Burr v R

1. [1]

   LEEMING JA: I agree with Johnson J.

2. [2]

   JOHNSON J: By Notice of Appeal filed on 26 May 2020, the Applicant, Anthony Joseph Burr, seeks leave to appeal against sentence imposed at the Sydney District Court on 30 August 2019 for an offence of persistent sexual abuse of a child contrary to s.66EA Crimes Act 1900, an offence punishable by a maximum penalty of 25 years’ imprisonment.

3. [3]

   Following a plea of guilty, the Applicant was sentenced by his Honour Judge Robison to imprisonment for a term of 10 years and nine months comprising a non-parole period of seven years commencing on 13 December 2018 and expiring on 12 December 2025, with a balance of term of three years and nine months commencing on 13 December 2025 and expiring on 19 September 2029.

Grounds of Appeal

1. [4]

   The Applicant relies upon the following grounds of appeal:

Facts of Offences

1. [5]

   The Applicant pleaded guilty to an offence under s.66EA(1) Crimes Act 1900 which alleged that, between 1 January 2006 and 26 August 2007, at different locations in the State of New South Wales, he did on at least three separate occasions and on at least three separate days, engage in conduct in relation to a particular child that constituted sexual offences. The victim, a girl born in 1991, was the daughter of a woman with whom the Applicant had been in a relationship. The Applicant was not the father of the victim. The victim will not be identified in this judgment in accordance with the protection against publication contained in s.578A Crimes Act 1900.

2. [6]

   The s.66EA offence was Count 1 on an indictment which also contained 12 counts of having sexual intercourse with a child between the ages of 14 and 16 years contrary to s.66C(3) Crimes Act 1900. If prosecuted separately, each of the s.66C(3) offences was punishable by a maximum penalty of imprisonment for 10 years. These 12 s.66C(3) offences constituted the ingredient offences for the s.66EA offence. Given the Applicant’s plea of guilty to the s.66EA offence, the Crown did not proceed with the s.66C(3) counts.

3. [7]

   An Agreed Statement of Facts signed by the Applicant was tendered in the District Court. The following narrative is drawn from that document.

4. [8]

   The victim’s mother and the Applicant were in a relationship which ended in November 1990. The Applicant was born in February 1964 and was 27 years older than the victim. The victim was born in 1991. Between October 2005 and throughout the period of the Applicant’s offending, the victim and her mother spent a lot of time at the Applicant’s premises.

5. [9]

   From about 2004, the Applicant took the victim on motor bike rides, bought her various items and gave her money.

6. [10]

   In 2007, just prior to the victim’s 16th birthday, the Applicant bought her a dirt bike. On one birthday, the Applicant bought earrings for the victim.

7. [11]

   The victim was 14 years old at the time of the first to the sixth ingredient offences and 15 years old at the time of the last six ingredient offences which fell within the s.66EA offence for which the Applicant was sentenced. Most of the incidents occurred at the Applicant’s premises.

8. [12]

   It was common ground on sentence that the 12 ingredient offences which constituted the s.66EA offence were representative counts - they did not represent the totality of the Applicant’s sexual offences against the victim.

9. [13]

   During January 2006, when the Applicant was 41 years old and the victim was 14 years old, she went for a drive with the Applicant in his vehicle. Afterwards, the victim agreed to watch a movie at the Applicant’s house. The Applicant and the victim sat down on a lounge and she put her head on his lap during the movie. The Applicant lent down and kissed the victim on the lips. The victim pulled away and saw that the Applicant had an erection.

10. [14]

    The Applicant removed his shorts and underwear and stood in front of the victim with an erect penis. The Applicant told the victim to touch his penis and put it in her mouth. The victim placed her mouth over the Applicant’s penis and he thrust his penis back and forth in her mouth (Ingredient Offence 1).

11. [15]

    The Applicant and the victim walked to the Applicant’s bedroom and the victim undressed with the Applicant taking off his shirt. He told the victim to lie on the bed which she did. The Applicant lay on top of the victim and inserted his penis into her vagina thrusting for a short period (Ingredient Offence 2). The Applicant saw that the victim (who was a virgin) was bleeding and retrieved a towel. The victim observed a large amount of blood whilst she was showering after this and became very distressed. The Applicant then showered and drove the victim home.

12. [16]

    The victim’s mother was at home when she arrived, but the victim did not feel that she could report the offences to the mother, fearing that the mother would not believe her or would commit suicide leaving the victim with no one to look after her.

13. [17]

    On an occasion between 1 January 2006 and 31 March 2006, the Applicant and the victim were in the Applicant’s bedroom at his home. The Applicant instructed the victim, who had her shirt and bra off but was wearing underwear, to get on her knees on the floor next to the bed. The Applicant was naked. The Applicant placed his erect penis in the victim’s mouth, causing her to gag. The Applicant grabbed the victim’s head and pushed his penis all the way into her mouth, thrusting his penis in and out until he ejaculated onto her face (Ingredient Offence 3).

14. [18]

    After this incident, oral sexual intercourse with the Applicant was common and the victim learned to move her head back and forth so that she could breathe.

15. [19]

    Around this time in 2006, the Applicant would regularly pick up the victim from school and she would stay at his premises on most nights. The Applicant said to her “If anyone ever asks about us, just tell them I’m your dad. They wouldn’t understand”.

16. [20]

    On several occasions, the Applicant had sexual intercourse with the victim whilst she was in her school uniform. The Applicant bought stay-up stockings and suspender belts for the victim. Both the victim and the Applicant forged notes to the victim’s school pretending to be the victim’s mother so that the victim could leave school early with the Applicant.

17. [21]

    The Applicant repeatedly told the victim that she should obtain a prescription for the contraceptive pill which she did. The Applicant regularly bought the victim hosiery and lingerie. On one occasion, the Applicant made the victim put on pantyhose that he had bought her. He then ripped it at the crotch and tore off a length of nylon. The Applicant created nicknames for the victim’s breasts.

18. [22]

    Between January and August 2006, the Applicant had run out of lubricant and wanted to have sex. He would regularly tell the victim that she would not produce vaginal lubrication and he would have to buy lubrication.

19. [23]

    On an occasion during this period, the Applicant performed cunnilingus on the victim which lasted for about three minutes (Ingredient Offence 4).

20. [24]

    Afterwards, the Applicant attempted to insert his penis into the victim’s vagina before using a lubricant and then inserting his penis into her vagina and ejaculating inside her (Ingredient Offence 5).

21. [25]

    On a weekend morning in mid-2006, when the victim was 14 years of age, she was lying in the Applicant’s bed at his home. The Applicant inserted his penis into the victim’s vagina whilst they were both facing in the same direction and had intercourse with her (Ingredient Offence 6).

22. [26]

    As this happened, the victim’s mother (who had stayed the night at the Applicant’s home) came into the bedroom and got into bed with the victim and the Applicant and the Applicant withdrew his penis without ejaculating. The victim’s mother later got out of bed and did not show any interest or concern that the victim and the Applicant were in bed together.

23. [27]

    Between August 2006 and August 2007, when the victim was 15 years old, the Applicant started taking her to a sex shop in a Sydney suburb. In that shop, the Applicant purchased a vibrator. Thereafter, the Applicant placed the vibrator on the victim’s clitoris and inserted it into her vagina and asked her “Does that feel good?” (Ingredient Offence 7).

24. [28]

    The Applicant then inserted his penis into the victim’s vagina and ejaculated inside her vagina (Ingredient Offence 8).

25. [29]

    After this, the use of the vibrator by the Applicant became a regular occurrence.

26. [30]

    Between 1 December 2006 and 28 February 2007, the victim went to the country holiday house of the Applicant’s parents in the company of the Applicant and her mother. They stayed for just under a week with the victim sleeping in the Applicant’s bed and the victim’s mother sleeping in the spare bedroom. At one point, the victim’s mother became very intoxicated and passed out on the lounge. The Applicant told the victim that he had been looking at her all day and that he missed being with her.

27. [31]

    The Applicant and the victim had sexual intercourse with the Applicant inserting his penis into the victim’s vagina from behind with him ejaculating inside the victim (Ingredient Offence 9).

28. [32]

    Between December 2006 and March 2007, when the victim was 15 years old, the Applicant had sexual intercourse with her inserting his penis into her vagina and ejaculating inside the victim (Ingredient Offence 10).

29. [33]

    Between December 2006 and March 2007, when the victim was 15 years old, the Applicant put his fingers over the victim’s anus and inserted his thumb into her anus as part of his sexual conduct towards her. The victim felt uncomfortable and pulled away (Ingredient Offence 11).

30. [34]

    The Applicant suggested to the victim that they “try anal sex”, but the victim indicated that she did not wish to do so. The Applicant pressed the issue indicating that he would “be slow” and would use a lubricant. The victim asked “If it hurts, you will stop?” and the Applicant agreed.

31. [35]

    The Applicant put lubricant on the victim’s anus and inserted a finger insider her anus. He asked “How’s that?” and the victim replied “That’s OK”, but it felt uncomfortable (Ingredient Offence 12).

32. [36]

    After this incident, the Applicant took the victim fishing knowing that this was an activity which she enjoyed. On the way, they picked up the victim’s mother.

33. [37]

    There were other incidents of sexual activity which were not the subject of the offending after the victim turned 16 years old in 2007. In 2008, the victim started to avoid the Applicant and, by the time she was 17 years old, the sexual activity had finished. The victim had come to realise that the Applicant was using her purely for his pleasure and felt disgusted by this.

34. [38]

    In mid-2008, the Applicant waited for the victim after school and asked her why she did not want to see him and if he had done something wrong. The victim told the Applicant that she was busy. On another occasion, the Applicant was at the victim’s house and asked if he could hug her which she declined. She told him twice that he should leave. The victim rarely saw the Applicant after this.

35. [39]

    There was a recommencement of the sexual relationship between the Applicant and the victim for a period of about three-to-four months in 2010-2011 when she was 19 years old. This ended and ongoing contact between them ceased.

36. [40]

    In September 2017, after an extended period without contact, the victim located the Applicant on Facebook and commenced communications with him. In these communications, the victim told the Applicant about the harm she had suffered as a result of being sexually abused by him when she was a young girl. The Applicant admitted a sexual relationship with the victim, but did not admit it had commenced prior to her turning 16 years of age. The Applicant told the victim that she had captured him and that he still loved her.

37. [41]

    The victim reported the matter to police in October 2017 with a statement being taken by police concerning the Applicant.

38. [42]

    In February 2018, the victim had a conversation with the Applicant which was recorded lawfully pursuant to a surveillance device warrant. During that conversation, the Applicant asked the victim if the conversation was being recorded. In the course of the conversation, the Applicant said:

39. [43]

    On 14 February 2018, the Applicant was arrested and conveyed to a police station where he took part in an electronically recorded interview. In the interview, he said that there was no intimacy between himself and the victim before she was 16 years old and denied specific allegations of underage sexual intercourse that were put to him by police.

40. [44]

    The Applicant was charged by police on 14 February 2018 and remained in custody until he entered conditional bail on 18 May 2018. The Applicant remained on conditional bail until 18 March 2019 when he was remanded in custody where he has remained since.

The Applicant’s Subjective Circumstances

1. [45]

   As noted earlier, the Applicant was born in 1964. He was aged between 41 and 43 years at the time of the incidents which gave rise to the offence and was 55 years old at the time of sentence.

2. [46]

   The Applicant has a prior criminal history for drink driving in 1981, 1989 and 2008 and offences of driving whilst licence cancelled (in 1992) and driving whilst suspended (in 2006). He has no prior convictions of a sexual nature.

3. [47]

   The Applicant did not give evidence at the sentencing hearing.

4. [48]

   Tendered in the defence case on sentence in the District Court were a report dated 28 August 2019 of Dr Katie Seidler, forensic psychologist, together with letters from the Applicant’s mother, his son and his partner in the period 1991 to 2006, together with a certificate dated 2 August 2019 confirming that the Applicant had completed (in custody) the Positive Lifestyle Program conducted by the Salvation Army.

Victim Impact Statement

1. [49]

   A victim impact statement dated 12 August 2019 was read by the victim (then 28 years old) at the sentencing hearing.

2. [50]

   She stated that she was “a survivor of childhood sexual abuse”. The victim described eloquently the impact upon her of the Applicant’s offending conduct which had caused psychological and emotional suffering and undermined her trust in others. She stated that, at the time of the abuse, she “felt extremely confused and conflicted about what I could do about it”.

3. [51]

   The victim recounted a range of damaging consequences of the Applicant’s offending conduct with her stating that she had “received a diagnosis of PTSD with Complex Trauma” which manifested itself in various ways. She stated that “My entire engagement with life and society has been deeply impacted due to the crime committed against me”.

4. [52]

   The victim stated that the “purpose of me making this victim impact statement is for me to finally have a voice for when I didn’t have one”. She stated that the Applicant’s actions “had a profound and negative effect on my life”.

The Sentencing Hearing and Sentencing Remarks

1. [53]

   The sentencing hearing proceeded before his Honour Judge Robison on 30 August 2019. A number of documents were tendered in the Crown and defence cases. The victim read the victim impact statement. No oral evidence was adduced.

2. [54]

   The Crown furnished detailed written submissions on sentence. Counsel for the Applicant did not provide written submissions but a document containing a number of suggested comparative cases was provided to the sentencing Judge together with certain sentencing statistics for offences under s.66C(3) Crimes Act 1900.

3. [55]

   Oral submissions were made on sentence. At the conclusion of the sentencing hearing, his Honour stood the matter down until later in the day for the purpose of sentencing the Applicant by way of ex tempore sentencing remarks.

4. [56]

   It is apparent from the structure of the ex tempore sentencing remarks that his Honour was utilising various documents which had been provided during the sentencing hearing including the Statement of Agreed Facts and the Crown written submissions on sentence.

5. [57]

   It is necessary to keep in mind that the sentencing remarks were delivered ex tempore soon after the hearing. In R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, this Court said at [34]-[35]:

6. [58]

   As Spigelman CJ observed in R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [48] with respect to ex tempore sentencing remarks “the conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed”.

7. [59]

   Having regard to the grounds of appeal, it is appropriate to set out parts of his Honour’s sentencing remarks.

8. [60]

   His Honour commenced the sentencing remarks by stating that the Applicant stood for sentence “in relation to a very serious offence of persistent sexual abuse of a child” (ROS1). His Honour noted the maximum penalty for the s.66EA offence and observed, amongst other things, that a number of persons who had provided character testimonials were in Court, with this being undoubtedly a factor leading his Honour to deliver ex tempore sentencing remarks so that a range of persons with a close interest in the proceedings could hear what was said. This is a principal purpose of sentencing remarks being delivered orally in the presence of those with a direct interest in the outcome: R v Hamieh [2010] NSWCCA 189 at [29].

9. [61]

   His Honour then recited the facts of the offences utilising the Agreed Statement of Facts for this purpose (ROS2-18). In the course of reciting the agreed facts of the offences, the sentencing Judge made comments from time to time with respect to particular aspects of the facts, as the following extracts demonstrate.

10. [62]

    After reciting the facts referred to earlier in this judgment (at [19]), his Honour observed (ROS8-9) (emphasis added):

11. [63]

    His Honour then continued (ROS9) (emphasis added):

12. [64]

    By reference to the facts of Incident 4 (at [25]-[26] above), his Honour observed (ROS11):

13. [65]

    After recounting the factual narrative concerning the victim seeking to avoid the Applicant (see [37] above), his Honour observed (ROS15) (emphasis added):

14. [66]

    After concluding a recital of the facts, his Honour made the following findings which related to the objective seriousness of the offence and the moral culpability of the Applicant (ROS18-19) (emphasis added):

15. [67]

    His Honour referred to the Applicant’s “very limited criminal history” with “no offences at all of a like nature on his history” (ROS19).

16. [68]

    The sentencing Judge referred to the victim impact statement read by the victim to the Court earlier that day (ROS19-20):

17. [69]

    The sentencing Judge then had regard to the character testimonials, noting that the authors were present in Court. His Honour referred in some details to the character evidence (ROS20-21).

18. [70]

    In referring to this evidence, his Honour observed that it revealed “an element of remorse and contrition” on the part of the Applicant (ROS21). Soon after, the sentencing Judge made the following finding concerning the Applicant’s remorse and contrition (ROS22):

19. [71]

    The sentencing Judge then referred in some detail to the psychological report of Dr Seidler (ROS22-23). His Honour said the following with respect to the Applicant’s risk of reoffending (ROS23):

20. [72]

    The sentencing Judge then noted that both the Crown and counsel for the Applicant had drawn the Court’s attention to a number of authorities with his Honour observing that “each case needs to be determined on its own facts and circumstances” (ROS24).

21. [73]

    His Honour stated that he had regard to the submissions made and to relevant sentencing principles, observing (ROS24):

22. [74]

    His Honour explained his reasons for extending a 20% discount for the utilitarian value of the Applicant’s plea of guilty (ROS24-25).

23. [75]

    The sentencing Judge then made the following finding concerning the objective seriousness of the offence which came under challenge in this Court (Ground 2) (ROS25-26) (emphasis added):

24. [76]

    In the course of addressing a submission advanced by counsel for the Applicant, his Honour said (in comments giving rise to Ground 1) (ROS26-27) (emphasis added):

25. [77]

    Submissions had been made concerning the Applicant being subject to conditional liberty during part of the offending period. On 1 June 2006, the Applicant had been sentenced at the Sutherland Local Court for driving whilst suspended by way of a good behaviour bond for six months under s.10 Crimes (Sentencing Procedure) Act 1999. In that respect, his Honour made the following finding (ROS27):

26. [78]

    In the course of a number of additional findings or observations, his Honour said (ROS27-28) (emphasis added):

27. [79]

    His Honour found special circumstances (ROS28-29):

28. [80]

    In the course of passing sentence, his Honour observed that the total sentence of imprisonment for 10 years and nine months “has been rounded to that term having regard to the utilitarian value” (ROS29).

Some General Observations Concerning Sentencing for Persistent Sexual Abuse of a Child Under s.66EA Crimes Act 1900

1. [81]

   Before moving to consider the grounds of appeal, it is appropriate to make some general observations concerning sentencing for offences of persistent sexual abuse of a child under s.66EA Crimes Act 1900.

2. [82]

   Section 66EA was inserted in the Crimes Act 1900 by the Crimes Legislation Amendment (Child Sexual Offences) Act 1998. In the second reading speech concerning that legislation, the Attorney General, the Hon JW Shaw, said that the proposed offence under s.66EA was “based upon an important recommendation” of the Wood Royal Commission into the New South Wales Police Service, the Paedophile Inquiry where the Royal Commissioner “considered it ‘essential’ that New South Wales introduce the offence of persistent sexual abuse of a child” (Hansard, Legislative Council, 20 October 1998).

3. [83]

   In R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5, Sully J (Barr J and Newman AJ agreeing) noted (at [9]-[10]) the origin of s.66EA, which had been introduced to overcome (in the area of child sexual offences) the decision of the High Court of Australia in S v The Queen (1989) 168 CLR 266; [1989] HCA 66 with respect to the need for particularisation of specific offences.

4. [84]

   At the time of the Applicant’s offending conduct in 2006 and 2007, s.66EA was in the following terms:

5. [85]

   It was common ground at the Applicant’s sentencing proceedings that the “sexual offences” (under s.66EA(12)) which constituted the s.66EA offence in his case arose from 12 separate occasions, occurring on at least eight separate days in a period between 1 January 2006 and 26 August 2007, in which he engaged in conduct in relation to the victim that constituted, in each case, an offence under s.66C(3) Crimes Act 1900 which, if prosecuted separately, was punishable by a maximum penalty of imprisonment for 10 years.

6. [86]

   In the course of describing the operation and effect of s.66EA in R v Fitzgerald, Sully J noted the following features which were relevant to sentence (at [13](3)-(6)):

7. [87]

   Sully J then referred (at [13]) to the judgment of Doyle CJ in R v D (1997) 69 SASR 413 at 419, which concluded with Doyle CJ saying with respect to sentencing for the South Australian equivalent of s.66EA:

8. [88]

   Sully J adopted the reasoning of Doyle CJ in this respect and continued (at [13]-[15]):

9. [89]

   In R v Manners [2004] NSWCCA 181, Bell J (Howie and Hislop JJ agreeing) said at [21]:

10. [90]

    Later in R v Manners, Bell J stated at [34]:

11. [91]

    In Langbein v R (2008) 181 A Crim R 378; [2008] NSWCCA 38, McClellan CJ at CL (Hall and Price JJ agreeing) said at [115]-[117]:

12. [92]

    In AC v R [2016] NSWCCA 107, Schmidt J (Bathurst CJ and Wilson J agreeing) said at [5]:

13. [93]

    In Mills v R [2017] NSWCCA 87, R A Hulme J (Leeming JA and Beech-Jones J agreeing), in the context of an appeal against sentence for a s.66EA Crimes Act 1900 offence, said at [64]:

14. [94]

    Soon after, R A Hulme J said at [68]-[71]:

15. [95]

    In a separate judgment in Mills v R agreeing with R A Hulme J, Leeming JA observed at [2]:

16. [96]

    The Applicant was to be sentenced upon the basis that his s.66EA offence comprised 12 separate sexual offences under s.66C(3) Crimes Act 1900 in that he had sexual intercourse with the victim who was above the age of 14 years and under the age of 16 years.

17. [97]

    These 12 ingredient offences occurred in the course of eight separate incidents over a period of 20 months in 2006 and 2007.

18. [98]

    It was common ground that these incidents did not constitute an exhaustive list of the offences committed by the Applicant against the victim, but were themselves representative counts to be dealt with in accordance with the principles stated by Spigelman CJ in R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 at [63]-[68]. The ingredient offences which constituted the s.66EA offence for which the Applicant was to be sentenced were not isolated incidents so that the Applicant was not entitled to assert, as a type of mitigating factor, that the sexual offences which made up the s.66EA offence constituted the entirety of his offending against the victim.

19. [99]

    It remained the case, however, that the Applicant was not to be sentenced for other uncharged conduct which lay outside the ingredient offences of the s.66EA offence: AK v R [2016] NSWCCA 238 at [67]-[75]; Mills v R at [64] (see [93] above).

20. [100]

    The original s.66EA Crimes Act 1900, enacted in 1998, was removed and replaced by a new s.66EA as a result of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 which commenced on 1 December 2018. The new s.66EA is in a form recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse and is modelled largely upon the offence found in s.229B Criminal Code Act 1899 (Qld).

21. [101]

    Accordingly, the original s.66EA applies to a closed category of offences committed between 1998 and 1 December 2018.

22. [102]

    The High Court of Australia has considered provisions of this general type in other States of Australia in a number of decisions including KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54 (s.229B Criminal Code Act 1899 (Qld)); KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 (s.47A Crimes Act 1958 (Vic)); Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 (“Chiro”) (s.50 Criminal Law Consolidation Act 1935 (SA)); Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38 (s.50 Criminal Law Consolidation Act 1935 (SA)); DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 (s.50 Criminal Law Consolidation Act 1935 (SA)) and KMC v Director of Public Prosecutions (SA) (2020) 94 ALJR 415; [2020] HCA 6 (“KMC”) (s.50 Criminal Law Consolidation Act 1935 (SA)).

23. [103]

    In sentencing for a s.66EA offence as enacted in 1998, it may be seen that the offence is comprised of discrete underlying offences rather than a course of conduct per se: Chiro at [22]-[23]; KMC at [6]. Each of the underlying sexual offences comprises an element of the actus reus of the s.66EA offence: KMC at [6].

24. [104]

    The nature of a s.66EA offence following the 2018 amendments may be different, based as it is upon an “unlawful sexual relationship” as defined in s.66EA(2) of the new provision. As this judgment is not concerned with sentencing for a s.66EA offence after the 2018 amendments, it is not necessary to consider this aspect further.

25. [105]

    A number of the High Court decisions have considered the appropriate course to be taken where a jury trial has taken place leading to conviction, raising the question as to the particular ingredient offences of which the jury was satisfied beyond reasonable doubt and upon which the sentencing Judge should proceed to sentence the offender. Those circumstances do not arise in this case as the Applicant pleaded guilty to the s.66EA offence charged against him with an express admission of the 12 ingredient offences under s.66C(3) Crimes Act 1900.

26. [106]

    It may be seen from statements in decisions of this Court concerning sentencing for a s.66EA offence as enacted in 1998 (and before the 2018 amendments) that a number of factors will bear upon an assessment of the objective seriousness of the offence (see [86]-[95] above). These include:

27. [107]

    Other factors may bear upon an assessment of the objective seriousness of a s.66EA offence depending upon the circumstances of the particular case.

28. [108]

    Clearly, a range of other factors, including the offender’s subjective circumstances, criminal history and the question whether the s.66EA offence (or any part of it) was committed whilst the offender was subject to conditional liberty will also bear upon sentence. These aspects, however, do not touch upon the assessment of objective seriousness of the s.66EA offence itself.

29. [109]

    With these general observations in mind, it is appropriate now to consider the grounds of appeal advanced on behalf of the Applicant.

Ground 1 - The Sentencing Judge Erred in Taking into Account that the Applicant was in a Position of Authority Over the Victim

1. [110]

   Mr Funnell, counsel for the Applicant, referred to the Crown written submission in the District Court on the question whether the Applicant was in a position of authority. It was submitted that the finding of the sentencing Judge that the Applicant was in a position of authority (ROS27 at [76] above) involved error as this constituted a finding that the aggravated form of ingredient offence under s.66C(4) Crimes Act 1900 had been committed with this finding being, in turn, an infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

2. [111]

   Although the sentencing Judge did not refer to s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999, it was submitted that the sentencing Judge had in fact made a finding that the Applicant had abused a position of authority in relation to the victim with this being contrary to the Crown submission made at the sentencing hearing.

3. [112]

   Counsel for the Applicant submitted that the sentencing Judge had in fact made a finding which treated the ingredient offences as being s.66C(4) offences for which the maximum penalty (if prosecuted separately) was imprisonment for 12 years, with this approach breaching the principle in The Queen v De Simoni.

4. [113]

   The Crown noted the submission of the Crown at first instance which was that the aggravating factor in s.21A(2)(k) did not apply in this case. However, the Crown submission in the District Court made clear that the Applicant had taken advantage of the victim’s youth and the Applicant’s position within the family in circumstances where there was “a clear power imbalance between the victim and the offender”.

5. [114]

   The Crown submitted that, in making the presently impugned finding (ROS27 at [76] above), the sentencing Judge was adopting the Crown submission which did not involve the error asserted by the Applicant in this Court.

6. [115]

   The Crown submitted that various findings made by the sentencing Judge on this topic amounted to a breach of authority “in ordinary parlance” in the sense described in Rainbow v R [2018] NSWCCA 42 at [31].

7. [116]

   The Crown submitted that no error had been demonstrated on the part of the sentencing Judge as asserted in this ground and that there was no infringement of the principle in The Queen v De Simoni.

8. [117]

   In approaching this ground of appeal, it is necessary to keep in mind that the sentencing Judge delivered his sentencing remarks ex tempore utilising the Crown sentencing submissions for that purpose. Reference was made to this feature earlier in this judgment (at [57]-[58]).

9. [118]

   Section 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 specifies as an aggravating factor that “the offender abused a position of trust or authority in relation to the victim”.

10. [119]

    It is appropriate to set out parts of the Crown written submission which, I am satisfied, his Honour adopted for the purpose of the sentencing remarks. The Crown written submission included the following:

11. [120]

    Later in the Crown written submission, in a part which I am satisfied his Honour adopted, it was submitted:

12. [121]

    Oral submissions made for the Applicant in the District Court did not contest these parts of the Crown written submissions. Accordingly, it is necessary to keep these features of the sentencing proceedings in mind in approaching the present ground.

13. [122]

    The sentencing Judge referred to what were uncontested features of the factual circumstances of the s.66EA offence which concerned the relationship between the Applicant and the victim, the context in which the incidents which constituted the offence took place, the power imbalance between them and other features which the Crown had pointed to as involving serious features of the offence.

14. [123]

    His Honour’s finding in ex tempore sentencing remarks was based upon acceptance of the Crown submission and nothing more. It ought be seen as his Honour referring to features of the offending conduct which could be described, in ordinary parlance, as involving a position of authority by the Applicant with respect to the victim: Rainbow v R at [31]. This phrase must be read in the broader context of his Honour’s findings.

15. [124]

    I am not persuaded that the sentencing Judge, contrary to the Crown submission, made a finding of the presence of an aggravating factor under s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 in this case. Nor am I satisfied that his Honour has breached the principle in The Queen v De Simoni.

16. [125]

    I would reject the first ground of appeal.

Ground 2 - The Sentencing Judge Erred in Failing to Assess the Objective Seriousness of the s.66EA Offence or, Alternatively, Failed to Consider the Nature of the Ingredient Offences when Considering the Objective Seriousness of the s.66EA Offence

1. [126]

   Counsel for the Applicant submitted that there was a degree of uncertainty in the sentencing Judge’s finding that the objective seriousness “was fairly and squarely within the midrange of objective seriousness for each of these offences” and that “each of the offences themselves was very serious” (ROS25-26 at [75] above). It was submitted that his Honour had not made a finding concerning the objective seriousness of the s.66EA offence itself.

2. [127]

   Counsel also submitted that the sentencing Judge did not undertake any independent evaluation of the factors giving rise to the gravity of the s.66EA offence itself. It was submitted that his Honour did not consider the relevance to objective seriousness of the fact that the ingredient offences were under s.66C(3) Crimes Act 1900 with this being, it was submitted, an important feature given the wide range of offences (and maximum penalties) covered by a s.66EA offence: R v Fitzgerald; R v Manners at [34]; Mills v R at [2].

3. [128]

   It was submitted that the sentencing Judge had given a bare recital of the facts which was not sufficient: R v Cage [2006] NSWCCA 304 at [17].

4. [129]

   It was submitted that there had been a failure to make an assessment of objective seriousness of the s.66EA offence with this being an essential part of the sentencing process so that error had been demonstrated.

5. [130]

   The Crown submitted that the assessment of objective seriousness made by the sentencing Judge was sufficient in this case, noting that a s.66EA offence does not carry a standard non-parole period.

6. [131]

   It was submitted that it was necessary to read his Honour’s express finding concerning objective seriousness in the context of the whole of his Honour’s ex tempore sentencing remarks. There had not been a bare recital of the facts by the sentencing Judge. Reference was made to the findings of fact made by his Honour with a number of particular findings being made in the course of the factual narrative.

7. [132]

   The Crown submitted that his Honour complied with the law in making an assessment of objective seriousness of the s.66EA offence in accordance with what had been said in R v Fitzgerald.

8. [133]

   The Crown noted the arguments advanced in the District Court with the Crown contending that the objective seriousness of the s.66EA offence should be assessed as “above midrange” and with counsel for the Applicant submitted that the offence was “below midrange” (T25, 30 August 2019). The sentencing Judge assessed the objective seriousness as being “fairly and squarely within the midrange of objective seriousness”.

9. [134]

   The Crown submitted that no error had been demonstrated in the approach adopted by the sentencing Judge so that this ground of appeal should be rejected.

10. [135]

    Once again, in approaching this ground of appeal, it is necessary to keep in mind that his Honour’s ex tempore sentencing remarks are to be read fully and fairly. His Honour was well aware that the maximum penalty for this offence was imprisonment for 25 years and that there was no standard non-parole period, having so noted at the commencement of his sentencing remarks (ROS1).

11. [136]

    His Honour recited the Agreed Statement of Facts making a number of additional observations during that process (see [62]-[65] above). After summarising the facts, his Honour stated “I spent a considerable amount of time carefully considering and evaluating those agreed facts” (ROS18 at [66] above).

12. [137]

    His Honour then proceeded to address factors bearing upon objective seriousness and moral culpability including the period of time during which the ingredient offences were committed, the ages of the victim and the Applicant, the existence of an element of grooming of a vulnerable victim and the escalation of the Applicant’s conduct over a period of time (ROS18-19 at [66], [75] above). Having made a finding that the ingredient offences lay “fairly and squarely within the midrange of objective seriousness”, his Honour immediately stated “that is my assessment of the matter overall” and “each of the offences themselves was very serious and I have taken it into account accordingly” (ROS26 at [75] above).

13. [138]

    In my view, no error has been demonstrated in his Honour’s approach concerning assessment of the objective seriousness of the s.66EA offence. It is noteworthy, as well, that his Honour’s finding involved an assessment of the objective seriousness of the offence which lay between the submissions made at first instance by the Crown and counsel for the Applicant.

14. [139]

    In addressing grounds of appeal which complained about the characterisation of objective seriousness of offences, this Court said in Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242 at [125]-[126]:

15. [140]

    In Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82, this Court said at [143]:

16. [141]

    His Honour made findings concerning the objective seriousness of the ingredient offences and then a finding concerning the s.66EA offence itself. His Honour’s reference to “moral culpability” of the Applicant (ROS18-19 at [66] above) was associated with the finding concerning objective seriousness: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [113]ff. The findings were concise, but no more was required by law. The findings went well beyond a bare recital of the facts.

17. [142]

    In Gal v R [2015] NSWCCA 242, Beech-Jones J (Bathurst CJ and Price J agreeing) said at [39]:

18. [143]

    His Honour’s sentencing remarks in the present case complied with this requirement.

19. [144]

    As Wilson J (Wright J and myself agreeing) observed in Higgins v R [2020] NSWCCA 169 at [78] “the reference to a position within a range frequently used by sentencing courts to describe the outcome of the assessment of objective seriousness is neither precise, nor prescriptive on sentence”.

20. [145]

    I do not accept the Applicant’s submission that his Honour’s sentencing remarks did not comply with what was said by this Court in R v Fitzgerald. As noted earlier, it is clear that his Honour utilised the Crown written submissions for the purpose of his ex tempore sentencing remarks. The Crown written submissions had identified correctly, by reference to what was said in R v Fitzgerald, that the 12 ingredient offences in this case were offences under s.66C(3) Crimes Act 1900 with each carrying a maximum penalty of imprisonment for 10 years. Both the Crown written submissions and a table of comparative cases provided by counsel for the Applicant at the sentencing hearing referred to s.66C(3) and decisions which concerned sentencing for offences of that type. The sentencing Judge was well aware of both the nature of the ingredient offences and where on the scale of seriousness they fell in relation to other offences capable of falling within s.66EA.

21. [146]

    The Applicant has not established that his Honour, in some way, failed to have regard to this material for the purpose of assessing objective seriousness as part of the sentencing process.

22. [147]

    The Applicant has not established that the sentencing Judge erred in failing to assess the objective seriousness of the s.66EA offence. Nor has the Applicant demonstrated the alternative component of this ground that his Honour failed to consider the nature of the ingredient offences when assessing the objective seriousness of the s.66EA offence.

23. [148]

    I would reject this ground of appeal.

Ground 3 - The Sentence Imposed on the Applicant is Manifestly Excessive

1. [149]

   Counsel for the Applicant accepted that, on account of the age difference between the Applicant and the victim, the duration of offending and the modes of sexual intercourse involved, this s.66EA offence was unquestionably serious. Counsel accepted, as well, that the ingredient counts were representative so that the Applicant was not entitled to leniency in accordance with the principles in R v JCW.

2. [150]

   Whilst accepting that there was some grooming, it was submitted that the offending did not occur against a background of physical violence or coercion and that the victim was towards the upper limit of the age range for a s.66EA offence.

3. [151]

   Whilst acknowledging the limitations of sentencing statistics, counsel referred to sentencing statistics which revealed, of the 108 offenders sentenced for s.66C(3) offences between January 2008 and 24 September 2018, 94.5% received a head sentence of seven years’ imprisonment or less and, of these 108 persons, only two received head sentences greater than the one imposed upon the Applicant: PB v R [2016] NSWCCA 258; Hordern v R [2019] NSWCCA 210.

4. [152]

   It was submitted that the sentencing statistics demonstrate that the sentence imposed upon the Applicant lay at the very top of the range for offences contrary to s.66C(3).

5. [153]

   Counsel for the Applicant referred to a number of sentencing decisions for offences under s.66EA which had been relied upon in the District Court together with a number of additional sentencing decisions for offences under s.66C(3) Crimes Act 1900, being R v Boulad [2005] NSWCCA 289, Mokhaiber v R [2011] NSWCCA 10, LA v R [2013] NSWCCA 146, PB v R, R v Wright [2017] NSWCCA 102 and Hordern v R.

6. [154]

   Having regard to the objective seriousness of the Applicant’s offence, his subjective circumstances and other findings made by the sentencing Judge, it was submitted that no reasonable exercise of sentencing discretion would result in a starting point (before application of the 20% discount) of 13 years and five months with a non-parole period of eight years and nine months.

7. [155]

   It was submitted that the sentence was plainly unjust and that this Court should intervene and resentence the Applicant.

8. [156]

   The Crown submitted that caution should be exercised in the use of sentencing statistics noting the frequently expressed reservations as summarised in Goodbun v R [2020] NSWCCA 77 at [257]. It was noted that sentencing statistics relied upon by the Applicant related to s.66C(3) offences and not offences under s.66EA Crimes Act 1900.

9. [157]

   The Crown pointed, as well, to the need for care in reliance upon comparative cases on sentence: Wright v R [2019] NSWCCA 134 at [52]. With respect to the Applicant’s reliance upon s.66C(3) sentencing cases, the Crown pointed to the fact that these were not cases dealing with s.66EA offences and that there was a range of factors which served to differentiate those decisions from the Applicant’s case.

10. [158]

    The Crown submitted that a number of features of the Applicant’s case serve to demonstrate that the sentence imposed was not manifestly excessive. I will refer to these features when considering this ground of appeal (see [171] below).

11. [159]

    In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (at [443]), R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) summarised the principles to be applied on a sentence appeal where there is a claim of manifest excess:

12. [160]

    Caution should be exercised where a ground asserting manifest excess is supported by sentencing statistics. This is particularly so in this case as the sentencing statistics relied upon by the Applicant concern offences prosecuted under s.66C(3) Crimes Act 1900 and not for s.66EA offences where the ingredient offences are s.66C(3) offences. In Mills v R, R A Hulme J noted at [68] that the limited number of s.66EA sentencing decisions meant that sentencing statistics were of little use (see [94] above).

13. [161]

    Further, as Bellew J (Macfarlan JA and Fullerton J agreeing) observed in Skocic v R [2014] NSWCCA 225 at [19](iv)-(v):

14. [162]

    With respect to reliance upon comparative cases, it is appropriate to keep in mind as well the statement of Ierace J (Bathurst CJ and Price J agreeing) in Wright v R at [52]:

15. [163]

    A number of sentencing decisions for s.66EA offences were referred to the sentencing Judge who had regard to them on sentence. The additional cases referred to in this Court are sentencing decisions for s.66C(3) offences and not s.66EA offences. Sentencing decisions for s.66C(3) offences are not irrelevant. However, the point of the legislature enacting the offence contained in s.66EA was to create a separate offence which involved at least three sexual offences of the specified type being committed against the victim over a period of time (see [82]-[83] above).

16. [164]

    The maximum penalty for a s.66EA offence (prior to the 2018 amendments) was imprisonment for 25 years. That maximum penalty represents the legislature’s assessment of the seriousness of a s.66EA offence and, for that reason, provides a sentencing yardstick: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. Consideration of sentencing decisions for s.66C(3) offences involves a different sentencing yardstick.

17. [165]

    I have considered the sentencing decisions for s.66EA offences relied upon by the Applicant. These were R v Manners, R v Fitzgerald, Hitchen v R [2010] NSWCCA 77, IS v R [2011] NSWCCA 142, ARS v R [2011] NSWCCA 266, DS v R (2012) 221 A Crim R 235; [2012] NSWCCA 159, AC v R [2016] NSWCCA 107, R v Van Ryn [2016] NSWCCA 1, Mills v R and R v DM [2018] NSWDC 62. As might be expected, these cases involved a range of ingredient offences which constituted the s.66EA offence and a variety of objective and subjective considerations which led to the particular sentencing outcome in each case. The sentences imposed in those cases extended from a term of imprisonment for six years with a non-parole period of four years and three months (R v Manners) to a term of imprisonment for 16 years with a non-parole period of 12 years (Hitchen v R).

18. [166]

    I do not consider that examination of the sentencing outcomes in these s.66EA cases assists the Applicant in his claim of manifest excess. None of these cases involved a s.66EA offence where there were 12 ingredient offences under s.66C(3) in circumstances where the ingredient offences themselves were representative counts. That feature alone confirms the limited utility in undertaking a close examination of the sentencing outcomes in these other cases.

19. [167]

    Rather, the assistance to be provided by the decisions of this Court in sentencing for s.66EA offences lies particularly with respect to consistency in the application of relevant legal principles and not some numerical or mathematical equivalence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [18]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40].

20. [168]

    Insofar as the Applicant seeks to rely upon sentencing decisions of this Court for s.66C(3) offences, as noted earlier, caution is required as the sentencing exercises in those cases involved the imposition of sentence for different offences with a different maximum penalty, albeit involving ingredient offences under s.66C(3) Crimes Act 1900. R v Boulad and Mokhaiber v R did not involve commission of offences by a person 27 years older than the victim where the offender had been in a familial relationship which gave him ongoing access to a vulnerable victim as in this case. The other s.66C(3) sentencing decisions merely reveal sentencing outcomes in the particular circumstances of the case which include significantly different features to those which apply to the present case.

21. [169]

    I do not consider that the Applicant is assisted to any real extent by comparison between the circumstances of his case and those of other sentencing decisions. The facts and circumstances of each case are different and there is no single correct sentence to be fixed in a particular case.

22. [170]

    In my view, the Applicant’s claim of manifest excess is best assessed by reference to the circumstances of the present case bearing in mind the features of the offence and other matters which bear upon the imposition of sentence for a s.66EA offence, including the principles emerging from cases such as R v Fitzgerald, R v Manners, Langbein v R and Mills v R.

23. [171]

    Reference was made earlier (at [106]) to factors which bore upon the objective seriousness of a s.66EA offence. The Crown pointed to the following features, which I accept as being of particular significance in considering the Applicant’s claim of manifest excess:

24. [172]

    In support of this ground, counsel for the Applicant repeated a submission he had made in the District Court that the offending did not occur against a background of physical violence or coercion (at [150] above).

25. [173]

    It will be recalled that the sentencing Judge considered a defence submission that none of the Applicant’s offending “involved physical coercion” (ROS26-27 at [76] above). His Honour stated that “there were times when the [Applicant] certainly acted within an atmosphere of at least verbal persistence if not coercion of that kind”. His Honour returned to “the coercion aspect” (ROS27-28 at [78] above).

26. [174]

    It is not an element of a s.66C(3) Crimes Act 1900 offence that sexual intercourse occurred without the consent of the victim. Accordingly, the absence of physical violence or coercion could not assist the Applicant by way of mitigation of sentence for a s.66EA offence where the ingredient offences were s.66C(3) offences. It would not assist the Applicant on sentence to point to the absence of a feature which, if present, would constitute a more serious offence: Vasilevski v R [2019] NSWCCA 277 at [161]. Having sexual intercourse without consent with a person under 16 years constituted the more serious aggravated sexual intercourse under s.61J Crimes Act 1900 punishable by a maximum penalty of imprisonment for 20 years.

27. [175]

    It is important to keep in mind the following statement of Basten JA in R v Nelson [2016] NSWCCA 130 at [23]:

28. [176]

    What Basten JA stated in this respect in R v Nelson is consistent with earlier statements of this Court in Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77], R v Woods (2009) 195 A Crim 173; [2009] NSWCCA 55 at [53] and Wakeling v R [2016] NSWCCA 33 at [46]-[48].

29. [177]

    The approach of the sentencing Judge in this case gave effect to what Basten JA said in R v Nelson concerning harm done to a child victim by unlawful sexual activity.

30. [178]

    His Honour had regard to the impact of the offending upon the victim (ROS19-20 at [68] above). The Applicant’s repeated criminal conduct over an extended period of time caused harm to the victim: s.3A(g) Crimes (Sentencing Procedure) Act 1999. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, this Court said at [110]:

31. [179]

    Having regard to the objective gravity of the s.66EA offence, the Applicant’s subjective circumstances and applicable sentencing principles, including the need for general deterrence, the Applicant has not demonstrated that the sentence imposed upon him was unreasonable or plainly unjust.

32. [180]

    I would reject this ground of appeal.

Conclusion and Orders

1. [181]

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

2. [182]

   I propose the following orders:

3. [183]

   ROTHMAN J: I agree with Johnson J.