ZA v R

1. [1]

   PAYNE JA: I have had the advantage of reading the judgment of Johnson and Fullerton JJ in draft. I agree with the orders proposed by their Honours and with their Honours’ reasons. I wish only to say a little more about the challenge to the primary judge’s consideration of the principle of totality.

2. [2]

   The challenge was framed on the basis that the primary judge had failed to apply two separate “limbs” of the principle of totality. In the course of oral submissions Mr Odgers SC, who appeared for the applicant, advanced this submission (T 4-5):

3. [3]

   It was submitted that by failing to refer expressly to the second “limb” of totality the sentencing judge fell into error.

4. [4]

   The description of separate “limbs” of the totality principle apparently derives from D. A. Thomas, Principles of Sentencing: The Sentencing Policy of the Court of Appeal Criminal Division (2nd ed 1979, London: Heinemann Educational). There the author is there principally describing cases drawn from the Criminal Division of the Court of Appeal in England and Wales in the period of 1970 to 1977. Mr Thomas says at 57-8 (footnotes omitted):

5. [5]

   It is to be noted that in the same edition of Mr Thomas’ work the process of “calculating the length of a tariff sentence” was described as having “three stages” (at 194). Such an approach to sentencing by adopting different “stages” would likely lead to error: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Muldrock v The Queen (2011) 244 CLR; [2011] HCA 39.

6. [6]

   In Australia, the language of separate “limbs” of the totality principle has sometimes been adopted, mainly in Western Australia, in a series of cases apparently commencing with Bowman v The Queen (1993) 69 A Crim R 530 at 537-8. It is clear, however, that in describing the separate “limbs” of the totality principle, the Court of Appeal of Western Australia was not setting out a process of identification of the separate “limbs” of totality as necessary elements of every sentencing judgement. In FWB v State of Western Australia [2016] WASCA 118 Buss JA (with whom McLure P and Newnes JA agreed) noted at [49]:

7. [7]

   The High Court in Mill v The Queen (1988) 166 CLR 59 at 62-65, described the totality principle in a way that did not adopt a separate “limb” analysis, despite quoting with approval a different passage from the text by Mr Thomas to that quoted above. As Johnson and Fullerton JJ point out, other than Kirby J in Postiglione v The Queen (1997) 189 CLR 295 at 330, the High Court has never accepted that there are two tasks or stages involved in applying the totality principle. I agree with Johnson and Fullerton JJ that what Kirby J said in Postiglione on this topic does not represent the law as stated by the High Court. The absence of separately identified “limbs” of the totality principle is also apparent in the recent decision of the High Court in Nguyen v R (2016) 256 CLR 656 per Bell and Keane JJ at [37]-[38] and per Gageler, Nettle and Gordon JJ at [64].

8. [8]

   Identical challenges to the present have been rejected twice before in this Court: Asplund v R (Cth) [2014] NSWCCA 237 and GJ v R [2014] NSWCCA 292. In Asplund the applicant’s submissions were described thus at [51]-[52]:

9. [9]

   Hoeben CJ at CL (with whom Hidden and Davies JJ agreed) rejected these submissions and held at [63]:

10. [10]

    In oral argument in this case senior counsel for the applicant retreated a little from the description of separate “limbs” of the totality principle and submitted:

11. [11]

    Having specifically addressed the question of totality, it was not an error for the sentencing judge to fail specifically to refer to separate “limbs” of the principle.

12. [12]

    The sentencing judge expressly adverted to the principle of totality and imposed a sentence which was just and appropriate to the applicant’s offending behaviour and accurately reflected the totality of criminality comprised in the totality of offences. He was not required to do more.

13. [13]

    JOHNSON AND FULLERTON JJ: The Applicant, ZA, seeks leave to appeal against an aggregate sentence imposed by his Honour Judge Conlon SC at the Campbelltown District Court on 18 March 2015 with respect to a number of child sexual assault and child abuse material offences, involving his own daughter.

14. [14]

    The Applicant is referred to by initials (which are not his true initials) as identification of him would tend to identify his daughter contrary to the provisions of s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987. We will refer to the daughter as “Amy” (which is not her real name).

The Aggregate Sentence, Indicative Sentences and an Overview of the Offences

1. [15]

   Following pleas of guilty, the Applicant (then 39 years old) was sentenced on 18 March 2015 to an aggregate term of imprisonment for 26 years commencing on 23 July 2013, comprising a non-parole period of 18 years expiring on 22 July 2031 and a balance of term of eight years expiring on 22 July 2039.

2. [16]

   The aggregate sentence related principally to sexual assaults perpetrated against Amy in the family home between 1 January 2012 and 23 July 2013, whilst she was aged between eight and nine years. The Applicant was between 36 and 37 years old at the time of the offending.

3. [17]

   Amy disclosed the assaults to her mother on 23 July 2013 and was interviewed by police officers from Bankstown Police Station that day. Police then arrested the Applicant and an apprehended violence order was taken out specifying Amy as the person in need of protection. The Applicant has remained in custody from that date.

4. [18]

   On 29 January 2014, the Applicant entered pleas of guilty before the Local Court and was committed for sentence to the Campbelltown District Court on the following charges:

5. [19]

   The offences and indicative sentences specified by the sentencing Judge were as follows:

Grounds of Appeal

1. [20]

   By Notice of Application for Leave to Appeal filed on 16 September 2016, the Applicant relies upon the following grounds of appeal:

2. [21]

   The complaint in Ground 1 concerns the reasons given in applying the totality principle, so that Grounds 1 and 2 are closely connected. Ground 3 asserts manifest excess.

3. [22]

   As will be seen, the sentencing Judge made detailed findings on a wide range of topics. The only challenge to those findings before this Court related to the totality issue. An understanding of the findings made by the sentencing Judge will assist in consideration of the challenge concerning totality and the claim of manifest excess.

A Detailed Narrative of the Applicant’s Offences

1. [23]

   The sentencing Judge made detailed findings of fact. These findings were based upon an agreed statement of facts tendered at the sentencing hearing and were not challenged in this Court.

2. [24]

   At the time of the offences, Amy was the third of five children living with the Applicant and his wife at their home in western Sydney.

3. [25]

   His Honour set the scene in the following way (ROS1):

4. [26]

   The sentencing Judge described the Count 1 offence as follows (ROS1-2):

5. [27]

   With respect to Count 2, his Honour found (ROS2-3):

6. [28]

   The sentencing Judge made the following findings with respect to Counts 3, 4 and 5 (ROS3):

7. [29]

   His Honour recounted the facts, as described from the mother’s perspective, concerning events on the evening of 22-23 July 2013. This description provides further context for Counts 3, 4 and 5. His Honour said (ROS3-5):

8. [30]

   The sentencing Judge referred to the commencement of the police investigation on 23 July 2013 (ROS5-6):

9. [31]

   His Honour made findings concerning the recovery by police on 5 August 2013 of the Applicant’s laptop and external hard drive and the discovery of items on those devices (ROS7-8):

10. [32]

    The sentencing Judge made findings concerning Counts 6, 7, 8 and 9 (ROS8):

The Applicant’s Subjective Circumstances

1. [33]

   The Applicant was aged 36-37 years at the time of the offences and 39 years at the time of sentence.

2. [34]

   The Applicant had a prior criminal history which included bonds for offences of assault occasioning actual bodily harm and contravening an apprehended domestic violence order (in 1998 and 1999), offences of common assault and contravening an apprehended domestic violence order (in 2000) for which community service was ordered, suspended sentences in 2008 for common assault and contravening an apprehended domestic violence order (committed in 2001) and drink-driving offences committed in 2008 for which the Applicant was fined and disqualified.

3. [35]

   The Applicant had been educated to Year 10 before leaving school in Year 11 and engaging in a number of short-term unskilled positions of employment. In 2002, he secured full-time employment as a furniture removalist remaining in that industry for five years. He then remained unemployed until 2013 when he worked for four months unloading and loading shipping containers.

4. [36]

   A letter from the Applicant was tendered and the Applicant gave evidence at the sentencing hearing.

5. [37]

   The sentencing Judge referred to the Applicant’s subjective circumstances. His Honour noted the Applicant’s criminal history and observed that it could not be described as extensive, but nevertheless was “not one that would entitle him to leniency” (ROS13).

6. [38]

   A presentence report of Rene Eastman, Community Corrections Officer, dated 29 October 2014 was tendered on sentence, together with a psychological report prepared by Suzanne Dumasia and Kate Solomon from Forensic Psychology Services, Sex and Violent Offender Programs.

7. [39]

   His Honour referred to an aspect of the presentence report, and made a number of findings concerning the Applicant’s explanations for his offending (ROS15-16):

8. [40]

   The sentencing Judge noted what he considered to be belated remorse, and observed that the Applicant’s prospects of rehabilitation will be dependent upon his participation in sex offender programs, and those prospects will be enhanced if his expressions of remorse were indeed genuine (ROS17).

Some Other Findings of the Sentencing Judge

1. [41]

   The sentencing Judge noted that the Applicant’s pleas of guilty had been entered at the earliest opportunity and applied a 25% discount in this respect.

2. [42]

   A victim impact statement was read by Amy from a remote facility during the sentencing proceedings on 30 October 2014 and relayed to the Court by audio-visual link. The sentencing Judge addressed this aspect in the following way (ROS8-9):

3. [43]

   His Honour made the following findings concerning the objective seriousness of the seven s.66A(2) offences (ROS9-11):

4. [44]

   With respect to the two s.91G(1)(a) offences, his Honour said (ROS12):

5. [45]

   His Honour made the following finding concerning the objective seriousness of the s.91H(2) offence (ROS12-13):

6. [46]

   His Honour addressed issues of specific and general deterrence as well as the gravity of offences under s.66A(2) Crimes Act 1900 (ROS18):

7. [47]

   The sentencing Judge turned to issues of totality, accumulation and concurrency, with this aspect being the focal point for the first and second grounds of appeal. His Honour said (ROS19):

8. [48]

   His Honour then stated the indicative sentences attaching to each offence (see [19] above) before moving to impose the aggregate sentence.

9. [49]

   It should be observed that his Honour relisted the matter on 30 March 2015 so that non-parole periods could be specified as part of the indicative sentences for standard non-parole period offences, that being a statutory requirement at the time. The indicative sentences as stated on 18 and 30 March 2015 are those contained in the Table appearing earlier in this judgment (at [19]). No complaint is made before this Court concerning the process of relisting the matter for sentencing correction.

Grounds 1 and 2 - Alleged Failure to Give Adequate Reasons for Determination of Aggregate Sentence and Suggested Error in Application of the Totality Principle

1. [50]

   Mr Odgers SC, for the Applicant, advanced submissions with respect to these related grounds of appeal.

2. [51]

   We will consider Grounds 1 and 2 together.

3. [52]

   Mr Odgers SC accepted that although some level of accumulation was justified given that the offences each involved discrete and independent criminal acts, the extent of accumulation inherent in the aggregate sentence breached the totality principle because it exceeded what was just and appropriate in all the circumstances.

4. [53]

   Mr Odgers SC emphasised that there was one victim, albeit with offences being committed against that victim over a period of time, and that the harm she suffered, as evidenced by her victim impact statement, did not point to the conclusion that the harm caused by any one of the s.66A(2) offences was substantially less than the harm caused by the offences in combination. He also submitted that there was some overlap between some offences, including the Applicant videoing the sexual offences committed against his daughter.

5. [54]

   Mr Odgers SC’s primary contention was that the error in the application of the totality principle was in the failure to impose an aggregate sentence in accordance with what he contended was a two staged approach to the principle of totality as a matter of established principle. Mr Odgers SC also submitted that the sentencing judge failed to give adequate reasons to explain how the totality principle had been applied in the aggregate sentence that was imposed.

6. [55]

   Mr Odgers SC referred to Western Australian decisions where it was said that a two staged approach was the principled approach to totality: Roffey v State of Western Australia [2007] WASCA 246 at [24]-[25]; FWB v State of Western Australia [2016] WASCA 118 at [48]-49], [78]-[79]; Labrook v State of Western Australia [2016] WASCA 127 at [33]. He also relied on parts of the judgment of the Victorian Court of Appeal in Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372.

7. [56]

   The first limb (it was argued) involved ensuring that the cumulative sentence did not exceed the overall culpability of the offender: Postiglione v The Queen (1997) 189 CLR 295 at 340; [1997] HCA 26 (Kirby J), and that this limb focussed attention on the objective gravity of the offences.

8. [57]

   It was argued that the second limb focussed on subjective considerations, with the assessment of the overall sentence as “just and appropriate” necessitating the need to avoid a “crushing sentence”. Reliance was placed upon Kirby J’s reference to a “second task” in applying the totality principle in Postiglione v The Queen (at 340), whereby “a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender ‘a crushing sentence’ not in keeping with his record and prospects”.

9. [58]

   Mr Odgers SC submitted that the sentencing Judge in this case (at [47] above) had erroneously focussed attention on the objective gravity of the Applicant’s offences (the first limb) and had failed to give any consideration to the application of the suggested second limb.

10. [59]

    He submitted that in this sentencing exercise there were a range of subjective considerations to which the sentencing Judge should have made express reference in applying the second suggested limb of the totality principle each of which had a direct bearing on whether the length of the aggregate sentence to be imposed was just and appropriate.

11. [60]

    The subjective considerations were listed in Mr Odgers SC’s written submissions as including:

12. [61]

    Mr Odgers SC submitted that despite the applicant’s submissions before the sentencing judge not approaching the issue of totality in this way, his Honour was nonetheless obliged to do so and that his failure to refer to any of these considerations in his sentencing remarks underscores the inadequacy of the reasons for the aggregate sentence imposed, as it does error in the application of the totality principle.

13. [62]

    The Crown did not accept the proposition that there were two limbs to the totality principle. The Crown submitted that his Honour had correctly applied the totality principle and that this was apparent both from what his Honour said and in the structure of the aggregate sentence imposed for multiple offences of considerable gravity.

14. [63]

    The Crown noted the Applicant’s acceptance that some level of accumulation was appropriate, so that the complaint under Ground 1 should be understood as limited to the suggested inadequacy of reasons concerning the extent of accumulation or notional accumulation between each count as part of fixing an aggregate sentence.

15. [64]

    The Crown submitted that the sentencing Judge clearly stated that the offending behaviour called for partial accumulation between each count, and he gave effect to that determination. It was submitted that no inadequacy of reasons had been demonstrated.

16. [65]

    With respect to Ground 2, the Crown submitted that the totality principle required a Judge who was sentencing for multiple offences to ensure that the overall sentence properly reflected the overall criminality of the offending: Johnson v The Queen (2004) 78 ALJR 616 at 623 [18]; [2004] HCA 15.

17. [66]

    With respect to the Applicant’s complaint concerning the failure of the sentencing Judge to advert to the concept of a “crushing sentence”, the Crown submitted that the Applicant’s behaviour in this case was of the type referred to in R v MAK; R v MSK (2006) 167 A Crim R 159 at 164 [17]; [2006] NSWCCA 381 where it was said that an offender may not be entitled to the element of mercy entailed in adopting such a constraint. The Crown submitted that this was such a case.

18. [67]

    The Crown submitted that the Court should reject the first and second grounds of appeal.

19. [68]

    The totality principle is a common law principle of sentencing: R v Holder; R v Johnston (1983) 3 NSWLR 245 at 260-261; Mill v The Queen (1988) 166 CLR 59 at 62; [1988] HCA 70; Hili v The Queen (2010) 242 CLR 520 at 528 [25]; [2010] HCA 45; Muldrock v The Queen (2011) 244 CLR 120 at 128 [18]; [2011] HCA 39. In the present case, the principle arises in the context of sentencing under the Crimes (Sentencing Procedure) Act 1999, which preserves (in s.21A(1)) application of the common law totality principle: Nguyen v The Queen (2016) 256 CLR 656 at 659 [1]; [2016] HCA 17.

20. [69]

    The totality principle is to be applied by a sentencing court, together with other statutory and common law factors and principles in the process of instinctive synthesis leading to a “value judgment” comprising the determination of sentence: Markarian v The Queen (2005) 228 CLR 357 at 375 [39]; 377-378 [51]; [2005] HCA 25; Muldrock v The Queen at 131-132 [26]. The High Court has emphasised that it is erroneous to engage in two-tier sentencing where the court considers firstly objective circumstances and then subjective factors - that approach is contrary to the process of instinctive synthesis required as part of sentencing: Markarian v The Queen at 377-378 [51]; Muldrock v The Queen at 131-132 [26].

21. [70]

    The totality principle requires a sentencing court, where there is a series of offences, to review the total sentence and consider whether the aggregate is a just and appropriate measure of the total criminality involved: Postiglione v The Queen at 307-308, 313-314. It has been said that the sentencing Judge should “take a last look at the total just to see whether it looks wrong”, with this involving consideration of the totality of the criminal behaviour and a check as to whether the proposed sentence is appropriate for all the offences: R v Holder; R v Johnston at 260; Mill v The Queen at 63; Johnson v The Queen at 623-624 [18]-[21].

22. [71]

    In this context, it has been said that the totality principle serves to ensure that an offender is not subjected to a “crushing sentence”: Postiglione v The Queen at 304, 308.

23. [72]

    Only Kirby J in Postiglione v The Queen (at 340), has suggested that there are two tasks or stages to the totality principle. No other member of the High Court has adopted a similar approach. It will be recalled that Kirby J was a strong supporter of two-stage sentencing as opposed to the instinctive synthesis approach: Johnson v The Queen at 626-627 [40]-[44]. This may serve to explain his Honour’s views in Postiglione v The Queen. It does not represent the law as stated by the High Court.

24. [73]

    There has been no acceptance by the High Court that there is a two-stage approach to totality, with the initial focus being on objective factors and the second stage on subjective considerations. Such an approach would be inconsistent with the High Court’s rejection of two-stage sentencing in favour of the instinctive synthesis approach.

25. [74]

    The significance of an aggregate sentence reflecting “the total criminality comprised in the totality of offences” has been emphasised recently by the High Court. As Gageler, Nettle and Gordon JJ observed in Nguyen v The Queen at 677 [64]:

26. [75]

    Further, it was only Kirby J in Postiglione v The Queen (at 340) who has proposed an approach where “a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved”, with this passage being drawn from Ruby on “Sentencing”. This approach has been criticised by the Victorian Court of Appeal in R v Zaydan [2004] VSCA 245 at [21] (Batt JA, Vincent and Eames JJA agreeing). Batt JA said:

27. [76]

    This Court has applied repeatedly the totality principle as explained by Spigelman CJ, Whealy and Howie JJ in R v MAK; R v MSK at 164-165 [15]-[18]:

28. [77]

    More recently, this Court (Tobias AJA, Johnson and Hall JJ) said in Paxton v R (2011) 219 A Crim R 104 at 132 [215]; [2011] NSWCCA 242 with respect to the concept of a “crushing sentence”:

29. [78]

    To attempt to erect, as the Applicant seeks to do, a second limb of the totality principle which concentrates on the offender’s subjective circumstances to determine whether the total sentence is “crushing”, is not supported by authority.

30. [79]

    In Jarvis v The Queen (1993) 20 WAR 201, Ipp J said at 207:

31. [80]

    In R v E (2005) 93 SASR 20; [2005] SASC 332, Doyle CJ (Debelle and Besanko JJ agreeing) said at 30 [38]:

32. [81]

    In Azzopardi v R, Redlich JA (Coghlan and Macaulay AJJA agreeing) said at 63 [69]:

33. [82]

    In R v Zaydan, Batt JA observed at [96]:

34. [83]

    Nor do the Western Australian cases relied upon by the Applicant (see [55] above) support this approach. In effect, those decisions do no more than point to two features of the totality principle (at least insofar as that principle applies to the imposition of a lengthy total sentence).

35. [84]

    As this Court said in R v MAK; R v MSK at 165 [17]-[18], in cases of multiple offending, the particular offender may warrant what is a very substantial sentence which, in the view of some, might be capable of being characterised as a crushing sentence. However, the ultimate sentence to be imposed should bear reasonable proportionality to the objective gravity of the offences for which the Applicant was to be sentenced.

36. [85]

    The sentencing Judge gave detailed reasons for imposition of the aggregate sentence ultimately imposed. The substantial extracts from the remarks on sentence set out in this judgment demonstrate a thorough and thoughtful approach to the various factors relevant to the process of instinctive synthesis. His Honour had regard to, and made findings about, the objective gravity of the Applicant’s offences and his subjective circumstances, and adverted to other factors relevant to sentence before turning to the issue of totality in the context of setting an aggregate sentence.

37. [86]

    His Honour adverted to the arguments which had been put at first instance. It had not been contended in the District Court that the elaborate approach concerning totality advanced for the Applicant in this Court was necessary. Indeed, the Applicant’s counsel at first instance did not use the term “crushing sentence” at all.

38. [87]

    The Applicant was being sentenced by a highly experienced Judge well versed in the criminal law. It has not been demonstrated that his Honour failed to apply the totality principle. It was not necessary that his Honour articulate a detailed formula of words concerning the totality principle. It was discernible from the reasons as a whole and the sentence imposed that the totality principle was applied as part of the instinctive synthesis involved in the sentencing process: Hall v R [2017] ACTCA 16 at [42].

39. [88]

    This Court has observed that questions of accumulation are intuitive, and by nature limit the level of transparency that can be provided by the sentencing Judge: JT v R [2012] NSWCCA 133 at [73]. Since the introduction of aggregate sentencing, it has been said that absolute precision in specifying the degree of accumulation would be tantamount to expressing commencement dates for each indicative sentence contrary to one of the rationales for introducing aggregate sentencing: Beale v R [2015] NSWCCA 120 at [4]; JM v R (2014) 246 A Crim R 528 at 534-538 [34]-[40]; [2014] NSWCCA 297.

40. [89]

    His Honour explained sufficiently his reasoning for the ultimate sentencing decision, which involved a significant level of notional accumulation because of the number of very serious offences committed against a young victim involving different conduct on the part of the Applicant.

41. [90]

    We would reject the first ground of appeal.

42. [91]

    With respect to the second ground of appeal, we have rejected the Applicant’s submission that the totality principle is to be approached in two stages, with objective and subjective factors to be viewed separately. We are satisfied that the sentencing Judge applied the totality principle in this case. It may be taken that the entirety of the sentencing Judge’s remarks on sentence served to explain the ultimate sentence which was imposed.

43. [92]

    Given the indicative sentences for 10 separate offences, it is reasonable to conclude that there was a significant level of notional accumulation in reaching the aggregate sentence. The aggregate sentence did not reflect a linear approach to sentencing. That the head sentence ended up as one of imprisonment for 26 years was an understandable product of the gross and repeated offending by way of seven s.66A(2) offences which each carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Likewise, the child abuse material offences (some of which involved the Applicant’s own daughter) required an appropriate level of recognition in the total effective sentence.

44. [93]

    The Applicant has not demonstrated error in accordance with the second ground of appeal.

Ground 3 - The Claim of Manifest Excess

1. [94]

   Senior Counsel for the Applicant contended that the level of notional accumulation in this case, giving rise to the aggregate sentence, was unreasonable. He sought to compare the aggregate sentence in this case with sentences imposed in R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56; Leslie v R (2013) 227 A Crim R 116; [2013] NSWCCA 48 and Jolly v R (2013) 229 A Crim R 198; [2013] NSWCCA 76.

2. [95]

   It was submitted that in all the circumstances of the case, the aggregate sentence imposed was manifestly excessive.

3. [96]

   The Crown submitted that the overall criminality of the Applicant was high. He grossly abused his position of trust as the victim’s father, grooming her through exposure to pornography and then perpetrating serious and differing acts of sexual violence against her. He filmed the victim being subjected to sexual acts for his future viewing and sexual gratification. The Applicant did not cease his offending behaviour voluntarily, even after being interrupted by his wife.

4. [97]

   The Crown submitted that the Applicant’s offences constituted heinous criminal conduct over an extended period which called for a very substantial term of imprisonment.

5. [98]

   The Crown submitted that care must be taken when seeking to place reliance on comparative cases in support of a claim of manifest excess. In any event, the Crown submitted that the cases relied upon by the Applicant did not support an argument that the sentence in this case was unreasonable or plainly unjust. In support of that argument, the Crown pointed to other sentencing decisions which were said to stand in the way of a finding of manifest excess in this case.

6. [99]

   It is for the Applicant to demonstrate that the aggregate sentence in this case was unreasonable or plainly unjust: Markarian v The Queen at 371 [25].

7. [100]

   It can be stated fairly that the aggregate sentence imposed upon the Applicant in this case was a very heavy one. The explanation for the imposition of that sentence may be found in the gravity of the Applicant’s crimes, involving the exploitation of his own daughter over an extended period of time, and in different ways, in a manner which the sentencing Judge found (correctly) caused her long-standing and likely permanent harm: R v Gavel at 483 [107]-[112].

8. [101]

   There were seven separate offences under s.66A(2) Crimes Act 1900, a crime for which Parliament has, since 2009, specified a maximum penalty of life imprisonment with a standard non-parole period of 15 years. The maximum penalty and standard non-parole period are important legislative guideposts for the purpose of sentence: Muldrock v The Queen at 132 [27]. A maximum term of life imprisonment is the most emphatic statement of the seriousness of the offence that the legislature may make: R v Gavel at 481 [91].

9. [102]

   It was necessary for the ultimate sentence imposed to reflect the number of s.66A(2) offences (although not in some linear way) in calculation of the ultimate sentence. It was necessary for the sentencing Judge to take into account, as well, the other offending including the video recording of the sexual offences against his own young daughter, made and preserved for later consumption.

10. [103]

    The Applicant’s s.91H(2) offence placed him in a similar position to the respondent in R v Gavel where the Court said at 482 [101]-[102]:

11. [104]

    The Applicant’s course of criminal conduct extended over some 18 months. The victim was his natural daughter, who was “under his authority” for the purpose of s.66A(2): s.66A(3)(d). Sexual abuse such as this by a father against his own young daughter involves an abuse of trust of the highest order. The display of pornographic material to his daughter on the first and subsequent occasions was done to prepare her for sexual activity, this being a type of especially perverse cultivation and grooming. The s.66A(2) offences involved different forms of penetration including penile/anal intercourse. These were not opportunistic offences, but formed part of a pattern of conduct over an extended period accompanied by threats and some use of physical force. The filming of several incidents of sexual abuse of his daughter added a further sinister aspect to the Applicant’s offending. He did not voluntarily desist from his course of conduct. It was the ultimate reporting of his offences by Amy which brought his criminal conduct to an end.

12. [105]

    The sentencing Judge had appropriate regard to the objective gravity of the offences, the subjective circumstances of the Applicant, the need for specific deterrence, general deterrence, denunciation and protection of the community as well as the need for the sentence to recognise the harm done to the victim, all these aspects being purposes of sentencing under s.3A Crimes (Sentencing Procedure) Act 1999. Indeed, his Honour’s findings were both open and appropriate and (apart from the totality aspect) were not challenged in this Court. His Honour had regard, as well, to the totality principle in determining the aggregate sentence.

13. [106]

    The Applicant does not derive support for his claim of manifest excess from the sentencing decisions to which the Court was taken. As noted in R v Gavel at 483 [114], it is the case that there is a limited number of s.66A(2) sentencing decisions available to allow for a “range” to be identified.

14. [107]

    However, it is especially noteworthy in this case that the Applicant was to be sentenced for seven s.66A(2) offences together with two s.91G(1)(a) offence and one s.91H(2) offence. There were no Form 1 matters.

15. [108]

    In R v Gavel, there were three s.66A(2) offences, one s.61M offence and one s.91H(2) offence. The offender was not a blood relative of the eight-year old victim. There were no offences involving penile penetration. The sentence was increased on a successful Crown appeal.

16. [109]

    Leslie v R involved two s.66A(2) offences and one s.66B offence, all committed on the same night. The offender was a friend of the victim’s family and not a blood relative of the eight-year old victim.

17. [110]

    Jolly v R involved one s.66A(2) offence, one s.66B offence and two s.61M(2) offence. The offender was not a relative of the six-year old victim.

18. [111]

    In our view, the sentences imposed in these cases do not assist the Applicant in this case.

19. [112]

    The Crown referred to other sentencing decisions, including JL v R [2014] NSWCCA 130; MLP v R [2014] NSWCCA 183; JM v R; BR v R [2015] NSWCCA 255; Bravo v R [2015] NSWCCA 302; AC v R [2016] NSWCCA 21 and Franklin v R [2016] NSWCCA 319.

20. [113]

    Substantial terms of imprisonment were imposed in these cases which serve to illustrate that an aggregate sentence approaching the magnitude of that imposed on the present Applicant is not aberrant. None of these cases involved seven s.66A(2) offences, with most involving up to three offences under this section. It is not necessary or purposeful to undertake any more detailed analysis of the facts and circumstances of these various cases or of the sentences imposed.

21. [114]

    The Applicant’s case is a very grave example of multiple s.66A(2) offences committed against his own young daughter over an extended period, accompanied by other criminal conduct. Comparison with other sentencing decisions does not assist the Applicant on this appeal.

22. [115]

    The Applicant has not demonstrated that the aggregate sentence imposed upon him for these offences was unreasonable or plainly unjust.

23. [116]

    We reject the third ground of appeal.

Conclusion

1. [117]

   The Applicant has not made good any of his grounds of appeal.

2. [118]

   We express our agreement with the additional reasons of Payne JA.

3. [119]

   We propose that leave to appeal be granted, but that the appeal be dismissed.