GW v R

1. [1]

   HOEBEN CJ at CL: I agree with Fullerton J and the orders which she proposes.

2. [2]

   FULLERTON J: The applicant seeks leave pursuant s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an aggregate sentence imposed by Buscombe DCJ on 5 July 2017. The sole ground of appeal is the contention that the aggregate sentence is manifestly excessive.

The proceedings on sentence

1. [3]

   On 22 June 2017 the applicant confirmed pleas of guilty to 29 offences entered in the Local Court on 8 March 2017 as follows:

   1. (1)

      Seven counts of aggravated sexual intercourse with SK, being a child under the age of 16 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW);

   2. (2)

      Eight counts of aggravated indecent assault upon SK, being a child under the age of 16 years contrary to s 61M(1) of the Crimes Act;

   3. (3)

      Twelve counts of using SK, being a child under the age of 18 years, for pornographic purposes contrary to s 91G(1)(a) of the Crimes Act;

   4. (4)

      Two counts of possession of child abuse material contrary to s 91H(2) of the Crimes Act.

2. [4]

   In respect of one of the counts of aggravated sexual intercourse (Sequence 46 in the tabulated summary below), the Court was asked to take into account a further 26 offences on a Form 1, including:

   1. (1)

      One offence of possession of a prohibited weapon (laser pointer), contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW);

   2. (2)

      Three offences of possession of child abuse material, contrary to s 91H(2) of the Crimes Act;

   3. (3)

      Seventeen offences of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act (also committed against SK);

   4. (4)

      Five offences of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act (also committed against SK).

3. [5]

   The applicant was sentenced to an aggregate term of imprisonment of 18 years expiring on 14 April 2034, with a non-parole period of 13 years and 6 months. The earliest date on which the applicant may be released to parole is 14 October 2029.

4. [6]

   By reference to the sequence number of the charges, a summary of the facts relating to the offences to which the applicant entered a plea of guilty and upon which he was sentenced appears in the schedule below. The indicative sentence nominated by the sentencing judge, together with his Honour’s assessment of the objective seriousness of each offence, is indicated in the right hand column. I consider it unnecessary for the purposes of the appeal to refer to the facts underpinning the Form 1 offences. Suffice to say that they reflected additional serious offending (including sexual offending involving SK) which, in my view, well justified the sentence that was indicated for Sequence 46.

The facts for sentencing purposes

1. [7]

   Until the applicant’s arrest on 12 April 2016, the applicant had been in a de facto relation with MM which commenced in the year 2000. The applicant and MM have no children together. SK is the biological daughter of MM.

2. [8]

   SK was born in 1988. She was in the joint care of the applicant and MM from the commencement of the applicant’s relationship with MM until SK’s 18th birthday. Between the years 2000 and 2003 the applicant, together with SK and MM, resided at various locations in Inverell. Where they resided between 2003 and 2006 is not clear from the agreed facts.

3. [9]

   In December 2015 investigators associated with the Child Exploitation Internet Unit were notified by the Australian Federal Police that peer-to-peer transfer of child abuse material had been detected and that the internet protocol (IP) address of the parties to the transfer of the material had also been identified. Subsequent investigations revealed that the subject IP address was subscribed to the applicant at an address in Glen Innes.

4. [10]

   On 14 April 2016 a search warrant was executed at the applicant’s home in Glen Innes. MM was present during the search.

5. [11]

   During the search a small black portable hard drive which was connected to a personal computer was located and examined. It revealed child abuse material. The applicant was placed under arrest and conveyed to Glen Innes Police Station.

6. [12]

   The search continued, in the course of which a disc bearing SK’s first name was located. On review of its contents 701 images of the applicant engaged in sexual activity with SK were located, including images of the applicant performing cunnilingus and penetrative sexual acts upon her. Numerous imagines of SK’s breasts and vagina were also included.

7. [13]

   Evidence the subject of the offences comprising Sequences 13 to 57 was derived from the disc.

8. [14]

   In addition to the small black portable hard drive and the disc bearing SK’s name, police located an internal hard drive and three portable hard drives, each of which contained further child abuse material summarised as follows:

   1. (1)

      500GB Samsung external hard disk drive containing 1166 video files. A sample of 279 files revealed 4 files depicting children with no sexual activity, 1 file depicting non-penetrative sexual activity between children or solo masturbation by a child, 5 files depicting non-penetrative sexual activity between children and adults, and 16 files depicting penetrative sexual activity involving children, or both children and adults. The total videos containing child abuse material in the sample was 26, equating to 9.32 per cent of the sample. The number of files containing child abuse material on the device was estimated to range from 63 to 153 files.

   2. (2)

      Western Digital external hard disk drive containing 8617 video files. A sample of 28 videos revealed 1 file depicting a child with no sexual activity, 5 files depicting non-penetrative sexual activity between children or solo masturbation by a child, 3 files depicting non-penetrative sexual activity between children and adults, 9 files depicting penetrative sexual activity involving children or both children and adults, and 1 file depicting sadism or bestiality. The total videos containing child abuse material was 19, equating to 67.86 per cent of the sample. The number of files containing child abuse material on the device was estimated to range from 4088 to 7605.

   3. (3)

      2TB Seagate external hard disk drive containing 7339 video files. A sample of 153 files was examined. They revealed 3 files depicting children with no sexual activity, 2 files depicting non-penetrative sexual activity between children or solo masturbation by a child, 4 files depicting non-penetrative sexual activity between child and adults, 19 files depicting penetrative sexual activity involving children, or both children and adults, and 3 files depicting sadism or bestiality. The total videos containing child abuse material in the sample was 31, equating to 20.26 per cent of the sample. The number of files containing child abuse material on the exhibit was estimated to range from 891 to 2082.

   4. (4)

      2TB HP SimpleSave hard disk drive containing 7670 files. A sample of 316 files revealed 1 file depicting children with no sexual activity, 5 files depicting sexual activity between children and adults, 25 files depicting penetrative sexual activity involving children, or both children and adults, and 1 file depicting sadism or brutality. The total videos containing child abuse material in the sample was 32, equating to 10.13 per cent of the sample. The number of files containing child abuse material was estimated to range from 451 to 1101.

9. [15]

   Evidence the subject of Sequences 9, 10, 11 and 12 (Sequences 9 and 10 included on the Form 1) derived from SK’s statement to police of 9 June 2016.

The sentence proceedings

1. [16]

   The Crown tendered a set of agreed facts together with the applicant’s criminal and custodial history and a victim impact statement prepared by SK. At the time of writing the statement she was aged 29.

2. [17]

   The applicant relied upon a report of Laura Durkin, clinical and forensic psychologist, dated 11 June 2017. He did not give evidence on sentence.

Sentencing reasons

1. [18]

   In his Honour’s assessment of the objective seriousness of the seven counts of sexual intercourse with SK without her consent committed in circumstances of aggravation contrary to s 61J(1) of the Crimes Act, and the eight offences of aggravated indecent assault laid contrary to s 61M(1) of the Crimes Act, his Honour found that each involved a breach of trust since SK was effectively the applicant’s stepdaughter living in a domestic relationship with her mother.

2. [19]

   His Honour also noted that the sexual offending comprehended by those fifteen offences extended over a period of three years and nine months when SK was aged 12 to 16, with the last offence in time occurring when she was 16. His Honour described that course of conduct as “appalling sexual offending”, there being no basis to doubt that the applicant knew SK’s age at all relevant times. His Honour accepted that in the assessment of objective seriousness the nature of the act of intercourse particularised in respect of each of the s 61J offences was not determinative. Rather, it was the overall circumstances in which those offences were committed that must be considered when objective seriousness was being assessed, although it was generally accepted that offences involving penile penetration are more serious than other forms of intercourse.

3. [20]

   His Honour found that all offences were aggravated, not only because they involved a breach of trust but because they were all committed in the family home, a place where SK was entitled to feel safe.

4. [21]

   His Honour regarded the course of offending against SK as productive of an adverse impact likely to be with her for the entirety of her adult life. He found that as a result of the offending, SK had been robbed of much of her childhood by the applicant who his Honour described as a “manipulative sexual predator”.

5. [22]

   In assessing the objective seriousness of the applicant’s use of SK for pornographic purposes (respectively each of the 12 breaches of s 91G(1)(a) of the Crimes Act), his Honour noted SK’s age, the number of photographs taken, the images represented in the photographs and the applicant’s intention to share the images with others.

6. [23]

   These various factual findings were then applied in his Honour’s assessment of the objective seriousness of each of the 12 offences in respect of the position they occupied relative to a spectrum of offending comprehended by each of the four categories of offending as set out in the schedule at [6] above.

The applicant’s subjective circumstances

1. [24]

   His Honour addressed various features of the applicant’s subjective circumstances as follows:

2. [25]

   On the strength of Ms Durkin’s report, his Honour concluded that in the sentencing exercise considerable weight must be afforded to the need for the community to be protected from the risk of the applicant reoffending.

3. [26]

   In circumstances where the applicant’s offending proceeded over a period of three years and nine months, with the abuse of SK being serial throughout that period, his Honour considered that weight needed to be given to specific deterrence in the aggregate sentence to be imposed. He noted that general deterrence and denunciation are also recognised principles of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. [27]

   His Honour gave meaningful and due weight to each of the statutory sentencing principles in the following passage:

5. [28]

   In applying totality principles and the need, given the large number of offences, for a significant degree of accumulation, albeit modified to ensure against the imposition of a crushing sentence, whilst at the same time conscious of the need to impose an aggregate sentence reflective of the nature of the offending and its repetition over an extended period of time, his Honour imposed an aggregate sentence of 18 years imprisonment with a non-parole period of 13 years and 6 months. He declined to make a finding of special circumstances.

The sentence appeal

1. [29]

   The only challenge to the sentence is the contention that it is manifestly excessive.

2. [30]

   The applicant’s counsel submitted that the sentence is “extremely high” when regard is had to a number of indicators, including:

3. [31]

   This approach by counsel to making good the contention that the aggregate sentence was unreasonable or plainly unjust is flawed. This Court has repeatedly observed that the objective gravity of an offence is not assessed by the absence of features which would elevate the particular offending into a different category of seriousness. Insofar as (c) is concerned, were SK under the age of 10 years an offence pursuant to s 66A of the Crimes Act would have been charged attracting a maximum sentence of imprisonment for life and a standard non-parole period of 15 years.

4. [32]

   In Faehringer v R [2017] NSWCCA 248 at [49], Wilson J (with whom Macfarlan JA and Beech-Jones J agreed) said as follows:

5. [33]

   Her Honour’s remarks have direct application to this case, depriving the applicant’s submission of any weight. Her Honour continued:

6. [34]

   The same conclusion follows the applicant’s reliance on the absence of any infliction of violence and, by necessary extension, the fact that SK did not become pregnant after multiple occasions of penile penetration.

7. [35]

   The principles that are to be applied in determining whether a sentence is manifestly excessive are frequently restated by this Court, most recently in Hughes v R [2018] NSWCCA 2, where the Court (comprising Payne JA, RA Hulme and Garling JJ) referred to a line of seminal High Court authority, and another recent decision of this Court (comprising Bathurst CJ, Leeming JA, RA Hulme, Hamill, and N Adams JJ) in Obeid v R [2017] NSWCCA 221, which confirmed application of the same principles. In Hughes, five propositions were identified which must be confronted where a sentence is said to be manifestly excessive. At [86] Payne JA listed those factors as follows:

8. [36]

   Although this Court has recognised that an indicative sentence, whilst not itself amenable to appeal, may be an indicator of a manifestly excessive aggregate sentence, and although the applicant did submit that Sequence 46 was of that character, given that the indicative sentence comprehended the offences on the Form 1, an indicated sentence of 10 years, whilst severe, was not erroneously so.

9. [37]

   In further support of the applicant’s claim that the sentence imposed is manifestly excessive, the applicant seeks to rely upon the following:

   1. (1)

      The contention that JIRS sentencing statistics indicate that the sentence imposed “sits at the top 95% of total term of the s 61J aggregated offences and the non-parole period in the top 91% of the sample size of 155”;

   2. (2)

      That in two cases, being DG v R [2017] NSWCCA 139 and JL v R [2014] NSWCCA 130, each of which involved serious offences and higher maximum penalties, the same sentence resulted as that imposed on the applicant;

   3. (3)

      A schedule prepared by the Public Defender’s office, which is said by the applicant to reflect “many of the decisions in this area”.

10. [38]

    To the extent that the applicant invites a comparison between the aggregate sentence imposed on him with sentencing statistics which record effective sentences imposed for breaches of s 61J(1), that comparison is flawed. The aggregate sentence imposed in this case involves not only seven breaches of s 61J(1) but a multiplicity of other offending including, as I repeat for emphasis, eight breaches of s 61M(1), twelve breaches of s 91G(1)(a) and two breaches of s 91H(2), with an additional 26 offences on a Form 1, all of which, save for one offence, involves offending of a sexual nature, with some limited to possession of child pornography.

11. [39]

    Given the need for totality principles to be considered when an aggregate sentence is under challenge, as N Adams J observed in DV v R [2017] NSWCCA 276 at [277], the relevant JIRS statistics, which are confined to the principle offence for which a person has been sentenced, provide little assistance.

12. [40]

    In Krivosic v R [2017] NSWCCA 167, the use of undigested sentencing data was described by RA Hulme J in that case as unhelpful. The superficial comparison the applicant sought to make from the broad range of 100 case summaries in the Public Defender’s Schedule was similarly unhelpful and did nothing, in my view, to advance the applicant’s claim that the aggregate sentence imposed by the sentencing judge was unreasonably excessive or disproportionately severe relative to the range and number of offences comprehended by it.

13. [41]

    To the extent that it bears repetition, consistency in sentencing calls for consistency of the application of sentencing principle, not of numerical equivalence. Prior sentencing decisions may establish a range of sentences imposed for particular offending, without establishing that the range is correct, or the upper or lower limits of sentences that might be imposed within that notional range.

14. [42]

    The comparisons sought to be drawn between the sentence imposed in this case and the sentences imposed in the two cases nominated by the applicant as in some meaningful way comparable, do not, on even a cursory analysis, bear out that submission.

15. [43]

    In DG, the applicant pleaded guilty to three counts of aggravated indecent assault contrary to s 61M(1) and one count of aggravated sexual assault contrary to s 61J(1). There were two further counts of aggravated sexual intercourse with child between 14 and 16 on a Form 1. The applicant committed the sexual offences against his stepdaughter when she was between 11 and 16 years old. The applicant was sitting next to her watching television when he moved his hand up her leg and started rubbing her vagina on the outside (s 61M(1)). Almost two years later, the victim was lying on a mattress when the applicant lay down next to her and started rubbing her vagina on the outside of her clothing (s 61M(1)). He then removed his pants and the victim’s underwear and had penile/vagina intercourse for fifteen minutes until he ejaculated into his hand (Form 1). Two years later, the applicant took the victim to a motel and touched her all over her body (s 61M(1)) before having penile/vaginal intercourse with her for ten minutes throughout which she was crying and in pain (Form 1). A few months later the applicant pushed the victim onto her bed and had penile/vaginal intercourse with her while she screamed and kicked her legs to stop him (s 61J(1)).

16. [44]

    Allowing for a discount of 25 per cent for the plea, the applicant was sentenced at first instance to an aggregate term of 15 years with a non-parole period of 11 years. The applicant was 48 years of age at the time of sentence. The sentencing judge found the applicant had little insight into the seriousness of the offending and that his prospects of rehabilitation were no more than reasonable. The applicant suffered from a back problem and a major depressive disorder. On appeal this Court held that the sentencing judge had not given proper effect to his finding of special circumstances and the applicant was re-sentenced to give effect to that finding. A term of 15 years with a non-parole period of 10 years was imposed.

17. [45]

    In JL, the applicant pleaded guilty to 21 sexual offences (and seven further offences on a Form 1) against his daughter when she was aged between 7 and 11 years. The most serious offences were laid contrary to s 66A(2) of the Crimes Act, involving fellatio followed by penile/vaginal intercourse when the child was 9 years of age. Additionally, there were five offences of sexual intercourse with a child under the age of 10 years contrary to s 66A of the Crimes Act and one of attempting to commit that offence contrary to s 66B of the Act.

18. [46]

    There was little in JL’s subjective case, other than having been sexually abused as a child, which was relevant to sentence. It does however appear that there was some assistance given to the authorities. By comparison, the applicant’s subjective circumstances carried little, if any, mitigating weight and he had a record which disentitled him to leniency.

19. [47]

    JL was sentenced to an aggregate term of imprisonment of 18 years with a non-parole period of 13 years and 6 months. The appeal against the severity of the sentences was dismissed. McCallum J (Hoeben CJ at CL and Harrison J agreeing) noted (at [54]):

20. [48]

    Again as has been repeatedly emphasised by this Court, there will always be cases where an offender appears to have been dealt with more leniently than an applicant whose sentence is said to be excessive. Similarly, the Crown will also be able to find cases supporting the contrary proposition. That is not, however, the way in which this Court determines whether a sentence is manifestly excessive. A search for, and comparison with, sentences passed in other cases is rarely helpful and is, in any event, contrary to settled authority (see Vandeventer v R [2013] NSWCCA 33 at [45]).

Conclusion

1. [49]

   The applicant was sentenced in relation to 55 separate offences, the objective seriousness of many of them clearly warranting the indicative sentences his Honour imposed after discounting each of them by 25 per cent for the plea of guilty. The applicant’s subjective case did not carry any mitigatory weight, whilst the need for specific and general deterrence featured prominently.

2. [50]

   The principle of totality was recognised as obligating his Honour to moderate to a significant degree the aggregate sentence that would otherwise be imposed were there to be a graduated accumulation of sentences, with that approach balanced against the need for public confidence in the administration of justice being maintained to avoid any suggestion that a sentencing discount is a consequence of multiple offending. His Honour’s sentencing approach was sound and entirely consistent with sentencing principle.

3. [51]

   I am not persuaded that the aggregate sentence imposed, whilst stern, has been shown to be unreasonable or plainly unjust such as to warrant this Court’s intervention.

4. [52]

   The orders I propose are:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

5. [53]

   DAVIES J: I agree with Fullerton J.