PB v R

1. [1]

   MACFARLAN JA: I agree with Fullerton J.

2. [2]

   FULLERTON J: The applicant seeks leave to appeal an aggregate sentence of 12 years’ imprisonment with a non-parole period of 8 years imposed by O’Brien AM DCJ on 25 October 2019.

3. [3]

   The sentence was imposed after a sentencing hearing and the delivering of ex tempore sentencing remarks.

4. [4]

   The aggregate sentence was ordered to commence on 28 August 2019 to reflect the fact that the applicant had been in custody since that date. The applicant is first eligible to be released to parole on 27 August 2027. The sentence will expire on 27 August 2031.

5. [5]

   Upon his arraignment in the District Court on 28 August 2019, the applicant entered pleas of guilty to:

   1. (1)

      Five counts of aggravated indecent assault with a person under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (then in force) (Counts 1, 3, 6, 8, and 11 on the indictment); and

   2. (2)

      Six counts of aggravated sexual intercourse with a person between the ages of 14 and 16 years, contrary to s 66C(4) of the Crimes Act (Counts 2, 4, 5, 7, 9, and 10 on the indictment).

6. [6]

   The offences were committed between 1 June 2009 and 31 July 2010 against the applicant’s biological daughter. At the time of the offending the applicant’s daughter was aged between 14 and 15 years. It was an agreed fact for sentencing purposes that she had a mild intellectual disability.

7. [7]

   The following table summarises the maximum penalty for each of the eleven offences which attracted indicative sentences and the standard non-parole period for the offences of aggravated indecent assault of a person under 16 years of age contrary to s 61M(2) of the Crimes Act (Counts 1, 3, 6, 8, and 11). No standard non-parole period applies to the offences of aggravated sexual intercourse with a person between 14 and 16 years of age (Counts 2, 4, 5, 7, 9, and 10). The indicative sentence for each of the offences is also specified.

8. [8]

   A discount of 15 per cent was applied to the sentences indicated for each of the eleven offences reflecting the applicant’s relatively late pleas of guilty.

9. [9]

   An additional 5 per cent discount was applied to each of Counts 2, 8, 9, and 11 for what the sentencing judge was satisfied was the assistance the applicant provided to police concerning the offending the subject of those counts when, on 22 March 2018, he presented himself to the police and disclosed that he had sexually assaulted his daughter.

10. [10]

    A finding of special circumstances, allowing for a slightly extended period of supervision on parole, was based upon the applicant’s ongoing need for treatment for his Autism Spectrum Disorder and that the sentence will be his first time in custody.

The agreed facts for sentencing purposes

1. [11]

   As noted above, the applicant is the complainant’s biological father. The offences were committed on nine separate occasions between 1 June 2009 and 31 July 2010 in the complainant’s home where she resided with the applicant, his wife and their son (then aged about 20 years). Two older children of the marriage had by that time moved away from the family home. The offending ceased when the complainant commenced a relationship with her then boyfriend.

2. [12]

   In about January 2018, the complainant disclosed to her boyfriend that the applicant had “forced himself” on her and had “raped” her “three or four times”.

3. [13]

   On 13 March 2018, the complainant disclosed the offending to a psychologist to whom she was referred when her self-harming behaviour resumed. The same behaviour had earlier been noted by school counsellors but at that time it did not elicit a complaint that the applicant was sexually mistreating her. Later on 13 March 2018, the complainant disclosed to her mother that the applicant had sexually assaulted her.

4. [14]

   On 20 March 2018, the applicant was confronted by his wife in the presence of the complainant. The applicant initially denied that he had sexually assaulted or indecently assaulted his daughter but then admitted he had done so.

5. [15]

   That evening, at a family dinner attended by the applicant, his wife, their two eldest children and their families, the applicant told his older daughter that “something that shouldn’t happen between a father and a daughter” had occurred between himself and the complainant. Later that evening, the complainant’s older siblings spoke to her. She confirmed to them that the applicant had sexually assaulted her.

6. [16]

   Two days later, on 22 March 2018, the applicant attended Nowra Police Station and disclosed to police that he had sexual intercourse with his daughter. He was arrested and interviewed, in the course of which he made full admissions to having had a sexual relationship with the complainant between June 2009 and July 2010.

7. [17]

   The following day, the complainant was interviewed by police. She gave her account of her father’s sexual mistreatment of her.

8. [18]

   As concerns the eleven offences the subject of the aggregate sentencing exercise, it was agreed for sentencing purposes that during the police interviews of the applicant and the complainant the following information was provided.

Count 1: Aggravated indecent assault of a person under 16 years of age

1. [19]

   In around June 2009, shortly after the complainant’s 14th birthday, she fell asleep while lying on the applicant’s lap in the lounge room of the family home. She awoke to the applicant touching her nipple area. He then grabbed her hand and pulled it down to his genitals. He then manipulated her hand so that it was touching his penis on the outside of his clothing. As this was occurring, the applicant kissed the complainant on the mouth and sucked her nipples.

2. [20]

   The applicant explained to police how he came to touch his daughter’s breasts:

3. [21]

   He went on to explain that he touched her breasts because he felt she needed more than just a cuddle to go to sleep.

4. [22]

   The applicant told police that the complainant had kissed him intimately responsive to her interest in a television program involving a man with three wives and, further, that he believed that the complainant enjoyed the sexual contact with him.

5. [23]

   The complainant denied that she watched a television program with her father of the kind he described to police. She also denied that she was ever a willing participant in the sexual activity with her father

6. [24]

   The sentencing judge appointed the offending the subject of Count 1 below the mid-range of objective seriousness, noting that it comprised three separate sexual acts and that the initial contact occurred whilst the complainant was asleep.

Count 2: Aggravated sexual intercourse with a person aged 14-16 years

1. [25]

   At around the same time as the conduct the subject of Count 1, the applicant again sucked the complainant’s breasts. On this occasion he also put his hand on her vagina and “manipulated” her genitals.

2. [26]

   The applicant told police that he said to his daughter, “you should have a boyfriend doing these things, you shouldn’t have a dad doing these things”. He claimed that she said she did not want a boyfriend.

3. [27]

   The complainant denied that conversation took place.

4. [28]

   The applicant also claimed that he “felt” that his daughter was asking him to touch her because “she said she had better sleeps” when he touched her.

5. [29]

   The complainant denied having said that to the applicant but said “I usually lay on [the applicant’s] lap ‘cause Mum is usually in bed ‘cause she usually works the next day and there’s no one else to hug”.

6. [30]

   The sentencing judge appointed this offending as falling at a point towards the lower end of the range of subjective seriousness but not at the bottom of the range of offending for offences of its type.

Count 4: Aggravated sexual intercourse with a person aged 14-16 years

1. [31]

   In around June 2009, the complainant asked the applicant to tuck her into bed. She later awoke to find the applicant rubbing her back. He then moved his hand down to her genitals and touched her vagina.

2. [32]

   The applicant then pulled down his pants and put his penis near her mouth. He then inserted his penis into her vagina and had penile/vaginal sexual intercourse with her while kissing her nipples

3. [33]

   The offending the subject of both counts was appointed at the mid-range of objective seriousness of offending for offences of its type.

Count 6: Aggravated indecent assault of a person under 16 years of age

1. [34]

   In late 2009, the applicant asked the complainant to get into the shower with him. She complied. He bent her over in front of him and inserted his penis into her vagina and had penile/vaginal intercourse with her for around two minutes.

2. [35]

   The complainant then went to her bedroom. The applicant followed her. She awoke to find her father touching her breasts and vagina.

3. [36]

   In his interview with police, the applicant stated that the incident in the shower did not involve penile penetration. He stated that he touched his daughter’s vagina, clitoris and “probably” her breasts and that he digitally penetrated her vagina.

4. [37]

   The offending the subject of Count 5 was appointed at or about the mid-range and the offending the subject of Count 6 at a point below the mid-range of objective seriousness of offending for offences of its type.

Count 7: Aggravated sexual intercourse with a person aged 14-16 years

1. [38]

   Sometime after the complainant’s 15th birthday in May 2010, she went to her parents’ bedroom and got into bed with them. Sometime later, her mother got out of bed and left the house to go to work. The complainant remained in bed with her father. He cuddled her, touched her nipples, rubbed her vagina, inserted his penis into her vagina and had penile/vaginal sexual intercourse with her. He also made her move on top of him while his penis was in her vagina.

2. [39]

   In her interview with police, the complainant stated, “I tried to say no but it wouldn’t come out”.

3. [40]

   This offending was appointed at or about the mid-range of offending for offences of its type.

Count 8: Aggravated indecent assault of a person under 16 years of age

1. [41]

   The complainant was asleep in the double bed in the spare bedroom of the family home having asked her father to put her to bed. He came into the bedroom and started touching her. The complainant did not elaborate as to what the touching entailed.

2. [42]

   The applicant told police, “I still touched her vagina and there was one time when I actually touched her anus. But I never penetrated it… but she said she enjoyed what she was doing [sic]”.

3. [43]

   The complainant denied that conversation took place.

4. [44]

   This offending was appointed at a point below the mid-range of offending for offences of its type.

Count 9: Aggravated sexual intercourse with a person aged 14-16 years

1. [45]

   In mid-2010, the applicant was using his computer in the lounge room of the family home. The complainant entered the lounge room wearing only what the applicant described as a “pyjama nightie”. He pulled up the complainant’s garment and lowered his pants. He bent her over in front of him and inserted his penis into her vagina. He proceeded to have penile/vaginal sexual intercourse with her.

2. [46]

   In his police interview, the applicant claimed that he said to the complainant, “I can’t do it, this is not right”.

3. [47]

   This offending was appointed at or about the mid-range of offending for offences of its type.

Count 10: Aggravated sexual intercourse with a person aged 14-16 years

1. [48]

   On an unspecified date between June 2009 and July 2010, the applicant and the complainant were sitting on the lounge in the family home. The applicant’s erect penis was outside his pyjama pants. The complainant performed oral sex on him. She stopped when she heard her brother approaching and returned to sitting next to her father on the lounge.

2. [49]

   While the complainant did not detail this specific incident in her police interview, she stated that her father “made me do things what I didn’t want to do, like giving him head”.

3. [50]

   This offending was appointed at or about the mid-range of offending for offences of its type.

Count 11: Aggravated indecent assault of a person under 16 years of age

1. [51]

   On an unspecified date between June 2009 and July 2010, the applicant entered the complainant’s bedroom and lay on her bed with her. He proceeded to touch her breasts and vagina.

2. [52]

   In his police interview, the applicant said:

3. [53]

   He could not explain how his pants came to be lowered.

4. [54]

   The offending the subject of Count 11 was appointed at below the mid-range of offending for offences of its type. .

General admissions

1. [55]

   The applicant made the following further general admissions to police:

   1. (1)

      He digitally penetrated the complainant’s vagina on over a dozen occasions and had touched her breasts and vagina on ten occasions.

   2. (2)

      He considered that his actions were for his daughter’s pleasure rather than his own and, for that reason, he did not ejaculate during their sexual interactions. He believed that the sexual interaction with his daughter assisted her to sleep.

   3. (3)

      He knew that his daughter was bullied at school, including by being pejoratively called a lesbian by her classmates due to her lack of sexual experience. He also knew that his daughter was self-harming, which he understood was as a reaction to being bullied. The applicant explained that he was motivated to assist his daughter to bring an end to the bullying by providing her with sexual experience. He believed she stopped self-harming during the period in which the sexual offending occurred.

   4. (4)

      He stated that his sexual interactions with his daughter commenced when she kissed him intimately just after her 14th birthday and that it ceased around July 2010.

2. [56]

   Together with the sentencing judge’s appointment of the objective seriousness of the individual counts on the indictment noted above, his Honour described the overall course of the applicant’s offending as persistent and ongoing, betraying the trust of his wife and his daughter and their other children and his daughter’s entitlement to feel safe and secure within the family home.

3. [57]

   The complainant’s status as a vulnerable person, having a mild intellectual disability, together with the fact that the offences were committed in the house in which she resided with her mother and the applicant, were treated by the sentencing judge as statutory factors of aggravation in ss 21A(2)(l) and 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), respectively. His Honour noted that although the Crown did not rely upon the applicant’s breach of trust as a statutory aggravating factor (the fact that the complainant was under the applicant’s authority was an element of each of the offences), he treated the breach of the applicant’s parental responsibilities and that he had taken advantage of the naiveté, immaturity and the mild disability of his daughter as informing the objective seriousness of his overall offending.

4. [58]

   The sentencing judge expressly rejected the account the applicant gave in his recorded interview with police and repeated in a document entitled, “The Affair That Should Not Have Happened” (extracts of which were tendered by the Crown on sentence) to the effect that his sexual offending was intended to benefit the complainant by either assisting her to sleep, fulfilling some sexual need of hers or as sexually educative. His Honour found as a fact that when confronted with her father’s sexual advances, the complainant lacked both the capacity and the experience to make an informed judgment about her response to him. He also found as a fact that the applicant preyed upon his daughter’s compromised capacity and her immaturity for what the sentencing judge was satisfied was the applicant’s sexual gratification.

5. [59]

   His Honour also found as a fact that the applicant’s various justifications for his behaviour communicated to police, and later to a treating psychologist and forensic psychiatrist, displayed a disturbing lack of insight. That finding informed his later finding that the applicant’s prospects of rehabilitation were guarded.

6. [60]

   He made the following observation:

7. [61]

   The time frame over which the offending occurred and the number of offences warranted what the sentencing judge described as “a degree of accumulation” in the ultimate aggregate sentence imposed.

8. [62]

   The applicant’s case on sentence

9. [63]

   The applicant was aged 60 at the time of sentence. The complainant is the youngest of his four children. At the time of sentence they were aged between 24 and 33. He has no continuing relationship with any of his children but has maintained a good relationship with his wife.

10. [64]

    The applicant was born in Melbourne where he worked as an apprentice in an aircraft factory before joining the Navy in 1981, rising to the rank of Petty Officer. He worked in various roles, including as a helicopter technician and then later in logistics and as a contractor. He met his wife in 1982 and they were married in 1983. He left the Navy in 2005. He worked intermittently for a period but has not worked since 2014.

11. [65]

    The sentencing judge accepted that the applicant’s upbringing and adult life had been “unremarkable”. The sentencing judge noted that the applicant had no prior criminal history but that his good character was to be awarded less weight in the sentencing exercise where the offending against his disabled daughter involved what his Honour described as “a determined and conscious course of offending over an extended period of time”. [1]

12. [66]

    The following reports, tendered by the applicant on sentence without objection, supported a diagnosis of Autism Spectrum Disorder (ASD):

    1. (1)

       Reports of Dr Mario Farina, clinical psychologist, dated 10 and 11 October 2018, 19 November 2018, 18 January 2019, 29 March 2019 and 1 August 2019.

    2. (2)

       A report of Dr Rafe Pulley, consultant forensic psychiatrist, dated 20 August 2019.

The grounds of appeal

1. [67]

   The applicant relies on three grounds of appeal:

   1. (1)

      The sentencing judge erred in the way he dealt with the applicant’s assistance pursuant to s 23 of the Crimes (Sentencing Procedure) Act by:

   2. (2)

      The sentencing judge erred in:

   3. (3)

      The aggregate sentence imposed is manifestly excessive.

Ground 1:

1. [68]

   The first ground of appeal, as particularised, alleges error on the part of the sentencing judge in his assessment of the assistance provided by the applicant to investigating police by what the parties accepted for sentencing purposes was the applicant’s voluntary disclosure of sexual offending against his daughter, including offences that were not otherwise disclosed by her.

2. [69]

   Assistance of this kind is frequently referred to as an Ellis discount. In his sentencing remarks, the sentencing judge cited a frequently quoted passage in R v Ellis (1986) 6 NSWLR 603 where, at 604, Street CJ said:

3. [70]

   The sentencing judge identified Counts 2, 8, 9 and 11 as comprising criminal conduct of the kind comprehended by the Ellis discount and that the indicative sentences for those counts would reflect that fact.

4. [71]

   His Honour also identified an issue between the parties as to whether the indicative sentence for Count 10 should also be reduced on the same basis. He resolved that it should not. That is said to amount to a sentencing error. It is the subject of Ground (1)(a).

5. [72]

   In deciding that the discount should not apply to Count 10, his Honour said:

6. [73]

   The agreed facts relevant to Count 10 are set out at [48]-[50] above.

7. [74]

   His Honour elaborated on that summary in the following way:

8. [75]

   It is clear that although the complainant told police in general terms that her father made her perform oral sex, she did not detail any particular occasion when that occurred and, it would seem, she was not pressed by the interviewing police to supply that detail. That being the case, the applicant submitted that on the basis of the complainant’s interview alone there was no realistic possibility of being charged with the offence the subject of Count 10 were it not for his admissions. Analysed in that way, the applicant submitted his voluntary disclosure of the oral intercourse the subject of Count 10 had at least the same utility as his disclosures of the criminal conduct comprehended by Counts 2, 8, 9 and 11.

9. [76]

   The Crown submitted that after the complainant disclosed to police that the applicant made her perform oral sex on him, there was every likelihood that further police interviews would have been conducted with her with a view to obtaining more precise details of the occasion or occasions that occurred in order to factually support the laying of a charge as ultimately comprehended by the offence the subject of Count 10.

10. [77]

    The applicant submitted that the possibility that further interviews may have been conducted with the complainant gave rise to a number of hypotheticals irrelevant to the question whether the applicant was entitled to have his disclosure to police assessed by the sentencing judge for the purposes of determining whether the indicative sentence for Count 10 should be reduced to reflect that fact. In the applicant’s submission, his disclosure relieved the investigating police of the need to undertake a further interview of the complainant.

Consideration

1. [78]

   In my view, the fact that the complainant’s generalised account of the applicant forcing her to perform oral sex might have been insufficient as a matter of law to form the factual basis for a criminal charge [2] is not the test when considering whether the sentencing judge’s approach constituted a sentencing error. Section 23 of the Crimes (Sentencing Procedure) Act, which gives legislative voice to the principle in Ellis, does not obligate the sentencing judge to apply a discount to the ultimate sentence to be imposed or to discount an indicative sentence in an aggregate sentencing exercise. [3] The extent of any discount is discretionary. [4] It may not be applied at all where the sentencing judge, in the exercise of discretion, determines that a reduced indicative sentence for an individual offence will be unreasonably disproportionate to the nature and circumstances of that offending. [5]

2. [79]

   While it may be accepted that there was no evidence before the sentencing judge to conclusively demonstrate that the offending comprehended by Count 10 would have attracted a separate charge irrespective of the applicant’s admission, I am unable to conclude that his Honour’s approach was demonstrably wrong, or that what was ultimately a discretionary judgment not to allow for any reduction in the sentence indicated for Count 10 was flawed.

3. [80]

   I would reject Ground (1)(a).

Ground 1(c): error in quantifying the value of the assistance at 5 percent

1. [81]

   These two grounds can be conveniently dealt with together.

2. [82]

   The evidence before the sentencing judge relevant to his assessment of the extent to which the applicant’s disclosures to police should be reflected in the indicative sentences for each of the four offences the subject of Counts 2, 8, 9 and 11 was comprised in the statement of agreed facts which included the substance of the applicant’s interview with police.

3. [83]

   It was common ground that the applicant was under arrest at the time he was interviewed, having earlier that day informed police that he wished to “turn himself in” for having had a sexual relationship with his daughter, and that the information he provided, in combination with the information provided by the complainant in her interview with police the following day, was the basis upon which he was ultimately charged with the various offences preferred on the indictment.

4. [84]

   As noted above, at the time the applicant was interviewed by police, the complainant had already disclosed the applicant’s sexual mistreatment of her to a psychologist, to her then boyfriend and to various family members. By that time, the applicant had also disclosed his offending to his wife and made further admissions of sexual misconduct to his older daughter. In the Crown’s submission, in those circumstances the applicant must be taken to have appreciated that a police investigation was inevitable and that he determined to speak to police with that understanding.

5. [85]

   In resolving to reduce the indicative sentences in respect of Counts 2, 8, 9 and 11, the sentencing judge said:

6. [86]

   Section 23(2) of the Crimes (Sentencing Procedure) Act provides:

7. [87]

   The applicant submitted that although the sentencing judge acknowledged that he was required to take into consideration various matters under s 23(2) in determining a discount for assistance, his sentencing remarks did not disclose any critical assessment of those matters including, most particularly, the significance and utility of his assistance [6] and the truthfulness, completeness and reliability of the information he provided to police. [7] Neither did the sentencing remarks reflect his Honour’s reasoning process in determining that a 5 per cent discount should be applied.

8. [88]

   On the appeal, the applicant accepted a maximum discount of 5 per cent was conceded by his solicitor in submissions before the sentencing judge. It was submitted, however, that did not relieve the sentencing judge of undertaking his own assessment of the value of the assistance. The applicant submitted that it was implausible that his Honour would have independently arrived at a percentile discount of 5 per cent which, in the result, afforded what the applicant contended was very little credit for what was said to be very significant assistance.

9. [89]

   The Crown submitted that the sentencing judge’s acknowledgement that he was required to take into account the considerations under s 23(2) of the Crimes (Sentencing Procedure) Act, and his ultimate determination that a 5 per cent discount should be applied to each of the indicative sentences on Counts 2, 8, 9 and 11, was in conformity with his obligations under s 23(2) of the Crimes (Sentencing Procedure) Act and in conformity with his obligation under s 23(3) to ensure that the four indicative sentences to which the discount was applied were not unreasonably disproportionate to the nature and circumstances of the offending constituted by those counts.

10. [90]

    With respect to the alleged inadequacy of the 5 per cent discount, the Crown further submitted that this Court would not consider an argument which was not advanced by the applicant on sentence and where it was his solicitor’s submission, and accepted by the Crown, that a combined 20 per cent discount should be applied to Counts 2, 8, 9 and 11 for assistance and the applicant’s pleas of guilty. [8]

Consideration

1. [91]

   Although the sentencing judge did not refer expressly to the various matters in s 23(2) of the Crimes (Sentencing Procedure) Act, it cannot be gainsaid that he was unaware of his obligations to do so when specifying the extent of the reduction for the applicant’s disclosures to police, including the need to ensure that the indicative sentence was not unreasonably disproportionate to the offending comprehended by the four counts to which the discount was applied. The passage extracted above at [84] from the sentencing reasons in my view puts that beyond doubt:

2. [92]

   I am not persuaded that the errors the subject of Ground 2(b) or 2(c) are made out.

as to whether the applicant’s Autism Spectrum Disorder reduced his moral culpability or would make a custodial sentence more onerous

1. [93]

   It was accepted on the appeal that the mitigating impact of the applicant’s ASD had been specifically addressed in the evidence and in the written submissions of the applicant’s solicitor where the seminal authority of DPP v De La Rosa, [9] which concerns the relevance of the mental illness of an offender to the sentencing exercise, was cited. That submission attracted a supplementary written submission from the Crown to the effect that the applicant’s mental condition might mean that the countervailing considerations of specific deterrence should dominate in the sentencing exercise.

2. [94]

   His Honour dealt with that those submissions in his sentencing reasons in the following way:

3. [95]

   As noted earlier at [66], the evidence before the sentencing judge as it related to the applicant’s ASD was comprised in a number of expert reports.

4. [96]

   In his various reports, Dr Farina confirmed his initial diagnosis of ASD (specifically, Asperger’s Disorder), a condition he described as characterised by a “severe and sustained impairment in social interaction and the development of restricted, repetitive patterns of behaviour, interests, and activities”.

5. [97]

   That diagnosis was first made on 11 October 2018 (in Dr Farina’s report of that date). The applicant was referred to Dr Farina by his treating doctor for cognitive behavioural therapy for the management of the onset of reactive depression following the applicant’s disclosure of his sexual offending against his daughter some months earlier and with the prospect of his incarceration pending.

6. [98]

   In the first of Dr Farina’s reports, he expressed concern for the applicant’s well-being were he to be incarcerated given what Dr Farina considered to be the applicant’s suicidality and poor social skills.

7. [99]

   The applicant participated in a course of treatment with Dr Farina between October 2018 and August 2019. Reports were furnished by Dr Farina from time to time thereafter which were expressed in largely identical terms to his initial report.

8. [100]

   In Dr Farina’s final report in August 2019, two months before the sentencing hearing, he confirmed his initial diagnosis and his continuing concern for the applicant’s well-being in a custodial environment. I note that in the final report Dr Farina sought to impress upon the sentencing court the applicant’s assertion that he was not motivated to offend for sexual gratification, a proposition which the sentencing judge rejected.

9. [101]

   After having been furnished with what were described as “the police facts” and Dr Farina’s reports, and following a consultation with the applicant, Dr Pulley also diagnosed the applicant with ASD. In preparing his report, Dr Pulley also had access to a discharge summary from the Shellharbour Inpatient Psychiatric Unit following the applicant’s admission for seven days in March 2018 after the revelation of his sexual offending.

10. [102]

    Dr Pulley assessed the applicant’s presentation during the consultation as demonstrating what he described as an “an obvious deficit in social communication and interaction highly consistent with ASD”. Neither Dr Pulley nor Dr Farina detected any intellectual impairment associated with the applicant’s ASD. Dr Pulley noted, in particular, that the applicant provided “abnormally detailed responses”, spoke in an “excessively factual manner”, “failed to pause appropriately” and “misinterpreted questions aimed at eliciting information about his emotional state”. The applicant also showed a lack of facial expression and non-verbal communication cues. Additionally, and considered by Dr Pulley to be behaviour consistent with a diagnosis of ASD, was the applicant’s reported failure to develop and maintain lasting friendships, his history of being bullied whilst in the Navy and his unusual interest in patterns, numbers and dates.

11. [103]

    Dr Pulley considered at some length whether there was an established nexus between the applicant’s late diagnosis of ASD and the commission of the offences ten years earlier. After expressing doubts concerning the applicant’s stated motives for offending as being for his daughter’s sex education and not his own sexual gratification, Dr Pulley considered the applicant’s proffered explanation as capable of being:

12. [104]

    Dr Pulley went on to say:

13. [105]

    As noted above at [93], the sentencing judge accepted Dr Farina and Dr Pulley’s diagnosis of ASD, noting and apparently accepting Dr Pulley’s opinion that:

14. [106]

    The sentencing judge also noted and apparently accepted Dr Pulley’s assessment that there was a “significant nexus” between the applicant’s ASD and his offending, with the applicant’s deficits in social cognition and empathy preventing him from understanding the gravity of his offending and explaining his predisposition to minimising that offending.

15. [107]

    Finally, the sentencing judge considered but rejected the Crown’s submission that because of the applicant's mental condition he presented an increased danger to the community. [10]

16. [108]

    On the appeal, the applicant submitted that Dr Pulley’s report contained cogent and uncontradicted evidence of a causal nexus between the applicant’s ASD and his offending and, that being the case, the sentencing judge was obliged to consider the significance of that finding in a principled way. [11]

17. [109]

    The principles concerning the relevance of mental illness to the sentencing exercise are well known. In Aslan v R [2014] NSWCCA 114, a decision often referred to in this Court, [12] Simpson J (as her Honour then was and with whom Adams and McCallum JJ agreed), citing the legal principles relevant to the effect on sentencing of an offender’s mental illness or condition, as discussed in De La Rosa, held at [33]:

18. [110]

    Her Honour went on to say at [34]-[35]:

19. [111]

    In the applicant’s submission, for the sentencing judge to limit his consideration of the significance of the applicant’s ASD to the question of specific deterrence is, when considered in the context of the sentencing remarks as a whole, demonstrative of his failure to assess or make any finding as to the impact of the applicant’s mental health on his moral culpability despite the submissions advanced on the applicant’s behalf that his mental condition mitigated the objective seriousness of his offending for that reason.

20. [112]

    In the Crown’s submission, it was implicit from the fact that the sentencing judge dealt with and rejected the Crown’s submission that the applicant posed a risk to the community because of his mental condition that his Honour clearly accepted there was an established causative link between the applicant’s mental condition and his offending, a matter which the Crown emphasised was not in contest. The Crown further submitted that the sentencing judge was not obliged to provide a detailed assessment of the basis upon which the applicant’s mental disorder had been taken into account in the sentences indicated or in the aggregate sentence imposed, where it was clear from the sentencing judge’s findings that the applicant’s ASD was not ignored in his assessment of the applicant’s criminal culpability.

21. [113]

    As to the second aspect of Ground 2, the applicant submitted that the sentencing judge’s remarks are silent as to whether he gave consideration to, or made a finding as to whether the applicant’s ASD would make a custodial sentence more onerous. [13] The Crown submitted that the sentencing judge did take that matter into account in finding that special circumstances warranted a reduction in the statutory ratio, with the non-parole period being fixed at 67 per cent of the aggregate head sentence.

Consideration

1. [114]

   In circumstances where the sentencing judge made no reference in his sentencing reasons to the applicant’s moral culpability being reduced by reason of the causal nexus between his ASD and his offending, I am compelled to the conclusion that when delivering his ex tempore sentencing remarks his Honour either overlooked undertaking that assessment altogether or he failed to make it clear he had done so and that it had been factored into the ultimate sentence imposed.

2. [115]

   Furthermore, although his Honour was clearly aware of the decision in De La Rosa, having made express reference to that decision when rejecting the Crown's submission that the applicant’s mental condition might present a danger to the community, again I am compelled to the conclusion that his Honour has either overlooked making an express finding as to whether the applicant’s ASD would render conditions of custody more onerous such as to allow either for some mitigation of the aggregate sentence or as providing an additional basis upon which to ground a finding of special circumstances. I reject the Crown’s submission that his Honour’s reference to the applicant’s mental condition as a basis for finding an extended period of supervision in the community was warranted is an acknowledgement that the applicant’s mental condition would make custody more onerous.

3. [116]

   I am satisfied that the sentencing error the subject of the second ground of appeal is made out and that, in accordance with Kentwell v The Queen, [14] it is necessary to exercise the sentencing discretion afresh in order to determine whether, after taking into account the evidence that was before the sentencing judge concerning the applicant's ASD and its materiality to the sentencing exercise, I am persuaded a lesser aggregate sentence than that imposed by the sentencing judge should be imposed.

4. [117]

   It was accepted by the applicant that in the event that the error the subject of either the first or second grounds of appeal was established, it would not be necessary for the Court to deal with the third ground of appeal which complains that the aggregate sentence was manifestly excessive.

Resentence

1. [118]

   The evidence dealing with the applicant’s mental condition and its impact on sentence is set out extensively at [92]-[112] above.

2. [119]

   In the circumstances of this case where Dr Pulley’s opinion that there was a significant nexus between the applicant’s ASD and his sexual offending against his daughter is uncontradicted and where, in the passages extracted above at [103] Dr Pulley substantiates that opinion on the basis of both his clinical assessment of the applicant and on the basis of empirical evidence of significantly elevated rates of sexual offending in individuals with ASD, I am satisfied, on the balance of probabilities, that the applicant’s mental condition and the associated deficits in social cognition and social reciprocity did play a causative role in the commission of the offences in the way Dr Pulley explained.

3. [120]

   In my view, however, that finding does not reduce, to any significant degree, the objective seriousness of the applicant’s repeated and persistent sexual offending against his daughter in her home in circumstances where he was aware that she was not intellectually equipped to repel his advances. While I accept that the need for the aggregate sentence to reflect the principle of general deterrence should be diminished to some extent, in my view it continues to be deserving of significant weight in the overall sentencing exercise.

4. [121]

   While it must be acknowledged that at the time of the offending in 2009 and 2010 the applicant was undiagnosed and therefore untreated for the social and emotional deficits which were a dominating feature of his clinical presentation and diagnosis in 2018 and 2019, his persistent and gross lack of insight into his offending, and what appears to be the maintenance of distorted thinking as to the beneficial effect of his sexual offending in his consultation with Dr Pulley, also means that the need for specific deterrence is not eliminated entirely.

5. [122]

   I am also persuaded that from the uncontradicted evidence of Dr Farina that the applicant’s time in custody will inevitably be more onerous by reason of his ASD. While there was no evidence adduced by the applicant specifically directed to the conditions of his custody since sentence was imposed in October 2019, on resentence I also propose to take into account the additional adverse impact of the current health pandemic on the prison population generally, including the frequency of prisoners being confined to their cells and the termination of any face-to-face visits, and the fact that by reason of the applicant’s ASD those additional features of his custody are likely to be felt acutely by him. [15]

6. [123]

   In exercising the sentencing discretion afresh I have come to no different view as to the eleven sentences indicated by the sentencing judge, including the combined discount of 20 per cent applied to Counts 2, 8, 9 and 11. However, in the assessment of the totality of the applicant’s criminality, an assessment which I am satisfied should be moderated to some degree by the impact of the applicant’s ASD throughout the course of that offending, for the reasons set out above I propose an aggregate sentence of 11 years. After taking into account the fact that the applicant’s mental condition will make his time in custody more onerous and the need for extended supervision whilst on parole, I am further satisfied that there should be a slightly more generous alteration to the statutory ratio between the non-parole period and the balance of term.

Orders

1. [124]

   The orders I propose are as follows:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Quash the sentence imposed in the District Court on 25 October 2019 and in lieu thereof impose an aggregate sentence of imprisonment of 11 years commencing on 28 August 2019 and expiring on 27 August 2030 with a non-parole period of 6 years and 9 months. The applicant will be eligible for release on parole upon the expiry of the non-parole period on 27 May 2026.

2. [125]

   LONERGAN J: I agree with Fullerton J.