XZ v R

1. [1]

   PAYNE JA: I agree with Johnson J.

2. [2]

   JOHNSON J: The Applicant, XZ, seeks leave to appeal against an aggregate sentence of imprisonment imposed upon him at the Campbelltown District Court on 27 March 2017 with respect to child sexual assault and firearm offences.

3. [3]

   The Applicant is referred to by letters as he was the step-grandfather of the victims of the child sexual assault offences so that identification of him would tend to identify the child victims: s.578A Crimes Act 1900; s.15A Children (Criminal Proceedings) Act 1987. On 7 March 2018, a non-publication order was made by this Court under the Court Suppression and Non-publication Orders Act 2010 with respect to the Applicant’s name to provide further protection against any publication which might identify the victims.

4. [4]

   Following pleas of guilty, the Applicant was sentenced by his Honour Judge Hunt to an aggregate sentence of imprisonment comprising a non-parole period of 10 years and six months commencing on 9 October 2014 and expiring on 8 April 2025, with a balance of term of four years and six months commencing on 9 April 2025 and expiring on 8 October 2029.

5. [5]

   The sole ground of appeal contained in the Notice of Application for Leave to Appeal filed on 14 November 2017 was that the aggregate sentence is manifestly excessive.

The Offences and Indicative Sentences

1. [6]

   Before moving to a narrative of the offences, the charges, maximum penalties and indicative sentences (fixed for the purpose of s.53A(2) Crimes (Sentencing Procedure) Act 1999)) are set out in the following table. The victims are referred to as Amy and Kate, which are not their real names.

Facts of Offences

1. [7]

   Statements of Agreed Facts were tendered at the sentencing hearing.

2. [8]

   The Applicant was born in 1949. He is the step-grandfather of the two victims, Amy (born in December 2004) and Kate (born in December 2005). Amy and Kate are sisters. Prior to his arrest, the Applicant resided in a western Sydney suburb with his long-term de facto partner, the maternal grandmother of the victims. Amy and Kate resided at premises in the same suburb with their brother and their parents.

3. [9]

   One afternoon during the second half of 2014 (when the Applicant was 65 years old), Amy (then aged nine years) visited the home of the Applicant. The Applicant’s de facto partner was at work at the time. Amy was using a computer in the study. The Applicant was also in the room using a separate computer. He turned towards Amy and said “[Amy], can I please put my finger in your fanny?” and she said “Yes”. Amy explained later to police that she did not like upsetting people and she wanted to make the Applicant happy. She got off the chair where she had been sitting and walked towards the Applicant. Amy stood in front of the Applicant who was seated on a chair near his computer. He pulled her pants and underpants down and spread her legs. The Applicant digitally penetrated Amy’s vagina. Amy told the Applicant that this hurt and asked him to stop, but he continued to move his finger around inside her vagina for about 30 to 60 seconds whilst she was fidgeting. He asked her to stay still. She tried to comply, but was unable to do so. When the Applicant finished, Amy went to the toilet. She wiped her vagina with toilet paper and noticed that there was blood on it. Amy returned to the study and sat down on a chair where she continued to play on the computer. The Applicant told her “I’m sorry if I hurt you”. Some time later, the Applicant’s de facto partner returned from work and Amy was collected by her mother who took her home.

4. [10]

   On 27 September 2014, Amy disclosed to her mother that the Applicant had put his finger in her vagina. The matter was reported to police and, on 2 October 2014, Amy participated in a recorded interview with police in which she repeated the disclosure concerning the first count.

5. [11]

   On 9 October 2014, police executed a search warrant at the Applicant’s residence. The Applicant’s wallet was searched. Located inside the wallet was a handwritten note which read:

6. [12]

   There were ticks next to various parts of this handwritten note.

7. [13]

   The Applicant was interviewed by police on 9 October 2014. He accepted that he had committed an offence or offences against Amy, but when pressed about her disclosure, he showed some reluctance to accept all the details. The Applicant blamed Amy in a number of respects. He claimed that the note was written by Amy and denied abusing anyone other than her.

8. [14]

   On 14 October 2014, Amy was reinterviewed by police in relation to the handwritten note located in the Applicant’s wallet. She denied writing any letters or notes to the Applicant. When shown a copy of the note, Amy told police that it had been written in the handwriting of her sister, Kate, and that she had seen Kate write the note and give it to the Applicant towards the beginning of 2013.

9. [15]

   In the interview with police on 9 October 2014, the Applicant stated that he had used a “vibrating thing” on Amy between January 2011 and October 2014. He told Amy to put it on her vagina and said “You might like it”.

10. [16]

    Between June 2013 and June 2014, the Applicant played a video to Amy which depicted people kissing and he told her that he “used to do this kind of stuff” with Kate (Form 1 s.66EB(3) offence of grooming a child (Amy) for sexual activity). The Applicant also showed Amy a video in 2013 which the Applicant had secretly recorded in the study. The video depicted Kate playing with the Applicant’s penis underneath the Applicant’s desk. This video was not recovered during the execution of the search warrant by police.

11. [17]

    On one occasion between the beginning of January 2014 and the end of March 2014, when Amy and the Applicant were alone in the study, the Applicant told her that he wanted to show her something. When she looked towards him, he pulled down his pants and showed her his penis which looked small and soft (Form 1 s.61O(2) offence of committing act of indecency with child under 10 years). Amy turned her head and looked away when the Applicant exposed himself to her.

12. [18]

    In light of the information provided by Amy, police interviewed Kate on 15 October 2014.

13. [19]

    Kate informed police that the Applicant had showed her videos on his computer which depicted “rude stuff” whilst she was alone with him in the study at his home and that she did not want to watch. He did this a few times between 2012 and 2013 until she told him that she did not want to do this anymore and the Applicant became upset. The videos depicted males and females who would get undressed and show each other their body parts and touch each other all over their bodies including their “rude parts”. The door of the study was always closed when the Applicant showed the videos to Kate (Form 1 s.66EB(3) offence of grooming a child for sexual activity).

14. [20]

    Kate disclosed that the Applicant had made her touch his penis (his “rude part” or “doodle”) once when she was eight years old. The Applicant was sitting on a chair in front of his computer in the study and Kate was also in the room playing with a separate computer. She went under the desk to grab something which she had dropped and the Applicant said “While you’re under there touch my doodle”. Kate declined to do this, but the Applicant insisted and repeatedly told her to do it and eventually she did. Kate touched the Applicant’s penis with her hands which she said was “gross”. The Applicant told Kate to move her hand up and down his penis as she held it and she did so for a short period before she stopped and moved away (Form 1 s.61M(2) offence of indecent assault upon a child under 16 years).

15. [21]

    Kate was shown a copy of the handwritten note (see [11] above) and was asked whether she had written it to which she replied “I think so”.

16. [22]

    When asked who made the ticks on the handwritten note, Kate said “I think it was me or Pop [the Applicant]”. She stated that the Applicant had told her what to write in the note and that she did not know what the sentences meant. She gave the note to the Applicant after she had written it and she saw him place it in his wallet.

17. [23]

    She disclosed that the Applicant had licked her vagina with his tongue once in his study when she was seven or eight years old (Form 1 s.61M(2) offence of indecent assault upon child under 16 years).

18. [24]

    On an occasion between January 2012 and October 2014, when Kate was aged between six and eight years, whilst they were in the Applicant’s study, he moved her underwear to the side and rubbed her vagina for about two seconds.

19. [25]

    Between December 2013 and October 2014, the Applicant asked Kate to suck his penis when they were together in the study alone on a weekend. Kate was eight years old at the time. She had dropped a toy on the ground and went under the desk to retrieve it. She sucked the Applicant’s penis for a short period whilst she was under the desk retrieving the toy. She said that it made her feel wrong and she stopped when her mother came in to tell her that dinner was ready. At that time, she got up and ran out of the room. Her mother could not see what had been happening because the Applicant’s back was to the door.

20. [26]

    Kate told police that she did not disclose the Applicant’s offending because she was scared.

21. [27]

    When approached in November 2014 by police to be interviewed concerning Kate’s allegations, the Applicant exercised his right of silence.

22. [28]

    When police searched the Applicant’s house on 9 October 2014, they asked him whether he had anything at the premises which he wanted to declare. The Applicant informed police that he had three or four unregistered firearms which had been in his possession for a number of years. He indicated that they were wrapped in a blanket under the bed in the master bedroom which he occupied. Police seized the following items:

23. [29]

    The three rifles referred to at [28] (a)-(c) above were “firearms” and the revolver at [28](d) was a “pistol” for the purposes of the Firearms Act 1996.

24. [30]

    A green canvas bag (which contained the firearms) also contained a brown wooden rifle stock, a rifle cleaning kit, a bolt-action for the rifles, 38 crossbow bolts (of unknown manufacture), 119 lead shots for the slingshot and a variety of items of ammunition of different calibres for several types of firearms.

25. [31]

    During an interview with police on 9 October 2014, the Applicant admitted owning all the weapons and provided a range of explanations for acquiring them. He said that he had owned the items for a long period of time, having acquired them in different ways. He said that he had a “passion for firearms”. He said that he was aware of the requirement to store firearms inside a safe and that he did not have a safe in his premises.

26. [32]

    The Applicant was arrested on 9 October 2014 and was refused bail. He remained in continuous custody after that date.

The Applicant’s Subjective Circumstances

1. [33]

   The Applicant was aged between 62 and 65 years of age at the time of the offences. He was 67 years old at the time of sentence.

2. [34]

   The Applicant had no prior criminal history.

3. [35]

   At the time of the commission of the offences, the Applicant was in receipt of a disability support pension for diabetes and related health difficulties.

4. [36]

   A presentence report dated 29 September 2016 was tendered at the sentencing hearing. Tendered in the defence case on sentence were reports of Dr Stephen Allnutt, psychiatrist, dated 10 November 2016 and Ms Amanda White, psychologist, dated 7 December 2016. In addition, Justice Health records concerning the Applicant’s treatment and management in custody were tendered.

5. [37]

   The Applicant did not give evidence at the sentencing hearing.

6. [38]

   The sentencing Judge recounted the Applicant’s subjective circumstances in a manner which did not come under challenge in this Court (ROS21-22):

7. [39]

   His Honour turned to the Applicant’s sexual history and his prospects for rehabilitation (ROS22-23):

8. [40]

   The sentencing Judge considered further the reports of Dr Allnutt and Ms White together with a psychological assessment which accompanied the presentence report which indicated that, as the Applicant was now in his late 60s, “his risk of sexual offending fell within the low range relative to other sexual offenders”. The sentencing Judge assessed the Applicant’s prospects for rehabilitation as being “relatively high provided that the offender makes some full acknowledgement of the difficulties that he has in relation to paedophilia” (ROS24-25).

9. [41]

   With respect to remorse, the sentencing Judge said (ROS25):

10. [42]

    The sentencing Judge had regard to the Applicant’s health problems in the following way (ROS28):

Some Further Findings of the Sentencing Judge

1. [43]

   The sentencing Judge allowed a discount of between 10% and 15% for the Applicant’s pleas of guilty to the child sexual assault offences and a discount of 25% for the Applicant’s plea of guilty to the firearm offence.

2. [44]

   In light of the submissions made for the Applicant before this Court, reference should also be made to the findings of the sentencing Judge with respect to the objective seriousness of the offences. These findings were not challenged in this Court.

3. [45]

   With respect to Count 1, his Honour found that the matter fell just below the mid-range of objective seriousness. It was observed that the Form 1 matters to be taken into account on sentence for the first count were both serious offences that were committed on different occasions to the first count itself. His Honour noted that the Form 1 matters necessarily “will place upward pressure on the sentence as it will be necessary to increase the sentence that would otherwise apply taking into account those two matters” (ROS19).

4. [46]

   With respect to the second count, the sentencing Judge found that it lay at the mid-range of objective seriousness.

5. [47]

   With respect to the third count (involving Kate), his Honour found that the matter fell just below the mid-range of objective seriousness.

6. [48]

   His Honour found that the fourth count (concerning Kate) fell at the mid-range of objective seriousness. His Honour found that the Form 1 matters attaching to the fourth count were three serious matters which occurred on different occasions which would “necessarily have an impact in terms of the penalty being increased” than if the fourth count was being dealt with on its own (ROS20).

7. [49]

   His Honour observed that the firearm offences represented a “further discrete class of offending” (ROS29).

8. [50]

   In calculating the aggregate sentence, the sentencing Judge rejected a defence submission that it was appropriate to notionally make all sentences in relation to Amy and Kate totally concurrent one with the other. His Honour stated (ROS30):

The Sole Ground of Appeal - Claim that the Aggregate Sentence is Manifestly Excessive

1. [51]

   Ms Kluss, counsel for the Applicant, submitted that the aggregate sentence was manifestly excessive. In support of this submission, reliance was placed upon the findings as to the objective seriousness of the offences. Counsel referred, as well, to other sentencing decisions for offences under s.66A Crimes Act 1900 in support of a submission that such a comparison assisted the Applicant in this case.

2. [52]

   It was submitted that the indicative sentences on Counts 1 and 4 of 12 years’ imprisonment with an eight year non-parole period placed the sentences in the top 72% of overall sentences which attracted prison sentences for s.66A offences. Reliance was placed, as well, upon several cases referred to in the Public Defenders’ Sentencing Schedule with respect to s.66A offences.

3. [53]

   It was submitted that the indicative sentence for the firearm offences was at a level that did not reflect the objective criminality of those matters.

4. [54]

   Whilst acknowledging the gravity of the Applicant’s offences against two young children, it was submitted that the overall sentence was unreasonable or plainly unjust when regard was had to all the circumstances including the Applicant’s poor health.

5. [55]

   The Crown submitted that these were serious examples of offences against children which involved aggravating features including the Applicant’s use of the note in his dealings with the children. The Crown pointed to the wide age discrepancy between the Applicant and the two victims and the need for the indicative sentences on Counts 1 and 4 to have regard to the additional Form 1 offences. It was submitted that some degree of notional accumulation was necessary given the fact that there were two victims.

6. [56]

   The Crown observed that, when considering the aggregate sentence against which the ground of appeal is raised, it is possible to imagine slightly shorter indicative sentences for the first and fourth counts and a greater, but nonetheless principled degree of notional accumulation, to arrive at the same aggregate sentence.

7. [57]

   It was submitted that the Applicant’s reliance upon other s.66A sentencing decisions must be approached with caution and that there were, in any event, important factors that differentiate the Applicant’s case from other sentences including the fact that there were two victims, multiple offences and other uncharged grooming behaviour of the Applicant.

8. [58]

   The Crown submitted that the examination of sentence appeals involving s.66A undertaken in TO v R [2017] NSWCCA 12 at [262]-[279] did not support the claim of manifest excess in the present case.

9. [59]

   With respect to the firearm and weapon offences, the Crown acknowledged that the Applicant’s possession appeared to flow from his interest in those items with there being no evidence of intention to use them for criminal purposes. That said, the Crown referred to the need for appropriate punishment and general deterrence for persons sentenced for possession of firearms: R v Krstic [2005] NSWCCA 391 at [14]; R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43 at 234 [73].

10. [60]

    The Crown submitted that the aggregate sentence imposed in this case was appropriate given the totality of the Applicant’s criminal behaviour and that it had not been demonstrated that the sentence is manifestly excessive.

11. [61]

    It is for the Applicant to demonstrate that the aggregate sentence in this case was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 371 [25].

12. [62]

    Some of the submissions for the Applicant were directed to the indicative sentences, in particular with respect to the first and fourth counts. The ground of appeal which claims manifest excess relates to the aggregate sentence imposed upon the Applicant. As this Court said in Westaway v R [2016] NSWCCA 281 at [17] :

13. [63]

    It must be kept in mind that the indicative sentences on the first and fourth counts took into account significant additional offences on the Form 1 in each case. As the sentencing Judge observed, the Form 1 matters were serious separate offences which had the effect of setting a longer sentence for the primary offences in accordance with the principles in Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 426 [23].

14. [64]

    In the case of each victim, the Applicant’s offences involved a significant breach of trust committed against young girls. Despite the fact that the Applicant was aged between 62 and 65 years at the time of the offences and had health difficulties, he engaged in a repeated pattern of sexual offending against his young victims: R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159 at 549 [89]. He was an active predatory offender despite his years and there was no sign that the offending conduct was likely to cease if there had not been a complaint by Amy in September 2014 about his behaviour: R v Gommeson at 555 [126].

15. [65]

    With respect to the level of notional accumulation which gave rise to the aggregate sentence, it was necessary for the sentencing Judge to ensure that the ultimate sentence reflected offences committed against two separate victims: R v Gommeson at 553 [113]-[114].

16. [66]

    The Applicant showed pornographic videos to each victim in a manner which gave rise to the Form 1 grooming offences. Conduct of this type served to prepare each young victim for sexual activity and involved a type of especially perverse cultivation or seduction: R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at 481 [96].

17. [67]

    I do not consider that sentencing statistics provide any real assistance to the Applicant in this case. There is a particular difficulty in reliance upon sentencing statistics for child sexual assault offences in determining a ground of manifest excess: DV v R [2017] NSWCCA 276 at [277]. Reliance upon bare statistics is rarely useful and this is particularly so where the statistical comparison involves comparison of indicative sentences as opposed to the aggregate sentence.

18. [68]

    By reference to the Public Defenders’ Sentencing Schedule, the Applicant sought to rely in particular upon the sentences imposed in RJA v R (2008) 185 A Crim R 178; [2008] NSWCCA 89; Allen v R [2010] NSWCCA 47; Jones v R [2012] NSWCCA 262; Essex v R [2013] NSWCCA 11; Ingham v R [2014] NSWCCA 123; MLP v R [2014] NSWCCA 183; KB v R [2015] NSWCCA 220 and TO v R. A comparison of the present case with these decisions does not assist the Applicant in his claim of manifest excess. Each case differs in material respects from the Applicant’s case.

19. [69]

    This Court has observed that there is difficulty in identifying a sentencing range for s.66A(2) offences: R v Gavel at 483; ZA v R [2017] NSWCCA 132 at [106].

20. [70]

    Likewise, I do not think that the Applicant is assisted to any extent by a comparison with the sentencing outcomes in other cases under s.66A. Amongst other things, the present case involves firearm and weapon offences as well as child sexual assault offences, all of which were taken into account for the purpose of the aggregate sentence.

21. [71]

    It is correct that the firearm and weapon offences in this case were not linked to an intention to use those items for criminal purposes. However, that is not an element of those offences. If such an intention was demonstrated, that would be a serious aggravating feature in itself.

22. [72]

    This Court has emphasised that the offence under s.51D(2) Firearms Act 1969 carries a maximum penalty of 20 years’ imprisonment with a standard non-parole period of 10 years, reflecting the legislature’s concern for this offence: R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 at 288 [66]. In R v Lachlan, Gleeson JA (Garling J and myself agreeing) said at 288 [68]:

23. [73]

    In Taylor v R [2018] NSWCCA 50, with the concurrence of Hoeben CJ at CL and Price J, I said at [59]:

24. [74]

    The offender in Taylor v R possessed firearms but with no evidence that they were used for or intended to be used for criminal purposes. That proposition applies to the Applicant in this case as well. It is the possession of more than three firearms (one being a pistol) which gives rise to the Applicant’s offence under s.51D(2). It was necessary that the indicative sentence for the s.51D(2) offence (taking into account, as well, the Form 1 matters) be reflected in a meaningful way in the aggregate sentence imposed in this case. The existence of the s.51D(2) offence constituted a significant factor which distinguished the Applicant’s case from other s.66A sentencing decisions.

25. [75]

    The sentencing Judge had regard to the objective gravity of the offences and the Applicant’s subjective circumstances and the other purposes to be achieved on sentencing for the purpose of s.3A Crimes (Sentencing Procedure) Act 1999. His Honour had regard to the Applicant’s health problems in passing sentence. The Court should approach sentencing in this case upon the basis that the contemporary statutory regime entrusts and empowers Justice Health to take all necessary steps to provide health services to an inmate such as the Applicant whilst in custody: R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at 171 [125]-[126].

26. [76]

    The aggregate sentence imposed upon the Applicant was a substantial one, but this reflected his serious offending against two young victims over a period of time together with the unrelated firearm offence for which an appropriate aggregate sentence was to be reached which reflected the totality of the Applicant’s offending.

27. [77]

    It has not been demonstrated that the aggregate sentence imposed upon the Applicant is manifestly excessive.

28. [78]

    I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.

29. [79]

    CAMPBELL J: I agree with Johnson J.