Towse v R

1. [1]

   BASTEN AJA: On 12 August 2021, the applicant, Peter Towse, was sentenced on a single count of maintaining an unlawful sexual relationship, laid under s 66EA(1) of the Crimes Act 1900 (NSW). The conduct the subject of the charge took place over a period of some seven days in April 2020. The applicant entered a plea of guilty, having at all stages accepted that he committed the offending. He was sentenced by Judge English in the District Court to a term of imprisonment of 8 years commencing on 7 April 2020, with a non-parole period of 5 years.

2. [2]

   He sought leave to appeal on two grounds, namely (1) that the judge erred in her assessment of the objective seriousness of the offending and (2) that the sentence imposed was manifestly excessive. For the reasons explained below, the applicant should have leave to appeal, the appeal should be allowed and he should be resentenced to a lesser term.

Nature of offending

1. [3]

   The applicant was a de facto stepfather of the victim of the offence. In 2016, the applicant was living in Riverton, Queensland, just north of the New South Wales border; the victim’s mother and her three children lived in northern New South Wales. By August 2019, the mother and the applicant had a child and were living in a new home built by the mother in New South Wales.

2. [4]

   The offending conduct came to light on the evening of 7 April 2020 at around the time the children were going to bed. The applicant and the victim’s mother had been drinking and listening to music in the back shed of the New South Wales property, when the applicant got up and went back to the house. After he had been absent for some 20 minutes, the mother walked around the side of the house onto the veranda and looked in the bedroom window. She saw the applicant touching the victim in a sexual way. The mother then rushed into the bedroom, told the applicant to get out and called the police. The victim said to her mother that the applicant had been “touching her for a few days”. The victim was nine years of age.

3. [5]

   The applicant’s conduct on that occasion was not in dispute. The victim had been lying on her stomach playing with her iPad when the applicant lifted her underpants, put his right hand inside, and “fiddled” with the victim’s vagina. He also touched the victim on her bare buttocks and breasts. The offender continued to move his hands around the victim’s vagina and inserted a finger inside the labia majora, touched the victim’s clitoris and said to her, “I love you” and “don’t tell anybody”.

4. [6]

   The applicant was arrested and engaged in an electronically recorded interview with police. That document was not before the Court, but the agreed facts prepared for the sentencing hearing summarised the material parts. The account commenced by revealing earlier incidents which occurred in Queensland.

5. [7]

   This conduct as described by the applicant was indecent treatment of a child under 12 years in the care of the offender, within the terms of s 210 of the Criminal Code 1899 (Qld).

6. [8]

   A second episode occurred on the morning of the day on which the applicant was arrested. The family had been shopping at Tenterfield in New South Wales. The agreed facts recorded the incident in the following terms:

7. [9]

   The conduct involved an offence of intentionally carrying out a sexual act with a child under 10, contrary to s 66DC(a) of the Crimes Act 1900 (NSW) and a further offence of inciting a child under 10 to sexually touch him, contrary to s 66DA(b). The offending that evening at the family home was identified as intentionally sexually touching a child under 10, contrary to s 66DA(a) and, with respect to inserting the finger inside the labia, an act of sexual intercourse with a child under the age of 10 contrary to s 66A(1) of the Crimes Act.

8. [10]

   The five specific offences described above were identified as the relevant unlawful sexual acts in the indictment to which the applicant pleaded guilty. The relevant offence provisions were as follows:

9. [11]

   Because the sentence imposed involved a discount of 35%, both for the early guilty plea and for the disclosures of the offending in Queensland which the judge described as having “significant utilitarian value”, the starting point for the sentence was 12 years 4 months.

Ground 1: objective seriousness of offending

1. [12]

   As counsel for the applicant fairly conceded, there are significant difficulties in challenging the finding by a sentencing judge of the objective seriousness of the particular offending. [1] While that assessment is an important part of the sentencing function, it is pre-eminently an evaluative exercise and usually described according to an imprecise scale. The sentencing judge found that the offending “falls below the mid-range but certainly not at the lowest of the range created for offences of a like nature”. [2]

2. [13]

   This was an unusual case, in part because the offence of maintaining an unlawful sexual relationship with a child potentially embraces a wide range of circumstances. The key elements of the offence are as follows:

3. [14]

   The history underlying the enactment of s 66EA was set out by Johnson J in Burr v R. [3] It is convenient to refer to three key elements of that history.

4. [15]

   First, although originally enacted in New South Wales in 1998, the underlying problem to which it was directed had been identified in a judgment of the High Court in S v The Queen, [4] delivered some nine years earlier. All other Australian jurisdictions responded to what was perceived as a deficiency in the proper scope of criminal liability; [5] the absence of a response in NSW was noted by the Royal Commission into the New South Wales Police Service conducted by Justice JRT Wood, who recommended a provision which “would recognise the reality of continuing or prolonged child sexual abuse”. [6]

5. [16]

   The complainant in S v The Queen gave evidence that her father had engaged in sexual acts with her since the age of nine or 10 and over two years from her 14th birthday, had sexual intercourse with her over a period of some four years. She said that the acts occurred frequently, but was unable to identify any particular occasion. The indictment charged as three separate counts of incest, each alleged to have occurred on a date unknown during a 12-month period. As explained by Dawson J: [7]

6. [17]

   The Attorney-General observed, when introducing an amendment to s 66EA in 2018: [8]

7. [18]

   It may be observed that the use of s 66EA in the present case did not reflect its original purpose. There was no doubt as to the individual offending, nor as to when it occurred. That is not to say that the offending did not fall within the terms of s 66EA, it clearly did. However, instead of charging individual offences, it appears that the portmanteau offence was used deliberately by both parties to embrace conduct which occurred in Queensland (as the section permitted), so as to relieve the applicant of the possibility of further charges being laid by Queensland police.

8. [19]

   The second important factor is that s 66EA was amended in important respects in 2018 as a result of concerns expressed in the report of the Royal Commission into Institutional Responses to Child Sexual Abuse that the operation of the original provision was undermined by the need for significant particulars of individual occasions of offending. [9]

9. [20]

   The changes have, however, expanded its operation in such a way as to remove the purpose described in the title (persistent sexual abuse of a child), although the title has remained unchanged. Thus, s 66EA(1), as originally enacted, provided:

10. [21]

    The requirement for offending on “3 or more separate occasions occurring on separate days” is now reduced to “2 or more unlawful sexual acts”. On one view, two acts on the one day would suffice. The phrase “over any period”, while a minor variation of “during any period”, does not obviously, taken in isolation, prevent such a limited time span. On the other hand, the offending conduct is characterised as “maintain[ing] an unlawful sexual relationship”, which might imply something more than isolated acts over a very short period, were it not for the definition of the phrase “unlawful sexual relationship” in subs (2).

11. [22]

    Quite recently, this Court addressed the possible inference which might be drawn from the use of the words “sexual relationship” in subs (1), noting that they would, according to ordinary usage, “refer to multiple sexual acts committed reasonably frequently as part of an ongoing course of conduct”. [10] The Court further noted that the ordinary English meaning of the word “maintains”, in relation to a sexual relationship, “would refer to successive acts committed frequently enough to provide an element of connection and continuity so that the coherent course of activity that they constitute may be seen to be maintained by the perpetrator”. [11] These readings were said to condition the elements of the offence as to which the jury must be satisfied. [12] This reasoning, quite expressly, gave little or no effect to the definition of the phrase “unlawful sexual relationship” in subs (2), denying that it was a definition. It was suggested that Parliament, had it intended such a definition, did not need to construct a provision with two separate subsections. That is true, but it may be doubted that recasting the provision is a legitimate form of statutory interpretation. A conventional approach to the use of a statutory definition is to read it into the substantive enactment, as explained by McHugh J in Kelly v The Queen. [13] Any uncertainty as to the proper construction of the section will be of critical importance in formulating directions to a jury. However, the issue does not arise in the present case and cannot be addressed here.

12. [23]

    The third important factor is the maximum penalty for the offence, which has increased from 25 years in the original enactment to life imprisonment now. The Attorney-General stated in the Second Reading speech for the Amendment Bill [14] :

13. [24]

    In the present case, one of the offences identified in the indictment involved, as noted above, an offence of sexual intercourse under s 66A(1), which carried a maximum penalty of life imprisonment.

14. [25]

    While the offending in the present case may accurately be described as “persistent”, it was persistent over a period of some seven days. While it is possible that the conduct might have continued if not discovered, it is also possible that the victim would have made an early complaint to her mother, thereby ensuring discovery. In any event, the applicant was to be sentenced for what he had done, not what he might do. Objective seriousness of the conduct must be assessed on that basis.

15. [26]

    Although the form of the legislation has been significantly varied, authority in this Court has accepted that the material factors set out by Johnson J in Burr continue to apply. They were summarised in GP (a pseudonym) v R: [15]

16. [27]

    As to par (a), there were on each occasion multiple offences, although only five were particularised. In a context where sexual touching, even over a brief period, may give rise to multiple unlawful sexual acts which may be separately charged, generally the most serious offence will be a focus of consideration and will dictate the length of an aggregate sentence.

17. [28]

    In relation to par (b), the nature of the sexual offences, the offence of sexual intercourse with a child was undoubtedly the most serious. However, as the sentencing judge noted, there was no penetration of the vagina, no violence or physical harm, and no threat of either. As an example of sexual intercourse, it might aptly have been described as within the low range. The other elements of the offending, being less serious in themselves, might have been described as below the middle range for offences of their kind, but not by far.

18. [29]

    As to par (c), it is to be accepted that the younger the child the more serious the offending, at least with respect to a child who has a relevant understanding of the nature of the conduct, as the victim clearly did in this case. The fact that the victim was less than 10 years old rendered the conduct more serious than it might have been had the victim been older.

19. [30]

    As to par (d), the fact that the offences occurred within a period of about seven days is to be compared with cases where conduct has continued for months and even years. The very short period over which the conduct took place makes it far less serious than had it continued over months or years. It may aptly be described as, in this respect, at the very lowest end of a range of conduct which could in principle constitute maintaining an unlawful sexual relationship.

20. [31]

    With respect to par (e), the fact that the applicant was 40 years of age at the time of the offending, weighed significantly against him in assessing objective seriousness. The age difference of some three decades was also significant.

21. [32]

    Finally, in relation to par (f), and cumulatively with his age, the fact that the applicant was in effect the stepfather of the victim and that she was in his care, renders the conduct a serious breach of trust. While it is almost inevitable that for an adult to maintain an unlawful sexual relationship with a child will involve a breach of trust, that is not to diminish the seriousness of the offending in each case. It is a factor which properly affects the starting point for the sentencing exercise, but is less significant in placing the conduct within a gradated scale of objective seriousness.

22. [33]

    As may be seen from the foregoing discussion, there are various factors to be weighed, most of which are largely impressionistic and are matters about which the view of the sentencing judge must be given significant weight. Further, the judge’s finding that “the offending falls below the mid-range but certainly not at the lowest of the range created for offences of a like nature” involves, not inappropriately, a high level of imprecision. Although it is important in assessing whether the sentence is manifestly excessive, to determine where on a scale of objective seriousness the offending stands, it is not appropriate to attempt to reformulate the finding of the sentencing judge in this respect.

23. [34]

    Ground 1 should be rejected.

Ground 2: manifest excess

1. [35]

   The objective seriousness of the offending has been addressed above. Before considering ground 2 (manifest excess) it is necessary to address the subjective circumstances of the offender.

2. [36]

   The sentencing judge gave careful consideration to a detailed report prepared by a clinical and forensic psychologist, Dr Katie Seidler, of 5 July 2021. The applicant also gave evidence on sentence.

3. [37]

   The sentencing judge summarised the applicant’s personal history in the following passage: [16]

4. [38]

   Dr Seidler had discussed the applicant’s early life in the following terms (having set out his history in some detail): [17]

5. [39]

   These achievements and difficulties should not be lost sight of in considering other aspects of his history, including persistent cannabis use and immature sexual relationships. With respect to drug use, Dr Seidler reported: [18]

6. [40]

   In assessing risks of reoffending, significant weight was placed upon a history of age-inappropriate relationships and lack of insight into the effect of his misconduct with the victim. Dr Seidler identified his issues with his sexual behaviour in the following terms: [19]

7. [41]

   In her summary, Dr Seidler stated that the “primary risks in this case pertain to Mr Towse’s immature capacity for intimacy, in addition to being a lonely and isolated individual, who has been prepared to push boundaries sexually, who has engaged in some problematic, and potentially deviant, sexual practices and who has a history of poor coping and heavy cannabis use”. [20]

8. [42]

   The sentencing judge reaching the following conclusions: [21]

9. [43]

   The sentencing judge concluded: [22]

10. [44]

    With one qualification, these conclusions should be accepted. The qualification relates to the fact that he is, as Dr Seidler put it, “an unsophisticated person intellectually” who suffers from social anxiety. In my view, the significance of general deterrence should have been tempered by what, although not technically characterised as intellectual disability, clearly had a similar consequence, reflected in his lack of insight. As the High Court noted in Muldrock v The Queen, [23] while the “objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders”, failure to reflect upon the relevance of an intellectual disability in giving weight to general deterrence may reveal error. The High Court observed at [53], citing a passage from a judgment of Young CJ in Victoria:

11. [45]

    The High Court continued:

12. [46]

    The submissions helpfully had regard to the range of sentences imposed in comparable cases, or, more accurately, a comparison with the circumstances of cases where a comparable sentence has been imposed.

13. [47]

    Two cases were referred to in submissions, each dealing with offending which pre-dated the increase in the maximum penalty from 25 years to life imprisonment. However, in my view that change is of limited significance. As noted above, the purpose of the change was to reflect the fact that the maximum penalty for some of the offences which fell within the definition of “unlawful sexual act” had such a maximum penalty. Furthermore, it is unlikely that the change in the maximum penalty would have had a significant effect on the sentences imposed in the two cases relied upon.

14. [48]

    In Burr, to which reference has already been made, the offender was sentenced to a term of 10 years 9 months’ imprisonment with a non-parole period of 7 years. The sentence included a 20% discount for the plea of guilty. [24] The starting point before discount was thus about one year longer than in the present case. The victim was between 14 and 16 years and the age differential with the offender was 27 years. She was the daughter of a woman with whom the offender had been in a relationship. The offending involved multiple offences of penile vaginal intercourse and fellatio over a period of 18-20 months. Although that victim was older than the victim in the present case, the nature and the extent of the offending, and the period over which it occurred were dramatically greater. An appeal against the severity of sentence was dismissed.

15. [49]

    A further unsuccessful appeal against severity was Eacott (a pseudonym) v R. [25] A sentence of 6 years’ imprisonment with a non-parole period of 3 years and 6 months included a reduction of 25%, so that the undiscounted starting point was 8 years. [26] The offending in that case took place whilst the victim was between six and 10 years and the offender was the victim’s natural father. The incidents mainly involved the victim touching the offender’s penis and rubbing it outside his clothing, which occurred numerous times for some four years. They also included the victim whipping the offender on the buttocks and the penis, masturbating him while naked in the shower, and the offender licking the victim’s vagina and nipples and biting her nipples. [27] Although on more than one occasion the offender rubbed and licked the victim’s vagina, there was no charge of sexual intercourse. However, the fact that the conduct occurred over a period of years, rather than a mere seven days, suggest that the offending was far more serious than in the present case.

16. [50]

    Mills v R [28] involved a sentence which this Court considered was manifestly excessive, although the maximum penalty of 25 years at the relevant time was an important factor in that conclusion. On resentence, and allowing for a 25% discount, the Court adopted a starting point of 18 years. The victim was subjected to sexual assault including numerous incidents of penile-vaginal intercourse until ejaculation with a victim between the ages of 11 and 14. The age differential was similar to the present case. The offender was the victim’s father. There was a degree of physical and mental abuse, including continuing to have intercourse after signs of distress when the victim was crying. Intercourse culminating in ejaculation was an aggravated feature of the misconduct. The conduct was far more serious than in the present case, warranting a greater disparity than exists between 18 years and 12 years 4 months.

17. [51]

    In GP, this Court resentenced an offender in circumstances where there were numerous acts of penile-vaginal intercourse, which, the sentencing judge had stated, involved “ejaculation on some occasions”. [29] That was found to be an error as the agreed facts allowed for a finding that ejaculation occurred only on one occasion. The offence involved a 12- or 13-year old victim, with unlawful sexual acts involving touching the victim on the breasts, having her perform fellatio on him, performing cunnilingus on her, and having penile-vaginal intercourse on more than one occasion. The Court accepted a finding that “there were a number of acts of intercourse occurring over a seven month period when the victim was 12 or 13”. [30] The Court accepted that the objective seriousness of the matter was within the mid-range; the maximum sentence was imprisonment for life. [31] The starting point was a sentence of 15 years reduced, with a 20% discount for an early plea, to 12 years with a non-parole period of 8 years and 7 months. [32] Again a greater disparity might have been expected comparing the starting point with that in the present case.

18. [52]

    The seriousness of the offending undoubtedly warranted the imposition of a sentence of imprisonment. However, the actual conduct, whilst involving a relatively minor form of sexual intercourse, occurred within such a brief period that it could not bear comparison with the extended period of offending in Eacott, with an even younger victim. The other cases discussed above involved substantially more serious offending, but not proportionately longer sentences. Accordingly, in my view, the ground of manifest excess has been made good. It is therefore necessary to resentence the offender.

Resentencing

1. [53]

   The objective seriousness of the offending has been explained above. An appropriate finding, given the inherent level of impression and imprecision, is that it was well below the mid-range for an offence of this kind. Further, the fact that it involved conduct falling within s 66A(1) of the Crimes Act, which carries a maximum penalty of life imprisonment, has little effect on the assessment of the overall seriousness of the misconduct, although it should be acknowledged as the most serious act of the offending.

2. [54]

   Although the applicant was not diagnosed as suffering from an intellectual disability, the findings of the psychologist as to intellectual capability, together with the conflict between feelings of disgust and remorse, and lack of insight, require that the element of general deterrence is reduced. Personal deterrence remains highly relevant.

3. [55]

   The discount provided by the sentencing judge was appropriate and should be adopted. The finding of special circumstances was also appropriate and the relativity between the non-parole period and the balance of term should be retained. In my view, the appropriate course is to adopt the same notional starting point as in Eacott, namely imprisonment for a period of some 8 years. The resulting sentence should be 5 years and 3 months with a non-parole period of 3 years 3 months. The non-parole period commenced on 7 April 2020 and will expire on 6 July 2023.

4. [56]

   On this basis, the Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal against the sentence imposed by the District Court on 12 August 2021.

   2. (2)

      Allow the appeal and set aside the sentence imposed in the District Court.

   3. (3)

      Sentence the applicant to a period of imprisonment involving a non-parole period of 3 years and 3 months commencing on 7 April 2020 with a balance of term of 2 years.

   4. (4)

      Note that the applicant is first eligible for release on 6 July 2023.

5. [57]

   DAVIES J: I agree with Basten AJA.

6. [58]

   MCNAUGHTON J: I have had the advantage of reading the judgment of Basten AJA in draft. I gratefully adopt his Honour’s summary of the facts of the matter, and respectfully agree with his Honour’s reasons and conclusion in respect of Ground 1, although I express no opinion in relation to [22] of his reasons as the issue discussed there did not arise in this case and was not the subject of argument.

7. [59]

   As to Ground 2, I have arrived at a different conclusion. I am of the view that the applicant has not made good his ground that the sentence is manifestly excessive, and I would therefore have dismissed the appeal. My reasons are as follows.

8. [60]

   Firstly, the offence in question - pursuant to s 66EA(1) of the Crimes Act 1900 (NSW) - carries a maximum penalty of life imprisonment. As stated by the High Court in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ) (“Markarian”):

9. [61]

   As was recently emphasised by the High Court in Park v The Queen (2021) 395 ALR 193; [2021] HCA 37 at [19]:

10. [62]

    As noted by Basten AJA, the maximum penalty for the offence was increased from 25 years imprisonment to life imprisonment in 2018.

11. [63]

    One of the five unlawful sexual acts the subject of the present charge would have constituted, as noted above, an offence of sexual intercourse with a child under the age of 10 years under s 66A(1), which also carries a maximum penalty of life imprisonment. As stated by this Court in R v Gavel [2014] NSWCCA 56 at [90]-[91] (Leeming JA, Johnson and Hall JJ) (in relation to the offence of aggravated sexual intercourse with a child under 10 years of age pursuant to s 66A(2) of the Crimes Act (as it then was) which also carried a maximum penalty of life imprisonment):

12. [64]

    In light of these principles, two propositions can be emphasised. The maximum penalty must be appropriately taken into account as a relevant yardstick, and so-called comparative sentences involving a superseded maximum penalty of 25 years are of limited relevance.

13. [65]

    Secondly, Basten AJA accepted the conclusions of the trial judge in relation to general and specific deterrence “with one qualification”. That qualification was to the effect that Dr Seidler, a clinical and forensic psychologist, had reported that the applicant was “an unsophisticated person intellectually” who suffers from social anxiety. Basten AJA stated that in his view “the significance of general deterrence should have been tempered by what, although not technically characterised as intellectual disability, clearly had a similar consequence, reflected in his lack of insight.”

14. [66]

    Although there is flexibility built into the principle relating to the tempering of general deterrence in certain instances, it is not so flexible as to allow its extension to the circumstances of this applicant. The body of authority on this issue is referred to in cases including Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 in the High Court (“Muldrock”), Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) in New South Wales, and The Queen v Verdins (2007) 16 VR 269; [2007] VSCA 102 in Victoria. It includes the notion that general deterrence is often to be given little weight in the case of offenders “suffering from a mental disorder or abnormality [or offenders ‘suffering from mental illness, and those with an intellectual handicap’] because such an offender is not an appropriate medium for making an example to others”: Muldrock at [53] quoting R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unrep) at [5] (Young CJ), cited in R v Anderson [1981] VR 155 at [160].

15. [67]

    As stated in Aslan v R [2014] NSWCCA 114 at [33] (Simpson J (as her Honour then was), Adams and McCallum JJ agreeing at [55]-[56]) (“Aslan”):

16. [68]

    Further, as also noted in Jeffree v R [2017] NSWCCA 72 at [31]-[33] (Beazley P, Walton and RA Hulme JJ agreeing at [51]-[52]) in the context of discussing Aslan,

17. [69]

    It would appear that Basten AJA was referring to the second of the principles summarised above from De La Rosa when indicating that general deterrence should be tempered in this instance. In my view, however, the evidence before the sentencing judge was not such as to justify the application of that principle to this applicant.

18. [70]

    The evidence includes the following.

19. [71]

    At the beginning of Dr Seidler’s report, she observes that:

20. [72]

    Dr Seidler confirms that without further psychological testing, she is unable to conclude if the applicant’s low intellectual functioning would allow for a diagnosis of an intellectual disability.

21. [73]

    During the “Terms of Reference” in her report, Dr Seidler states that:

22. [74]

    Dr Seidler further notes that she is “not of the opinion that the aforementioned conditions contributed directly to [the applicant’s] sexual offending” but that they were “certainly contextually relevant”. Dr Seidler indicates that “there is no evidence that [the applicant] has an impaired ability to appreciate the seriousness and/or consequences of his actions”.

23. [75]

    In relation to the applicant’s experience in custody, Dr Seidler further notes that:

24. [76]

    Moreover, Dr Seidler reports that the applicant’s vulnerability or difficulties in custody would not be “to any degree outside of that commonly experienced by inmates”.

25. [77]

    Further, Dr Seidler notes that it seems the applicant has a history of employment and relative stability in the community.

26. [78]

    Accordingly, as against the first three principles set out in De La Rosa, in my view:

    1. (1)

       The evidence does not indicate that the applicant’s mental condition contributed to the commission of the offence in a material way, such that the applicant’s moral culpability should be reduced;

    2. (2)

       The applicant’s mental condition is not such that he is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed; and

    3. (3)

       There is no evidence that a custodial sentence may weigh more heavily on the applicant.

27. [79]

    I further note that no such argument was put on the applicant’s behalf before the sentencing judge or on the appeal.

28. [80]

    An argument was put by the applicant on the appeal that the sentence imposed was manifestly excessive based on the sentence being simply “too high”.

29. [81]

    The principles relating to succeeding on a ground of manifest excess are well known. In order to succeed on a ground of manifest excess the applicant must establish the sentence was “unreasonable” or “plainly unjust”: Markarian at [25] and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58] (“Hili”). The applicable principles are conveniently summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

30. [82]

    In attempting to make good his argument that the sentence was unreasonable or plainly unjust, the applicant pointed to a number of features, including that the undiscounted starting point of 12 years 4 months was simply “too high”. He placed reliance on only two cases, one of which was an authority from an intermediate appellate court, and the other from the District Court of New South Wales. Both of the cases had been decided when the maximum penalty for the offence was 25 years imprisonment.

31. [83]

    Two cases do not, in my view, constitute anything amounting to a sentencing pattern and little can be drawn from them in this matter. In this respect, I note the following passage from the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [25]:

32. [84]

    I also note the following well-known passage from Hili at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):

33. [85]

    In this case, the two so-called comparative sentences were of little assistance in assessing the appropriateness or otherwise of the sentence. First, it bears repeating that both of the cases put before the court as comparative sentences involved a significantly lower maximum penalty. Second, one of the sentences was from the District Court. Whilst District Court judges have immense experience, the value of assessing a single District Court sentence in isolation as a comparator is (to say the least) limited. It has no precedent value. Whilst a large body of District Court sentences could show a sentencing pattern in the manner described by Simpson J as her Honour then was, in De La Rosa (and approved by the High Court in Hili), [33] a single first instance sentencing judgment does not fall into that category. That a Crown appeal has not been taken in relation to the sentence provides no endorsement of it. No inferences as to the appropriateness or otherwise of a sentence in any individual first instance decision can be drawn from the failure by the Crown to lodge a Crown appeal, as many factors (sometimes not immediately apparent) are taken into account in any decision to lodge a Crown appeal, not only the prosecution assessment of the manifest inadequacy of a sentence.

34. [86]

    If one puts aside the District Court sentence as a comparator, there remained only a single decision of this Court (Eacott) which was relied upon by the applicant to compare to the sentence being considered in this case.

35. [87]

    Again, a sentence being determined pursuant to a different maximum penalty is of very limited value. That decision alone cannot be utilised to show that the wide discretion of the sentencing judge in this matter has miscarried.

36. [88]

    I note that Basten AJA has referred to three cases beyond those raised by the applicant for comparative purposes. The first two of those additional cases are Burr v R and Mills v R. However, as they both involved maximum penalties of 25 years, I am of the view they are of very limited comparative value. The third additional case is GP which did involve a maximum penalty of life imprisonment. [34] In that case, the child victim was 12 or 13 and the starting point of the sentence was 15 years. I also note that the applicant in that case was “born a ‘heroin’ baby, both his parents were incarcerated at various times, he became a foster child, was separated from his sister and was later sexually assaulted as a child himself” (at [17]). In any event, in my view this single additional case could not change the position – there remains no sentencing pattern that would indicate that the discretion of the sentencing judge in this case miscarried.

37. [89]

    As observed by this Court in R v RB [2022] NSWCCA 142 at [66] (Fagan J, Harrison and Wright JJ agreeing):

38. [90]

    Whilst the sentence imposed by the sentencing judge might be considered to be stern, I do not accept that it falls outside the wide discretionary range entrusted to the sentencing judge when all relevant circumstances are given appropriate weight. As recently stated by this Court in SB v R [2022] NSWCCA 164 at [53] (Wilson J, Beech-Jones CJ at CL and Garling J agreeing):

39. [91]

    As Bell P (as his Honour then was) said in Byrne v R; Cahill v R [2021] NSWCCA 185 at [1]:

40. [92]

    In my opinion, the sentence of 8 years with a non-parole period of 5 years was neither unreasonable nor plainly unjust in light of the following factors:

    1. (1)

       The offence carries a maximum penalty of life imprisonment, demonstrating the seriousness with which Parliament views this offence.

    2. (2)

       The criminality included in the offending of the digital penetration of a child under 10 is an offence of itself attracting a maximum penalty of life imprisonment with a corresponding standard non-parole period of 15 years. If the Queensland offence had been separately prosecuted in that state, the maximum penalty would have been 20 years.

    3. (3)

       The offending involved brazen behaviour, conducted in public in a car park, with the victim’s half-brother in the back seat; and in the victim’s home with her mother present and another child or children present in the rooms at the same time, amplifying the lack of safe places available to her.

    4. (4)

       Whilst the multiple offending acts occurred over a comparatively short period of time, this is not the only relevant consideration - especially considering the number of instances (compared to the minimum required of two), the significant abuse of power and breach of trust, and the violation of the young victim’s right to feel safe and protected in her own home. As noted in Burr v R (Johnson J, Leeming JA and Rothman J agreeing):

    5. (5)

       The profound deleterious effects that sexual abuse has on children is well known. As this Court stated in R v Gavel at [110]:

    6. (6)

       The victim was nine years of age, well below the upper end of the range of 16.

    7. (7)

       The age differential was one of 31 years. Further, given the age of the victim, there must have been a significant difference in body size and weight, which exacerbated the power differential.

    8. (8)

       The applicant did not voluntarily cease the conduct, which was clearly escalating in seriousness. The offending only ceased as a result of detection. The applicant intended to maintain the sexual relationship with the child victim. Even though, clearly, the applicant cannot be punished for conduct which did not occur, his intention of continuing the conduct goes to his moral culpability and can be contrasted with other cases where the offending ceased of the offender’s own volition. Voluntary cessation of conduct was regarded as an important factor in Eacott (a pseudonym) v R [2019] NSWCCA 158 where it was stated at [30] (Leeming JA, Ierace J and Hidden AJ agreeing):

41. [93]

    In all of the circumstances, the sentence imposed by the sentencing judge was within the wide discretionary range entrusted to her Honour. Accordingly, I would dismiss the appeal.