R v MJ

1. [1]

   SIMPSON AJA: I have read in draft the judgment of Price J. I agree with the orders his Honour proposes, and, subject to what follows, with his Honour’s reasons.

2. [2]

   I wish to comment briefly on the application of what have come to be known as “Bugmy principles”: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”). Price J has discussed some of the authorities in which the question of whether a causal link needs to be established between childhood deprivation and disadvantage and the commission of the offence for which sentence is to be passed has been raised.

3. [3]

   In my opinion that question is apt to mislead. Where profound childhood deprivation and disadvantage has been established, to require that a causal link be established between that background and the commission of the offence is to misunderstand and undermine the “Bugmy principles”. It is only necessary to go to the joint judgment (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in Bugmy to make the point. At [40] their Honours said:

4. [4]

   Their Honours then accepted a submission made by the Director of Public Prosecutions that (contrary to the decision of this Court from which the appeal was brought) the effects of profound deprivation do not diminish over time and are to be given full weight in the determination of the appropriate sentence in every case. Their Honours explained that by adding (at [43]):

5. [5]

   Implicit in those observations is recognition that a childhood or adolescence marked by profound disadvantage may have an inhibitory effect on the development of values, on the acquisition of a moral compass, and on the capacity to make behavioural decisions in accordance with prevailing social norms. The relevant causal connection is between the dysfunctional background and the offender’s impaired socialisation and adjustment to, and conduct in accordance with, those social norms. To search for a causal connection between the dysfunctional background and the offence in question is to bypass the larger issue and to focus too narrowly on the offence. It ignores the compromise of the “capacity to mature and to learn from experience”: Bugmy at [43]. The plurality in the High Court were, as I understand [40] and [43] of the judgment, acknowledging the pervasive effect of profound deprivation, which is not confined to the commission of a single offence (or series of offences).

6. [6]

   In DR v R [2022] NSWCCA 151 (“DR”), to which Price J has referred, Bellew J extracted [43] and [44] of the joint judgment in Bugmy and highlighted one sentence at [44], which reads as follows:

7. [7]

   His Honour went on to say that that approach has been adopted on numerous occasions by this Court. As support for the proposition Bellew J cited the decisions in Katsis v R [2018] NSWCCA 9 at [108] (Hoeben CJ at CL) (“Katsis”), Perkins v R [2018] NSWCCA 62 at [82]-[83] (White JA) (“Perkins”), and R v Irwin [2019] NSWCCA 133 at [116] (Walton J) (“Irwin”).

8. [8]

   I accept that the reasons of Hoeben CJ at CL at [108] of Katsis support the proposition. There his Honour said:

9. [9]

   Six months later, in Perkins, Hoeben CJ at CL said, at [42]:

10. [10]

    The proposition was not, however, endorsed by White JA or Fullerton J, the other members of the Court in Perkins. White JA considered the question at some length. His Honour extracted [40] of Bugmy and said:

11. [11]

    In that case, White JA found as a fact (at [82]) that there was no causal connection between the offender’s exposure to domestic violence and his offending, and added (at [83]):

12. [12]

    Fullerton J said:

13. [13]

    In Irwin Walton J also considered the question at length, by reference to numerous authorities, including the judgments of White JA and Fullerton J in Perkins. In that case the sentencing judge had declined, in the face of clear evidence of a background of disadvantage and deprivation, to apply Bugmy principles on the ground that “the circumstances are not so compelling as to be a relevant factor” and that the offender “had not established the ‘very essential causal link’ between [his] dysfunctional upbringing and the nature of the offending for which he is now being sentenced”. Walton J found error in that approach, saying, inter alia:

14. [14]

    In DR itself, while R A Hulme J agreed with the orders proposed by Bellew J, he made his own observations about the ground of appeal that complained of the approach taken by the sentencing judge to the offender’s deprived upbringing and social circumstances. R A Hulme J said:

15. [15]

    To discount the effect of childhood disadvantage because no causal connection with the offence for which sentence is to be imposed is established is to ignore the subtleties and nuances of the considerations that the plurality in the High Court in Bugmy recognised. To ask whether there is a causal connection between a dysfunctional background and the offence for which sentence is to be passed is to ask the wrong question and potentially to mislead and distract from the essential question, which is the assessment of the offender’s moral culpability.

16. [16]

    I agree with Price J, that, in any event, the evidence in this case demonstrated that the applicant’s dysfunctional background is “a feature of [his] makeup” and warrants reduction (to a degree) of his moral culpability. It is also important, of course, not to lose sight of other sentencing considerations, including recognising the effect of the offending on the victim, expression of the community’s disapproval of, and indeed (as in this case) abhorrence of, the nature of the offending, and both general and specific deterrence: see Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54].

17. [17]

    In my opinion the sentence proposed by Price J adequately reflects a proper balance of these inter-related considerations.

18. [18]

    PRICE J: This is a Crown appeal brought by the Director of Public Prosecutions (“the Director”) pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on MJ (“the respondent”) by Grant DCJ (“the judge”) on 19 May 2023. The notice of appeal was filed on 16 June 2023.

19. [19]

    The sole ground of appeal advanced by the Director is that the sentence is manifestly inadequate.

20. [20]

    The respondent pleaded guilty in the Local Court to one count of having sexual intercourse with a child between 10 and 14 years of age contrary to s 66C(1) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 16 years’ imprisonment with a standard non-parole period of 7 years’ imprisonment. He adhered to his plea before the judge.

21. [21]

    The respondent asked the judge to take into account on a Form 1 an offence of intentionally carrying out a sexual act with or towards a child between 10 and 16 years of age contrary to s 66DD(a) of the Crimes Act. The maximum penalty for this offence is 2 years’ imprisonment.

22. [22]

    Each of these offences took place on 21 February 2022 and the victim was 10 years old at the time of the offending.

23. [23]

    Taking into account the offence on the Form 1, the judge sentenced the respondent to imprisonment for 3 years, commencing on 11 September 2022 and expiring on 10 September 2025 with a non-parole period of 2 years.

24. [24]

    His Honour had discounted the respondent’s sentence by 25% for his plea of guilty. Accordingly, the undiscounted starting point of the respondent’s sentence is 4 years’ imprisonment.

25. [25]

    When the respondent was sentenced by the judge, he was serving an aggregate sentence of 40 months’ imprisonment commencing on 21 February 2022 and expiring on 20 June 2025 with an aggregate non-parole period of 22 months commencing on 21 February 2022 and expiring on 20 December 2023. This sentence had been imposed in the Local Court at Deniliquin for offences of common assault, assault occasioning actual bodily harm, contravention of a prohibition in a domestic apprehended violence order and stalking and intimidate with the intention to cause fear (“the domestic violence offences”).

26. [26]

    One of the Director’s complaints about the inadequacy of the sentence imposed by the judge is that by backdating the commencement date of the respondent’s sentence to 11 September 2022, the respondent will serve a period of 8 months and 20 days which is solely referable to the s 66C(1) offence.

27. [27]

    Ms Nicholson, who appeared for the Director in this Court, pointed out that the overall effective sentence to be served by the respondent for all of the offending, including the sentences imposed for the domestic violence offences is 3 years, 6 months and 20 days. The overall effective non-parole period is 2 years, 6 months and 20 days. As presently sentenced, the respondent is eligible to apply for release to parole on 11 September 2024.

28. [28]

    Mr Coady, who appeared for the respondent, conceded that the sentence imposed by the judge was manifestly inadequate when the degree of concurrence with the existing aggregate sentence was taken into account. However, Mr Coady did not concede that the sentence of imprisonment of 3 years with a non-parole period of 2 years for the s 66C(1) offence was manifestly inadequate but submitted that sentence was open to the judge.

29. [29]

    The Director’s appeal was not confined to the degree of concurrency. The Director also contended that the sentence itself was manifestly inadequate.

30. [30]

    This Court is obliged to determine this issue before considering whether the Director has satisfied the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised.

Factual background

1. [31]

   At the time of the offending, the respondent was in a relationship with the victim’s mother, CC. He lived on-and-off with CC and her two daughters at their house in a town in southern NSW (“the house”). The respondent was 38 years old and the victim was 10 years old.

2. [32]

   On the morning of 21 February 2022, the respondent, CC, the victim, and her sister were all in the house. The victim was in CC’s bedroom, while CC was asleep on the couch. The respondent entered the bedroom and locked the door. He proceeded to pull down his pants and lie on the bed next to the victim, exposing his erect penis. Shortly afterwards, the respondent was interrupted by the victim’s sister calling out for her.

3. [33]

   Later that morning, the respondent took the victim with him to a service station approximately 450 metres away to buy cigarettes. The respondent walked, while the victim rode a scooter. The respondent did not have enough money to pay for the cigarettes, so they went home briefly before returning to the service station about 20 minutes later.

4. [34]

   The respondent asked for the key to use the service station toilet, which he was provided with. The respondent and the victim entered the bathroom and went into the first cubicle, which did not have a toilet. The respondent pushed the victim onto her knees and pulled her pants down. He then sprayed lubricant on the victim’s anus and engaged in penile/anal intercourse with her. He eventually removed his penis and ejaculated onto the victim’s back.

5. [35]

   The respondent returned the key, then returned to the house with the victim.

6. [36]

   At about 3pm the same day, the respondent was arrested and refused bail for unrelated domestic violence offences towards the victim’s mother arising from the night before. Police phoned the victim’s mother to inform her of the arrest. The victim then disclosed to her mother that the respondent had sexually abused her that morning. The respondent was arrested for these offences on 11 March 2022. He declined to participate in a record of interview with police.

7. [37]

   The respondent’s semen was detected in the following locations: on the floor of the toilet cubicle; on the lower crotch area of the victim’s swimwear bottoms (which she was wearing prior to the offence); inside the rear of the victim’s jacket; on the lower rear frill area of the victim’s swimwear top; and on the victim’s shirt towards the waist area near the hem. The fingerprints of the respondent and the victim were also identified on the cubicle door.

The respondent’s subjective circumstances

1. [38]

   The respondent is a 40-year-old Aboriginal Australian. He was born and raised in the town where the offence was committed. His mother choked to death in her sleep in an alcohol-related incident when he was three years old. He was raised by his maternal grandmother and has seven half-siblings.

2. [39]

   In his ex-tempore sentencing remarks, the judge referred at length to the report of a forensic psychologist Mr Patrick Sheehan. Mr Sheehan reported that the respondent had lived in town but spent a lot of time on the local Mission, some 30 kilometres out of town. He saw his father regularly each year and they maintained a favourable relationship. The respondent was always fed, had clean clothes, and was provided appropriate equipment for sports and school excursions.

3. [40]

   Mr Sheehan reported that the respondent had an anti-social uncle who lived in the home, who was violent and exposed him to early drug use. His uncle’s behaviour would often result in police attending the home. The respondent denied being sexually abused as a child. He told Mr Sheehan that substance abuse and crime were widespread in his greater family. His own behaviour became anti-social in his mid-teens, with his criminal convictions commencing from the age of 15 years. He lived full-time on the Mission when he was 17.

4. [41]

   The respondent told Mr Sheehan that his uncle gave him a bong and showed him how to smoke cannabis when he was seven years old. He started smoking cannabis regularly from the age of 13. He reported early psychotic experiences related to cannabis abuse.

5. [42]

   The respondent told Mr Sheehan that he was affected by methamphetamine when he committed the current offence. The respondent has six children to four different parties. At the time of Mr Sheehan’s report, those children were aged between 15 and 19 years. Mr Sheehan reported that the respondent acknowledged a history of partner violence but could not explain his current offending behaviour. The respondent told Mr Sheehan in regard to his offending that “[i]t just came out of the blue. I don’t know why I did it. I shouldn’t have done it. I ruined the girl’s life by doing it.”

6. [43]

   The judge noted that Mr Sheehan concluded that the criteria for paraphilic disorder were not met. Mr Sheehan opined that there were clear indicators of personality disorder with the evidence supporting a diagnosis of anti-social personality disorder. His Honour also noted that Mr Sheehan assessed the respondent’s risk of sexual re-offending as being in the average range on standard actuarial measures (Static-99R). Mr Sheehan reported that the evidence pointed towards an opportunistic offence rather than a pattern of deviant sexual interest in children.

7. [44]

   The material placed before the judge in the respondent’s case included letters dated 12 September 2017 and 26 September 2017 from the psychiatric registrar and consultant psychiatrist of Wagga Wagga Rural Referral Hospital to the members of the Mental Health Tribunal. The respondent had initially presented to the local hospital in August 2017 seeking assistance with regard to his mental health and illicit drug use.

8. [45]

   The doctors in each letter opined that the respondent had been suffering from untreated psychosis on a background of illicit drug abuse. He was suffering from symptoms of psychosis, with a disorganisation of thought form and delusions, along with poor insight into his symptoms. They concluded that the respondent was “currently mentally ill as defined by the Mental Health Act with the presence of delusions”. [1]

The respondent’s prior criminal history

1. [46]

   The respondent’s prior criminal history in New South Wales as an adult includes convictions for offences of dishonesty, supply of prohibited drugs, possession of unauthorised firearms, assault police, and the domestic violence offences above (see [25]). He had been previously sentenced to terms of imprisonment.

2. [47]

   His prior criminal history in Victoria included offences of recklessly causing injury, aggravated assault, and aggravated burglary. His Honour noted that the longest custodial sentence the respondent had served was in Victoria, during which he had participated in a violent offender program.

3. [48]

   The judge observed that the respondent’s long criminal history did not entitle him to leniency. His Honour had earlier noted that the respondent did not have any prior sexual offences.

Some findings by the judge

1. [49]

   The judge found that the offence fell within the “broad mid-range”. His Honour stated that in assessing objective seriousness, he had taken into account the victim’s age of 10 years which was at the lowest range of the offence; the respondent’s age of 38 years; the respondent’s breach of trust; the anal sexual intercourse that was followed by ejaculation on the victim’s back which was degrading; and a degree of premeditation as the respondent brought lubricant which was used in penetrating the victim.

2. [50]

   His Honour observed that the Form 1 offence occurred on the same morning as the substantive offence. The respondent's act of lying on the victim's bed and exposing his penis occurred in the victim’s home and constituted a breach of trust.

3. [51]

   His Honour referred to the submission of the respondent’s counsel that the respondent presented a subjective case of significant childhood deprivation. He accepted the submission “that the offender’s early social and economic deprivations bring into play the principles enunciated in Bugmy v The Queen”. [2] His Honour went on to say:

4. [52]

   The judge found that the respondent’s early guilty plea was indicative of some remorse. His Honour said that what the respondent told Mr Sheehan about his offending coming “out of the blue” was at odds with having brought lubricant with him.

5. [53]

   His Honour said that he was guarded about the respondent’s prospects of rehabilitation. He was unable to conclude that the respondent would not be before a court again.

6. [54]

   The judge recounted that the respondent had been classified as an SMAP (Special Management Area Placement) prisoner and had not had any outside contact either in person, by telephone, or mail since his arrest. He had been in custody since 21 February 2022 in respect the offence and the domestic violence offences committed against the victim’s mother. His Honour took into account the respondent’s hardship in custody in determining an appropriate sentence.

7. [55]

   In finding special circumstances, the judge said that the respondent would need extensive supervision for his re-integration to the community due to his drug and mental health issues.

8. [56]

   In considering the commencement date of the sentence, his Honour referred to submissions made by the respondent’s counsel that when regard is made to the principle of totality, there should be a generous backdating of the commencement date to 11 September 2022. His Honour further referred to the Crown not proposing a commencement date or otherwise providing assistance with regard to such a date. His Honour said the commencement date was a discretionary matter which would be 11 September 2022.

9. [57]

   The judge then referred to s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”) and stated that the Court was mindful that child sex offences have profound and deleterious effects upon victims and that child sexual abuse will inevitably give rise to psychological damage and long term serious harm to children.

10. [58]

    His Honour referred to the Judicial Commission’s Judicial Information Research System (“JIRS”) statistics put before him by the respondent’s counsel, which his Honour said:

11. [59]

    The sentence detailed at [23] above was then imposed by the judge.

Submissions

1. [60]

   As the respondent conceded that the sentence imposed by the judge was manifestly inadequate when the degree of concurrence with the existing aggregate sentence was taken into account, the principal matter of contention is the sentence itself.

2. [61]

   The Director submitted that the respondent’s offending was a particularly grave example of a s 66C(1) offence. Ms Nicholson referred to the nature of the sexual intercourse being penile/anal intercourse; the victim being at the lowest end of the spectrum of ages encompassed by the section; the aggravation of the offence by the breach of trust; the degree of premeditation involved; and the element of degradation by the respondent ejaculating on the victim’s back.

3. [62]

   In written submissions, the Director mentioned that “it may be thought that the assessment of the sentencing judge that the offence fell within the broad mid-range of the objective seriousness was an unduly generous finding in favour of the applicant”.

4. [63]

   In oral argument in this Court, Ms Nicholson said that the Director did not challenge the judge’s assessment but submitted that it was very generous and this Court would not be bound by that assessment if it came to re-sentence.

5. [64]

   The Director’s argument was that the sentence did not fit in with the judge’s assessment of objective seriousness; that there was a substantial disconnect between the characterisation of objective seriousness and the imposed sentence (which also required the Form 1 offence to be taken into account). The undiscounted starting point of the sentence was 4 years, against a maximum penalty of 16 years and a standard non-parole period of 7 years.

6. [65]

   The Director’s submission was not that the assessment of objective seriousness should be a discernible mathematical equivalence to those guideposts, but rather that it was necessary that the sentence properly reflects the assessment of objective criminality and addresses the criminality involved in the offending.

7. [66]

   The Director argued that the respondent’s subjective case was not overwhelmingly compelling. Whilst the Director pointed out that the judge did not consider whether there was a causal link between the respondent’s background and the commission of the offence, the Director recognised that the Crown in the sentencing proceedings had conceded that the principles in Bugmy applied. The Director did not seek to interfere with the judge’s finding that the respondent’s moral culpability was reduced. However, Ms Nicholson submitted that if this Court proceeded to re-sentence, the Court would not make the same finding on re-sentence.

8. [67]

   The Director submitted that where there was no causal link established, his Honour’s finding was unduly generous to the respondent. The Director referred to the judge’s lack of attention to the purposes of sentencing and the lack of any reference to the need for specific deterrence.

9. [68]

   Another argument focussed on the principle of totality. The Director’s submission was that the sentence imposed was not appropriate for all the offences. The Director contended that the degree to which the existing Local Court sentence could comprehend the criminality of the s 66C(1) offence was extremely limited. Furthermore, the Director contended that the judge provided no explanation for the commencement date of the sentence aside from outlining the submissions of the parties and stating that the commencement date was a discretionary matter.

10. [69]

    The Director was critical of his Honour’s reference to JIRS statistics.

11. [70]

    The Director raised a number of what were said to be “comparative cases”. The Director submitted that the present case bears closest similarity with the offending in DR and Scrimshaw (a pseudonym) v R. [6]

12. [71]

    The Director acknowledged the limited use of comparative cases but submitted they demonstrate the manifest inadequacy of the respondent’s sentence.

13. [72]

    Mr Coady accepted that the sentence was manifestly inadequate when the degree of concurrence was taken into account but argued that the sentence itself was not manifestly inadequate.

14. [73]

    The respondent referred to the submissions made to the judge which included his early exposure to alcohol and other drug abuse, and contended that there were compelling subjective factors which the judge was obliged to apply in the sentencing process.

15. [74]

    The respondent contended that these factors operated to lower the respondent’s moral culpability and lessened the emphasis to be placed on deterrence. Furthermore, they increased his hardship in custody. The respondent accepted that in the absence of these factors, the sentence was manifestly lenient. However, the respondent submitted that their presence meant that the judge had to recognise the effects of social and economic disadvantage that meant a reduction in his moral culpability.

16. [75]

    Mr Coady argued that whilst Mr Sheehan did not isolate the basis for the respondent’s offending, it was the respondent’s methamphetamine use. He submitted that the offence would be properly understood “as a relatively impulsive outburst of erratic and extremely damaging behaviour”. [7]

17. [76]

    Mr Coady submitted that all of the judge’s findings could be safely made. He contended that there was a need for significant special circumstances to deal with the issues of disadvantage, drug use, and the potential presence of a delusional disorder.

18. [77]

    The respondent pointed out that the Director did not seek to appeal the judge’s finding of objective seriousness; that taking into account all relevant factors, the sentence itself (other than the commencement date) could not be said to be “unreasonable or plainly unjust”.

19. [78]

    The respondent acknowledged the leniency of the sentence itself but submitted the sentence properly reflects the principles arising from cases such as Bugmy and Millwood.

Consideration

1. [79]

   In my respectful opinion, the sentence of 3 years’ imprisonment with a non-parole period of 2 years was manifestly inadequate, as was the degree of concurrence with the aggregate sentence for the domestic violence offences. This Court has emphasised for many years the seriousness of sexual assaults upon young children. [8]

2. [80]

   The respondent had penile/anal intercourse with the victim who was 10 years old at the time and with whom he stood in a position of trust. This evil conduct occurred on the same morning that the respondent exposed his erect penis to the young child and was premeditated.

3. [81]

   Whilst it was open to his Honour to find that the respondent’s “early social and economic deprivations” reduced the respondent’s moral culpability and moderated the weight to be given to general deterrence, it did not follow that specific deterrence, denunciation and protection of the community were to be overlooked. Nor did it follow that no weight was to be given to general deterrence. All of these sentencing principles are relevant to cases of sexual assault upon young children. As the High Court explained in Bugmy:

4. [82]

   In referring to Millwood in the passage quoted at [51] above, his Honour appears to have had in mind what was said by Simpson J ( as her Honour then was) at [69]:

5. [83]

   There is nothing in Simpson J’s remarks which would suggest that other relevant sentencing principles are not to be given any weight. In fact, her Honour’s observation that it should not be taken “that such a person bears no moral responsibility” applies to the respondent.

6. [84]

   Although I am mindful that the judge’s sentencing remarks were delivered immediately following oral argument and a degree of latitude is to be afforded, no mention was made of these sentencing principles by his Honour.

7. [85]

   The respondent’s lengthy criminal history, his unsatisfactory explanation to Mr Sheehan that “it just came out of the blue” which was inconsistent with his use of a lubricant, and his Honour’s guarded assessment about the respondent’s prospects of rehabilitation meant that specific deterrence and the protection of the community were significant issues.

8. [86]

   Denunciation of the respondent’s conduct remains an important principle. There is a need to denounce the conduct of those who sexually assault children.

9. [87]

   Another troubling aspect of the judge’s sentencing remarks was his reference to the JIRS statistics provided by the respondent’s counsel. His Honour noted in the passage quoted at [58] above that 54% of the sentences were “36 months or less”, with 60% of non-parole periods being “24 months or less”. His Honour did not refer to any other sentences outside the range of sentences that he had quoted. Furthermore, he made no mention of the limited use that could be made of the JIRS statistics. The sentence imposed, that almost immediately followed the reference to the JIRS statistics, was 3 years (36 months) with a 2-year (24 months) non-parole period.

10. [88]

    The limited use that might be made of Judicial Commission statistics has long been recognised. [9] As Bellew J observed in Skocic v R at [19]-[20]:

11. [89]

    His Honour was required to take a careful approach to the sentencing statistics placed before him, which could only “stand as a yardstick against which to examine a proposed sentence”. [11]

12. [90]

    The sentencing statistics placed before the judge did not identify the age of the victims (other than being between 10 and 14) and the nature and circumstances of the sexual intercourse. Nor did the statistics identify the prior criminal histories (other than a different type) and did not include sentences where matters on a Form 1 were taken into account. The protean nature of a s 66C(1) offence undermines the significance that may be attributed to the statistics.

13. [91]

    It would have been helpful if the judge had explained how the JIRS statistics had been used in determining the sentence that was imposed.

14. [92]

    Mr Coady, in this Court, correctly conceded that the degree of concurrence of the sentence with the domestic violence offences was manifestly inadequate. During the proceedings on sentence, the judge discussed with counsel when the sentence should commence. The respondent’s counsel submitted that the sentence should commence at “half” of the existing non-parole period of 22 months, which his Honour calculated to be 11 September 2022. In his sentencing remarks, the judge gave no reason for accepting the respondent’s submission that the sentence was to commence on 11 September 2022.

15. [93]

    His Honour was plainly aware of the principle of totality. However, in my respectful opinion, he appears to have overlooked the fundamental obligation of ensuring that the sentence imposed was “a just and appropriate measure of the criminality involved”. [12]

16. [94]

    It is apparent that his Honour did not consider the extent to which the existing sentence for the domestic violence offences against CC could comprehend and reflect the criminality of the sexual assault upon a child of 10 years with whom he stood in a position of trust and was a separate victim.

17. [95]

    In my view, the degree to which the existing sentence for the domestic violence offences could comprehend the criminality of the sexual assault was significantly limited. The domestic violence offences were discrete and independent criminal acts against a separate victim. The only common factor was that each of the victims lived in the same home. The sharing of a residential environment, in my view, could play very little, if any, part in assessing the extent to which a sentence for domestic violence offences could comprehend the criminality of the serious sexual offending.

18. [96]

    I do not wish to appear unduly critical of the judge, who has a large criminal caseload and is hardworking. His Honour is to be lauded for his efforts in delivering ex tempore sentencing remarks. However, the task of sentencing the respondent was complicated by the existing sentence. In my respectful opinion, before accepting the submission as to the commencement date of the sentence, his Honour should have stepped back and taken time to review what would be the total effective sentence and consider whether it was “just and appropriate” if it was to commence on 11 September 2022.

19. [97]

    The comparative cases raised by the Director included DR and Scrimshaw. In DR, the offender was sentenced to an aggregate sentence for 7 counts of sexual offending against young victims. Count 3 was an offence contrary to s 66C(1) of the Crimes Act. The victim was 11 or 12 years old at the time when the offender had penile/vaginal intercourse with her. The offender’s disadvantaged background was taken into account by the sentencing judge. There was a 5% discount for the offender’s late guilty plea.

20. [98]

    In indicating the sentence for count 3, the sentencing judge took into account an offence on a Form 1 which was an act of cunnilingus. The indicative sentence for count 3 was imprisonment for 11 years and 4 months.

21. [99]

    The offender’s appeal against an aggregate sentence of imprisonment for 20 years and 10 months with a non-parole period of 15 years and 6 months was dismissed.

22. [100]

    In Scrimshaw, the offender was sentenced for four offences contrary to s 66C(1). All of the offending was against the offender’s natural daughter who was 10 years old at the time. The intercourse involved digital penetration, fellatio, and penile/vaginal intercourse during which he ejaculated on the victim. The offender’s sentence had been discounted by 20% for his guilty plea. There was some premeditation and a breach of trust. The sentencing judge imposed “cascading” head sentences, three of which were for 5 years and one head sentence of 7 years. The total head sentence was 11 years, with a total non-parole period of 7 years.

23. [101]

    In The Queen v Pham, the plurality (French CJ, Keane and Nettle JJ) said at [28]:

24. [102]

    The plurality further observed at [29] that:

25. [103]

    There is a further limitation in the utility of the s 66C(1) sentence in DR. The sentence was an indicative sentence which itself was not amenable to appeal, although it may have provided a guide as to whether there was error in the aggregate sentence.

26. [104]

    Having considered all relevant sentencing factors, I am of the view that the total effective overall sentence of 3 years 6 months and 21 days fell far short of reflecting the totality of the respondent’s criminal behaviour. Manifest inadequacy is further evidenced by a non-parole period of 8 months and 20 days which is solely referrable to the s 66C(1) offence, which included the matter on the Form 1. The Director has established that the judge imposed a sentence that was well below the range of sentences that could justly be imposed for the respondent’s offending consistent with sentencing standards.

Residual discretion

1. [105]

   The question remains whether this Court should intervene and re-sentence the respondent. There is a residual discretion to decline to intervene even though the sentence is manifestly inadequate. The Director is obliged to satisfy the Court that the residual discretion should not be exercised. [15]

2. [106]

   In Green v The Queen; Quinn v The Queen, the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was to “lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. Their Honours described the primary purpose of laying down principles as a "limiting purpose" and said at [36]:

3. [107]

   Their Honours observed that other circumstances may combine to produce injustice if a Crown appeal is allowed. Their Honours said at [43]:

Submissions

1. [108]

   The Director submitted that the significant disparity between the sentence imposed and what is necessary to reflect the objective seriousness of the offences is such that the residual discretion should not be exercised. The Director argued that the need for denunciation, punishment, and recognising the harm to the victim would be undermined by allowing a manifestly inadequate sentence to stand.

2. [109]

   The Director contended that this case allows the Court to provide guidance to sentencing courts in relation to appropriate sentences for serious examples of offences against s 66C(1) of the Crimes Act. Furthermore, important guidance may be provided to judges concerning the approach to totality when accumulating a sentence upon an existing sentence imposed upon another court for unrelated offending.

3. [110]

   The Director submitted that there had been no delay in the institution of the appeal and the imposition of the manifestly inadequate sentence was not caused by the Crown who appeared in the sentencing proceedings before the judge.

4. [111]

   The respondent submitted that where the judge had made a finding that the principles from Bugmy and Millwood were relevant to the respondent and the respondent had demonstrated some insight, this Court should not re-sentence the respondent.

5. [112]

   The respondent accepted that the Director had promptly filed the appeal. No argument was advanced that the Director had contributed to the manifest inadequacy of the sentence.

Consideration

1. [113]

   In my opinion, the Director has established that the residual discretion to decline to intervene should not be exercised. The Director has not contributed to the manifest inadequacy of the sentence nor delayed the appeal. Guidance to judges that may be provided by this decision includes sentencing for offences against s 66C(1) of the Crimes Act and for the proper approach to the totality principle when accumulating a sentence upon an existing sentence.

2. [114]

   Furthermore, I am satisfied that public confidence in the justice system would not be served by allowing such a manifestly inadequate sentence to stand.

Affidavits on re-sentence

1. [115]

   In an affidavit affirmed on 8 September 2023, the respondent stated that he was in SMAP until July 2023. He explained that meant he was in a wing with other SMAP inmates and kept away from other mainstream inmates. He is now within minimum security and shares a ‘two-out’ cell.

2. [116]

   The respondent stated that he has been working in the kitchen since June 2023. Prior to that, he worked as a sweeper.

3. [117]

   The respondent stated that he is not visited by family or friends and does not receive mail. He does not have contact with his children. He had started the EQUIPS five-week addiction program and had been informed that the EQUIPS Domestics Violence Program would commence after that.

4. [118]

   The respondent stated that he had not been using drugs and felt better as a result. He was taking Olanzapine and had spoken to a psychologist once last year. Since being back on Olanzapine, he had not heard voices or been paranoid.

5. [119]

   The respondent’s solicitor, attached to his affidavit affirmed on 8 September 2023, the respondent’s case notes and work assignments, which confirmed what had been stated in the respondent’s affidavit about his employment in custody and the EQUIPS programs. They further related that the respondent is polite, follows directions and interacts well with others in his unit. There are no issues or concerns raised about the respondent.

Submissions on re-sentence

1. [120]

   The Director’s submissions on re-sentence have been articulated in the Director’s contentions about the manifest inadequacy of the sentence. However, in oral argument, Ms Nicholson’s position was that this Court was neither obliged to follow the judge’s assessment of objective seriousness nor his assessment of moral culpability.

2. [121]

   There was some discussion about whether a causal connection had been established between the respondent’s deprived background and the offence. Nevertheless, Ms Nicholson accepted that the respondent’s background would weigh heavily in the consideration of the respondent’s subjective case.

3. [122]

   Mr Coady submitted that if this Court came to re-sentence, the finding of the judge as to objective seriousness would be open to this Court. He referred to the broad range of offences contained within the s 66C(1) offences, and in this case the victim was not groomed. There was no repeated abuse.

4. [123]

   Mr Coady placed emphasis on the respondent’s subjective case and submitted that all the findings of the judge as to the respondent’s subjective case could be made, which included the reduction in moral culpability. He said that the respondent’s offending was difficult to understand “without the overlay of methylamphetamine use on top of it”. [17]

5. [124]

   A further submission was that a finding of special circumstances was required to deal with the issues of disadvantage, drug use, and the presence of a delusional disorder. Mr Coady referred to the respondent’s prison records which showed the respondent’s work, good behaviour, and absence of drug use in custody.

6. [125]

   As to the extent of accumulation on the existing sentence, Mr Coady referred to the expiration of the existing non-parole period on 20 December 2023 and argued that there could be a significant period of accumulation on re-sentence.

Re-sentence

1. [126]

   The maximum penalty of 16 years imprisonment and standard non-parole period of 7 years are legislative guideposts to be borne in mind when considering the appropriate sentence, having regard to the objective seriousness of the offence and the subjective circumstances of the respondent. [18] The standard non-parole period does not have determinative significance in sentencing the respondent, nor is it a “starting point” for the sentence, nor does it directly apply as the respondent has pleaded guilty. [19]

2. [127]

   Mr Coady’s submission that this Court would take into account in assessing the objective seriousness of the offence the lack of grooming is misconceived. The respondent was in a relationship with CC and lived from time to time with CC and her daughters in their house. He was well known to the victim, a 10-year-old child.

3. [128]

   The respondent abused that close relationship by taking her into a service station toilet where she was subjected to penile/anal intercourse and the respondent’s ejaculate on her back. In these reasons, I have emphasised the gravity of the respondent’s offending which was pre-meditated and in breach of this position of trust.

4. [129]

   I assess the objective seriousness of the offence to be above the mid-range.

5. [130]

   The respondent told Mr Sheehan that at the time he committed the offence, he was affected by methamphetamine. The respondent’s consumption of methamphetamine neither mitigates nor aggravates the offence.

6. [131]

   I take into account the matter on the Form 1 by giving greater weight to specific deterrence and retribution. [20]

7. [132]

   I stated at [81] above that it was open to the judge to find that the respondent’s “early social and economic deprivations” reduced the respondent’s moral culpability and moderated the weight to be given to general deterrence. Ms Nicholson submitted that this Court was not obliged to make the same finding, as there was no evidence that the respondent’s background was causally linked to the offence. Ms Nicholson cited DR at [37], in which Bellew J (with whom Ward P and R A Hulme J agreed) said:

8. [133]

   At first blush, the approach in DR may appear to differ from a number of decisions of this Court which have held that a causal link between an offender’s deprived background and the offending is not required for it to be taken into account as a mitigating factor. In Hoskins v R, Brereton JA (with whom Basten JA and Beech-Jones J agreed) observed at [57]:

9. [134]

   In Lloyd v R, McCallum J (as her Honour then was) (Hamill and Cavanagh JJ agreeing) stated at [27]:

10. [135]

    However, this Court in DR did not find that Bugmy factors are not to be taken into account unless a causal link has been established. The focus of the Court was on the assessment of moral culpability and Bellew J explained that an offender’s disadvantaged background “must be given full weight” in determining an appropriate sentence even though no causal link had been established. R A Hulme J observed at [4]:

11. [136]

    In any event, I consider that a causal link has been established on the evidence. The respondent was exposed to violence and drug use by his uncle. He was shown how to smoke cannabis when he was 7 years old, which became a regular habit from the age of 13. His drug use progressed to methamphetamines. His engagement with antisocial peers increased in his teenage years and his education did not extend beyond Year 9. His criminal history reveals offences of violence and damage to property when he was 15.

12. [137]

    The respondent’s loss of his mother at the age of 3, the time spent on the local Mission, and his exposure to violence and drug use during his formative years are circumstances of profound disadvantage which permit me to find (particularly given that the circumstances of sexual offending involved drug use) that the respondent’s moral culpability is reduced. This does not mean he bears no moral culpability for the offence, nor does it mean that his drug use has been taken into account as a mitigating factor: see [130] above.

13. [138]

    The respondent did not submit either in this Court or before the judge that there was a causal relationship between his mental health and his offending behaviour. The submission was confined to his subjective case.

14. [139]

    I take into account the respondent’s age and mental health. He was born on 20 July 1983 and is now 40 years old. The material placed before the judge (see [44]-[45] above) disclosed that in 2017, he had been suffering from untreated psychosis on a background of illicit drug use. Mr Sheehan opined that whilst “somewhat unclear”, the evidence supported a diagnosis of Drug Induced Psychosis (in partial remission), with a possible diagnosis of Schizophrenia (in partial remission). Mr Sheehan expressed the opinion that the criteria for paraphilic disorder was not met but the evidence supported a diagnosis of Antisocial Personality Disorder. Whilst serving his sentence, the respondent has been taking Olanzapine and has neither heard voices nor been paranoid.

15. [140]

    The respondent’s reduced moral culpability and mental health moderates the weight that I give to general deterrence.

16. [141]

    The respondent’s prior criminal history does not entitle him to leniency, but it does not increase the objective seriousness of the offence. In view of the respondent’s prior record, I give more weight to specific deterrence and protection of society than otherwise would have been the case. [25]

17. [142]

    The judge’s findings on remorse, rehabilitation, the respondent’s hardship in custody and special circumstances were not challenged on appeal and I intend to adopt them. Although I remain guarded about his prospects of rehabilitation, the positive steps taken by him in custody and his good behaviour support my taking a more optimistic view.

18. [143]

    Furthermore, the 25% discount for his plea of guilty in the Local Court will be applied on re-sentence.

19. [144]

    I have had regard to the JIRS statistics and comparative sentences as “yardsticks” in my consideration of the appropriate sentence.

20. [145]

    I also bear in mind s 25AA(3) of the CSP Act.

21. [146]

    The approach to the principle of totality has been discussed at [77]-[80] above. I am also mindful to avoid a “crushing sentence”.

22. [147]

    Having applied the discount of 25% and found special circumstances, I consider that the appropriate sentence for the offence (including the matter on the Form 1) is 6 years, with a non-parole period of 4 years. For clarity, the undiscounted starting point of the sentence is 8 years’ imprisonment. The commencement date of the sentence will be 21 December 2023 when the respondent would have otherwise been eligible for release on parole.

23. [148]

    The total effective sentence will be 7 years 10 months with a non-parole period of 5 years 10 months which in my view is a just and appropriate measure of the total criminality involved.

24. [149]

    Accordingly, I propose the following orders:

    1. (1)

       Director’s appeal allowed.

    2. (2)

       The sentence imposed by Grant DCJ in the District Court of New South Wales on 19 May 2023 is quashed.

    3. (3)

       In lieu thereof, the respondent is sentenced to 6 years’ imprisonment consisting of a non-parole period of 4 years commencing on 21 December 2023 and expiring on 20 December 2027 with a balance of term of 2 years commencing on 21 December 2027 and expiring on 20 December 2029.

    4. (4)

       The earliest date that the respondent will be eligible to be released on parole is 20 December 2027.

25. [150]

    DAVIES J: I agree with Price J.