I agreed).

There is significant force in Ms Kluss’s submission that the indicative sentences are too high, having regard to the findings of objective seriousness and the maximum penalties. However, the indicative sentences are only part of what contributes to the ultimate aggregate sentence. The other part is the extent to which there has been notional accumulation or concurrence. I use the word “notional” since there is no actual accumulation or concurrence when an aggregate sentence is imposed since these concepts are apposite to a situation where individual sentences are imposed for each offence of which the offender has been convicted. Nonetheless, the concepts are still apposite when looking at the aggregate sentence and the indicative sentences: see Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] (Button J, McClellan CJ at CL and Garling J agreeing). Ms Kluss accepted that if this Court found that the aggregate sentence was open to his Honour, the argument about the level of the indicative sentences “goes nowhere.”

Although the indicative sentences may appear to be too high, the aggregate sentence imposed was only 33.3% higher than the greatest single indicative sentence (of 12 years, for counts 17 and 19). Thus, whatever excess there may be in the indicative sentences has been more than offset by the lack of notional accumulation and the substantial notional concurrence. As was pointed out by R A Hulme J in oral argument, the sum of the indicative sentences was approximately 130 years, but the aggregate sentence imposed was only a 16-year head sentence. Ms Kluss had no answer to what she described as the “arithmetic argument.”

Whether a sentence is manifestly excessive is a conclusion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). In order to make out the ground of manifest excess, the applicant is required to establish that the sentence imposed is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). The ground of manifest excess does not depend on the demonstration of patent error, although it will be open to an applicant to point to patent error as an explanation for the alleged manifest excess of the resultant sentence. In the present case, Ms Kluss has established arguable inflation of the indicative sentence, but has not made out that this error has affected the resultant aggregate sentence. Having regard to the substantial discrepancy between the indicative sentences and the aggregate sentence, I am satisfied that any error in the indicative sentences has not affected the aggregate sentence. Having regard to the sustained offending, which continued over a period of 18 years and was perpetrated against three separate victims, with devastating consequences to each of them, I am not satisfied that ground 2 has been made out. Nor do I discern any non-compliance with s 25AA.

For these reasons, I agree with the orders proposed by the Chief Judge. I confirm that I also agree that the non-publication order ought be revoked, for the reasons given by the Chief Judge.