CH v R

1. [1]

   HOEBEN CJ at CL: I agree with Schmidt J and the order which she proposes.

2. [2]

   SCHMIDT J: CH pleaded guilty to offences committed against his daughter, contrary to various provisions of the Crimes Act 1900 (NSW). Bright DCJ sentenced him to an aggregate sentence of 20 years imprisonment, with a non-parole of 13 years, after giving him a 25% discount for his early plea. That reflected a starting point of some 26 years, 8 months. He now seeks leave to appeal that sentence

3. [3]

   The offences for which he was sentenced and the other offences taken into account under s 33(2)(b), Crimes (Sentencing Procedure) Act 1999 (NSW), on some of those offences, were:

   1. (1)

      sequence 4 — s 91G(1)(a) Crimes Act, using child to produce child abuse material — attracting a maximum penalty of 14 years imprisonment with a standard non-parole period of 6 years;

   2. (2)

      sequence 6 — s 61O(2A) Crimes Act, incite act of indecency with child under 16 years — attracting a maximum penalty of 10 years imprisonment with no standard non-parole period;

   3. (3)

      sequence 9 — s 61M(2) Crimes Act, indecent assault on child under 16 years — maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years, with a further such offence taken into account on a Form 1 under s 33 of the Crimes (Sentencing Procedure) Act;

   4. (4)

      sequence 18 – s 66B Crimes Act, attempt sexual intercourse with a child under 10 years – attracting a maximum penalty of 25 years imprisonment, with a standard non-parole period of 10 years and with three further offences of incite act of indecency under s 61O(2A) Crimes Act taken into account on a Form 1, the maximum penalties for which were 10 years, with no standard non-parole period;

   5. (5)

      sequence 1 — s 66A(1) Crimes Act, sexual intercourse with a child under 10 years — attracting a maximum penalty of life imprisonment, with a standard non-parole period of 15 years and a further offence of incite act of indecency under s 61O(2A) Crimes Act taken into account on a Form 1, the maximum penalty for which was 10 years, with no standard non-parole period;

   6. (6)

      sequence 15 — s 66A(1) Crimes Act, sexual intercourse with a child under 10 years — attracting a maximum penalty of life imprisonment, with a standard non-parole period of 15 years and a further offence under s 61M(2) Crimes Act of indecent assault on child under 16 years taken into account on a Form 1;

   7. (7)

      sequence 16 — s 61O(2) Crimes Act, incite child under 10 years to act of indecency — attracting a maximum penalty of 7 years imprisonment with no standard non-parole period; and

   8. (8)

      sequence 17 — a further offence under s 66A(1) Crimes Act, sexual intercourse with a child under 10 years — attracting a maximum penalty of life imprisonment, with a standard non-parole period of 15 years, with a further offence under s 61M(2) Crimes Act of indecent assault on child under 16 years taken into account on a Form 1.

4. [4]

   The grounds on which the applicant seeks leave to appeal his aggregate sentence are:

Ground 1 – failing to have proper regard to the maximum penalties for the Form 1 offences

1. [5]

   There is no issue that the facts which the parties agreed on sentence led Bright DCJ, correctly, to find that the applicant’s offending had involved very grave criminality, he having deliberately exploited the vulnerability of his daughter, when she was aged 4 to 5 years, in the pursuit of his own sexual interests.

2. [6]

   Her Honour took the Form 1 offences into account in accordance with the principles discussed in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518, which required that:

3. [7]

   It is the applicant’s case, however, that her Honour erred because the Crown provided a table of offences which incorrectly identified the penalties for his ss 61M(2) and 61O(2A) offences to be 10 years, when they were only 2. That followed from the provisions of ss 165, 166 and 167 of the Criminal Procedure Act 1986 (NSW), because those offences were before the District Court as indictable offences, which were being dealt with summarily.

4. [8]

   This was understandably not a point taken on sentence, because it has no statutory foundation.

5. [9]

   Section 166 specifies a procedure to be followed when on committal or sentence of a person charged with an indictable offence, he or she has been charged with “any back up offence or related offence”, as the applicant was. A “related offence” is defined in s 165 to mean an offence:

6. [10]

   The applicant entered pleas to his offences, so that on sentence his related offences also had to dealt with by the Court, “unless to do so would not be in the interests of justice”: s 167(1)(b). Neither party contended that to be the case. Instead, they agreed that these offences would be dealt with by the Form 1 process.

7. [11]

   Accordingly, contrary to the case advanced for the applicant on appeal, neither the definition in s 165, nor the provisions made in ss 166 and 167 reduced the maximum penalties for the indictable offences dealt with under the Form 1 procedure to those which would have applied to those offences, had they been dealt with summarily in the Local Court.

8. [12]

   What s 33(2)(b) empowered Bright DCJ to do on sentencing the applicant was to:

9. [13]

   The result of that exercise had to be that the sentences imposed for the offences where other offences were taken into account under the Form 1 process, were increased in the way explained in the guideline judgment at [42].

10. [14]

    This procedure required that Bright DCJ take into account, as her Honour did, the matters for which the applicant had so admitted his guilt, with a view to increasing the penalty that would otherwise be appropriate for the applicant’s offence, by giving greater weight to first, the need for personal deterrence, which the commission of the other offences indicated ought to be given greater weight, by reason of the course of conduct in which the accused had engaged; and secondly, to the community’s entitlement to extract retribution for the applicant’s other serious offences, for which no punishment would otherwise be imposed upon him.

11. [15]

    While s 33(3) precluded the penalty Bright DCJ arrived at exceeding the maximum penalty that could have imposed on the applicant for the offence on which the Form 1 offence was taken into account, her Honour also had to take account of the maximum penalty and any standard non-parole period which applied to the Form 1 offence, in arriving at a conclusion as to how much the sentence which would otherwise be imposed on the applicant, should be increased by.

12. [16]

    This aspect of the statutory scheme reflects that what an offender is charged with is the result of the exercise of prosecutorial discretion. The statutory scheme does not seek to interfere with the consequences of the exercise of that discretion, in the provisions which it made in ss 165, 166 and 167 of the Criminal Procedure Act, or in s 33 of the Crimes (Sentencing Procedure) Act.

13. [17]

    While in Collins v R [2010] NSWCCA 13 and other cases on which the applicant relied, the offender was sentenced for offences which could have been dealt with in the Local Court, in which event s 168(3) applied, it providing that the court then “has the same functions, and is subject to the same restrictions and procedures, as the Local Court”, that is not what occurred in the applicant’s case. In the result, s 168(3) simply did not apply to him on sentence.

14. [18]

    While, as s 33(2)(a) required, the applicant admitted his guilt of the Form 1 offences, which he asked the Court to take into account on sentence for other offences, he did not plead guilty to any of those offences. Nor was he sentenced for them.

15. [19]

    Accordingly, this ground cannot succeed.

Ground 2 – limited weight given to remorse

1. [20]

   I am also satisfied that this ground must fail.

2. [21]

   At trial the case advanced for the applicant was that he was genuinely remorseful for his offending and that his initial denials should not detract from what was contained in the psychologist’s report, as to his expressions of remorse.

3. [22]

   The Crown put in issue the credibility of the applicant’s expressions of remorse and submitted that they had to be approached with caution, untested as they were, because he had exercised his right not to give evidence.

4. [23]

   The applicant’s account to the psychologist included that despite his grave offending against his young daughter, he had no deviant sexual interests; that his sexual interest was in females; and that his initial conception of his offending had been related to curiosity by his daughter, who was then aged only 4 years, in circumstances where she had asked him a question about his penis which had played on his mind and had then resulted, a few days later when he was intoxicated with methylamphetamine, with the commencement of the offending which he filmed for reasons unknown to him. The applicant also described then placating himself with the thought that his daughter was young and probably would not remember his abuse, which the psychologist considered reflected that he required specific intervention around boundaries, challenge distortions and appropriate sexuality.

5. [24]

   The report went on:

6. [25]

   The psychologist considered that:

7. [26]

   In the letter his parents’ wrote, it was relevantly said that the applicant was “so remorseful of what has occurred while he was under the influence of drugs, also how much it has affected his children. Also us as his parents and extended family”.

8. [27]

   In his sister’s letter, it was said that the applicant was not the man he had been the previous year and that “he is a different person and I know this is mainly due to feeling utterly remorseful, regretful and so ashamed” and that he took full responsibility for his actions.

9. [28]

   Bright DCJ’s account of the agreed facts was:

10. [29]

    Her Honour also outlined the circumstances in which the applicant’s offences came to light, when the video camera he had used to film his offences was inspected and how he came to make the admissions which eventually led to the entry of his pleas. Her Honour noted that initially, however, having been shown the footage he had taken of his offences, he said that he had no memory, offering his methylamphetamine use as a possible explanation.

11. [30]

    Her Honour also outlined the accounts which the victim gave police, which formed the basis of three of the offences charged, involving vaginal intercourse, which the applicant did not record.

12. [31]

    Bright DCJ also dealt with the evidence of the applicant’s subjective circumstances, which included the psychologist’s report and letters from his parents and sister.

13. [32]

    Her Honour noted that the psychologist’s report indicated that the applicant had given a history of having had a normal upbringing, but with his father enforcing a strict study regime, which led to his later drug use. He had no difficulty with schooling to year 12, or with employment throughout his life, until terminated from a long term position in November 2016, due to poor performance related to his methylamphetamine use.

14. [33]

    The applicant had two children with his partner, with whom he had used methylamphetamine, the youngest being his victim. Her Honour noted that it was the use of that drug which had increased his sexual drive and had led to hypersexuality.

15. [34]

    The applicant also reported cannabis use from age 18 years and weekly to bi-weekly methylamphetamine use when he was aged 36 and 37 years and before going into custody, use often 5 times a week.

16. [35]

    Her Honour also noted that the psychologist considered that around the time of his offending, the applicant would have met the criteria for stimulant use disorder, but that he was not then mentally ill. He was also functioning adequately in custody and she considered that he was then at a low risk of re-offending, if he could maintain abstinence from methylamphetamine. It was also stated that:

17. [36]

    Her Honour also noted that the psychologist’s findings were summarised to be:

18. [37]

    Bright DCJ, however, considered that the applicant had attempted to rationalise his behaviour, which reflected that he still had some limited insight into the grave criminality associated with his offending. As to remorse her Honour concluded that:

19. [38]

    On appeal, the applicant’s case was that s 21A(1) required the Court to take into account mitigating factors “relevant and known to the court” and that s 21A(3) required that the mitigating factors to be taken into account in determining the appropriate sentence included:

20. [39]

    The section thus did not require an offender to give evidence on sentence, in order to establish remorse: Butters v R [2010] NSWCCA 1 at [16]–[17]. Rather, as the applicant had, an offender had to provide evidence that he or she had accepted responsibility for his or her actions, had acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage, as a statutory precondition to reliance on remorse as a mitigating factor.

21. [40]

    It was also contended for the applicant that this “does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section”: at [17].

22. [41]

    It was further contended that, her Honour’s statement that “in circumstances where no evidence has been given on oath before me, I give such evidence limited weight” failed to disclose whether or not she had accepted that the applicant was remorseful. That was submitted to be contrary to the requirements of s 21A, relying on Van Zwam v R [2017] NSWCCA 127. Furthermore, if her Honour had accepted that there was evidence of remorse she had failed to explain the manner in which it had been taken into account, as she was obliged to do.

23. [42]

    These submissions may not be accepted. Not only did her Honour accept that the evidence established that the applicant had expressed remorse, in resolving what lay in issue between the parties, she explained that what he had said could be given limited weight, because he had elected not to give evidence, so that he could not be tested on what he had told the psychologist and others.

24. [43]

    Contrary to the case advanced for the applicant, this was not a case such as Van Zwam, where at [111] it was found that while the sentencing judge was not bound to accept the evidence of remorse contained in an affidavit, any more than he would have been bound to accept oral testimony from an offender, the failure to appreciate that the affidavit was evidence, led him into the error of acting on a wrong principle.

25. [44]

    In the applicant’s case it was the credibility of what he had told others which was in issue, because unlike in Van Zwam, the applicant did not himself give evidence of his remorse.

26. [45]

    This was resolved by her Honour accepting that the applicant had expressed remorse, but that the evidence about what he had so said would be given limited weight, because it could not be tested. There was no error in that approach.

27. [46]

    In Imbornone v R [2017] NSWCCA 144, the authorities which deal with how remorse is to be assessed arose for consideration. There it was observed:

28. [47]

    It was there concluded that there was good reason for the sentencing judge to have declined to accept the offender’s self-serving assertions to a psychiatrist about remorse. They included his awareness of the purpose for which the report would be put; his failure to give evidence, in order that the sentencing judge could assess his demeanour and the genuineness of his asserted remorse; and the differing accounts the applicant had given about matters of significance, which called into question his veracity and reliability.

29. [48]

    Likewise in this case, given what was in issue between the parties on the question of remorse, Bright DCJ had to take care in assessing the evidence which went to remorse.

30. [49]

    In resolving what was raised on appeal, care must also be taken to consider what Bright DCJ actually concluded about the evidence relied on by the applicant, as satisfying the requirements of s 21A(3)(i).

31. [50]

    Contrary to the applicant’s case, by what her Honour said, it is apparent that she accepted that there was evidence of remorse, which she took into account, but concluded that it could be given little weight, in the absence of the applicant having evidence given on oath, which could be tested.

32. [51]

    That conclusion was well open on the evidence.

33. [52]

    Undoubtedly, the letters from the applicant’s family members reflected the authors’ opinions, but they had to be considered in light of what the applicant told the psychologist, the Crown case being that what he had then said did not establish remorse, but rather a selfish reflection of what his offending would result in him missing out on.

34. [53]

    The case advanced for the applicant on appeal was that the criticism that he had not given evidence was accepted, but it was urged that it would be concluded that he was remorseful, given the genuine emotions described in the psychologist’s report, supported as that was by letters from his family members and the entry of the plea.

35. [54]

    It was also contended that as to insight, he should be considered to be an untreated sex offender, who had not yet had the opportunity to participate in any programs, but that it would not be concluded he had engaged in any victim blaming.

36. [55]

    The Crown’s case included that what the applicant relied on did not establish insight, but an element of victim blaming, without explanation given for his offending, other than his drug use. Further, that his accounts were not consistent with the evidence of his offending, but reflected a refusal to acknowledge his purpose in filming the victim as he had. The Crown also submitted what the applicant did had not involved him in teaching his 4 or 5 year old daughter about ”sexuality”, as he also said. The nature of his repeated penetrations, for his own sexual gratification, including persisting with his offending even when the child asked him to stop and his denial of attraction to child pornography, which was inconsistent with having filmed his offences as he did, meant that his credibility was in issue and that his untested, self-professed claims of being remorseful would not be accepted.

37. [56]

    Given the requirements of s 21A(3)(i) the explanations which the applicant gave the psychologist about his offences, particularly as to the reasons for and circumstances of his very grave and repeated offending against his 4 year old child, were both equivocal and contradictory. What the applicant had to establish for his remorse to be taken into account as a mitigating factor was not only that he was genuinely remorseful for his offences, but that he had also accepted responsibility for his actions and had acknowledged the injury, loss and damage which he caused his young child, as s 21A(3)(i) also required.

38. [57]

    her Honour was entitled to give little weight to the applicant’s expressions of remorse. This ground has not been made out.

Ground 4 – manifest excess

1. [58]

   It is convenient to deal with these grounds together.

2. [59]

   To succeed on these grounds the applicant has to establish that the sentencing judge has made an error in the exercise of the sentencing discretion: House v The King (1936) 55 CLR 499 at 505. If specific error is not shown, the applicant must establish that the sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 ; [2005] HCA 25 at [25]. An alleged failure to attribute sufficient weight to an issue at sentence does not involve House v The King error: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [22] and [53]..

3. [60]

   Imposition of an aggregate sentence may not to be used to minimise the offending conduct; to obscure or obliterate the range of offending conduct; or the totality of the offending for which an offender is being sentenced: R v MJB [2014] NSWCCA 195 at [58]–[60].

4. [61]

   In approaching the resolution of what lies issue on these grounds, it must thus be borne in mind that this Court will not interfere in the exercise of a sentencing judge’s discretion as to questions of accumulation, concurrence and totality of sentences, absent error of principle, or that the sentence imposed was manifestly excessive, being established: Kerr v R [2106] NSWCCA 218 at [108].

5. [62]

   In my view both grounds must fail, because the applicant has failed to establish any error of principle or that the aggregate sentence imposed on the applicant was manifestly excessive.

6. [63]

   Her Honour imposed an aggregate sentence on the applicant, having given indicative sentences as follows:

7. [64]

   The total indicative sentences and non-parole periods given after discount were however, 32 years and 3 months with 18 years and 3 months total non-parole. That reflected a total starting sentence before discount, of 39 years.

8. [65]

   The aggregate sentence imposed was 20 years imprisonment, with a non-parole period of 13 years, dating from the applicant’s arrest on 24 December 2016. This reflected her Honour’s application of the principle of totality, which she thus explained:

9. [66]

   The applicant contended that the sentencing judge’s alleged error was revealed by the following:

   1. (1)

      the fact that the most serious offence, sequence 15, had an indicative sentence of 9 years, with a non-parole period of 5 years and 11 months, while the aggregate sentence imposed was 20 years with a non-parole period of 13 years, that reflecting total accumulation of 11 years and 7 years, 1 month non-parole;

   2. (2)

      that there was only one victim;

   3. (3)

      that all the offences occurred at one location;

   4. (4)

      that 6 of the 8 offences occurred within a period of about 30–40 minutes;

   5. (5)

      that the totality of the offending over a period of some 3 months, was apparently limited to a number of occasions;

   6. (6)

      cases said on appeal to be comparable; and

   7. (7)

      sentencing statistics.

10. [67]

    In the applicant’s case it was common ground on sentence, not only that his was an appropriate case for an aggregate sentence to be imposed on the applicant, and that his penile vaginal intercourse offence, sequence 15, was the most serious of his offences but also that it was not an isolated incident; and that accordingly, there had to be some accumulation of the indicative sentences given for the offences for which he was being sentenced.

11. [68]

    The indicative sentence for that offence was a total term of 9 years with a non-parole period of 5 years and 11 months after discount. When that is compared with, on the one hand, the maximum penalty of life imprisonment and a standard non-parole period of 15 for that offence, and on the other, the aggregate sentence imposed for all of the applicant’s offending, of 20 years imprisonment, with a non-parole period of 13 years, it is apparent that her Honour’s approach to the application of the totality principle, involved relatively limited accumulation of all of the indicated sentences.

12. [69]

    Overall, given the seriousness of all of the applicant’s offending and all the relevant circumstances, the resulting aggregate sentence imposed was relatively lenient. As observed in Kerr at [114]:

13. [70]

    In the present case, neither the indicative sentences given, nor the aggregate sentence imposed, of themselves establish that the applicant’s sentence was unreasonable or plainly unjust.

14. [71]

    The other matters on which the applicant relied neither mitigated the seriousness of his offending, nor established that the aggregate sentence imposed was manifestly excessive.

15. [72]

    In particular, that the applicant committed his offences in the home he shared with his family did not mitigate his offence, but was in fact an aggravating matter which had to be taken into account in arriving at his sentence: s 21A(2)(eb).

16. [73]

    As to the statistics relied on, it was submitted:

17. [74]

    In Bao v R [2016] NSWCCA 16 this Court said at [73]:

18. [75]

    The statistics revealed that in some 13% of offences under s 66A(2), offenders were given aggregate sentences of 20 years or more. That the applicant fell into that category of offenders, given what he was being sentenced for, is incapable of establishing that his aggregate sentence was manifestly excessive.

19. [76]

    Cases said to be comparable included TO v R [2017] NSWCCA 12; 265 A Crim R 191, where after trial the appellant was found guilty of three offences: one count of aggravated sexual intercourse with a person under the age of ten, the circumstance of aggravation being that the child was under the appellant’s authority, contrary to s 66A(2) of the Crimes Act; one count of attempting to have sexual intercourse with a child under the age of ten contrary to s 66B of the Crimes Act; and one count of assaulting a child under the age of ten with intent to have sexual intercourse contrary to s 66B of the Crimes Act, committed between 19 and 21 June 2012.

20. [77]

    For those offences TO was resentenced to:

    1. (1)

       On count 1, a single instance of anal penetration of a 9-year-old, the offender’s step daughter, imprisonment for a non-parole period of 9 years commencing 15 June 2015 and to expire on 14 June 2024 and a balance of term of 3 years to commence 15 June 2024 and to expire 14 June 2027.

    2. (2)

       On count 2, attempted oral intercourse, imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019.

    3. (3)

       On count 3, attempted vaginal intercourse, imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019.

21. [78]

    This reflected an overall sentence of imprisonment of 12 years and a non-parole period of 9 years. At [252] it was observed that:

22. [79]

    Many of the features identified by this Court in TO as making an offence more serious, were present in the applicant’s case.

23. [80]

    The applicant had committed more than 3 serious offences as a part of his repetitive course of abuse; his victim was aged well below 10 years, being aged only 4 and 5 at the time of his repeated, appalling offending; and he was that child’s natural father. It follows that the outcome in TO does not assist the applicant. To the contrary, it supports the conclusion that his aggregate sentence was not excessive.

24. [81]

    ZA v R [2017] NSWCCA 132, on which the applicant also relied, does not support the conclusion that the applicant’s sentence was manifestly excessive.

25. [82]

    ZA, also the victim’s natural father, was given an aggregate sentence following pleas of guilty, of 26 years commencing with a non-parole period of 18 years for offences committed between January 2012 and July 2013, whilst the victim was aged between 8 and 9 years. This offender was sentenced for 7 offences contrary to s 66A(2), over the course of 18 months of:

    1. (1)

       seven counts of having sexual intercourse with a person under 10 years and who was under his authority, contrary to s 66A(2) Crimes Act, with each offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years;

    2. (2)

       two counts of using a child under 14 years to make child abuse material contrary to s 91G(1)(a) Crimes Act, with each offence carrying a maximum penalty of 14 years’ imprisonment with no standard non-parole period; and

    3. (3)

       one count of possession of child abuse material contrary to s 91H(2) Crimes Act, carrying a maximum penalty of 10 years’ imprisonment with no standard non-parole period.

26. [83]

    It was accepted that ZA’s sentence, some of which attracted life sentences, was a very heavy one: at [100]. But it was concluded that the sentencing judge had given appropriate regard to the objective gravity of his offences; his subjective circumstances; the need for specific deterrence, general deterrence, denunciation and protection of the community; as well as the need for the sentence to recognise the harm done to the victim, they all being purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999: at [105]. The present case is a very grave example of multiple s 66A(2) offences committed against the applicant’s own young daughter over an extended period, accompanied by other criminal conduct. Comparisons with other sentences referred to in [114] of ZA v R do not assist the applicant.

27. [84]

    It is always difficult to make comparisons between offending as heinous as that which the applicant committed against his 4–5 year old daughter, with other dreadful offending committed against other, older children.

28. [85]

    True it is that the applicant committed all of his appalling offences over a period of only some 3 months, before his offending was brought to an end by the discovery of what he had filmed himself doing and that he committed many of his offences during a very short timeframe, a period of only about 30–40 minutes. That, however, could not mitigate the seriousness of his overall offending. To the contrary, it may have exacerbated it, given the very young age of his daughter and the evidence that he persisted, even when she asked him to stop.

29. [86]

    That offences occur in the course of a single extended episode does not justify the sentences imposed being made wholly concurrent, because the separate harm done to the victim by the offender’s different acts must be taken into account, so that the fact that the offences occurred close in time, does not obscure the fact that a number of different offences were committed: R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [50] and Carlton v The Queen [2008] NSWCCA 244; 189 A Crim R 332 at [122].

30. [87]

    Nor does the fact that many of the applicant’s offences were committed close in time establish that ZA’s offending against his considerably older child, pursued over a period of some 18 months, was objectively much more serious than that of the applicant, as was his case.

31. [88]

    Intervention on an appeal such as this is only justified where the Court is able to conclude that there must have been some misapplication of principle by the sentencing judge, even though where and how cannot be discerned from the reasons: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

32. [89]

    None of the matters relied on establish that Bright DCJ did not pay necessary attention to any of the matters which her Honour had to take into account, when she undertook the instinctive synthesis which resulted in the aggregate sentence imposed on the applicant: Markarian v The Queen at [51].

33. [90]

    Those matters included the objective seriousness of what the applicant did to his child, his moral culpability for his offending, the relevant aggravating and mitigating matters and the applicant’s subjective circumstances; the need for both specific and general deterrence to feature in his sentence; the need to increase the sentences for those offences where other offences had to be taken into account on a Form 1; and the principle of totality. Her Honour was also obliged to bear in mind the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act:

34. [91]

    The applicant has neither established error in her Honour’s application of the principle of totality, nor that the aggregate sentence imposed as the result of this exercise of the sentencing discretion was manifestly excessive. Accordingly, these grounds must fail.

Orders

1. [92]

   For the reasons given, I would order:

   1. (1)

      Leave to appeal granted; and

   2. (2)

      Appeal dismissed.

2. [93]

   ADAMSON J: I agree with the orders proposed by Schmidt J, substantially for the reasons given by her Honour.