DH v R

1. [1]

   HARRISON J: On 7 May 2021, following pleas of guilty to 17 child sex offences committed between 1990 and 2018 against nine children, DH was sentenced by Huggett DCJ to an aggregate sentence of 30 years with a 20 year non-parole period. Ten additional offences admitted by DH were taken into account on sentence. Two of the victims were DH’s biological daughters. A third victim was his cousin. The remaining victims were friends of his daughters.

2. [2]

   DH was taken into custody on 11 July 2018. He was never granted bail. DH did not enter his pleas at the first available opportunity. DH appeals to this Court on the following grounds:

The offences and indicative sentences

1. [3]

   DH was sentenced as follows:

2. [4]

   Her Honour thoroughly summarised the facts in her remarks on sentence, which had been agreed for the purposes of the sentencing exercise.

3. [5]

   Count 19 related to AH who was born in November 2007. AH was friends with HH and would visit HH in DH’s home on occasions. The facts read that on about two occasions (Count 19 and the Form 1 count) at around Christmas of 2017, DH touched AH on the vagina in the garage at the family home.

4. [6]

   Counts 20 to 22 related to BW who was born in June 2007. BW was the sister of FW born in July 2005, another victim in this matter. Count 20 occurred while BW was having a sleepover with HH when DH put his hands inside BW’s underpants and rubbed her on the outside of the vagina. On another occasion, when BW was visiting HH, DH asked BW to sit on his lap. He then proceeded to place his hands underneath her clothing and touch her vagina (Form 1 offence attached to Count 20). These offences were said to have occurred between June 2013 and March 2015.

5. [7]

   Count 21 involved a further allegation of DH touching BW on the vagina during a sleepover. This offence was said to have occurred between June 2013 and March 2015.

6. [8]

   Count 22 was said to have occurred on 6 July 2018. Arrangements were made for FW and BW to spend the last week of the holidays with DH’s family. One night, BW woke to find DH touching her vagina over her underpants. BW said “stop, it’s inappropriate, I’ll tell Tammy”. BW woke up HH and told her what had happened.

7. [9]

   Count 23 was said to have occurred during the same holiday week. This offence involved FW. DH used his hands to rub FW on the outside of her vagina.

8. [10]

   The following day, HH, FW and BW were playing in the park and began to discuss what DH had done. BW and FW told Tamara, DH’s wife, what had occurred. Tamara then told DH, “you have 30 minutes to get out of this house. Pack your things and go.” A complaint was then made to Port Macquarie Police. BW and FW participated in police interviews on 11 July 2018. DH was arrested on 11 July 2018. Further investigation by the police led to additional charges.

9. [11]

   Count 1 related to DH’s cousin, VW. This offence was said to have occurred in April or May 1990. At the time, VW was 7 and DH was 21. On one evening, DH was babysitting VW. He began to talk to her about kissing, he then put his fingers inside her vagina. VW felt pain. DH then said, “don’t tell your mother or anyone”.

10. [12]

    Counts 2 to 6 related to DH’s daughter EH. EH was born in August 1998. EH spent several periods in foster care. In about 2002 or 2003 at a time when EH lived with DH in a caravan, DH rubbed her vagina on the inside and outside of her underpants while telling her that his actions were normal father-daughter activity (Count 2). DH also told EH not to tell anyone else. On another occasion, DH touched EH on the vagina and called her “juicy” (Form 1 attached to Count 2).

11. [13]

    In about 2004, EH and the family moved to Armidale. On one occasion, DH told her he would give her a really good birthday party if she let him touch her. DH then lay on a bed with EH and performed cunnilingus on her while he masturbated (Count 3). On about 27 September 2004, DH performed cunnilingus on EH in Armidale while he masturbated (Count 4). EH saw him ejaculate. In about 2008, DH rubbed EH’s vagina and tried to put his finger in it (Form 1 attached to Count 4). In or about 2009 or 2010, EH was living in care with her aunt. Arrangements were made for EH to visit her paternal grandmother. While there, DH also visited with his wife, Tammy. EH was awoken from sleep to find that DH was playing with her breasts, nipples and vagina. He then placed his finger inside her vagina and masturbated to ejaculation (Count 5 and the two Form 1 offences attached to Count 5). DH then licked EH’s vagina (Count 6).

12. [14]

    Count 7 related to KO who was born in 1999. In or about 2006 during a sleepover she woke to find DH touching her on the outside of her vagina.

13. [15]

    Count 8 related to TB. In about May 2009, when TB was 11, she had a sleepover at EH’s home. TB woke to find DH touching her on the outside of her vagina inside of her underpants. When this occurred, TB rolled onto her stomach. DH then rolled her onto her back and began to touch and lick her breasts.

14. [16]

    Count 9 related to CQ, TB’s sister. In about May 2009 during a sleepover, DH moved his hand up CQ’s leg and rubbed her vagina with his fingers. CQ shoved him away and told him to stop. DH then rolled CQ over and touched her breasts. CQ told him to stop and pushed him away (Form 1 offence attached to Count 8).

15. [17]

    Counts 10 to 12 related to DH’s daughter HH. She was born in June 2007. DH began sexually assaulting HH in about 2016 or 2017. On the first occasion, DH went into HH’s bedroom and used his hand to touch her vagina. Part of DH’s hand went into HH’s vagina (Count 10). HH told him to stop. HH was told not to tell anyone about what had occurred and that if she did, DH would go to gaol, and it would be her fault. On another occasion shortly after her 10th birthday while alone at home with HH, DH told her not to say anything to anyone otherwise DH would go to gaol. DH called HH “yummy” and touched her on her bottom outside her clothing (Form 1 offence attached to Count 10).

16. [18]

    On a further occasion when HH was about 10, DH came into HH’s room while she was sleeping which caused her to wake up. DH started licking HH’s vagina (Count 11). HH told him to stop, and he left.

17. [19]

    There was a further incident where DH called HH into his room. He started to rub her on the vagina and told her to have sex with him. HH refused and this angered DH (Form 1 offence attached to Count 11).

18. [20]

    The final time DH assaulted HH was in about June or July 2018 when she was 11. HH woke to find DH rubbing her vagina on the outside of her underpants while calling her “sexy” and “yummy” (Count 12). HH complained to her mother at the same time that BW and FW did so. HH participated in an interview with police and said that the incidents that she recalled were not isolated.

Remarks on sentence

1. [21]

   Her Honour dealt with the seriousness of the offending at some length in her remarks on sentence as follows:

2. [22]

   Her Honour then proceeded to outline the features of the particular offences before saying this:

Ground 1

1. [23]

   It is conceded in this appeal by DH that her Honour made findings in the passages from her remarks on sentence relevant to objective seriousness quoted at [21] above. However, he complains that her Honour did not indicate where on the scale of seriousness each of the offences fell and that her approach is erroneous. This is said to be so in particular with respect to those offences that carried a standard non-parole period. DH submitted that in such cases her Honour was obliged to utilise the concept of mid-range offending and assess where on a scale of seriousness the offending for those offences lay.

2. [24]

   DH relied upon the remarks of Fullerton J in Sivell v R [2009] NSWCCA 286 at [32] as follows:

3. [25]

   DH also drew attention to what was said by Ierace J in BR v R [2021] NSWCCA 279 at [151]:

4. [26]

   DH also referred to Lyons v R [2017] NSWCCA 204 in which Davies J, with whom Simpson JA and I agreed, cited with approval at [50] the following passages in the judgment of Macfarlan JA from Sponberg v R [2017] NSWCCA 120 at [23]-[26]:

5. [27]

   Finally, DH referred to R v Cattell [2019] NSWCCA 297 at [123] as follows:

6. [28]

   DH’s submission distilled into the single proposition that her Honour was required to assess where on the scale of seriousness all of the standard non-parole period offences lay and that she erred in not doing so.

Consideration

1. [29]

   The manner in which sentences for standard non-parole offences are to be assessed was explained in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29]:

2. [30]

   Sivell was decided before Muldrock. As the Crown’s submissions emphasise, Sivell does not in any event mandate the classification of objective seriousness on a scale referable to the standard non-parole period. Rather, it refers to the fact that a sentencing judge “customarily appoints positions within or outside that range as a standard or measure against which to assess objective seriousness”. In Lyons, the criticism of the sentencing judge was that no assessment was made at all of the objective seriousness of the offence in question.

3. [31]

   I made reference in R v Dawson [2022] NSWSC 1632 at [10] to the need for a sentencing judge to make plain the conclusion that he or she has reached concerning the objective seriousness of the offence being considered:

4. [32]

   Following Muldrock, the relevant legislation was amended to clarify how the standard non-parole provisions were to be considered and applied in sentencing. Section 54B(6) of the Crimes (Sentencing Procedure) Act 1999, effective from 29 October 2013, provides that:

5. [33]

   References in the cases to a “scaled assessment” are not to be read as requiring a sentencing judge to recite some mantra invoking comparisons about where the sentence being considered falls on some hypothetical arithmetical or geometrical continuum of seriousness. Whereas it would not be an error for a judge to adopt such an approach, a failure to do so does not indicate error. Her Honour’s remarks cited above at [22] are in my view both orthodox and correct. Her remarks on sentence must be read as a whole and in context. Her Honour’s reference to the inference that arises from the difference between the indicative sentences is also instructive. There can be no confusion that, as her Honour said in terms, all of DH’s offences are undoubtedly serious, and nothing can be gained by any further assessment of their relative seriousness.

6. [34]

   Her Honour specifically referred to the need to assess the objective gravity of each offence, whether or not it specified a standard non-parole period. Her Honour referred to the proper approach to that task identified in Tepania v R [2018] NSWCCA 247 at [110]-[120].

7. [35]

   The Crown submitted that, coupled with her Honour’s detailed analysis of all aggravating and mitigating factors relevant to the assessment of the objective seriousness of each offence, her Honour more than satisfied the requirement to make clear what her findings were and how she arrived at them. I agree.

8. [36]

   Her Honour’s findings as to the objective seriousness of each of the offences leaves no room for doubt. DH does not suggest that her Honour mistook the relevant facts or otherwise erred in the exercise of her sentencing discretion in respect of this issue.

9. [37]

   Ground 1 is not made out.

Ground 2

1. [38]

   DH conceded, clearly uncontroversially, that his offending was serious and warranted an appropriate sentence. However, he contended that the aggregate sentence of 30 years with a non-parole period of 20 years upon a man aged 51 who pleaded guilty, who had shown remorse, who was unlikely to reoffend, who had been sexually abused as a child and sexually assaulted in custody, and who had significant physical and mental health issues was plainly unjust. DH does not complain that her Honour misconceived or overlooked any of the subjective matters upon which he places considerable reliance in this Court. Indeed, her Honour referred to the matters in some considerable detail in her remarks on sentence between pages 28 and 32. It is unnecessary to recite those remarks here. However, DH posed the rhetorical inquiry about whether her Honour in fact could have given any practical or appropriate consideration to these significant mitigating factors in the circumstances where the head sentence after a discount for his pleas remained so high. DH submitted that there was an inexplicable inconsistency between her Honour’s findings that were favourable to him and the sentence that was imposed, to the point that the former were not reflected in the latter.

2. [39]

   DH contended that the sentence imposed upon him was crushing. However, her Honour had specific regard to the issue of totality and related matters, as appears from the following remarks:

3. [40]

   DH also provided an extensive schedule of comparable sentences described as the Public Defender’s Sentencing Table for Child Sexual Offences for sentences above 20 years, imposed either at first instance or by this Court on appeal. Only 3 out of a total of 24 matters in the schedule involved the imposition of higher sentences upon conclusion of the legal proceedings than DH.

4. [41]

   The Crown submitted that the aggregate sentence was not unreasonable or plainly unjust.

5. [42]

   The maximum penalties and standard non-parole periods are the two relevant legislative guideposts for each offence. They demonstrate the seriousness with which the community and Parliament view offences of child sexual assault, particularly in the context of a family environment. In addition, as Simpson AJA said in Ryan v R [2019] NSWCCA 200 at [3], “[a]lso not to be ignored are the progressive increases in the prescribed maximum penalties for offences of this nature, the most recent to imprisonment for life. There can be no doubt that sentencing judges are enjoined to treat sexual offences against children as amongst the most serious known to the criminal law”. The Crown referred as well to R v JJ [2019] NSWCCA 148 at [44]-[46], stressing the vulnerability of the child victim.

6. [43]

   In the present case, some of the offending was perpetrated against DH’s daughters who were members of his household. The Crimes (Sentencing Procedure) Act recognises harm to the victim as an example of harm to the community: s 3A(g). DH’s daughters were young and powerless and were left living in an ongoing and unsafe home environment. Sentences for such offences reflect both the short and long term harm suffered by victims in similar circumstances: see, for example, ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132.

7. [44]

   The Crown also emphasised that the vulnerability of child victims means that both general and specific deterrence are of particular importance. DH’s pleas of guilty were not offered at the first available opportunity.

8. [45]

   In all there was a total of 27 offences, including those taken into account on various Forms 1 against nine victims between 1990 and 2018. The offending conduct took place over an extended period.

9. [46]

   The Crown submitted that it followed from the multiplicity and seriousness of the offences, and the number of victims, that there needed to be a considerable degree of nominal accumulation of indicative terms when fixing the aggregate sentence. It was submitted that the weight that could be given to DH’s character was reduced by reason of the seriousness, scale and duration of the offending.

10. [47]

    DH received the benefit of special circumstances based upon his first experience in custody and his physical health and psychological concerns.

Consideration

1. [48]

   The Public Defender’s Sentencing Table for Child Sexual Offences referred to earlier is appended to these reasons. The comparable cases listed in that table do not appear to me to support a conclusion that DH’s sentence was enigmatic or out of step with current sentencing practices in cognate matters. Indeed, quite the opposite is true. That seems to me to be especially so having regard to the fact that several of the decisions are relatively old, a matter tending to suggest that they were decided in a less severe sentencing atmosphere.

2. [49]

   However, reliance upon comparable cases is without more neither conclusive of error in general nor decisive of this appeal in particular. Attention must principally be directed to the question of whether her Honour’s decision is unreasonable or plainly unjust. As the authorities demonstrate, appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even if not apparent from the reasons of the sentencing judge, or where the sentence is so different to the range in similar cases that there must have been error: see Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

3. [50]

   There does not seem to be a dispute that the sentence imposed upon DH is a stern sentence. Having acknowledged as much, the nature of the offending, the age of the victims, the circumstances where and in which it occurred and the length of time over which it was perpetrated all combine to produce offending of a most reprehensible kind. The sexual assault of one’s own daughters is particularly abhorrent. No less so is the taking advantage of other children whose overnight presence in the home one might reasonably anticipate would be safe and without incident.

4. [51]

   The summary of the offences that is included in these reasons provides no more than a sketch or outline of DH’s offending. A full and comprehensive recitation of what occurred is to be found at pages 7 to 17 of her Honour’s remarks on sentence. It is instructive to refer to only part of that agreed description of DH’s offending to give a flavour of the seriousness of the abuse in question. For example, her Honour described the sexual assault of HH commencing on page 16 of her remarks:

5. [52]

   This material suggests that DH’s daughter, who was undoubtedly not yet out of primary school at the times described, was drawn into her father’s abusive conduct in an almost normalised context, and unfairly threatened with the consequences for her of his acknowledged crimes. Appreciation of that awful dynamic gives substance to the term “abuse” clearly extending beyond the acts of physical violation. Her Honour recognised this in her remarks on sentence when dealing with DH’s breaches of trust and abuse of his authority, while carefully recognising the risk of double counting.

6. [53]

   I am unable in the circumstances of this case to conclude that DH’s sentence is manifestly excessive.

7. [54]

   Ground 2 is not made out.

Orders

1. [55]

   I consider that the following orders should be made:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [56]

   FAGAN J: I agree with Harrison J and with the additional remarks of Yehia J. In particular concerning ground 1, I consider that Muldrock v The Queen at [29], s 54A(6) of the Crimes (Sentencing Procedure) Act and Tepania v R at [110](d) constitute sufficient authority to establish that a sentencing judge is not required to nominate where, on a hypothetical scale of gravity, a particular instance of offending should be located. Rather, the learned judge was required to take into account, with respect to each count, all features that contributed to or mitigated objective seriousness. Her Honour did so, explicitly. With respect to ground 2, a significant reason for the aggregate sentence being so substantial is that it necessarily involves considerable notional accumulation to reflect that the applicant perpetrated his sexual offences against nine separate victims, aged between about 5 years and about 12 years, causing incalculable harm that may be expected to affect each of them for life. The aggregate is not manifestly excessive.

3. [57]

   YEHIA J: I have had the considerable benefit of reading the draft judgment of Harrison J. With these additional remarks in respect of Ground 1, I agree with the proposed orders and his Honour’s reasons.

4. [58]

   Some degree of confusion remains as to whether a sentencing judge is obliged to indicate “where on the scale of seriousness each offence falls” when dealing with an offence which carries a standard non-parole period. The applicant submitted that the sentencing judge was obliged to utilise the concept of mid- range offending [emphasis added] and assess where on the scale of seriousness the offending for the offences which carried a standard non-parole period lay. [1]

5. [59]

   To be clear, there is no such obligation or requirement. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [29] the High Court said that the standard non-parole period legislation:

6. [60]

   The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.

7. [61]

   In Tepania v The Queen [2018] NSWCCA 247; (2018) 275 A Crim R 233, Johnson J addressed the issue as to how the 2013 amendments to ss 54A and 54B of the Crimes (Sentencing Procedure) Act leave the sentencing task with respect to standard non-parole period offences. In answer to that question, his Honour set out a number of propositions, at [110]:

8. [62]

   The applicant relied upon the cases of Lyons v R [2017] NSWCCA 204, McIntosh v R [2015] NSWCCA 184 and R v Cattell [2019] NSWCCA 297, in support of the contention that this Court, following Muldrock and the 2013 amendments, has reiterated the requirement that a sentencing judge is obliged to indicate where an offence lies on a scale of seriousness by reference to a notional mid- range. I do not understand these authorities to be mandating such an approach. While to do so would not amount to error, a failure to do so does not, of itself, constitute error.