Younan v R

1. [1]

   HAMILL J: I agree with Lonergan J.

2. [2]

   LONERGAN J: The applicant seeks leave to appeal against the sentence imposed upon him in the District Court Sydney on 18 August 2022 in respect of seventeen counts of sexual offending committed by him against a child in his care on various occasions in the second half of 2019. Also taken into account were twelve offences set out on Form 1 certificates that occurred in the same period, involving the same child, of a similar nature to the other offending.

3. [3]

   The sentencing judge, Shead SC DCJ, imposed an aggregate term of imprisonment of 6 years and 6 months, with a non-parole period of 4 years and 3 months.

4. [4]

   The applicant was arrested on 11 December 2019. He pleaded guilty in the Local Court on 27 August 2020 to Counts 1 to 5, but not guilty to the remaining counts. Those remaining twelve counts were committed for trial with a pre-recorded hearing of the complainant’s evidence listed for 18 February 2021, however the applicant served an offer to plead guilty to the remaining counts on 1 February 2021 and the hearing was vacated.

5. [5]

   The sentencing proceedings took place over four separate dates, the last date being 21 July 2022. Her Honour’s comprehensive sentencing remarks were delivered on 18 August 2022.

6. [6]

   The offences, corresponding maximum penalties, the relevant discount in recognition of the guilty pleas and their timing, the sentencing judge’s findings of objective seriousness and the indicative sentences specified by her Honour are set out in the following table:

7. [7]

   The offences taken into account on Form 1 certificates were as follows:

8. [8]

   I agree with and adopt the observations of Beech-Jones CJ at CL in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 (“DPP v TH”) at [23] regarding the role of Form 1 offences in the sentencing exercise:

9. [9]

   These observations are consistent with the approach the sentencing judge took to this issue:

The facts of the offending

1. [10]

   The facts of the offences were the subject of a Statement of Agreed Facts and were set out in the sentencing judge’s remarks as follows:

2. [11]

   The circumstances of the investigation and comments the offender made to investigating police were also set out in the Statement of Agreed Facts and recited relevantly by the sentencing judge as follows:

3. [12]

   The comments made by the applicant to police set out at [95] of her Honour’s remarks on sentence are important because they indicate an understanding that he needed to “cover his tracks” regarding his offending conduct and to attempt to manufacture innocent explanations for his conduct, in particular statements 1 to 3, 5 to 7, 10 to 11 and 21 to 23.

4. [13]

   Her Honour concluded that whilst VL had some muscular issues in her legs and lower back that required massaging, she was:

5. [14]

   Her Honour also concluded the “massage” technique was a “ruse” to have VL undress, so that the applicant could access her body and “habituate her to what the offender knew was entirely inappropriate sexual contact by him” [1] . Her Honour concluded that there was pre-planning in the purchase of massage oil [2] and callous manipulation in telling VL that what he was doing was assisting her to perform well playing tennis. [3]

6. [15]

   The victim impact statement was referred to as a demonstration of the devastating effect of the sexual abuse upon VL.

Findings on the subjective case

1. [16]

   Her Honour then addressed the applicant’s subjective case. The applicant was born in Lebanon and is the seventh of eight children. He came to Australia with his family at approximately five years of age and settled in Lindfield. He learned to play tennis as a child. He was not an especially successful tennis player; he became a coach and worked in that capacity for 47 years. Dr Nielssen, Psychiatrist, interviewed the applicant in March 2021 and assessed him as around the bottom of normal range of intelligence.

2. [17]

   Reference was made to the various character references tendered that focussed on the referees’ opinions of his character and skill as a tennis coach. A number of the references pre-dated the offending by some years.

3. [18]

   Her Honour dealt in extensive and appropriate detail with the evidence regarding the applicant’s physical and mental health. Suggestions in the evidence that he may have suffered a “behaviour change” after a heart attack in 2018 were canvassed, as was an incident in March 2021 where he was assessed at Royal North Shore Hospital after an illness.

4. [19]

   Dr Nielssen had examined various medical records and evaluated a possible brain injury from hypoxia associated with a 2018 heart attack, a non-specific childhood illness, a fall in 2005, and an assault in custody in December 2019.

5. [20]

   Under the heading “Mental Health”, her Honour analysed Dr Nielssen’s assessments and conclusions set out in his reports, followed by an outline of the effect of answers given by him in cross-examination that to an extent modified some of his opinions. Dr Nielssen agreed that the applicant’s presentation (on his review of him in March 2021) could well be the product of “emerging dementia”. Some factors, including the applicant’s participation in a clinical trial, could be consistent with no impairment of cognitive function. The applicant’s presentation was consistent with very insidious onset of Alzheimer’s dementia over “some years”. Dr Nielssen maintained the view it was “quite probable” that the offender suffered a hypoxic brain injury at the time of his cardiac arrest in 2018.

6. [21]

   Her Honour noted the effect of Dr Nielssen’s evidence as follows:

7. [22]

   Having then noted the evidence, submissions and principles relevant to moral culpability, her Honour carefully evaluated the combination of expert and other evidence in reaching her conclusions as to the applicant’s moral culpability for the offending, and the relevant role and weighting of specific and general deterrence:

8. [23]

   These paragraphs comprise a series of nuanced and subtle findings with evidence-based and transparent reasoning. A key finding by her Honour is contained in [231]. Whatever his presentation approximately 18 months after the offending when Dr Nielssen assessed the applicant, her Honour concluded that at the time the applicant offended, and shortly after when he was interviewed by police, he told focussed lies, all of which demonstrated that he knew what he had done to VL was wrong.

This appeal

1. [24]

   The applicant appeals his sentence on two grounds:

   1. (1)

      Her Honour erred in finding that the need for specific deterrence was not reduced as it was not open to make such a finding by reasons of her Honour’s related findings and the preponderance of evidence on the issue.

   2. (2)

      The aggregate sentence imposed upon the applicant is manifestly excessive, both with respect to the minimum and maximum terms.

Ground 1: Her Honour erred in finding that the need for specific deterrence was not reduced as it was not open to make such a finding by reason of her Honour's related findings and the preponderance of evidence bearing on the issue.

1. [25]

   On the question of the proper approach to sentencing offenders where they have a mental illness or intellectual disability, the following elucidation by Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114 at [33] to [34] of the principles set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) by McCellan CJ at CL at [177], is instructive:

2. [26]

   In relation to the role of specific deterrence in child sexual assault cases, Johnson J in AK v R [2016] NSWCCA 238 noted the following:

3. [27]

   The applicant’s position was that it was “simply not open” to the sentencing judge to find that the need for specific deterrence was not reduced, given the “related findings on the issue” and the “preponderance of evidence”. The “related findings” were identified as her Honour’s conclusion that the 2018 brain injury/dementia had a causative role in the offending “to a degree”, that his moral culpability was “somewhat reduced”, as was the need to denounce his offending, and that he was not an appropriate vehicle for the “full expression of general deterrence”. (My emphasis).

4. [28]

   It was submitted that the assault in custody in December 2019 would function as a “considerable specific deterrent”, although no evidence was cited as to why this was so, or whether the applicant understood it was “retribution for the offending”, as counsel for the applicant on this appeal submitted it was.

5. [29]

   It was argued that her Honour’s finding that the applicant was unlikely to reoffend was inconsistent with her finding at [234] that the offender’s mental health condition does not reduce the need for specific deterrence.

6. [30]

   The Crown submitted that general deterrence and specific deterrence are not shackled, as demonstrated by the distinct treatment of them in De La Rosa. They are separate moving parts of the instinctive synthesis process, and different concerns and considerations affect each.

7. [31]

   The sentencing judge did not reject the argument that mental impairment had a role in the offending, acknowledging that the applicant’s judgment and reason were impaired “to a degree, and so his moral culpability was somewhat reduced”: [222]. There is no presumption that an offender’s mental illness has a particular consequence in sentencing. It was within the sentencing judge’s discretion to assess how the applicant’s mental health condition related to each of the principles in De La Rosa and it was open for her to arrive at different findings for each.

8. [32]

   Clear reasons were given as to why and how her Honour treated the distinct roles of specific and general deterrence and it was open to her Honour to deal with those distinct aspects in the way that she did. The need for specific deterrence was not reduced given the “persistent, repeated and lengthy duration of the offending”.

9. [33]

   The assault in custody was ventilated at the sentence hearing and was characterised as extra-curial punishment, not as a matter relevant to specific deterrence.

10. [34]

    There is no obligation to make a reduction in sentence on the basis that the role of specific deterrence is less important, where as here, the evidence demonstrates that the offender clearly knew at the time of his offending that what he did was wrong. This was demonstrated by his calculated lies to police, as well as the lies he told to VL to secure her compliance. There is no evidence that suggests that he is now unable to understand that fact, or that he now, due to a mental condition or deterioration, cannot understand his sentence or cannot understand that he is being punished by the Court for his offending, or cannot understand that he must be deterred from that offending.

11. [35]

    The sentencing judge thoroughly examined the expert evidence and evaluated what it demonstrated about the applicant in the context of the offending. Her consideration of each aspect was transparent and consistent with principle.

12. [36]

    I am not persuaded by the applicant’s submissions. As the Crown correctly submitted, general and specific deterrence are not shackled. Her Honour’s conclusions regarding specific deterrence were open to her on the evidence and there was no error.

13. [37]

    Ground 1 must be rejected.

Ground 2: The aggregate sentence imposed is manifestly excessive, both with respect to the minimum and maximum terms

1. [38]

   This Court may only intervene where there has been some misapplication of principle, even if its precise manifestation cannot be identified or determined: House v King (1936) 55 CLR 499; [1936] HCA 40.

2. [39]

   As stated by Hamill J in Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [82]:

3. [40]

   I reject the submission that the sentence was manifestly excessive. A 71-year-old man repeatedly sexually abused an 11 to 12-year-old child in his care over a period of six months. He used his authority and access to her, in the context of trips away from her home for a sport she loved, in his sole care, and in a position of trust, to lie to her and manipulate her to accept what he was doing to her body was appropriate and “good for her tennis game”. These assaults were repeated, involved skin to skin contact with his mouth, hands and penis, and were sought for his sexual gratification.

4. [41]

   There were seventeen separate sexual offences on the indictment to which the applicant pleaded guilty as well as twelve others taken into account on Form 1 certificates. As observed by the sentencing judge, all offences contrary to s 66DB of the Crimes Act 1900 (NSW) are inherently serious. There were calculated lies and planning involved, sending the other children away, telling VL’s mother he was in fact massaging her for sports injuries, and lying to VL about why he was doing what he did. The applicant told VL that he would stop his tennis coaching of her if she did not cooperate with his demands. He tricked her into thinking her masturbating his penis was a “groin massage”. She was too young, vulnerable and inexperienced to understand the betrayal of her trust, although she knows that now, as set out in her victim impact statement. This was serious offending.

5. [42]

   Her Honour made an appropriate finding of special circumstances given the applicant’s mental health, consistent with principle 3 of De La Rosa extracted at [25] above. Neither the minimum nor maximum term is manifestly excessive.

6. [43]

   This ground should also be dismissed.

Conclusion and proposed orders:

1. [44]

   I would grant leave to appeal but dismiss the appeal.

2. [45]

   IERACE J: I agree with Lonergan J that the grounds are without merit and concur with the orders she has proposed.