Grange v R

1. [1]

   BEECH-JONES CJ at CL: This is an application for leave to appeal against an aggregate sentence of 30 years imprisonment with a non-parole period of 20 years and 6 months imposed for 26 sexual offences under the Crimes Act 1900 (NSW) (the “State Offences”), 25 of which were committed against three very young girls. The applicant also seeks leave to appeal against an aggregate sentence imposed for four offences under the Criminal Code (Cth) (the “Commonwealth Offences”).

2. [2]

   The offending, the sentences, the reasons of the sentencing judge and the grounds of appeal are set out in the judgment of Fagan J. His Honour concludes that the aggregate sentence imposed for the State Offences is manifestly excessive because the sentencing judge supposedly attributed the occasioning of harm to the victims without evidentiary support and, as a result, inflated the objective gravity of the offences (see [149]). His Honour rejects the balance of the grounds of appeal including those that concern the aggregate sentence for the Commonwealth offences.

3. [3]

   To the extent that Fagan J rejects the applicant’s grounds of appeal then I agree with his Honour. However, I do not accept the sentencing judge attributed harm to the victims from the offences or that any such finding affected, much less “inflated”, her Honour’s assessment of the objective seriousness of the offences. I also do not accept that the aggregate sentence was manifestly excessive.

4. [4]

   The applicant’s crimes were discovered following the execution by the Australian Federal Police (“AFP”) of a search warrant at the applicant’s home in which electronic devices were seized containing a large amount of downloaded child pornography. This led to the applicant being charged with the Commonwealth offences. He pleaded guilty to those offences and was sentenced to an aggregate sentence of 4 years and 6 months with a non-parole period of 3 years and 4 months. The electronic devices seized by the AFP also revealed the applicant had filmed his sexual assaults of the three victims. The particular offences and the depraved nature of his conduct are described in detail by Fagan J. The following brief summary has been included to explain my reasons.

5. [5]

   As noted, there were three child victims of 26 of the 26 State Offences, HS, JJ and NG. (The other offence was possessing child abuse material contrary to s 91H(2) of the Crimes Act. The child abuse material did not relate to any of HS, JJ or NG.)

6. [6]

   HS is the applicant’s niece. She was aged between three and five years of age during the period of offending. The offences involving HS were committed during her visits to the applicant’s home which took place sometimes with her parents and sometime without them being present. On those occasions when HS’s parents were not present, the sentencing judge described her as being “in the care of the offender and his wife”.

7. [7]

   HS was the victim of 21 of the State Offences. This comprised 12 offences of aggravated indecent assault contrary to 61M(2), an offence of having sexual intercourse with a child under the age of 10 years contrary to s 66A and seven offences of using a child under the age of 14 years to produce child abuse material contrary to 91G(1)(a). Another 13 charges under s 91G(1)(a) were taken into account on a notice filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (i.e., a “Form 1”). The offences under s 91G(1)(a) involved the applicant recording his sex assaults upon HS. Save for the s 66A offence, these offences involved the indecent touching of HS for the purpose of exposing her genitals, anus or both while the applicant filmed her. The offence under s 66A and the related offence under s91G(1)(a) involved the applicant filming himself digitally penetrating HS.

8. [8]

   JJ was between one and two years of age during the period of offending. According to the sentencing judge, JJ’s father was a “close personal friend” of the applicant. The offences occurred during a visit the applicant’s home. JJ was the victim of two offences, being an aggravated indecent assault contrary to s 61M(2) of the Crimes Act and a related offence under s 91G(1)(a) of the Crimes Act. These offences involved the applicant filming JJ’s genitals including his touching them.

9. [9]

   NG was around eight weeks old at the time of the commission of the offences against her. Her mother was friends with the applicant’s wife. NG’s mother took her to the applicant’s home on a social visit. The applicant offended against NG while his wife and NG’s mother went outside to the veranda for 10 minutes. [1] During that time the applicant committed two offences against NG being an offence of having sexual intercourse with a child under the age of 10 years contrary to s 66A of the Crimes Act and an offence under s91G(1)(a) of the Crimes Act. The offence under s 91G(1)(a) involved the applicant recording the sexual assault he committed against NG. The facts of that offence are especially confronting. In summary, the applicant filmed NG sucking on his penis and him ejaculating into her mouth.

10. [10]

    One feature of the offending said to be of present relevance is the alleged lack of “awareness” of each of the victims to the applicant’s offences at the time they were committed. The sentencing judge noted that HS was interviewed by police in October 2019 when she was almost five years old. HS “had no knowledge of the offences and no knowledge of being the subject of video recordings”. [2] In the case of JJ and NG, it appears to have been assumed, or at least asserted on behalf of the applicant, that they lacked awareness at the time of the offending because of their young age.

11. [11]

    In cases such as this where the victims are so young and there is no positive evidence that they have (yet) suffered psychological harm, there is a large question as to whether a sentencing judge can nevertheless infer that such harm will, or is likely to, manifest itself. However, given the approach of the sentencing judge, that need not be addressed in this case. One approach that is open to be adopted by sentencing judges is that stated by Spigelman CJ in DBW v R [2007] NSWCCA 236 at [40] (“DBW”) namely proceeding on the basis that there is a “substantial risk of emotional harm” arising from the offender’s conduct.

12. [12]

    That the sentencing judge proceeded in a manner consistent with DBW is evident from the following passage from her Honour’s sentencing judgment which concerns NG. It is one of four passages from the sentencing judgement that Fagan J bases the conclusion that her Honour attributed harm to the victims without evidentiary support:

13. [13]

    In this part of the sentencing judgment, her Honour did not make any positive finding that NG suffered harm. Instead, her Honour simply rejected a submission that the NG had not suffered harm. Given the tender age of the victim, the nature of the acts and the fact that understandings of the effect of sexual assault upon children of different ages have evolved and will continue to evolve over time, her Honour was, with respect, correct to reject the submission. As noted by her Honour, in the future NG may become “aware” of the offending against her. Leaving aside any discussion of how such trauma might manifest itself, a matter more appropriate for psychological evidence, NG’s parents and the parents of the other victims are likely to face excruciating decisions about whether and when to disclose the fact of, and the nature of the offending, to their daughters. In the case of HS this may occur as she grows up and makes inquiries about the whereabouts of her uncle, the applicant.

14. [14]

    The balance of the above extract from the sentencing judgement confirms that, in assessing the objective seriousness of the offence under s 66A committed against NG, her Honour did not take into account any finding that the victim suffered harm. Instead, her Honour’s assessment that the objective seriousness was “in the high range” was based on NG’s very tender age and vulnerability, the depraved nature of the applicant’s acts and the breach of trust that was involved in the offending.

15. [15]

    Prior to any allowance for the applicant’s plea of guilty, the indicative sentence for the offence under s 66A committed against NG was 28 years imprisonment. The maximum penalty for the offence was life imprisonment. Given the sentencing judge’s finding of objective seriousness, and the balance of the findings concerning the applicant’s subjective case that are summarised by Fagan J, that level of penalty was a stern one but was nevertheless well within the range.

16. [16]

    Another passage in the sentencing judge’s reasons said to record a finding by the sentencing judge that each of the victims has suffered harm as a result of the offences committed against them is the following: [3]

17. [17]

    This passage does not contain any express or implied finding that harm was occasioned to the victims of the applicant’s offences. Instead, consistent with the heading to this passage, her Honour (correctly) explained the approach of sentencing courts to these offences, namely the attaching of “great importance” to general deterrence, and that rationale for that approach namely the putative effect of such offences, specifically the catastrophic consequences for victims generally. However, in this passage, her Honour did not address the particular position of these victims and whether they suffered harm.

18. [18]

    Another passage from the sentencing judgment said to record an erroneous attribution of harm to the victims is the following: [4]

19. [19]

    This passage was set out at the end of the sentencing judgment under the heading “Standard non parole period”. In that section of the judgment, her Honour addressed the significance of such periods to the sentencing process. Prior to this part of the sentencing judgment, her Honour addressed the facts and circumstance of each of the offences including their objective seriousness. In this passage her Honour does not attribute or impute harm to any of the victims. Instead, her Honour simply discusses the rationale for the setting of such a long standard non-parole period for offences under s 61M(2) (8 years) relative to the maximum sentence (10 years).

20. [20]

    The remaining passage(s) said to disclose error on the part of the sentencing judge is exemplified by the following extract which concerns her Honour’s assessment of the objective seriousness of an aggravated indecent assault committed against HS: [5]

21. [21]

    This passage does not contain any finding that HS has suffered harm. Moreover there is no error in the emphasised passage. If her Honour had found that HS was asleep when she was sexually assaulted then that would mean that HS was especially vulnerable at the time of the offending. If her Honour had found that HS was awake during the sexual assaults then, given that she was aged between three and five years at time of the offending, that would increase the likelihood of HS being traumatised either then, now or at some point in the future.

22. [22]

    Otherwise, I note that the balance of her Honour’s reasons meticulously address the objective seriousness of each offence and does so in terms that did not involve the making of a positive finding of harm in relation to any of the victims.

23. [23]

    There remains to consider the overall complaint of manifest excess in relation to the aggregate sentence. Appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Instead it is only warranted “where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons” (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; at [58]).

24. [24]

    In Lee v R [2020] NSWCCA 244 at [32] (Payne JA and Fagan J agreeing), I stated the following in relation to appellant review of an aggregate sentence on the ground of manifest excess:

25. [25]

    To this I would add the important statement by R A Hulme J in Aryal v R [2021] NSWCCA 2 (at [50]) (“Aryal”) that, at least where totality considerations are said to bear upon whether a sentence is manifestly excessive, then “rather than making an assumption that the indicative sentences are correct, and then endeavouring to assess the extent by which there has been some notional accumulation, the critical question is … ‘whether the aggregate sentence reflects the total criminality involved’”.

26. [26]

    The following table sets out the sentencing judge’s findings of objective seriousness and the relevant discounted and undiscounted sentences that were indicated for each offence pursuant to s 53A(2)(b) of the Sentencing Act:

27. [27]

    The above principles indicate the relevance of an inquiry into the length of the indicative sentences to a determination of whether an aggregate sentence is manifestly excessive. The indicative sentence for the offence under s 66A in relation to NG has already been addressed. After allowance for the applicant’s plea of guilty, that sentence was 21 years imprisonment.

28. [28]

    For the remainder of the State Offences, then, subject to two matters of possible exception, I do not accept that a comparison between the indicative sentence, the corresponding finding of objective seriousness and the underlying facts of the offence, while having regard to the findings concerning the applicant’s subjective case, yields a conclusuon that the indicative sentences are erroneous or manifestly excessive, although they are stern.

29. [29]

    The first matter of possible exception is that, with some of the offences under s 61M(2), it can be seen that the offences were found to be in the mid-range of objective seriousness but the undiscounted head sentence in some cases was 7 or 8 years imprisonment (or slightly more) compared with a maximum sentence of 10 years imprisonment. While in other contexts that might be indicative of at latent error, this approach is explicable by reference to the high standard non-parole period that is prescribed for such offences.

30. [30]

    Second, I accept that the undiscounted indicative sentence of 6 years for sequence 9, being an offence under s 61O(2) of the Crimes Act is too high given that the maximum sentence was 7 years imprisonment and the finding of objective seriousness was “in the mid-range”. Nevertheless, I do not consider that this conclusion in turn warrants a finding that the aggregate sentence was manifestly excessive. As noted, ultimately the critical question is whether the aggregate sentence imposed reflects the total criminality involved (Aryal at [50]). In this case, the answer to that question is “yes”.

31. [31]

    I propose the following orders:

32. [32]

    BELLEW J: I have had the advantage reading, in draft, the judgments of Beech-Jones CJ at CL and Fagan J. Those judgments comprehensively set out the facts and circumstances of the applicant's offending. Any further observation by me as to those matters would be superfluous.

33. [33]

    Two issues have arisen for consideration, namely whether the sentencing judge:

34. [34]

    As to the first of those matters, I have carefully read the comprehensive reasons of the sentencing judge. In doing so, I have had particular regard to those passages identified in the judgments of Beech-Jones CJ at CL and Fagan J which are said to contain the impugned finding(s) regarding the harm done to the victims. Having done so, I am not persuaded that her Honour fell into error. On a fair reading, the passages in question incorporate:

35. [35]

    I am unable to identify any finding made by the the sentencing judge that any victim was harmed.

36. [36]

    I am also unpersuaded that the sentence imposed is manifestly excessive or, in other words, unreasonable or plainly unjust. The objective seriousness of the applicant's offending is self-evident. Her Honour was correct to emphasise the need for general deterrence. Moreover, in relative terms, the applicant's subjective case was limited. Whilst the sentence imposed could properly be regarded as stern, that is entirely unsurprising in the circumstances. There is an important distinction to be drawn between a stern sentence, and one that is outside of the range of the proper exercise of the sentencing discretion, and thus manifestly excessive. I am not persuaded that the sentence falls into the latter category.

37. [37]

    I agree with the orders proposed by Beech-Jones CJ at CL.

38. [38]

    FAGAN J: Bryan Michael Grange seeks leave to appeal against an aggregate term of imprisonment to which he was sentenced on 8 July 2021 by her Honour Judge Shead SC in the District Court.

39. [39]

    The applicant pleaded guilty to 25 charges under the Crimes Act 1900 (NSW), alleging sexual offences committed against three very young victims, as follows:

    1. (1)

       With respect to HS, a female infant who was aged 3-5 years during the period of the offending, he pleaded guilty to twelve charges under s 61M(2) (aggravated indecent assault), one under s 61O(2) (inciting an act of indecency), one under s 66A (sexual intercourse by digital penetration) and seven under s 91G(1)(a) (using the victim to produce child abuse material) with 13 more s 91G(1)(a) offences taken into account on Form 1 schedules. The offences involved indecent touching of the child for the purpose of exposing her genitals and/or anus and at the same time filming those private parts.

    2. (2)

       With respect to JJ, a female infant aged between one and two years, the applicant pleaded guilty to one count of aggravated indecent assault (s 61M(2)) and one count of using the victim to produce child abuse material (s 91G(1)(a)). Again, in the commission of these offences the applicant touched and positioned the child to film her genitals.

    3. (3)

       With respect to NG, a female baby 8 weeks old, there was one count of sexual intercourse (s 66A). This was the single most heinous offence, by a significant margin, involving penile penetration of the baby’s mouth. The applicant also pleaded guilty to an associated offence of video recording this act, contrary to s 91G(1)(a).

    4. (4)

       The applicant pleaded guilty to one count of possessing child abuse material, contrary to s 91H(2) of the Crimes Act. The subject matter of this offence was distinct from the video recordings of the three victims. It comprised discs on each of which there was recorded a video, of about one hour’s duration, depicting prepubescent children.

40. [40]

    The applicant also pleaded guilty to 4 charges laid under the Criminal Code (Cth) of possession of a very large volume of child abuse material, unrelated to the three victims of the State offences, and of using a carriage service to gain access to and to transmit such material.

41. [41]

    For the State offences the applicant was sentenced to 30 years imprisonment, commencing on 1 October 2019, with a non-parole period of 20 years and 6 months expiring on 31 March 2040. For the Commonwealth offences an aggregate head sentence of 4 years and 6 months imprisonment was imposed, commencing on 30 November 2038, with a non-parole period of 3 years and 4 months. The non-parole period for the Commonwealth offences is partly concurrent with that for the State matters and has an expiry date of 30 March 2042, constituting an accumulation of 2 years on the non-parole period of the State sentence. In combination, the applicant is subject to an effective head sentence of 30 years imprisonment with an effective non-parole period of 22 years and 6 months, being 75% of the head sentence.

42. [42]

    The grounds of appeal are as follows:

43. [43]

    These grounds concern only two subjects. Ground 5 relates to an aspect of the applicant’s subjective case. Grounds 1-4 are subsidiary to the question of manifest excess raised by ground 6. Her Honour’s indicative sentences are not separately appellable, with the consequence that grounds 2 and 4 must be rejected: Rae v R [2013] NSWCCA 9 at [32]-[34]; JM v R [2014] NSWCCA 297 at [40]. Nevertheless, as ground 6 alleges manifest excessiveness of an aggregate sentence for a large number of counts, the issue can only sensibly be determined by first examining whether all or some of the indicative sentences are excessive and then considering whether the degree of accumulation or concurrence that is implicit in the aggregate has resulted in a sentence that is excessive for the offending taken as a whole.

44. [44]

    The six appeal grounds are not directed to the separate aggregate sentence that was imposed for the Criminal Code (Cth) charges. If the Court should find error affecting the sentence for the State matters and if it should be necessary to re-sentence for those offences, the commencement date of the Commonwealth sentence would have to be varied. The Court is not asked to vary the Commonwealth sentence in any other respect. There is therefore no need to recite in these reasons the facts underlying the Commonwealth charges.

45. [45]

    Her Honour’s remarks on sentence extend over 136 pages. They are impressively thorough and considered. The remarks include detailed summaries of the facts of each act perpetrated against the respective victims. Although each event took place in the absence of any witness, precisely what occurred was proved by contemporaneous video recordings that the applicant himself made and that are the subject of paired charges under s 91G(1)(a). Her Honour’s remarks also include a careful charge-by-charge analysis of those features of each instance of offending that, in her Honour’s view, contributed to objective seriousness. The applicant does not challenge those assessments so far as they concern the nature and circumstances of his conduct and so far as they resulted in her Honour’s placement of the conduct in each matter on a notional scale, using terms such as “mid-range”, “above mid-range” and so on.

46. [46]

    In submissions addressed to grounds 1-4, the applicant has sought to demonstrate manifest excess of the indicative sentences for the State offences on the basis that they reflect an unjustifiable conclusion that the offences caused substantial emotional harm to each of the three victims. It is submitted that the learned judge arrived at the indicative sentences and adopted an aggregate on the basis that a high degree of psychological damage to victims is “singular”, or universal, in all child sex offending and that her Honour failed to recognise the absence of evidence of such harm in the very unusual circumstances of this case.

The central issue of substantial harm to the victims

1. [47]

   Counsel for the applicant submitted in the sentence proceedings that no substantial harm, either physical or psychological, had been occasioned to any of the three victims. In accordance with the authorities discussed later in these reasons, that submission required consideration of whether causation of substantial harm had been established beyond reasonable doubt, as a factor aggravating the objective seriousness of the offending: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour did not make such a finding but sentenced the applicant on the basis of a universal proposition that a high level of emotional and psychological harm is sustained by child victims of sexual offending.

2. [48]

   At [256] of her remarks on sentence the learned judge said this:

3. [49]

   Given the very young age of the victims at the time of sentencing, the circumstances of the case enlivened an issue as to whether they would suffer, or would be likely to suffer, psychological harm in the future. That may be regarded as a potential aggravating factor distinct from causation of substantial harm that may have already emerged at the time of sentencing, which is the subject of s 21A(2)(g). Again, her Honour did not address this question of likelihood of future harm as a factual issue to be resolved on evidence and information before her but treated it as determined on principle.

4. [50]

   The applicant’s counsel submits that “injury to the child and the effect of the abuse upon them are vital aspects in relation to the objective criminality [and] are not singular in the assessment of criminality”. In relation to the victim HS, counsel submits that “the character of the assaults was of short duration and not appreciated by the victim” and that the video recording of those assaults had “no apparent effect on the victim”. Her Honour accepted that in a police interview of HS it was established that she “had no knowledge of the offences and no knowledge of being the subject of video recordings”. Her lack of awareness is likely attributable to her very young age (under 3 years) at the time of the earliest offences and/or the relative subtlety of the applicant’s actions, which at least in several cases could have been mistaken by the child for ordinary incidents of her everyday physical care by an adult. HS’s lack of awareness of the four indecent assaults committed when she was more than 3 years old and of the sole instance of sexual intercourse (digital penetration) would likely be attributable to her having been asleep on each of those occasions.

5. [51]

   In relation to JJ, it is similarly submitted that “there is no evidence of any physical harm to the child or that the child was even conscious of the behaviour of the applicant”. JJ’s lack of awareness may be attributed to her having been only 1-2 years old when the offences against her were committed. Also, the one instance of sexual touching of JJ took place in the course of assisting her with toileting and for that reason may not have been perceived by the child as sexual or otherwise wrongful.

6. [52]

   NG was only eight weeks old when the very grave sexual assault was committed against her and was video recorded. There was no evidence in the sentence proceedings from which it could be concluded that the child was conscious of the sexual abuse or would have suffered a subliminal adverse effect upon her mind.

7. [53]

   Determination of this application demands of the Court more than the usual measure of restraint and detachment. The applicant’s sexual misconduct with three infants naturally provokes abhorrence – in the minds of judges, as it would in the minds of members of the general public. A sentence apt to give effect to strong community sentiment of disgust is in order. However, the revulsion naturally felt with respect to crimes of this general type must be restrained in order to permit sober evaluation of the relative gravity of the applicant’s specific conduct, with particular attention to whether the young victims actually suffered, or are likely in future to suffer, lasting psychological harm. The particular circumstances that the victims were oblivious to some of the applicant’s acts and that they apparently did not register the sexually abusive character of any of his conduct presented a factual issue about long term emotional harm that would not arise in the great majority of prosecutions for child sex offending. Nearly always in these cases the victim has been conscious of the abuse and has reported it, sooner or later. The child’s awareness typically provides sufficient foundation for an inference that substantial and lasting psychological disturbance has been caused. This case was different.

8. [54]

   The sequence numbers of the counts to which the applicant pleaded guilty are random and not related to chronology or to type of offence. For that reason the number order is not adopted in the summary of the facts that follows. Instead, the matters are grouped by victim and by type of offence.

Offences against HS

1. [55]

   HS’s mother and the applicant’s wife are sisters. HS’s parents had frequent family contact with the applicant and his wife up until his arrest, including at the applicant’s home and on outings. From time to time HS stayed at the home of the applicant and his wife, in their care. She was comfortable with them. The offences committed against HS in the applicant’s home occurred at times when his wife was outside smoking a cigarette. The applicant’s filming was done with a mobile phone and it would not have been obvious.

2. [56]

   Section 61M was replaced with effect from 1 December 2018, by s 66DB. Transitional provisions enabled the Crown to charge the applicant pursuant to s 61M(2) with offences committed on uncertain dates in the period between February 2017 and his arrest on 1 October 2019. The sub-section was in the following terms:

3. [57]

   A standard non-parole period of 8 years is applicable in respect of the offences committed by the applicant. That is so notwithstanding that since 1 December 2018 there has been no standard non-parole period under the replacement provision, s 66DB. This Court has on a number of occasions commented upon the difficulty of taking guidance from the legislature’s nomination of a standard period of imprisonment without parole that is 80% of the maximum penalty yet is said to be applicable to offending in the middle of the range of objective seriousness: see for example Hordern v R [2019] NSWCCA 138 at [2]; MH v R [2011] NSWCCA 230 at [52]. See also BT v R [2010] NSWCCA 267 at [41], concerning a similar position under the former s 61M(1).

4. [58]

   In the following table the twelve s 61M(2) offences committed against HS are summarised in chronological order of the child’s age when the offending occurred. The duration of the applicant’s video recording of each matter is given. The sequence number of the paired charge of using the child to make child abuse material contrary to s 91G(1)(a) appears in parentheses. The learned judge’s indicative head sentence is noted in the right-hand column.

5. [59]

   Sequence 9 charged an offence under s 61O(2) of the Crimes Act, which is in the following terms:

6. [60]

   The offence was committed when HS was 3-5 years old. She was naked in the bathroom of the applicant’s home and he used a towel to dry her. The applicant lifted HS over a camera positioned at a low point and angled upwards. He parted her legs to expose her vagina, then stood her back on the floor, turned her around, focused the camera on her buttocks and told her to bend over, which she did. HS used her hands to spread her buttocks and the applicant recorded a close-up view of her vagina and anus. Her Honour indicated a head sentence of 4 years and 6 months.

7. [61]

   The video recording of this event lasted one minute and 57 seconds. As referred to in connection with seq 19 in the table above, the corresponding offence against s 91G(1)(a), seq 10, was taken into account on a Form 1 associated with a substantive s 91G(1)(a) count (seq 20).

8. [62]

   Sequence 56 was charged under s 66A of the Crimes Act, which provides as follows:

9. [63]

   Sequence 56 was again committed when HS was 3-5 years old. She was lying naked on her back on a lounge in the applicant’s home when the applicant used his index and middle finger to part her labia majora and labia minora, exposing her vaginal canal. The applicant’s fingers remained in contact with the vaginal opening for 60 seconds. There was sufficient digital penetration to constitute sexual intercourse. HS did not move in response to the touching and appears to have been asleep. An indicative head sentence of 9 years was nominated by her Honour. The applicant filmed the whole of this event over two minutes and 23 seconds, for which a s 91G(1)(a) charge was laid, attracting an indicative sentence of 4 years and 6 months (seq 17).

10. [64]

    Section 91G(1)(a) is in the following terms:

11. [65]

    Four of the charges under s 91G(1)(a) (namely, sequences 17, 20, 42 and 48) and a number of additional charges on Form 1 schedules concerned the applicant filming his sexual contacts with HS. It was an agreed fact before her Honour that the video recordings of those events were in Category 3 of the Child Exploitation Tracking System (“CETS”) scale, described as “non-penetrative sexual activity between adult(s) and child(ren)”. These four s 91G(1)(a) counts correlate with the applicant’s offences against ss 61M(2), 61O(2) and 66A as follows:

12. [66]

    The applicant pleaded guilty to three further charges of using HS for the production of child abuse material, namely, making video recordings of her naked on occasions additional to those when the applicant sexually touched her. Each of those three further charges concerned several film segments. The facts of each count are summarised in the following table. It was agreed that the material was in Category 1 of the CETS scale, being “sexually suggestive posing with no sexual activity”.

13. [67]

    HS’s face is not shown in any of the video recordings of her that are the subject of counts under s 91G(1)(a). She is not directly identifiable in the recorded images.

Offences against JJ – 1 x s 61M(2), 1 x s 91G(1)(a)

1. [68]

   JJ’s father was a close personal friend of the applicant. The two offences against JJ were committed during a visit by the applicant to his friend’s home, when JJ was approximately 1-2 years old. The applicant approached the child when she was standing naked in the toilet. She said she needed help. The applicant lifted the child over the top of his camera, placed on the floor with the lens facing upwards, and spread her buttocks with his fingers (indecent assault contrary to s 61M(2)). The applicant recorded images of JJ’s anus and then her genitals (contrary to s 91G(1)(a)). The recording is of one minute and 30 seconds duration, in Category 3. Her Honour indicated a head sentence of 5 years for the indecent assault and 4 years and 1 month for making the video recording.

Offences against NG – 1 x s 61M(2), 1 x s 91G(1)(a)

1. [69]

   Sequence 1 concerning NG was a particularly depraved and appalling offence under s 66A of the Crimes Act. The offending was constituted by penile-oral sexual intercourse with NG when she was eight weeks old. The victim’s mother was a friend of the applicant’s wife. She brought her baby for a visit to the applicant’s home. This was the only occasion when the applicant had any contact with the child. While the two women were outside smoking the applicant partially inserted his penis in the baby’s mouth. She squirmed, coughed and turned her head away. The applicant rubbed the end of his penis around the child’s mouth and apparently stimulated a sucking reflex. He again put his penis in the baby’s mouth, thereby interfering with her breathing, and she licked and sucked it until he ejaculated into her mouth. He removed the ejaculate with his fingers.

2. [70]

   For this offence her Honour nominated an indicative head sentence of 21 years with a non-parole period of 14 years and 4 months. Sequence 2 concerning NG was the filming of the penile-oral intercourse, in two segments totalling eight minutes and 28 seconds, charged under s 91G(1)(a). The material is in Category 4 on the CETS scale, “penetrative sexual activity between children or between adult(s) and child(ren)”. Her Honour indicated a sentence of 6 years with a non-parole period of 4 years and 1 month for sequence 2.

Possession of child abuse material – s 91H(2) of the Crimes Act

1. [71]

   Each of the three DVDs that are the subject of the single offence against s 91H(2) (seq 12) contained a one-hour recording depicting naked prepubescent males and females in a setting described by the learned judge as a “pageant”. The recordings were classified as Category 1 according to the CETS scale. The maximum penalty for the possession of this material is 10 years. Her Honour indicated a fixed term of one year.

Ratio of non-parole period

1. [72]

   In the applicant’s aggregate sentence for the State matters, her Honour was not satisfied that the proportion to be served without parole should be adjusted for the purpose of extending the time during which the applicant would be under supervision in the community. That consideration therefore did not satisfy her Honour of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, upon consideration of the effect of partly accumulating the aggregate sentence for the Commonwealth offences, her Honour reduced the non-parole period in the aggregate for the State matters to a period of 20 years and 6 months. That represented 68% of the head sentence of 30 years for the State matters. As a result of her Honour having adopted a commencement date for the Commonwealth sentence that would accumulate 2 years of the non-parole period for the Commonwealth matters on the non-parole period for the State offences, an overall effective non-parole period of 22 years and 6 months was imposed representing 75% of the overall head sentence.

2. [73]

   In accordance with that adjustment, her Honour also adopted a ratio of 68% in nominating the non-parole periods for the indicative sentences for the State offences, with the exception of the single s 91H offence, for which a fixed term was indicated.

The applicant’s subjective case

1. [74]

   The applicant was between 31 and 37 years old when the offences were committed. He was 38 when he was sentenced and is now 39. The applicant was educated to year 10. He left school in 1988 and commenced work in the field of fire sprinkler installation, in which he remained employed by the same company for 21 years up to the date of his arrest. The applicant had no long-term relationship prior to that with his present wife, which commenced in about 2010. They were married in 2018. They have not had children together. The applicant has no prior convictions for relevant offending, only for relatively minor traffic matters. Her Honour accepted that he was of prior good character

2. [75]

   The only significant subjective circumstances are those identified in the report of Dr Furst, based upon an hour-long interview with the applicant in custody, by Audio Visual Link, on 15 March 2021. The applicant disclosed excessive and habitual consumption of alcohol since his early 20s, with increased tolerance and failure to control his alcohol abuse, leading Dr Furst to a diagnosis of Alcohol Use Disorder. The applicant also disclosed that he had extensively viewed adult heterosexual pornography on the internet since his teens (that is, over the course of 20 years) and that from his late 20s or early 30s he had developed an interest in and sexual attraction to female children aged between five and 15 years. He told a Community Corrections Officer who prepared a Sentencing Assessment Report that he had “hidden his sexual attraction to children his entire life”.

3. [76]

   Dr Furst found that the applicant met the criteria for a diagnosis of Paedophilic Disorder, meaning that he has recurrent and intense sexually arousing fantasies, urges or behaviours involving prepubescent children. Dr Furst characterised this Disorder as non-exclusive, as he continues to be attracted to adult females. In Dr Furst’s opinion:

4. [77]

   The applicant acknowledged to Dr Furst his need for treatment, which the doctor said is clearly required. Dr Furst recommended a comprehensive assessment of the applicant by a clinical psychologist with a view to having him participate in a high intensity form of psychological therapy. He also recommended treatment with anti-libidinal medication, the effectiveness of which, in the doctor’s view, is more strongly supported by evidence than “all currently available psychological programs, both programs available in custody and in [the] community”. In his consultation with Dr Furst, in his interview with the Community Corrections Officer and in letters to the sentencing judge, the applicant acknowledged his need for treatment and expressed willingness to undertake it. The applicant’s wife remains supportive of him and informed her Honour that she would assist and cooperate in any program of rehabilitation or psychotherapy.

5. [78]

   Her Honour accepted that the applicant would remain in protective custody for the whole of his incarceration but she was not satisfied that his experience in prison would be significantly harsher than for “the typical prisoner”. His conditions in prison were taken into account but with “very modest” adjustment.

Ground 5 – assessment of subjective case and prospects of rehabilitation

1. [79]

   Her Honour concluded that the applicant’s concealment of his sexual interest in very young girls, over an extended period of time, demonstrated that he was aware at the time of his acts in relation to the three victims “that his offending was abhorrent”. That finding was open on the evidence. It does not appear that in the sentence proceedings the applicant disputed that he was aware, at the time of commission of the offences, of the wrongfulness of his conduct, although her Honour imputed to him some prevarication or evasion in that regard.

2. [80]

   Her Honour made this finding:

3. [81]

   Whether a positive finding of harm to the victims was open to the sentencing judge on the evidence before her is considered below in relation to the objective seriousness of the offending and in relation to the applicant’s contention that the aggregate sentence for the State offences is manifestly excessive. Irrespective of what view may be taken on that question, it was open to her Honour to regard the applicant’s view about lack of harm to the victims as a self-serving presumption that revealed, on his part, a lack of concern for the risk of such harm and a lack of insight into the gravity of his offending.

4. [82]

   Her Honour accepted that the applicant had expressed “some remorse” and “some acceptance of his responsibility for the offending” by entering early pleas of guilty. The applicant expressed shame, self-disgust and remorse in his consultation with Dr Furst and in two letters addressed to the Court. The letters acknowledged “the betrayal of trust and the pain I have caused” and “the damage my actions have done to the victims and the families that has left them angry and hurt”. Section 21A of the Crimes (Sentencing and Procedure) Act requires that a sentencing judge should take into account the following matter:

5. [83]

   Her Honour said:

6. [84]

   Her Honour quoted the following paragraphs from Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [202]-[205] (Price J (with whom Basten JA and Walton J agreed):

7. [85]

   After considering other relevant authorities concerning the manner in which Dr Furst’s diagnosis of Paraphilic Disorder – Paedophilia could be taken into account, her Honour held as follows:

8. [86]

   Subject to further consideration, below, of the question of harm to the victims, and reading the last sentence of the above passage as referring to the applicant’s choices to perpetrate the acts with which he was charged, her Honour’s findings at [429] were open to her.

9. [87]

   The Sentencing Assessment Report concluded that the applicant was at a moderate or medium risk of reoffending. Her Honour fairly observed that, “given the length of the sentence I must impose, there is a degree of artificiality in any prediction of the circumstances upon release”: [432]. Whilst acknowledging that the applicant was genuine in his willingness to undertake treatment, her Honour noted that the outcome of treatment was, necessarily, unknown.

10. [88]

    All of the above considerations caused Her Honour to state that her view was “guarded about the offender’s prospects of rehabilitation”. Contrary to the applicant’s submissions in support of ground 5, that assessment was open to the learned judge. I do not accept the applicant’s characterisation of the remarks on sentence as “minimising the subjective features of the applicant’s case”. A balanced evaluation was made. I would reject ground 5.

Grounds 1 and 3 – harm to victims – the sentencing judge’s reasons

1. [89]

   In many sentence proceedings for child sexual offending the Crown has tendered victim impact statements, parents’ observations and/or expert reports. From the accumulation of what has been proved in such cases it is clear that victims of such offending commonly suffer immediate and/or delayed psychological damage. The psychological effects upon individual victims vary widely across the cases but those effects are often very substantial, ongoing and life changing.

2. [90]

   In par [256] of her Honour’s remarks (set out at [47] above), the judge imputed maximum psychological harm to all victims of child sexual offending as an a priori conclusion. By “maximum” I refer to her Honour’s general statements that “sexual offences against children are catastrophic”, that they “rob children of their innocence, sexualise them before they reach psychological and physical maturity, displace their sense of trust in adults and inevitably create confusion that lasts well into adulthood”. In the immediately following paragraphs of the remarks, [257]-[264], there are citations of authorities in which harm caused to child sexual abuse victims has been considered. The balance of her Honour’s reasoning reflects a generalised assumption of substantial harm to the victims in this case, for example in par [402] quoted at [80] above, but there is no finding of any specific harm and no reference to evidence, judicial experience or psychological research in the public domain that might establish that any of the three victims suffered the very high level of substantial and enduring harm described at [256]. Of the evidence that had a bearing upon whether or not substantial psychological harm was caused, her Honour dismissed as irrelevant the fact that HS appeared to be asleep during five of the offences (see [133]-[134] below) and discounted the circumstance that NG, at eight weeks old, was too young to have registered the sexual acts committed against her (see [139] below).

3. [91]

   The very high indicative and aggregate sentences nominated by her Honour are only explicable on the basis that severe psychological harm was imputed to each victim as an aggravating factor in all of the offending. The indicative and aggregate sentences could not be justified in the absence of that factor. The structure of the remarks, also, shows that her Honour treated the maximum enduring psychological harm described at [256] as a given for each victim in this case. This was made explicit at [475], where her Honour said this:

4. [92]

   Her Honour cited R v Gavel [2014] NSWCCA 56 in support of that statement. The case is considered at [116]-[119] below. In my view it is not correct that harm caused to child victims is a “grave element implicit in the offence itself”, for any of the sections under which the charges were laid in this case. Where substantial harm to the child victim is in issue, it must be established beyond reasonable doubt if it is to be taken into account on sentence. As earlier mentioned, proof to that standard is usually readily available by inference from the facts of what the young victim has consciously experienced. In this case for reasons given at [128]-[144] below, there was no basis for a finding of substantial psychological harm to any of the applicant’s three victims. Her Honour erred in imputing such harm as if it could be taken as a given upon legal authority.

5. [93]

   As the cases contain some very wide statements concerning psychological impacts of child sex offending, at times expressed in universal terms, I will refer to and endeavour to reconcile a number of judgments that her Honour may have understood as supporting her approach. I will not refer to the sentences imposed in the cases now cited, as the purpose of referring to them is to identify principles, not to make a comparison of penalties.

Authorities on harm to victims of child sex offences

1. [94]

   Statements of two distinct types have been in made appellate judgments concerning the harm done to victims of child sexual offences: first, generalisations about the psychological harm that is commonly caused and that is expected to be caused and, secondly, statements regarding how a sentencing judge is to determine what, if any, specific actual harm has been suffered by the victim in an instant case, as a factor aggravating the seriousness of the offending.

2. [95]

   As to the first, the authorities are replete with statements to the effect that statutory offences of sexual activity with children have been enacted, with high maximum penalties, because legislatures regard sexual activity with children as harmful to them. It is acknowledged in appellate judgments that over recent decades legislatures and courts have increasingly become aware of the harm that may be done to children by this type of offending. An example is the following extract from the judgment of this Court (Payne JA, Price and Garling JJ) in R v ND [2016] NSWCCA 103 (emphasis added):

3. [96]

   Similarly, in Clarkson v The Queen; E J A v The Queen [2011] VSCA 157 at [33] the Victorian Court of Appeal said that the enactment of statutory offences for sexual activity with children is “founded on a presumption of harm”.

4. [97]

   Statements of this general nature do not go beyond identifying the protective social purpose of the offence provisions and giving emphasis to the courts’ obligation to heed the seriousness with which Parliament views this category of crime. They serve much the same purpose as references to the high maximum penalties prescribed. Such general statements obviously cannot assist in evaluating the specific actual harm occasioned to a child victim in an individual case, relative to assessing the gravity of the offending.

5. [98]

   Statements of this first type do not purport to hold that specific actual harm to every victim is, as a matter of law, intrinsic to child sexual offending or that it must be deemed to have occurred whenever such an offence has been committed. Not only is it possible that in a particular case a child victim may suffer relatively minimal harm from minor or fleeting sexual contact, which may nevertheless constitute an offence, but, further, the nature and degree of harm caused in child sex cases is widely variable. It would be nonsense to deem the same nature and degree of significant harm in every case and it would be meaningless to deem the occurrence of actual harm without specifying its severity, which could not be done, differentially, by general deeming of a particular level of harm.

6. [99]

   From of judicial statements on harm to child sex offence victims in the second category referred to above, it is clear that the question of what harm has actually been suffered in a case for sentence is an issue of fact to be determined on evidentiary material available to the sentencing judge, not a matter of principle governed by general observations in the first category. The issue of specific actual harm engages s 21A(2)(g) of the Crimes (Sentencing Procedure) Act, as follows:

7. [100]

   R v Berg [2004] NSWCCA 300 was a sentence appeal concerning an offence of aggravated dangerous driving causing death. The sentencing judge said that he took into account s 21A(2)(g) but did not specify whom he considered had suffered substantial harm. At [30] Howie J noted that the judge would have been in error if he was referring to the deceased, because the death was an element of the offence and could not be additionally taken into account as an aggravating factor: s 21A(4). His Honour continued as follows:

8. [101]

   At [38] Spigelman CJ agreed with that statement, Wood CJ at CL said this:

9. [102]

   In DBW v R [2007] NSWCCA 236 the offender pleaded guilty to, amongst other offences, the commission of an act of indecency, namely, masturbating in the presence of his son aged between one and one and a half years – contrary to s 61O(2) of the Crimes Act. There was evidence before the sentencing judge that approximately three years after the offence the child victim was behaving in a sexualised manner at school. This Court was not persuaded that the judge had taken into account the aggravating factor of substantial harm to the child, pursuant to s 21A(2)(g), but held that in any event he would have been entitled to do so.

10. [103]

    Spigelman CJ referred to a decision of Hunt J (as he then was) in R v Muldoon (NSWCCA, 13 December 1990, unreported) where it was said that in order to make a valid assessment of what would happen in the future to a young victim of sexual abuse, a sentencing judge would require:

11. [104]

    In the following passage Spigelman CJ (Simpson and Harrison JJ concurring) held that such extensive evidence would no longer be expected (emphasis added):

12. [105]

    This was not a holding that under s 21A(2)(g) the aggravating factor of substantial harm caused to a specific victim may be found, to a particular or broadly describable degree, in the absence of evidence, although his Honour accepted that “a substantial risk of emotional harm” could be seen in the nature of the offending and could be treated as an aspect of objective seriousness. The Chief Justice’s observations support the ready drawing of an inference of specific, substantial harm to an individual victim from limited observational and/or expert evidence, fortified by the Courts’ experience of having received proof of substantial psychological harm in other cases and further fortified by reference to research and learning in the public domain.

13. [106]

    Subsequent to the decision in DBW v R, Spigelman CJ’s observations concerning reliance upon the courts’ experience have been acted upon by sentencing judges and by this Court. An example of the readiness with which harm to the victim may be inferred in these cases may be seen in Enriquez v R [2012] NSWCCA 60 at [47]-[52]. With effect from 1 December 2018 that approach has been given statutory force by s 25AA(3) of the Crimes (Sentencing Procedure) Act, in the following terms:

14. [107]

    Whether a child has suffered, as a result of sexual offending in a particular case, trauma, or long-term emotional or psychological harm, and if so of what severity, remains a question of fact under s 21A(2)(g) and s 25AA(3). The latter provision does not deem that such harm must be taken to have been suffered. By reason of the courts’ accumulated experience in child sex offences cases, a modest amount of evidence will often support an inference beyond reasonable doubt that the aggravating factor of substantial emotional harm under s 22A(2)(g) has been proved to the criminal standard.

15. [108]

    RP v R [2013] NSWCCA 192 further illustrates that the question whether substantial harm has been caused to a victim of child sexual offending has to be resolved on the evidence and with caution as to the sufficiency of the evidence, as stated in R v Berg. The applicant in RP v R had pleaded guilty to a single count of indecently assaulting an 11-year-old girl. The offence was committed between 1978 and 1980 and was charged under s 76 of the Crimes Act as then in force, being a provision to effect similar to the current s 61M(2). The offending was of a relatively low order, constituted by the applicant, then aged 29 years, rubbing cream on the victim’s chest. The Crown tendered a victim impact statement made some 30 years after the offence when the victim was aged approximately 41 years. She described pervasive, ongoing, life changing emotional effects.

16. [109]

    Price J (with whom Simpson and RA Hulme JJ agreed) held as follows:

17. [110]

    Some judicial statements of the first type referred to above, employing terms of the widest generality about severe psychological harm to victims, appear alongside specific findings of substantial actual harm to the victim with whom the subject appeal is concerned, based upon clear evidence in the case. The conjunction plainly does not mean that the aggravating factor of harm has flowed from the pronounced generalities rather than from the evidence in the case in question. In SW v R [2013] NSWCCA 255 the offender pleaded guilty to one count of sexual intercourse with a boy aged between five and six years, constituted by inserting a rectal syringe and forcing water through the boy’s anus. He was physically hurt and remained in pain and discomfort for some time afterwards. A detailed expert report was tendered on sentence, establishing “grave and long-term consequences for the victim arising from this offence” – in the words of Johnson J (with whom Hoeben CJ at CL and Bellew J agreed), at [51]. Johnson J said this (emphasis added):

18. [111]

    Johnson J’s reference to the suffering of psychological damage by child victims generally is a statement of the first type referred to above, identifying a frequent outcome of sexual conduct towards children that underlies the creation of the offences and the fixing of high maximum penalties. In SW v R there was evidence of specific actual harm to the victim, which supported the factual finding of “grave and long-term consequences”. Despite Johnson J’s use of the word “inevitably” at [52], I do not understand his Honour to have intended to lay down as a matter of law, in the nature of a principle of deeming, that psychological damage must in every case be taken to have occurred and to be a factor in assessing the seriousness of the offending, irrespective of the evidence.

19. [112]

    RR v R, to which Johnson J referred, is merely an illustration of the point that aggravation of the seriousness of an offence by the occasioning of “substantial harm”, pursuant to s 21A(2)(g) Crimes (Sentencing Procedure) Act, is evidence-dependent and is not a foregone conclusion on the basis of judicial generalisations about the effects of child sexual offences. RR v R involved a single act of sexual intercourse by penile-oral penetration committed against a five-year-old girl. She had run to complain to her mother immediately after the offence, “white, scared, crying and angry”, in the mother’s words. The victim impact statement established that she subsequently had to undergo blood tests, that she was engaged in weekly counselling and that she exhibited a significant change in personality, from being extroverted and confident to being quiet, constantly worried and insecure. According to the victim impact statement her relationships with adults and children had been seriously affected. It was from that evidence that the gravity of the offending was found to have been aggravated by harm to the victim.

20. [113]

    R v MJB [2014] NSWCCA 195 was a Crown appeal against inadequacy of an aggregate sentence for seven aggravated indecent assaults (s 61M(2)) committed against four girls aged respectively between eight years and 12 years, together with several counts of recording pornographic images of the victims (s 91G(1)(a)). The Crown tendered impact statements of two of the victims, against whom the most serious indecent assaults had been committed. One of them said that the abuse had “ruined” her life. The other said that she had been diagnosed with severe depression, had made multiple attempts on her life, suffered flashbacks and panic attacks and experienced extreme difficulty in intimacy with the opposite sex.

21. [114]

    Notwithstanding that evidence, the sentencing judge had rejected a Crown submission that the offences against those two victims involved the aggravating factor of substantial harm pursuant to s 21A(2)(g). In her reasons for upholding a Crown appeal, Adamson J (with whom Hoeben CJ at CL and Fullerton J agreed) said the following (emphasis added):

22. [115]

    In the context of the whole passage from [49] to [53], I understand Adamson J to have used the word “assumed” in the sense of “readily inferred”. At [49] where her Honour spoke of “damage … that can be assumed”, she also spoke of harm that child sexual offences “generally, if not inevitably, cause” and said that such harm may be described as substantial in “many, if not most, cases”. Her Honour did not purport to be stating an axiomatic principle that causation of substantial harm must be taken as a given in every instance of child sexual offending. My understanding of Adamson J’s reasoning is further confirmed by her Honour’s expression of puzzlement, at [53], that the sentencing judge was “not prepared to infer, on the basis of the statements, that the victims suffered substantial emotional harm as a result of the offending conduct”. In subsequent decisions Adamson J’s judgment has at times been referred to as if it establishes that the gravity of child sexual offending may always be regarded as aggravated by substantial harm to the victim, without direct or circumstantial evidence: see for example R v Tuala [2015] NSWCCA 8 at [56], [75]. With respect, I do not read Adamson J’s judgment in that sense.

23. [116]

    R v Gavel, to which the learned sentencing judge referred as mentioned at [92] above, was a Crown appeal concerning an aggregate sentence passed for, inter-alia, one count of aggravated indecent assault (s 61M(2)) and three counts of sexual intercourse (s 66A) committed against an eight-year-old girl. A number of features of the case led, cumulatively, to the Court upholding the Crown’s contention that the sentence was manifestly inadequate. One such feature was that the harm occasioned to the victim was considerable. As described in a victim impact statement, the once "bubbly, outgoing and fun loving eight-year old girl" had become confused and apprehensive in home and school settings, with friends and others. One year after commission of the offences, extensive psychological support had been undertaken, with the victim continuing to manifest anxiety, confusion, mistrust, shame, anger and guilt.

24. [117]

    The Court (Leeming JA, Johnson and Hall JJ) addressed the matter of harm to the victim as follows (emphasis added):

25. [118]

    The highlighted portions of [110] and [111] are expressed in terms of deeming a matter of fact in every instance of child sexual offending. Those statements were not necessary to the Court’s decision because the victim impact statement constituted powerful uncontested evidence of profound, long lasting psychological harm to the victim in the instant case. The Court’s view that harm to the victim in R v Gavel aggravated the seriousness of the offending and called for an aggregate sentence greater than that which had been imposed in the District Court is fully explicable on the basis that, where the sentencing judge had unreservedly accepted the victim impact statement, a finding of substantial emotional harm under s 22A(2)(g) was inescapable.

26. [119]

    In R v CTG [2017] NSWCCA 163 the Court (Hoeben CJ at CL, RA Hulme and Wilson JJ agreeing) explained the above quoted passage from R v Gavel in the following terms:

27. [120]

    R v CTG itself was a Crown appeal against the inadequacy of an aggregate sentence for, inter-alia, five counts of sexual intercourse (penile oral penetration) with a three-year-old girl, contrary to s 66A. There were also offences of photographing the sexual acts contrary to s 91G(1)(a). The offending took place over an interval of four months and came to light through police examination of the offender’s phone, on which images of sexual acts were recorded. The victim did not initiate complaint. When interviewed by police five months after the last offence, she did not describe the sexual acts but said that the respondent liked playing games with her, that he “takes his shirt off, his pants off and his undies off” and that she saw him naked. She said that “he takes my clothes off” and that he used a black phone to take pictures of her. Based on that interview the sentencing judge found no evidence of substantial injury to the victim because there was no evidence that she had any recall of the acts constituting sexual intercourse.

28. [121]

    From a number of considerations the Court found that the aggregate sentence imposed at first instance was manifestly inadequate. One consideration was the sentencing judge’s failure to find and take into account that the offending had given rise to a risk that a psychological reaction would emerge and be damaging to the victim. Hoeben CJ at CL said:

29. [122]

    R v CTG illustrates that where the evidence on sentence does not support a finding of extant substantial psychological harm to the victim as an aggravating factor, the sentencing court may nevertheless take into account that the offending has exposed the victim to a material risk of future psychological detriment, for example as he or she matures and gains an understanding of what occurred and its sexual significance.

30. [123]

    In EG v R [2015] NSWCCA 21 an offender aged 65 pleaded guilty to one count of aggravated sexual intercourse with a child under 10 years of age and under his authority, contrary to s66A(2). While his two-year-old granddaughter was lying on a change table the offender momentarily licked her vagina on the outside. There was some evidence that the offender was affected by mild dementia, stroke and depression. Almost immediately the chid told her mother what had occurred. The sentencing judge accepted a victim impact statement from the mother to the effect that that the child spoke about the act almost daily in the weeks after it occurred and that she had developed and was demonstrating what the mother described as “sexualised behaviour”. The judge also accepted aspects of the victim impact statement that asserted harm occasioned to other members of the family, namely, difficulty for the child’s parents coping with her “sexualised behaviour”, the necessity for them to take time away from work to deal with this phenomenon and “lengthy emotional trauma” experienced by the complainant’s siblings.

31. [124]

    The sentencing judge referred to SW v R and RR v R and concluded as follows on the issue of substantial emotional harm caused by the offence:

32. [125]

    Hoeben CJ at CL (with whom Harrison and RA Hulme JJ agreed) upheld a ground of appeal that the judge had “erred in giving too much weight to the victim impact statement”. His Honour noted that the statement had been objected to and that the offender’s counsel had disputed its contents and submitted there was no injury or substantial emotional harm to the victim. Hoeben CJ at CL said this:

33. [126]

    At [32] Hoeben CJ at CL cited RP v R for the proposition that attribution of excessive weight to a victim impact statement may constitute error in sentencing, quoting the passage of Price J’s judgment in RP v R that has been reproduced at [109] above (which in turn incorporates part of Wood CJ at CL’s judgment in R v Berg that is set out at [101] above). The Chief Judge continued as follows:

34. [127]

    Generalised judicial statements about the expectation of psychological trauma to victims of child sex offending have not transformed the matter of substantial emotional harm from an aggravating factor under s 21A(2)(g) that must be established beyond reasonable doubt into a concluded matter of principle. That was made clear by Basten JA in Hordern v R [2019] NSWCCA 138, as follows:

Harm to the victims in the present case

1. [128]

   The above survey of relevant authorities shows that it was not open to the learned judge to sentence on the basis that objective seriousness was aggravated by substantial harm to the victims, such as that described at [256] of the remarks, without evidence to support a finding of such harm beyond reasonable doubt. That is a very significant matter in this application because, exceptionally for this class of offending, the victims’ obliviousness to the applicant’s acts and to their sexual character precluded any inference of specific harm.

2. [129]

   In the great majority of cases sexual offending against a child comes to light because the victim reports the physical acts and complains that they were sexual, or at least improper. Consequently, there is usually no doubt that the victim was conscious of the acts and of their nature. From that starting point a ready inference is usually available that at least some emotional or psychological harm will have been occasioned. The child may be very young and may not have fully understood the sexuality of the act. Incomplete understanding commonly compounds, rather than ameliorates, the confusion, anxiety, loss of trust and enduring sense of insecurity that the child will suffer. It is not uncommon for children who are only two to three years old to report sexual misconduct, having been disturbed by it and, possibly, sensing an aspect of sexuality or at least of misconduct.

3. [130]

   The offending against HS and JJ was not discovered through complaint from them but as a result of police viewing the applicant’s video recordings of the incidents. JJ, at 1-2 years old, was obviously too young to be interviewed. There is no basis in the evidence for inferring that she was aware of the indecent nature of the applicant’s conduct as described at [68] above or that she distinguished what he did from everyday physical care by an adult. There is no evidence that she was aware or could have understood that the applicant was filming her.

4. [131]

   HS was interviewed by police attached to the Child Abuse Unit on 18 October 2019, aged five years. She had no knowledge of any of the conduct that was the subject of the s 61M(2) charges or the s 61O(2) charge or of having been filmed. That is consistent with the following circumstances:

   1. (1)

      The first eight indecent assaults against HS, as summarised in the chronological table at [58], were committed when HS was no more than three years old. With respect to four of those first eight matters, namely, seq 53, 32, 34 and 36, there is no evidence from which it could be inferred that HS would have distinguished the applicant’s physical contact from the attention of adults that would have been part of her routine care and hygiene. The other four matters, seq 47, 49, 41 and 43, were of an overtly sexual character but given HS’s lack of awareness when interviewed and the absence of physical injury or discomfort, as referred to at (4) below, there was no evidence that HS found these acts significant or disturbing, or that she was conscious of the sexual nature of what had occurred, or that she was affected by it. It would have been open to the learned judge to find that there was a risk of HS retaining memory of those four overtly sexual matters and suffering disturbance from them in the future.

   2. (2)

      The indecent assaults of HS committed when she was 3-5 years old (seq 3, 6, 19 and 23 – see [58]), all appear to have taken place while she was asleep. The video recordings did not show her face nor any part of her body other than the region of her buttocks and genitals. They showed that she did not move or react in response to the applicant’s indecent acts. There was no evidence that she was conscious of the touching in those four matters.

   3. (3)

      With respect to the s 61O(2) offence against HS (described at [60] above) HS gave no indication of having been aware of wrongdoing towards herself, or any indecency. There was no evidence that she distinguished the applicant’s conduct, following her bath on this occasion, from physical care. There was no evidence that she felt any discomfort or suffered any psychological reaction.

   4. (4)

      None of the s 61M(2) or s 61O(2) offences against HS involved force or any degree of physical pressure or abrasion that would likely have been painful or uncomfortable. Nor was there any threat made by the applicant to induce her to submit, or any persuasion or psychological manipulation. The applicant opportunistically used occasions when the child was in an innocent state of undress, or asleep, to touch and view her private parts when she, apparently, was unaware of him doing anything out of the ordinary.

5. [132]

   If HS and JJ had noticed and reported the applicant’s offending acts towards themselves and had complained of them as wrongful, leaving no doubt that they were aware of the acts and of their sexuality, or at least their impropriety, then there would have been a basis upon which her Honour could have applied judicial experience and the results of psychological research in the public domain to infer that substantial psychological harm would have been caused. In the absence of such awareness on the part of these two victims, it was not open to her Honour to find that either of them was robbed of innocence or sexualised, as referred to at [256], by the applicant’s secretive, surreptitious acts – disgraceful and appalling as those acts are to those who have learned of them through the investigation and prosecution of the applicant.

6. [133]

   Sequence 3 is one of the s 61M(2) offences committed against HS when she was 3-5 years old. The video recording is consistent with the victim having been asleep. Her Honour expressed the following conclusion with respect to seq 3:

7. [134]

   With due respect, the factual question of whether the child was asleep at the time of the indecent assaults in sequences 3, 6, 19 and 23 (and during the sexual intercourse in seq 56) could not be passed over in this manner. There was no evidence that HS would experience any psychological effect from sexual touching that occurred during sleep and that did not wake her. The learned sentencing judge did not identify any judicial experience of such a phenomenon of causation, or any research that might support it. Hence, in respect of the five offences where it was not proved beyond reasonable doubt that HS was awake when touched, substantial harm to the victim could not be found. No doubt, the applicant’s taking advantage of the child’s vulnerability during sleep, by touching her in a sexual manner in that state, would be relevant to the gravity of the crime. However, the gravity would be much less in such circumstances than if HS was conscious and aware of being sexually touched and if she suffered immediate, delayed and/or ongoing distress in consequence.

8. [135]

   For the s 61M(2) and s 610(2) offences against HS and JJ, her Honour’s starting points for indicative sentences, prior to discounting by 25% for the applicant’s pleas of guilty, may be grouped as follows:

   1. (1)

      For each of the least serious indecent assaults involving contact with the victims’ thighs and buttocks but not with their genitals – seq 53, 32, 36, 3 and 19 in the table at [58], the s 61O(2) matter in seq 9 at [59] and the s 61M(2) offence against JJ at [68] – indicative sentences of around 5 years for each offence were adopted, implying starting points of around 6 years and 8 months.

   2. (2)

      For the most serious matters involving direct contact with the victims’ genitals (seq 41, 43, 6 and 23 in the table at [58]) or contact of the victim’s feet with the applicant’s penis (in the case of seq 47 and 49) the indicative sentences were around 6 years and 3 months for each offence, implying starting points of around 8 years and 4 months.

9. [136]

   In the absence of any evidentiary basis for finding beyond reasonable doubt that either of these two victims suffered or would suffer any physical, emotional or psychological harm, the indicative sentences that I consider warranted on a sound assessment of objective gravity are in the order of two thirds of the terms that her Honour nominated – as may be seen in the table at [154] below. Her Honour’s indicative sentences for these matters disclose an excessive assessment of objective gravity, which occurred because of the learned judge’s uniform attribution to the victims of a high degree of psychological harm that was not the subject of findings of fact and where findings of harm would not have been open on the evidence.

10. [137]

    With respect to the s 66A offence against HS, described at [63] above, the observations made at [131(2)] and [134] apply: the evidence did not establish that the child was awake when this digital penetration took place and there was no evidence that could have supported a finding beyond reasonable doubt that HS suffered any physical discomfort or emotional or psychological disturbance, or that she would suffer any such harm in the future. This single count of sexual intercourse involved facts very similar to the touching of HS’s genitals charged under s 61M(2) in sequences 41, 43, 6 and 23 (see the table at [58]). The only difference is that on the s 66A count, the applicant put his fingers inside the child’s labia. The slight aggravation in physical terms exposes the applicant to the higher maximum penalty under s 66A. However, an assessment of the objective seriousness of the offence must take into account that the conduct in this matter was only marginally more grave than in a number of the indecent assault charges.

11. [138]

    For the s 66A offence against HS her Honour’s indicative head sentence of 9 years implies that the term would have been 12 years if it had followed a trial. In my view, the indicative sentence of 9 years after discounting for the plea of guilty is plainly excessive, taking into account the minimal extent of the intercourse, the victim having been unaware and not having been shown to have suffered harm and all other objective and subjective circumstances. An appropriate head sentence after trial would not have exceeded 6 years, which would equate to 4 years and 6 months after applying the discount. Her Honour’s indicative sentence again reveals an unwarranted imputation of aggravation by harm to the victim.

12. [139]

    In the commission of the offence against NG, described above at [69], the baby obviously suffered physical discomfort from the abuse. Her Honour said this:

13. [140]

    In R v LS, the offence to which Wilson J’s comments appear primarily to have been directed was of an assault with act of indecency in which the male offender placed his erect penis in contact with the vagina of an 18-month-old baby. While having due regard to Wilson J’s observations, in the particular circumstances of the present case the question whether NG suffered a subliminal psychological reaction to what occurred or whether she would or might suffer a delayed or long-term reaction to the event is a question of fact upon which a finding beyond reasonable doubt would have to rest upon some evidentiary foundation. Nothing in the evidence before the learned sentencing judge, nor in my own experience, nor anything stated by her Honour as to her experience in other matters, provides a foundation for concluding that NG, at eight weeks, would have had sufficient consciousness or would retain sufficient memory to be psychologically affected by this event.

14. [141]

    R v JP [2015] NSWCCA 267 was a Crown appeal against inadequacy of sentence for one count of sexual intercourse with a child under 10 and under authority (s 66A(2) of the Crimes Act). The offender was a 25-year-old woman with intellectual disability who had been persuaded by her co-offender to use her tongue on the vagina of her six-week-old baby and to make and send photographs of the act. The sentencing judge found that because of the child’s age, there could have been no psychological harm and there was no physical harm. Efforts had been made to ensure that the child was never told of what occurred. The judge concluded that if those efforts were successful, the child would suffer no psychological harm as a direct consequence of the offence. In the appeal the Crown accepted that it was open to find that a six week old baby had no capacity to register or remember events but referred to the risk that the child would suffer psychological harm if she later found out what her mother had done.

15. [142]

    All members of this Court considered that the sentencing judge had erred in some respect, although they differed as to what the error was, and all agreed that the Crown inadequacy appeal should be dismissed. The majority so held on the basis that although the sentence was manifestly inadequate the Court should exercise its discretion not to intervene. Price J made the following assessment of objective gravity:

16. [143]

    Price J’s observations at [79] do not support imputation of psychological harm, as an aggravating factor, where the victim has not been conscious of the abuse. The offending in such a case is objectively serious on the basis, not of imputed psychological harm, but of exploitation of extreme vulnerability. Nothing in the above passage suggests that substantial emotional harm could be taken to be established for the purposes of s 21A(2)(g) in a case where no inference was open, for want of evidence that the victim knew what had occurred.

17. [144]

    The objective seriousness of the count concerning NG fell to be assessed upon the basis of the depravity that it exhibited – which requires no further elaboration – and with recognition that the applicant was prepared to run the risk of compromising the baby’s health and welfare in order to derive his deviant gratification. The indicative term adopted by her Honour of 21 years implies that a starting point sentence of 28 years would have been imposed had the applicant been convicted after a trial. That would equate to, or perhaps exceed, a sentence that the applicant’s acts would have attracted if they had resulted in the death of the child and if he had been convicted of murder by criminal negligence. Her Honour’s indicative term, exhibiting that equivalence, apparently reflects her attribution of “catastrophic” psychological harm that would afflict the child for the whole of her life. The indicative term for this count must have made a significant contribution to the aggregate. The indicative term is manifestly excessive in the absence of any evidence or finding of substantial, enduring harm to the child.

18. [145]

    Of course, even when it is recognised that NG was not shown to have suffered any lasting physical or psychological harm, the ndicative sentence on this count had to be of sufficient severity to acknowledge the revulsion of the community with respect to such depraved conduct and the need for denunciation: s 3A of the Crimes (Sentencing Procedure) Act, pars (f) and (g). General and specific deterrence and protection of the community are additional statutorily recognised purposes of sentencing that are engaged in relation to this count. Taking into account all objective and subjective circumstances, the purposes of sentencing would be fully served by a starting point sentence for this count of no more than 12 years, reducing to 9 years after deducting 25% for the applicant’s early plea.

19. [146]

    Stewart v R [2012] NSWCCA 183 was an appeal against sentence on a single count of sexual intercourse with an adult female without consent. A victim impact statement prepared by a social worker was tendered by the Crown. It indicated that since the offence was committed the victim had suffered sleep disturbances, intrusive thoughts, panic attacks, anxiety in public places, difficulty concentrating and hyper-vigilance. Although some of her symptoms were diminishing, the statement conveyed that they might continue for many years to come. One ground of appeal challenged the manner in which the impact of the offence upon the victim had been assessed by the sentencing judge, referring to the following passage from his remarks on sentence:

20. [147]

    The appellant complained that the sentencing judge had taken into account “presumed harm” that was irrelevant to his sentence. Button J (McClellan CJ at CL and Price J concurring) held as follows:

21. [148]

    The ground asserting erroneous presumption of harm to the victim was rejected because the sentencing judge had ample evidence, in the victim impact statement, to support his factual finding that substantial harm had been occasioned. Where the evidence on sentence directly or by inference establishes ongoing psychological detriment to the victim, recognition of that detriment as a factor increasing the seriousness of the offending would seem to carry no risk of double counting. Whilst the expectation of such harm is a reason for child sexual offences having been created and for high maximum penalties having been prescribed, emotional or other harm is not an element of offences such as ss 61M(2), 61O(2) and 66A and cannot be taken to be encompassed in a verdict or plea.

22. [149]

    The error complained of in Stewart v R is exhibited in the remarks on sentence in the present case. However, in contrast with Stewart v R, on this application grounds 1 and 3 have force and should be upheld because there was no evidence that could have substantiated psychological harm to the victims independently of the attribution made by her Honour.

Ground 6 – manifest excess

1. [150]

   The conclusion sought by the applicant pursuant to ground 6, that the aggregate sentence for the State offences is manifestly excessive, “does not depend upon attribution of identified specific error in the reasoning of the sentencing judge” and may “not admit of amplification except by stating the respect in which the sentence is inadequate or excessive”: see Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).

2. [151]

   I have concluded for the reasons stated above that her Honour made excessive assessments of the objective seriousness of the s 61M(2), s 61O(2) and s 66A offences on the basis of unsupported attribution of harm to the victims and that inflation of the gravity of the offences is revealed by indicative sentences that greatly exceed what would follow from a supportable assessment of objective seriousness.

3. [152]

   With respect to the s 91G(1)(a) offences her Honour correlated the indicative sentences to variations in the objective gravity of the video recordings. The longer indicative sentences nominated in this category were for counts concerning recordings of sexual offences against HS, where significant additional offences of a like kind were listed on a Form 1. Her Honour’s indicative sentences for the s 91G(1)(a) matters are identified at [65], [66], [68] and [70], above. I consider that the entire scale of them is plainly excessive, revealing and attributable to excessive assessment of objective seriousness. The terms of imprisonment that I would consider appropriate to the gravity of the respective instances are set out in the table at [154] below and are in the order of approximately two thirds the length nominated by her Honour in each case.

4. [153]

   Her Honour took into account what she regarded as a “substantial overlap” between, on the one hand, HS seq 17, 20, 42, 48, JJ seq 1 and NG seq 2, being the s 91G(1)(a) counts concerning video recording of sexual offending, and on the other hand the substantive sexual offences themselves. Her Honour’s aggregate sentence reflects significant notional concurrence between the indicative terms and a substantial part of that concurrence must necessarily be between the penalties for the sexual offences and those for the corresponding s 91G(1)(a) counts. In resentencing I would adopt the same approach.

5. [154]

   I am of the view that the aggregate sentence imposed by her Honour for the State offences is manifestly excessive having regard to a proper measure of the objective seriousness of the individual counts, taking account of the totality of offending and accepting the learned sentencing judge’s findings regarding the applicant’s subjective case. In resentencing I would proceed from the indicative sentences as set out in the following table.

6. [155]

   The non-parole periods in each indicative sentence are approximately 65% of the head sentence. I propose an aggregate sentence with a non-parole period that is also 65% of the full term. The need to achieve a 75% ratio in the overall effective sentence, when the Commonwealth non-parole period is accumulated by 2 years, constitutes a special circumstance for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act. As earlier mentioned, the Commonwealth sentence is not sought to be challenged in the application for leave to appeal and there is an absence of challenge to her Honour’s accumulation of 2 years of the Commonwealth non-parole period beyond the expiry of the State non-parole period.

7. [156]

   I propose the following orders:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence passed in the District Court on 26 July 2021 and in lieu thereof sentence the applicant as follows:

   4. (4)

      The overall effective sentence is 20 years with a non-parole period of 15 years.

   5. (5)

      The earliest date upon which the applicant will be eligible for release to parole is 30 September 2034.