GL v R

1. [1]

   BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Hamill J. I agree that each of grounds 1 to 6 fail, for the reasons given by his Honour. As to Ground 7, I am inclined to think that Parliament should not be considered to have intended by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (“the 2018 Amendment Act”) to repeal the retrospective application of the 8-year standard non-parole period to offences under s 61M committed before 2008 and reinstate the 5-year SNPP which applied before the commencement of the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) on 1 January 2008, [1] and that clause 91 of the transitional provisions (Schedule 2) of the Crimes (Sentencing Procedure) Act, introduced by the 2018 Amendment Act had that purpose and effect. If that view be correct, Ground 7 also would fail. However, as I entirely agree with his Honour that in any event no lesser sentence was warranted than that imposed by the sentencing judge, and that the appeal should be dismissed on that basis, it is unnecessary that I finally resolve this issue. In those circumstances, it is also unnecessary to resolve in this case the reservations I have elsewhere expressed as to the availability of an aggregate sentence for Commonwealth offences, such as the sentencing judge imposed in this case. [2]

2. [2]

   I agree with the orders proposed by Hamill J.

3. [3]

   GARLING J: I agree with the orders proposed by Hamill J and with his reasons.

4. [4]

   On the difficult question of statutory interpretation, I have concluded that the proper interpretation to be given to s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) is that which Hamill J sets out.

5. [5]

   For me it is clear, that the Parliament intentionally tempered the significant change made by that provision to the principles by which sentences for historic sexual offences were imposed, by, in s 25AA(2), excluding from the change to current sentencing practices, the standard non-parole periods which existed at the time of the offence. Section 25AA uses two distinct and different phrases: “at the time of sentencing” and “at the time of the offence” each of which refer to a particular point in time.

6. [6]

   There is no reason to interpret s 25AA(2) as identifying the standard non-parole period which was brought into existence at a later time even if the later amending provision had retrospective effect. That later amending provision, changing the standard non-parole period to eight years, had a retrospective effect but it did not amend the legislation which existed at the time of the offence. Rather it was a later amendment, which could only be applied after its introduction. But it could be applied, retrospectively, to offences committed before it took effect.

7. [7]

   As well, as Hamill J points out, the words of s 25AA as a later provision ought, if any doubt exists, prevail.

8. [8]

   I agree with Hamill J that, upon resentencing, no lesser sentence was warranted.

9. [9]

   HAMILL J: On 25 October 2019 the applicant, who will not be named to protect the identity of the child victim, was sentenced by Judge Priestley SC in relation to eight sexual offences committed against the same child over a period of four years. Some of those offences were committed overseas and caught by provisions of the Crimes Act 1914 (Cth) which have since been repealed. Others were charged under the Crimes Act 1900 (NSW). The applicant pleaded guilty to all of the offences and the facts were agreed between the parties. In addition to the agreed statement of facts, the Prosecutor tendered the applicant’s criminal history, a psychiatric report of Dr Jeremy O’Dea dated 12 September 2012 and the judgment of Judge Arnott SC who sentenced the applicant for multiple counts of possessing child abuse material discovered in February 2012 and one count of committing an act of indecency committed outside Australia, against the same child. The act of indecency dealt with by Judge Arnott occurred in the same timeframe as counts 4-8 of the present indictment. [3] The applicant also tendered a psychological report of Mr Luke Brabant dated 18 June 2019.

10. [10]

    Judge Priestley imposed a fixed aggregate term of 2½ years for the state offences (counts 1-3) commencing on 25 October 2019 and expiring on 24 April 2022 and an aggregate term of 6½ years with a non-parole period of 2½ years for the Commonwealth offences (counts 4-8), to commence at the expiration of the sentence for the state offences. This resulted in a total effective sentence of 9 years’ imprisonment with an effective non-parole period of 5 years. The non-parole period will expire on 24 October 2024.

11. [11]

    The applicant advances seven grounds of appeal:

12. [12]

    Ground 7 was added at the hearing of the appeal.

The background and facts of the offending

1. [13]

   The victim of the offences was the applicant’s nephew. The agreed facts included a history of visits between the parties when the victim’s family lived in various locations overseas. The history included several incidents of a sexualised nature which were not charged but were included to place the charged offending in context. The history included instances of kissing, inappropriate touching, cuddling, play “wrestling”, showering and filming the child in various states of undress. There were also strange and inappropriate comments of a “romantic” nature directed to the child in the years leading up to the charged offences. This background of “grooming” was documented in letters and captured in home movies made by the applicant over the years. The applicant also showed the victim pornographic videos including some extreme clips in which children were sexually penetrated by adults, and others depicting bestiality and sexual violence directed to children.

2. [14]

   There were three periods of charged offending. These coincided with times of extended visits between the families when the victim was under the applicant’s care. The relevant periods were:

   1. (1)

      Count 1, committed between 9 July 2006 and 6 August 2006, occurred when the victim and his family visited Australia and stayed with the applicant in the Blue Mountains.

   2. (2)

      Counts 2 and 3, committed between about 10 July 2007 and 7 August 2007, were committed when the applicant and the victim’s family were visiting the home of the child’s grandparents (and the applicant’s parents) on the Northern Beaches of Sydney.

   3. (3)

      Counts 4-8, committed between about 18 December 2009 and about 18 February 2010, occurred when the applicant visited the victim’s family in the United States.

3. [15]

   The first three counts were aggravated by the fact that the applicant was in a position of authority in respect of the victim.

4. [16]

   The counts on the indictment were as follows:

5. [17]

   Count 1 occurred when the child was 7 years old. The applicant snuck into his bedroom at night and touched and kissed him using his tongue. He also showed the child pornographic images.

6. [18]

   Count 2 involved the applicant kissing the child with an open mouth and embracing him on a beach near the family home in the Northern Beaches. Count 3 comprised of the applicant showering naked with the child and fondling his genitals at the same family home.

7. [19]

   Count 4 involved the applicant groping the child’s genitals while carrying him around “like an aeroplane”. There was video taken of this incident.

8. [20]

   Count 5 involved the applicant instructing the child to fellate him whilst they were showering together and the child licking the applicant’s erect penis.

9. [21]

   Count 6 and 7 involved the applicant masturbating himself whilst watching pornography in the presence of the child. During this incident, the applicant asked the child to cut his forearm with a knife, after which he ejaculated.

10. [22]

    Count 8 involved the applicant cutting the child with a knife whilst they were showering together after he declined to do it to himself.

11. [23]

    The applicant was aged between 41 and 46 at the time of the offending. The victim, who is the son of the applicant’s sister, was aged between 7 and 11 during the period of offending.

Application for leave to file out of time

1. [24]

   The applicant requires leave pursuant to r 3.5(5) of the Supreme Court Criminal Appeal Rules 2021 (NSW). The initial notice of intention to appeal expired in September 2020, having already been the subject of a 3-month extension granted by the Registrar. The present notice of appeal was filed 12 months later in September 2021.

2. [25]

   The applicant relied on a document styled “Annexure B to Notice of Appeal – Application for Leave to File a Notice of Appeal After Expiry of the Filing Period”. This detailed some Covid-19 and other issues said to explain or justify the delay. The respondent argued that the applicant’s solicitors continually neglected opportunities to request further extensions of time and that the interests of justice do not favour a grant of leave in all the circumstances. [4]

3. [26]

   The fate of the application for an extension of time must be considered in the light of the merit of the proposed appeal against the sentence. Accordingly, it is necessary to consider the grounds of appeal raised by the applicant and the questions raised by s 6(3) of the Criminal Appeal Act 1912 (NSW) before determining the application.

Subjective case of the applicant

1. [27]

   The applicant did not give evidence at the sentencing hearing. Judge Priestley relied on the histories provided to experts engaged for the purposes of sentencing for these offences and the offences prosecuted in 2012. There were some inconsistencies in those histories which were contained in the reports of Dr O’Dea dated 12 September 2012 and Mr Luke Brabant dated 18 June 2019. Mr Brabant was cross-examined by the Prosecutor.

2. [28]

   The applicant’s criminal history was limited to the 2012 offences which included possession of child pornography and an offence of committing an act of indecency upon the same child. The applicant served 12 months in custody for those offences and was released to parole on 27 October 2013. He had committed no offences since his release.

3. [29]

   The applicant was 55 years old at the time of sentence. He described close family relationships in his formative years and a “safe” and “secure” upbringing on Sydney’s Northern Beaches. He reported some incidents of bullying in his school years and a sexual assault by a stranger when he was 15 years old, [5] although the latter had not been previously disclosed in earlier psychological assessments. [6] He said he had some other negative experiences as he attempted to cope with the demands of tertiary education. He took up various types of employment before completing his qualifications and embarking on a career as a music teacher in his thirties. He reported an incident of violence perpetrated on him by a student which resulted in some post traumatic style symptoms. Issues at a later workplace, a music conservatorium, led to the applicant working odd jobs for a year before returning to live with his parents in 2010.

4. [30]

   The applicant acknowledged long-standing homosexual paedophilic urges and the use of pornography to satisfy those urges. He indicated he had sought psychological intervention for his deviant sexual interests and anxiety problems during his twenties with limited success. He reported more successful therapeutic results prior to the sentencing for 2012 offences.

Judgment or remarks on sentence

1. [31]

   The sentencing Judge held that the offending was “considered” and was part of a “sustained pattern” of offending. [7] His Honour had regard to the family context in which the offending occurred and took the view that this supported the imposition of a significant sentence. [8] General deterrence, denunciation and punishment were prominent considerations. [9] His Honour did not accept the opinion of the psychologist that the applicant demonstrated “sound insight” into his offending behaviours. [10] The sentencing Judge noted that there was “[no] persuasive, if any, evidence of remorse.” [11]

2. [32]

   In terms of his assessment of the objective seriousness of the offending of the individual offences, the sentencing Judge found that:

3. [33]

   His Honour considered the question of whether there were “special circumstances” for the purposes of sentencing for the state offences. [13] However, because of the structure of the sentence – whereby the Commonwealth sentences were accumulated on those imposed for the state offences – there was no non-parole period set for the state offences. His Honour said he fixed the non-parole period by reference to relevant factors such as the prospect of some additional difficulties in prison given the nature of the offending, some self-reported social deficits, his ageing father for whom he had been the sole carer prior to entering custody and the applicant’s need for an extended period of treatment on parole. [14]

4. [34]

   Judge Priestley found the absence of offending since 2012 to be promising and lent some support to the applicant’s claims that he had rehabilitated in terms of his impulse control. These factors grounded an assessment that the applicant’s risk of reoffending was minimal. [15] However, his Honour took the view that the lack of reoffending did not outweigh the other purposes of sentencing and that a significant sentence was warranted.

Ground 1: His Honour erred in considering the conduct the subject of count 4 as an aggravating factor

1. [35]

   Count 4 encompassed behaviour that occurred regularly throughout the relevant period. It involved the applicant picking up the child and pretending to “carr[y] him around like an aeroplane” while holding his crotch. [16] One incident of this nature was captured on video and was the subject of count 4. The applicant submits that the following remarks reveal error which infected his Honour’s evaluation of the objective seriousness of this offence:

2. [36]

   Judge Priestley nominated an indicative sentence of 18 months for count 4, noting “the complete betrayal of what should have been innocent fun”. [18]

3. [37]

   The applicant’s written submissions argued that the innocent origins of the activity were used as a circumstance of aggravation for the offence. [19] A secondary point made on oral hearing of the appeal was that the conduct was opportunistic and the fact that the activity had “gone obviously in a way it shouldn’t have” should not be an aggravating feature. [20]

4. [38]

   The respondent submitted that the findings as to the nature and offensiveness of the conduct were open to the Judge and appropriately informed the determination of objective seriousness for this offence. The respondent did not concede that the Judge explicitly or implicitly held that this aspect of the facts was used as an aggravating feature of the offending and even if it did, no error of principle was established. The respondent also relied upon the Court’s hesitation to “set aside the judgment made by a first instance judge exercising a broadly based discretion”. [21] The respondent also challenged the applicant’s secondary point, noting the applicant had set up a video camera immediately prior to the incident which indicated some planning. [22]

5. [39]

   There is no substance to ground 1. The Judge’s description of the offending, whilst discursive and somewhat anecdotal, was accurate and did not purport to elevate the criminality by using the means by which the applicant breached his nephew’s trust as an aggravating feature of the offence. The breach of trust was clearly a matter that informed the objective seriousness and his Honour recognised this in assessing the gravity of the offending. The fact that similar activity happened on other occasions goes a long way to defeat the submission that the groping of the child during the aeroplane game was somehow spontaneous.

6. [40]

   I would reject ground 1.

Ground 2: His Honour erred when he considered the applicant’s failure to confess to police on 7 February 2012 as a lack of remorse or insight

1. [41]

   The applicant submitted under his second ground of appeal that the sentencing Judge’s erroneous reference to false statements made by the applicant during “an interview” on 7 February 2012, which were in fact made during the execution of a search warrant, indicated that irrelevant considerations were taken into account in assessing the applicant’s level of remorse.

2. [42]

   The comments made by the applicant to police on that occasion are set out at [73] of the agreed facts on sentence, and those relevant under this ground were as follows:

3. [43]

   Judge Priestley addressed these comments in his sentencing judgment as follows:

4. [44]

   The applicant submitted on the hearing of the appeal that comments displaying a lack of insight or remorse in February 2012 had limited relevance or significance to an assessment of the applicant’s remorse in 2019 for a separate set of offences. [24]

5. [45]

   The respondent submitted that the passages relied upon by the applicant “do not involve a finding of the kind now complained of.” [25] The respondent contended the applicant’s previous comments, no matter the circumstances in which they were made, were relevant in assessing his more recent comments to a psychologist and the finding as to the applicant’s limited insight were open on the available evidence.

6. [46]

   The applicant’s construction of the passage in relation to which complaint is made is not correct. While the applicant sought to contend that the treatment of the comments unduly aggravated the sentence, the applicant could not identify where or how this was done. [26] In reality, and reading the judgment as a whole, there was no aggravation of the sentence based on the applicant’s “failure to confess” and the earlier obfuscation had some relevance to an assessment of the applicant’s asserted contrition. The remarks merely placed in context the applicant’s more recent expressions of remorse by reference to demonstrably untrue statements he made in 2012 regarding the nature of his relationship with the same child. As the respondent correctly pointed out, the evidence of the applicant’s remorse came in the form of the plea of guilty and his responses to a psychologist when the applicant said he pleaded guilty so as not to put the family through a trial. [27]

7. [47]

   Whilst avoiding the need for victims and witnesses to give evidence is relevant to a consideration of remorse, [28] a guilty plea can sometimes be “equivocal” in terms of remorse. This was made clear by Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309:

8. [48]

   The sentencing Judge had regard to the applicant’s lack of offending since 2012, and found that his engagement in targeted treatment before and after his release for those offences demonstrated some insight, [30] before concluding that that the case establishing genuine remorse was unpersuasive. While his Honour could have taken a more generous approach to the issue, the finding was one of fact and not one with which this Court will interfere lightly. The factual findings as to the applicant’s remorse, and the significance of the applicant’s earlier statements minimising the sexual nature of his relationship with the victim, were matters for the sentencing Judge to evaluate. His Honour’s factual findings were open on the evidence.

9. [49]

   I would reject ground 2.

Ground 3: His Honour erred in finding that the offending was to be characterised as “calculated premeditation”

1. [50]

   In respect of all of the counts, the sentencing Judge said:

2. [51]

   The applicant submitted under ground 3 that the finding of premeditation was not available or open on the evidence. He argued that the offending is correctly characterized as opportunistic, as all incidents occurred during family visits and windows of opportunity which were not planned by the applicant or arranged for nefarious purposes. In support of these submissions the applicant pointed to Judge Priestley’s other remarks where his Honour said he had “no confidence that if the same opportunity presented itself to the offender, further offending would not occur”. [32] The applicant contended this is contradictory to a finding that the offending displayed “calculated premeditation”.

3. [52]

   The respondent relied upon the steps taken by the applicant to conceal the offending and “the fact they represented a sustained course of conduct” over a long period of time and the evidence of grooming as properly grounding his Honour’s finding of calculated premeditation. [33]

4. [53]

   The respondent’s submissions must be accepted. The impugned finding was based on a substantial body of evidence, none of which was disputed, that proved the history of the applicant grooming the child. The agreed facts showed that the applicant engaged in various activities including filming the victim, creating innocuous code words for sexual activity, bribes of lollies offered to entice the child into engaging in sexual acts and correspondence sent to the victim which included declarations of love and statements like “soon we will be together again.” [34] The applicant also admonished the victim not to disclose the abuse.

5. [54]

   This history of grooming and sexualised behaviour was sufficient to allow the sentencing Judge to conclude that the conduct was not spontaneous but involved a degree of premeditation. There was also evidence in the agreed facts indicating that the applicant showed pornography to the victim on many occasions and made statements calculated to normalise the conduct depicted in the videos. He said things like “this is what normal people do” and “take things from it and learn”. [35] These factual allegations were inconsistent with a finding that the charged acts were committed spontaneously or opportunistically.

6. [55]

   Additionally, the applicant’s argument creates a false and unrealistic dichotomy between the opportunism inherent in the individual offences and the premeditation demonstrated by the course of conduct. The finding that his Honour could not be satisfied the applicant would not seize the same opportunity if it arose in the future cannot sensibly be read as a finding that the offending was entirely opportunistic.

7. [56]

   As with the assertions made under ground 2, the question for this Court is whether Judge Priestley’s characterisation of the offences was open on the evidence. [36] Plainly, it was.

8. [57]

   I would also reject this ground of appeal.

Ground 4: His Honour erred in assessing the objective seriousness for count 3 as “well into the midrange”

1. [58]

   Count 3 was an incident where the applicant fondled the eight-year-old child’s penis in the shower while masturbating himself. The applicant made comments about the nature of the love between them “greater than anyone [could] understand” and that the victim was making him “feel really good”. [37]

2. [59]

   The applicant argued the following passage of the judgment revealed error:

3. [60]

   The applicant’s complaint under this ground appears to be that the impact on the victim was implicitly used as a “circumstance of aggravation” and that this was improper given the impacts were not beyond that which would ordinarily result from such an offence. [39] Pressed to identify where in the judgment the sentencing Judge gave unwarranted weight to the impact on the victim, the applicant identified a passage later in the sentencing remarks:

4. [61]

   It was submitted that the use of the adjective “devastating” to describe the impact on the victim suggests that the Judge took the view that the impact on the victim was given “greater weight than that presumed”, [41] and that his Honour (erroneously) approached the exercise on the basis that s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was engaged.

5. [62]

   The respondent again submitted that findings as to objective seriousness remain “classically within the role of the sentencing judge” [42] and that, in this particular case, the impugned remark regarding the psychological impact was made to qualify the earlier comment regarding the significance of the absence of violence in the course of the offending. [43]

6. [63]

   In my assessment, this is the first of the applicant’s grounds of appeal that has any real substance. The language employed by his Honour was strong and capable of different interpretations.

7. [64]

   The correct approach to the application of the aggravating feature in s 21A(2)(g) was explained by Hidden J in R v Youkhana [2004] NSWCCA 412 at [26]:

8. [65]

   Reading the sentencing judgment as a whole, I am unable to conclude that Judge Priestley found the harm to the victim in this case to be extraordinary or beyond that which would ordinarily result from such serious offending. The sentencing exercise was complicated and difficult, and I would not presume that his Honour took the impact on the victim into account as an aggravating feature under s 21A(2)(g). His Honour was required to take the impact on the victim into account as part of the complex factual matrix established on the evidence. The victim provided a detailed victim impact statement and this was given appropriate weight in determining the objective seriousness of count 3.

9. [66]

   Contrary to the arguments advanced by the applicant, Judge Priestley said:

10. [67]

    A description such as “devastating” is apt to describe the ordinary impacts of offending of this nature and the use of such strong language does not, by itself, establish that the Judge fell into the kind of error discussed by this court in cases such as R v Berg [2004] NSWCCA 300; (2004) 41 MVR 399, Doolan v R [2006] NSWCCA 29; (2006) 160 A Crim R 54, R v Cunningham [2006] NSWCCA 176, RP v R [2013] NSWCCA 192; (2013) 234 A Crim R 272 and RL v R [2015] NSWCCA 106.

11. [68]

    The assertion made under this ground is not established on a fair reading of his Honour’s judgment. I find it unnecessary to address the applicant’s further, and rather ambitious, argument that the harm described by the victim was too “remote” to be considered to be “caused” by the offending.

12. [69]

    Accordingly, I would also dismiss ground 4.

Ground 5: His Honour erred in his reasons for finding that wholly concurrent sentences were not appropriate for the three discrete periods of offending

1. [70]

   In written submissions in support of ground 5, the applicant argued:

2. [71]

   The applicant withdrew count 1 from the consideration of this ground at the hearing of the appeal. It was accepted that it occurred at a different time and place to counts 2 and 3 and that some (notional) accumulation was justified.

3. [72]

   Judge Priestley rejected the suggestion that the sentences imposed for the counts which occurred in the same time period should be wholly concurrent, finding that the sentence for one could not “reflect the total criminality of the other offences”. He then said:

4. [73]

   The applicant challenged two factual aspects of this passage of the sentencing judgment. The first challenge was to the finding that the offending was “ongoing over a four-year period” and the second was that the Judge improperly ruled out the possibility that each count could have occurred closer in time to the other. The applicant complains such an approach cannot be supported in the context of an indictment which did not include specific dates for the different charged acts, but was based on a range of dates reflecting the “windows of opportunity” (family visits) in which they occurred.

5. [74]

   The respondent accepted that counts 6 and 7 occurred during the same incident, but otherwise submitted all the counts were separate episodes of offending and accordingly wholly concurrent sentences were not appropriate.

6. [75]

   While the prosecution could not particularise specific dates for the individual offending, the agreed facts indicated that counts 2 and 3 arose from different occasions within the same holiday period. The facts also established that count 4 occurred outdoors (as depicted in the video), which distinguished it in time and place from counts 6 and 7 which occurred sequentially “on an afternoon after school during this period” [47] in the child’s bedroom.

7. [76]

   In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour indicated the following sentences for each of the New South Wales offences:

8. [77]

   Judge Priestley then imposed an aggregate sentence (fixed term) for the state offences:

9. [78]

   The total aggregate fixed term sentence for all three of the state offences (2½ years) was the same as that indicated for the most serious of them, that is count 3 (2½ years). While these figures were reached by the calculations and somewhat unusual process revealed in the last paragraph, they demonstrate a substantial degree of notional concurrency between the sentences imposed for each count.

10. [79]

    I note in passing that no complaint (or ground of appeal) was directed to the fact that the Judge applied the discount for the guilty plea to the total sentence, rather than to the individual indicative terms: contra PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 at [72]-[92] (Button and N Adams JJ, Basten JA dissenting); Elsaj v R [2017] NSWCCA 124 at [56] (Hoeben CJ at CL, Bathurst CJ and McCallum J (as her Honour then was) agreeing); Glare v R [2015] NSWCCA 194 at [12] (Hamill J, Leeming JA and Fagan J agreeing); Abousleiman v R [2021] NSWCCA 110 at [7] (Hamill J, Davies and Wilson JJ relevantly agreeing).

11. [80]

    His Honour went on to indicate the following notional sentences for the Commonwealth offences:

12. [81]

    His Honour explicitly referred to the principle of totality in reaching his conclusion on the appropriate aggregate term:

13. [82]

    The aggregate sentence for the Commonwealth offences was set to commence upon the expiry of the fixed term imposed for the state offences. Referring to both aggregate terms imposed, his Honour noted:

14. [83]

    There is “no general rule that determines whether sentences ought to be imposed concurrently or consecutively”. [53] Sentencing judges are entrusted with a wide discretion in determining degrees of concurrency and accumulation when sentencing for multiple offences. [54] The discretion is constrained by the proper application of the principle of totality. The difficulties for this Court in analysing or disturbing such discretionary judgments are more pronounced in cases involving aggregate sentences where the mathematical analysis is “notional” only. [55]

15. [84]

    Judge Priestley considered the interplay of the separate statutory regimes and the aggregate sentences imposed for the state and Commonwealth offences. His Honour adjusted the commencement dates and proportion between “head sentences” and non-parole periods in order to give effect to his finding as to the totality of the criminality disclosed. Putting to one side that this was the exercise of a discretionary judgment, there was an appropriate degree of notional concurrency between the counts. This is particularly so bearing in mind the sentences indicated for each count and, apart from counts 6 and 7, the distinct and separate acts of criminality encompassed by the individual charges.

16. [85]

    It is, with respect, wrong in this case to suggest that the sentence imposed for any of the individual charges was sufficient to encompass the criminality disclosed in the other charges for which the applicant stood to be sentenced.

17. [86]

    I do not accept the arguments in support of ground 5 and would reject that ground of appeal.

Ground 6: His Honour erred by drawing inferences as of the nature and seriousness of the charge and whether this might be the reason for the late guilty plea

1. [87]

   Under ground 6, the applicant argued that the 20% discount applied for the applicant’s guilty plea was improperly reduced from the full discount available (25%), based on irrelevant considerations beyond the applicant’s control, namely the timing of the prosecution’s withdrawal of the most serious charge. The following reproduces the entirety of the applicant’s written submissions under this ground:

2. [88]

   In terms of the guilty plea, his Honour remarked:

3. [89]

   Counsel for the applicant conceded that no evidence was tendered at the sentencing hearing which illuminated the circumstances in which the plea was entered or which was capable of establishing that the plea was entered at the earliest available opportunity. [57] However, because the Director of Public Prosecutions is responsible for charge negotiations and the withdrawal of the charges, it was put that the Judge should have inferred that the delay in entering the plea was not the fault of the applicant, and accordingly the “full” discount should have been applied. [58]

4. [90]

   The respondent submitted there was no evidence of any offer to plead guilty which could have been put before the Court, in compliance with the Director’s obligations. [59] The respondent argued that the passage quoted above reflected the sentencing Judge’s attempt to balance the various considerations relevant to an assessment of the timeliness and utility of the applicant’s plea. The respondent cited authority for the proposition that the value of the plea is informed by a range of considerations and that the utilitarian value was a matter for the sentencing Judge. [60] Despite the limited material before Judge Priestley, the respondent submitted that the discount given, in circumstances where the trial was set to proceed in one week, was generous.

5. [91]

   The present case was not caught by more recent legislative enactments which provide prescriptive guidance concerning the appropriate “discount” for the utilitarian value of a plea of guilty. [61] In relation to the state offences, the case was governed by the common law, and in particular the guideline judgment on pleas of guilty: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. The situation with the Commonwealth offences was more complicated for the reasons set out in this Court’s decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. Those cases do not support the propositions advanced by the applicant. In R v Thomson, Spigelman CJ said:

6. [92]

   In cases where an offender has made an offer to plead guilty at an early stage, but the entry of the plea is delayed because the Prosecutor declines to accept the offer or where a verdict vindicates the position taken by the offender, it has been held that the offender should not be disadvantaged and should receive the full benefit of their offer to plead guilty to an appropriate charge: see, for example, Regina v Oinonen [1999] NSWCCA 310 and R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535.

7. [93]

   The extent of the discount to be afforded to an offender on account of the utilitarian value of the plea is not prescribed by any of the cases to which I have referred. While a reduction of 25% is sometimes referred to as the “full benefit” of the plea (or other similar phrases), the extent of the discount is a matter within the discretion of the sentencing Judge.

8. [94]

   Here, the sentencing Judge was aware that the case had already been listed for trial on one occasion and adjourned on the Prosecutor’s application. His Honour also knew that a more serious charge was discontinued by the Prosecutor and that the pleas of guilty were entered thereafter. Objectively, the plea was entered very late. The Judge was not provided with any information as to the negotiations between the parties, any early offer on the part of the applicant to plead guilty to the charges for which he was ultimately sentenced, or the circumstances in which a more serious charge was discontinued. At the appeal hearing, counsel for the applicant (who also appeared in the District Court) was asked about the absence of evidence concerning the circumstances and background to the plea. His responses were somewhat opaque, and I infer deliberately so for ethical reasons. For example, the following exchange occurred:

9. [95]

   No evidence was placed before this Court to explain the course of the negotiations, the explanation for the timing of the plea, or if (and when) the applicant indicated a willingness to plead guilty to relevant charges. While there may have been a satisfactory explanation for the delay in entering the plea or indication of a willingness to do so, and good reasons for this, the sentencing Judge made no error in the absence of further evidence. On its face, the plea of guilty came very late but possessed significant utilitarian value because witnesses were not required to travel from overseas. It would not have been a long or complicated trial. In the circumstances presented to the sentencing Judge, 20% was an appropriate reduction.

10. [96]

    Based on the evidence before the District Court, a discount of 20% for the plea of guilty was within the Judge’s discretion. This ground must also be dismissed.

Ground 7: That his Honour erroneously took into account, in respect of counts 2 and 3, a standard non-parole period that was not applicable to the offences.

1. [97]

   The seventh ground of appeal was not raised in advance of the hearing of the appeal. During oral submissions, the presiding Judge raised an issue as to the appropriate standard non-parole period (“SNPP”) applicable to counts 2 and 3. [63] At that stage, counsel for the applicant sought leave to rely on an additional ground and to file written submissions in support of that ground. Orders were made for the filing of further submissions by both parties.

2. [98]

   In written submissions before the sentencing Judge, counsel for the applicant indicated that the SNPP for an offence under s 61M(2) (counts 2 and 3) was 8 years. [64] The Prosecutor made a similar submission at the oral hearing in the context of “correcting” an error in a table of comparable cases:

3. [99]

   The issue is complicated by various legislative amendments since the introduction of the standard non-parole period for offences under s 61M of the Crimes Act. In the exchange of written submissions after the hearing, the parties disagreed as to the standard non-parole period. Contrary to his submissions at first instance, counsel for the applicant submitted the applicable SNPP was 5 years. The Prosecutor maintained that the SNPP was 8 years. The confusion is understandable considering the history of the applicable legislation and the amendments made over time.

4. [100]

   Section 61M(2) was introduced into the Crimes Act on 17 March 1991 and carried a maximum penalty of ten years’ imprisonment. [66] At that stage there was no SNPP.

5. [101]

   Standard non-parole periods were introduced into the Crimes (Sentencing Procedure) Act (“CSPA”) on 1 February 2003. [67] The table in Part 4, Division 1A stipulated a SNPP of 5 years for an offence under s 61M(2).

6. [102]

   The offences in counts 2 and 3 were committed between 10 July 2007 and 7 August 2007. At the time of the commission of these offences, the SNPP was 5 years.

7. [103]

   The applicable SNPP was increased to 8 years by the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) (“the 2007 Amendment Act”) on 1 January 2008. [68] The increase in the SNPP was expressed to have retrospective operation by reference to another provision inserted into the CSPA by the 2007 Amendment Act: [69]

8. [104]

   The parties agreed that the increase to the standard non-parole period (from 5 to 8 years), introduced by the 2007 Amendment Act, had retrospective operation. That joint position is consistent with this Court’s decision in GSH v R; R v GSH [2009] NSWCCA 214 at [46].

9. [105]

   The applicant was arrested on 29 March 2017, committed for trial on 7 November 2017, and entered his pleas of guilty on 25 February 2019. He was sentenced on 25 October 2019.

10. [106]

    By the time of the plea and sentencing hearing, s 25AA of the CSPA had come into operation. Section 25AA was introduced by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (“the 2018 Amendment Act”) [70] and came into effect on 1 December 2018. It provides:

11. [107]

    However, the parties disagreed as to the operation of s 25AA and the effect of the 2018 Amendment Act. The applicant relied on the seemingly plain terms of subs 25AA(2) which provides the SNPP is that which “applied at the time of the offence, not at the time of sentencing”. The respondent pointed to clause 91 of the transitional provisions of the CSPA (Schedule 2) [71] which is in the following terms:

12. [108]

    Section 25AA abolished the longstanding practice of applying the sentencing practices and patterns at the time of offending. [72] However, in doing so it tempered the effect of the amendment by (i) making the applicable SNPP the one that existed at the time of the offence (not the time of sentence) [73] and (ii) preserving the operation of s 19 of the CSPA (restricting the retrospective operation of increases in maximum penalties). [74] Clause 91 operates to preserve the SNPP for an offence (s 61M) that was repealed and reformulated elsewhere in the amending Act. [75] It is difficult to reconcile those two provisions, but it is more appropriate to apply the clear words to be found in one of the critical provisions of the amending legislation (s 25AA), rather than to apply a clause of the transitional provisions.

13. [109]

    This approach applies the plain language of s 25AA while also giving voice to the principle that, in the absence of clear statutory language, the construction of penal statutes should favour the liberty of the subject. [76] Of course, this latter principle of statutory interpretation has developed into one of last resort over time. [77] Finally, as the applicant submitted, the application of the two amendment acts lead to different conclusions and the fact that s 25AA was enacted later in time means it should prevail. [78]

14. [110]

    Accordingly, the SNPP for counts 2 and 3 was 5 years. It is clear from the sentencing judgment that the sentencing Judge, acting on the submissions of counsel on both sides, proceeded on the basis that counts 2 and 3 were subject to a SNPP of 8 years for those counts.

15. [111]

    This was not a case like Tomlinson v R [2022] NSWCCA 16 or Nguyen v R [2019] NSWCCA 131 where the sentencing Judge applied a SNPP in circumstances where there was no SNPP applicable to the offence at all. However, the use of a SNPP of 8 years on counts 2 and 3 was a material error that had the capacity to affect the sentencing outcome: cf Ragg v R [2022] NSWCCA 150.

16. [112]

    For those reasons, leave to add ground 7 should be granted and the ground must be upheld.

Re-sentencing and application of s 6(3) of the Criminal Appeal Act 1912

1. [113]

   For the foregoing reasons, I would reject the six grounds of appeal raised by the applicant in advance of the hearing. I would grant leave to add the seventh ground and uphold the ground.

2. [114]

   However, the fact that the sentencing Judge was provided with, and applied, the wrong SNPP does not have the automatic consequence that the appeal should be allowed. The Court must exercise the sentencing discretion afresh and do so without regard to the sentence imposed in the Court below. [79] If the same or a greater sentence would result, the appeal must be dismissed. The Court’s power to quash the sentence and pass another sentence will only be exercised if it reaches the opinion that a less severe sentence is warranted.

3. [115]

   The offending in the present case was extremely serious. It involved a lengthy course of conduct and an egregious breach of trust of both the applicant’s nephew and the applicant’s own immediate family.

4. [116]

   Like the sentencing Judge, I do not accept that the offences can be described as opportunistic or spontaneous. That description is contrary to a four-year pattern of abuse that occurred in various locations and was accompanied by inappropriate and ostensibly romantic communications calculated to manipulate the child. This is not to punish the applicant for criminal or sexually inappropriate behaviour that was not charged but to emphasise that the charged offences were far from isolated and to put in context unrealistic submissions made on the applicant’s behalf both at first instance and on appeal. This approach is consistent with authority. In Ragg v R, Beech-Jones CJ at CL, by reference to the judgments in the case of LN v R [2020] NSWCCA 131, analysed the way in which such a pattern of offending may be taken into account in sentencing:

5. [117]

   In the applicant’s case, the history of the relationship could fulfill all of the four non-exhaustive list of “exceptions” identified in LN and set out by Beech-Jones CJ at CL in Ragg v R at [41]. In view of the submissions that the offences were opportunistic, the history was especially relevant to the applicant’s state of mind in the present case.

6. [118]

   I assess the case as one warranting a total effective sentence (for both the state and Commonwealth offences) at least as severe as that imposed by the sentencing Judge, and perhaps more severe. It is generally inappropriate to nominate the sentence that the individual members of this Court (or the Court collectively) would have imposed where a severity appeal is to be dismissed. There is a succinct discussion of the authorities in RO v R [2019] NSWCCA 183 at [84]-[89] (Beech-Jones J, as his Honour then was) and [118]-[120] (N Adams J). I can see no reason in this appeal to depart from this approach.

7. [119]

   I would only observe that the offences in counts 7 and 8 were, by themselves, worthy of condign punishment approaching the length of the sentence imposed for all of the offences. The description of count 7 in the statement of agreed facts included:

8. [120]

   Count 8 was described as follows:

9. [121]

   Each of these offences carried a maximum penalty of 12 years’ imprisonment. They were committed at a time when the applicant was visiting his sister and her husband in the United States “to assist them in looking after their children whilst sold their home”. [80] The victim was about 10 years of age. The indicative sentences of 2½ years and 2 years respectively were extremely lenient, albeit within a discretionary range once principles of totality are applied and the offender’s subjective circumstances – especially his lack of a substantial criminal record – are given appropriate weight. All I will say is that I would have indicated more substantial sentences for the offences involving cutting. Of course, the appeal is against the aggregate sentence, not the indicative sentences. Even so, I would not have imposed a shorter sentence for the federal offences than the 6½ year sentence comprised of a 2½ year non-parole period followed by 4 years on parole.

10. [122]

    Similarly, exercising the sentencing discretion afresh in respect of the state offences, I would not have indicated a shorter sentence for any of those offences and would probably have allowed for a greater amount of “notional” accumulation.

11. [123]

    I may have structured the sentences differently and would have applied the discount for the plea of guilty to the individual sentences.

12. [124]

    But when all matters are taken into account, I would have imposed a total sentence at least as long as the effective 9 years with a non-parole period of 5 years.

Conclusion and orders

1. [125]

   Most of the grounds argued in this case had little merit. The ground I would have upheld arose in the course of the argument and, it seems, made little difference to the sentencing outcome. Since the applicant was not personally responsible for the delay and non-compliance with the terms of the notice of intention to appeal and I would uphold one of the grounds of appeal (albeit the one added with the leave of the Court and raised by the bench at the hearing), I would allow the applicant an extension of time and grant leave to appeal. However, no different, less severe sentence was warranted and the appeal must be dismissed.

2. [126]

   I would make the following orders:

   1. (1)

      Extend time in which to seek leave to appeal.

   2. (2)

      Grant leave to appeal against the sentence.

   3. (3)

      Appeal dismissed.