Richardson v R

1. [1]

   THE COURT: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on him by the District Court on 19 July 2024. The offences for which the applicant was convicted, following pleas of guilty, and the corresponding indicative sentences were as follows:

2. [2]

   An additional three offences were included on Form 1 attachments to the indictment and taken into account on that basis:

   1. (1)

      in connection with Count 1, an additional offence of sexual intercourse without consent contrary to s 61I of the Crimes Act;

   2. (2)

      in connection with Count 2, an offence of attempted sexual intercourse without consent contrary to s 61I of the Crimes Act;

   3. (3)

      in connection with Count 4, an offence of possessing a prohibited drug (cannabis) contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty was 2 years imprisonment.

3. [3]

   The sentencing judge, McGrath DCJ, imposed an aggregate sentence of 13 years imprisonment, with a non-parole period of 8 years and 6 months, commencing from 20 April 2023 and expiring on 19 October 2031.

4. [4]

   The applicant seeks to appeal on three grounds:

5. [5]

   The first and second grounds are not made out. The third is. Leave to appeal should be granted, the appeal upheld, and the applicant resentenced to a term of imprisonment of 8 years 6 months, with a non-parole period of 5 years 6 months, commencing on 20 April 2023. In what follows we summarise first the facts and then the sentencing judgment. We then address the three grounds in turn, before resentencing the applicant.

Facts

1. [6]

   The sentencing of the applicant proceeded on agreed facts. On the night of 6 March 2023 the complainant was celebrating her 20th birthday at the Kent Hotel in Newcastle with a male acquaintance. The acquaintance was evicted from the Hotel. The complainant was herself later evicted because of her intoxication. Shortly after 12.30am on the morning of 7 March 2023 the complainant was at a kebab shop across the road from the Kent Hotel. The applicant was nearby with other men. He struck up conversation with the complainant and offered her a beer. They sat in his van, which was nearby, drinking beer. The applicant suggested that they drive to his house and keep drinking and the complainant agreed.

2. [7]

   After arrival at his house the complainant continued to drink white wine which she had brought with her. She asked the applicant for cannabis which he provided. The applicant rolled a joint for the complainant which she smoked. By this time the complainant was severely affected by a combination of drugs and alcohol.

3. [8]

   The complainant’s memory of how events unfolded was fragmented. Her clothes were removed but she was unsure how. The applicant took the complainant to his bedroom and the two had penile/vaginal sexual intercourse. The complainant was not in a condition to consent. The intercourse was unprotected and the applicant ejaculated. This intercourse was the subject of Count 1.

4. [9]

   After this occurred the applicant told the complainant to turn face down and he inserted a dildo in and out of her vagina. This was the conduct covered by what was described as sequence 2, which was on a Form 1 attached to Count 1. The applicant then attempted to put the dildo into the complainant’s anus, which produced a sharp pain. This conduct was covered by what was described as sequence 5, which was attached to Count 2 on a Form 1. In response to these acts the complainant made a noise to indicate “no”, moved away, stood up and started to walk out of the bedroom, saying words which included “I’m too fucked for this”. She then said “I need to get home”. The applicant rolled and smoked a joint that had cannabis and tobacco in it, which he provided to the complainant who smoked it.

5. [10]

   The complainant was semi-conscious and there were further gaps in her memory about what followed. At some point the applicant had an erect penis, pulled the complainant forward by the head and put his penis inside her mouth. The complainant was choking on it. The applicant said “Look up at me, open your eyes and look up” and pushed his entire penis into her mouth. This conduct was the subject of Count 2. The applicant filmed that conduct without the consent of the victim. He proceeded to film two other sexual assaults of the victim (being Counts 5 and 6) and also took a still image of the sexual assault which is Count 4. He took four other photographs of intimate parts of the complainant’s naked body. All of these recordings and photographs, which occurred without the complainant’s consent, were the subject of Count 3.

6. [11]

   The applicant inserted his index and middle fingers into the complainant’s vagina when she was on the bed on her knees. This conduct, which was the subject of Count 4, was photographed as noted above.

7. [12]

   The applicant also inserted a black whip into the complainant’s vagina. While this was happening he also put his finger into the complainant’s anus. After he had removed his finger, the applicant moved the whip back and forth in the complainant’s vagina and said “Do you want me to stop or do you want more?”. As noted above, this conduct was filmed by the applicant. He instructed the complainant to get back on her knees and continued to move the whip back and forth in her vagina while this occurred. This conduct is the subject of Count 5.

8. [13]

   Sometime later the applicant spread the complainant’s vagina apart, and pulled and moved her labia. He made a video of this occurring which was 12 seconds long. He made another video of 23 seconds duration in which he zoomed in on intimate parts of the complainant’s body culminating in him using his hand to spread her vagina apart, pulling and moving her labia. These acts of digital penetration were the subject of Count 6.

9. [14]

   The agreed facts state that “Later the victim woke up”. The applicant drove the complainant home at about 6.30am on 7 March 2023. Two days later she made a complaint to her mother and on 13 March 2023 she reported the sexual assaults to the police.

10. [15]

    The period of time over which these offences occurred is unknown, save that it was within a window between about 1.00am and say 6:00am, noting that she left at 6:30am having slept for some time.

11. [16]

    When the applicant was arrested and interviewed by police, he said that the complainant was not too intoxicated to consent. He subsequently made an early plea of guilty, and it was acknowledged that the version he gave in the interview with police was not correct. He voluntarily provided the police with access to the videos and photos on his phone.

The sentencing judgment

1. [17]

   The sentencing judge found that while the applicant did not get the complainant intoxicated, he formed an appreciation of her extreme state of intoxication by the time they were at his house. He contributed further to it. The complainant was in a highly vulnerable state by the time he commenced the offending. Prior to the first act of sexual assault the applicant was aware of the complainant’s vulnerability, having regard to her intoxication and isolation with him at an unfamiliar address. The sentencing judge took into account that the complainant suffered a discernible and measurable psychological and psychiatric trauma as a result of the offending.

2. [18]

   The sentencing judge noted that it was difficult to form an assessment of the duration of any individual offence or of all of the offending, but inferred that the offending took place over at least some hours. His Honour found that the applicant was initially reckless as to whether or not the complainant was consenting, but for the “bulk of the offending” he knew that she was in no position to consent and she was “actively attempting to communicate as best she could in the state of her intoxication her lack of consent”.

3. [19]

   The objective seriousness of the Count 1 offending was elevated because the sex was unprotected and the applicant ejaculated inside the complainant, exposing her to a risk of pregnancy and disease. The Count 1 offence was found to be at the higher end of the mid-range of objective seriousness. The sentencing judge noted that the objective seriousness of Count 1 was not affected by the presence of the Form 1 offence, involving insertion of the dildo from behind in circumstances where the complainant was not consenting, but consideration of the Form 1 offence did have a bearing on the sentence.

4. [20]

   The Count 2 offence involving forced fellatio was found to be towards the high end of the mid-range of objective seriousness. It was physically forceful and involved choking of the complainant. The fact that the offence was recorded added to the humiliation of the complainant, although the sentencing judge noted the need for care to avoid double counting given that the recording was the subject of a separate offence.

5. [21]

   As to the recording offence itself (Count 3), his Honour found it to be more serious than video recordings of a covert nature such as upskirting or hidden cameras in a change room. The acts recorded were graphic and humiliating and the recording calculated to cause more distress and humiliation to the complainant. It was found to be an objectively serious example of the recording of intimate images without consent, but without his Honour proceeding to make any more explicit finding as to the degree of objective seriousness.

6. [22]

   The Count 4 offence of digital penetration was found to be of relatively short duration but that did not particularly mitigate objective seriousness. This was also found to be an objectively serious example of the offence, but again without a more explicit finding as to the degree of objective seriousness.

7. [23]

   The offending in Count 5 was more objectively serious than Count 4. An object was used and the complainant was making noises which should obviously have indicated a lack of consent. It was found to be within the mid-range of objective seriousness of a sexual intercourse offence.

8. [24]

   The Count 6 offence of digital penetration was found to be around, or approaching, the mid-range of objective seriousness.

9. [25]

   His Honour indicated that his findings of objective seriousness took into account the vulnerable state of the complainant. He noted that this could also be a statutory aggravating factor but said he would not double count it.

10. [26]

    The complainant had provided a victim impact statement and a psychological report addressing the mental health of the complainant and the impact of the offending upon her. The sentencing judge indicated he would take into account the discernible psychological and psychiatric effects of the offending on the complainant.

11. [27]

    In terms of the subjective circumstances of the applicant, the sentencing judge did not hear evidence from the applicant, but did receive a report from a psychologist, Ms Edwige. His Honour accepted that the background of the applicant was as described in the report. It disclosed that the applicant had an upbringing in which he was subjected to violence, sexual abuse and abandonment. He grew up in rural New South Wales. His father was an alcoholic who subjected the family to significant violence. By the age of twelve, when the violence started being directed more at him, the applicant started absconding from home to escape his father. This led to criminal activity and encounters with the youth justice system. Violent encounters with his father continued, including the applicant being hit by a bullet shot by his father when there was an argument during a visit by the applicant as an adult.

12. [28]

    The applicant left school in year 8. At the age of 17 he was sexually abused by a superintendent at the Daruk Youth Correctional Centre over a period of time. This led to long term trauma.

13. [29]

    The applicant has a good history of work and had worked in a variety of unskilled roles. He suffered serious injuries in a motorbike accident in 1987 which had long term effects. From 2005 he was on a disability pension and living in subsidised housing. The applicant drank heavily in his adult years until around 2005. The applicant has been married three times and has three children. He separated from his third wife in October 2002 and reported maintaining a friendship with her.

14. [30]

    The applicant had a criminal history but one which the sentencing judge found did not disentitle him from appropriate leniency in the sentence. He had not committed any offences which were of similar seriousness to the offending for which he was being sentenced. The court gave him credit for his relatively good character “given his background and upbringing”.

15. [31]

    Immediately after making these findings the sentencing judge made the following remarks:

16. [32]

    The sentencing judge found that there were special circumstances justifying an alteration to the usual ratio of the head sentence to the non-parole period. The special circumstances were that the applicant will suffer several hardships in custody. One such hardship is that the applicant needs visual and hearing aids, but these have been broken and there was uncertainty about how quickly they could be fixed. Another hardship is that the applicant suffers very serious back pain, which is ordinarily medicated by an opioid based codeine medication which is not available in custody. As a result of the less effective medication he will be in physical pain and physically restricted in custody, which was found to contribute to the highly onerous nature of his imprisonment. His Honour remarked in this context:

17. [33]

    The sentencing judge stated that he took the applicant’s guilty pleas into account in determining the indicative sentences..

18. [34]

    The sentence was ordered to commence from 20 April 2023, being the date the applicant was taken into custody for the offences. The ratio between the head sentence of 13 years and non-parole period of 8 years 6 months is about 65%.

Ground 1 – Alleged error in relation to taking into account the applicant’s disadvantaged background

1. [35]

   On an appeal of this kind it is problematic to formulate a ground of appeal as a complaint about the sentencing judge not “sufficiently” taking into account a relevant matter. This will ordinarily not be an effective way of demonstrating error of the kind described in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (House v The King): see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy) at [53]; Kim v R [2018] NSWCCA 254 at [31]-[33]. If it can be demonstrated that the sentencing court failed altogether to take into account a mandatory consideration, error of the kind potentially warranting appellate intervention will be established. Otherwise, however, generally the weight to be given to a mandatory consideration and the extent to which it is taken into account are matters left to the discretion of the sentencing judge.

2. [36]

   As the ground was developed in argument, the real point of substance raised by the applicant was not about the weight given to the applicant’s background or the extent to which that matter was taken into consideration. Rather, the applicant’s submission was that the sentencing judge misunderstood the significance of the applicant’s disadvantaged background to the sentencing exercise, in a way that revealed that his Honour acted on a wrong principle or took into account an irrelevant consideration. The approach of the sentencing judge was said to have effectively prevented the applicant’s disadvantaged background from being taken into account in the right way.

3. [37]

   The factual premise of this argument was that the sentencing judge had expressed the view that, as a matter of principle, there is a tension between taking into account a person’s disadvantaged background in the sentencing exercise and recognising that the person has been of prior good character. As expressed by counsel for the applicant at the hearing of the appeal, the sentencing judge was expressing a “general presumption applicable to all cases”. That was said in turn to expose a misunderstanding about the significance to be attached to a disadvantaged background in the sentencing exercise, in light of Bugmy.

4. [38]

   The factual premise is not borne out by the sentencing remarks. We have extracted above the relevant passage at [31]. It must be read as a whole and in its proper context. It follows a discussion of the applicant’s criminal history, with the sentencing judge observing that the applicant’s criminal record was relatively good, given his age, background and upbringing. That in turn caused the sentencing judge to give the applicant credit for his relatively good character. His Honour then observed that there was “something of a tension in the sentencing exercise”. The nature of this perceived tension is explained from what follows. It arose from the opinion of Ms Edwige that there was a causal connection between the applicant’s upbringing and associated trauma, on the one hand, and the sexual offending in March 2023. This was a reference to the following passage in the report of Ms Edwige:

5. [39]

   The sentencing judge was thus responding to a specific factual assertion, arising from the evidence, that there was a direct causal connection between the applicant’s upbringing and the offences that had occurred. The next part of his Honour’s reasons is to be understood, in this context, as a response to that specific contention about causation on the facts of the case. His Honour perceived some tension, understandably, between the asserted causal connection and the fact that the applicant had reached the age of around 60 without having committed any serious offence and had lived an adult life marked by prosocial choices and an ability to “conform generally to the rules of society”. These aspects of the applicant’s adult life were relevant at the very least to an understanding to the nature of the causal connection being suggested by Ms Edwige.

6. [40]

   As a response to the factual proposition about causation that was being advanced, his Honour’s reasoning is unremarkable. His Honour was not seeking to express any broader statement of principle there is an inherent tension between taking into account a person’s disadvantaged background in the sentencing exercise and recognising that the person has been of prior good character. Nor did his Honour proceed to reason in a way that suggested that this perceived “tension” meant that the applicant was not entitled to the benefit of consideration of Bugmy factors, having regard to the circumstances of his upbringing. To the contrary, the sentencing judge proceeded expressly to take into account, as a necessary part of the instinctive synthesis, the applicant’s background which featured deprivation and other difficult and traumatic aspects. This justified “some limited reduction in his moral culpability”.

7. [41]

   The fact that his Honour found that this particular consideration did not have a “pronounced effect” in the ultimate analysis is not to the point. “In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise”: Engert v R (1995) 84 A Crim R 67 at 68. The relevant point is that the express application of Bugmy principles confirms that his Honour did not proceed on the basis that because he had lived a life of relatively good character the applicant was as a matter of principle not entitled to the benefit of consideration of Bugmy factors.

8. [42]

   For these reasons ground 1 is rejected.

Ground 2 – Alleged failure to assess the applicant’s risk of re-offending and prospects of rehabilitation

1. [43]

   The applicant contends that the sentencing judge failed to assess the risk of the applicant re-offending and the prospects of rehabilitation, in circumstances where there was an obligation to do so. This ground falls to be considered in circumstances where, as the applicant acknowledges, neither he nor the Crown made submissions to the sentencing judge about the prospects of rehabilitation or the likelihood of recidivism. As the applicant acknowledges, the absence of any submissions on these topics before the sentencing judge makes it appropriate to apply the principles considered in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 (Zreika) at [80]-[82] and Rahman v R [2023] NSWCCA 148 (Rahman) at [6], [71]-[75], [95]-[96].

2. [44]

   In Zreika at [80] Johnson J (with whom McClellan CJ at CL agreed) referred to the practical expectation that an offender’s legal representative will make submissions to the sentencing judge at first instance by reference to the particular factors which are sought to be taken into account in mitigation of sentence. A sentencing appeal is not the occasion for the revision and reformulation of the case presented below and the Court will not lightly entertain arguments that could have been put, but were not: [81]. Rahman addressed the added vice of an applicant for leave pursuing arguments that involve a departure from concessions made at first instance. In Zreika at [81] Johnson J had also alluded to the need for exceptional circumstances before a party will be allowed to resile from concessions made below or contradict submissions previously made.

3. [45]

   The sentencing judge in the present matter was obliged, in determining the appropriate sentence for the offences, to comply with s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). Section 21A(1)(b) relevantly required the sentencing judge to take into account the mitigating factors referred to in subs (3) that are “relevant and known to the court”. Subsection (3) of s 21A relevantly provides:

4. [46]

   The qualification arising from the words in the chapeau (read with subs (1)(b)), namely that there is an obligation to take into account the specified matters where “relevant and known to the court”, is of particular significance in circumstances where the matter in question was not the subject of submissions by either party before the sentencing judge. These matters were considered in Meoli v R [2021] NSWCCA 213 (Meoli). In that case there was, as in the present appeal, a complaint about a failure to assess the likelihood of re-offending, in circumstances where there was undoubtedly consideration given to the prospects of rehabilitation. The two concepts, although related, are distinct and when each is engaged the sentencing judge must have regard to both the unlikelihood of re-offending (where it is found to exist) and rehabilitation: [32], [38]. As to the approach to be adopted by an appeal court in circumstances where the matter in question was not the subject of submissions below, Simpson AJA (with whom Bathurst CJ and Bellew J agreed) said:

5. [47]

   In Taylor v R at [51] Wilson J referred to the undesirability of sentencing judges becoming obliged to structure a sentence judgment as a checklist, so as to avoid the prospect of an “armchair appeal” later seizing upon some overlooked reference. Her Honour said at [52] that the purposes of a court in giving a sentence judgment point to “a requirement for transparency, but not for mere recitation of law and principle”. Slavish recitation of statutory provisions and principles of sentencing can lead to obscurity and incomprehension: [55].

6. [48]

   In the present matter, the Crown also emphasises that the exercise of sentencing under s 21A of the CSP Act ought not be reduced to a tick-a-box or mechanistic process whereby each of the matters listed is referred to ritualistically: see Baker v R [2022] NSWCCA 195 at [73].

7. [49]

   In Meoli Simpson AJA proceeded to note that although the prospects of rehabilitation and the unlikelihood of reoffending are separate and distinct issues, “in many cases the relevant evidence will be, if not co-extensive, then significantly overlapping, and the conclusions in respect of each paragraph may be expected to be consistent”: [43]. That will inform any assessment of whether one or other of those matters was or was not considered.

8. [50]

   Bellew J agreed with Simpson AJA and gave additional reasons, including on the topic of dealing with a complaint that a matter has been overlooked when it was not the subject of submissions to the sentencing judge:

9. [51]

   In terms of the complaint about a failure to consider the matter described in s 21A(3)(g), it may be accepted that the sentencing remarks do not disclose any consideration of such a proposition, either expressly or implicitly. However, that is of no legal significance in circumstances where no submissions were made on the topic and the sentencing judge was not invited to make a finding that the applicant was unlikely to re-offend. It cannot be said that the applicant being “unlikely to re-offend” was a matter that was relevant and known to the court, such as to engage s 21A(3) (read with s 21A(1)(b)). Nor can it be said, adopting the words used by Simpson AJA in Meoli that the issue arose in the proceedings before the sentencing judge.

10. [52]

    As for the complaint about failure to consider that the offender “has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise”, it would not be accurate to say that the sentencing judge ignored the question of rehabilitation altogether. His Honour referred to the sentencing purpose of rehabilitation in the context of explaining why it was appropriate to make a generous finding of special circumstances.

11. [53]

    On appeal the Crown submitted that for the purposes of any re-sentencing by this Court it would be appropriate to make a finding that the applicant has good prospects of rehabilitation. Although Mr Richardson has provided an affidavit, on the usual basis, for the purposes of resentencing, the Crown submission did not appear to be tied to any new material that was not before the sentencing judge. That might imply that the material before the sentencing judge was also sufficient to support a finding that the applicant had good prospects of rehabilitation. However, it does not follow that appellable error has been established. The sentencing judge was not invited to make a finding of this kind. Nor was there a submission that the sentence ought be affected in a material way by a favourable consideration of the prospects of rehabilitation. In the circumstances, applying the principles described in Meoli, ground 2 must be rejected.

Ground 3: Alleged manifest excess

1. [54]

   In order to establish the kind of error alleged by the applicant it is necessary to show that the sentence imposed “is unreasonable or plainly unjust” such that this Court “may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”: House v The King at 505. Appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases; it is warranted only 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; by its very nature, that is a conclusion which does not admit of lengthy exposition: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [59], and authorities there cited; see further eg Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. What “reveals manifest excess … of sentence is consideration of all of the matters that are relevant to fixing the sentence”: Hili at [60].

2. [55]

   The applicant was entitled to a discount of 25% for his early guilty plea. Discounts are applied to individual sentences and thus should be manifest in indicative sentences: see eg Weiss v R [2020] NSWCCA 188 at [69]-[71]. For an aggregate sentence it can nevertheless be useful for the purposes of comparison to other sentences to assess what sentence would have been imposed without a discount. That can be done on an approximate or rough basis, in cases where the same discount was applied to all of the indicative sentences, by grossing up the aggregate sentence (ie reversing the discount as though it had been imposed with respect to the aggregate sentence): note eg Davidson v R [2022] NSWCCA 153; 300 A Crim R 214 at [238]-[245]; MJR v R [2025] NSWCCA 51 at [48]. On that approach, here if no discount had been applied the aggregate head sentence imposed would have been of the order of 17 years and 4 months (ie the aggregate sentence in fact imposed is 75% of that term).

3. [56]

   The applicant did not challenge the sentencing judge’s conclusions as to objective seriousness, either for the purposes of this ground or for resentencing. The applicant also accepted that “outside of his disadvantaged background, [he] did not present a particularly powerful subjective case”, and that the number of counts and the fact that the offending the subject of Counts 2, 4, 5 and 6 were the subject of video recording or photographs “take the applicant’s offending conduct outside of common scenarios involving this type of offending”. He acknowledged that in this case the “principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved” (quoting here JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]). The Crown similarly said that the “critical question in the present matter is that of totality”.

4. [57]

   On this issue the applicant submitted that:

5. [58]

   In response the Crown submitted:

6. [59]

   There is force in both submissions. The offences were very serious. They involved distinct actions, which together involved sexual assault in a range of degrading ways. They were committed against a person who was obviously very vulnerable given her high degree of intoxication, her age and the fact that she was alone in his house. The filming and photographing was itself a distinct and degrading action. On the other hand, these actions were committed within a matter of something between about one and five hours; where he was taking advantage of the one person in the same circumstances of vulnerability; and where he had no history of having engaged in such criminal conduct before. There is significant overlap between the offences for the purposes of assessing the overall criminality.

7. [60]

   The applicant referred to sentencing statistics but accepted (appropriately) that their capacity to assist the sentencing exercise was particularly limited. The Crown said that those statistics “compel only a conclusion that the applicant’s aggregate sentence is closer to the top than the bottom of previous sentences” for breach of s 61I of the Crimes Act, whilst noting that many of the sentences were for a single offence. The applicant gave more emphasis to a range of other appeals decided in this Court. Of those cases, the Crown noted that only two involved sentencing for three or more counts contrary to s 61I: Wan v R; R v Wan [2019] NSWCCA 86 (Wan), and R v Jackson [2024] NSWCCA 156 (Jackson). It is those two cases which serve as the most useful points of comparison.

8. [61]

   In Wan the applicant, who was aged 69 at the time of the offences, had been charged with six counts of sexual intercourse without consent under s 61I and nine counts of indecent assault under s 61L, along with one count of administering an intoxicating substance with the intention of enabling himself to commit an indictable offence. The complainant was an 88 year old man. The two men had become friends following an excursion organised by a local council. The events in question occurred one day in March 2015 between about 9:00am and 5:00pm in the applicant’s apartment. The applicant admitted the sexual conduct – all but one action of which he had recorded on video – but claimed it had been consensual. A jury found him guilty of all charges save for the following three: administering the intoxicating substance; one count of indecent assault in which (on the video) the complainant had appeared to participate; and the one count of intercourse which had not been depicted in the video. The trial judge imposed an aggregate sentence of 5 years 6 months, with a non-parole period of 2 years and 9 months. The complainant’s victim impact statement referred to how his life had change dramatically since the offending, similarly to this case.

9. [62]

   A Crown appeal against the sentence was upheld on various bases, including manifest inadequacy. The applicant was resentenced to a term of 8 years with a non-parole period of 5 years. In so doing this Court found that the s 61I offences were just below the mid-range of objective seriousness (at [62] and [119]), and maintained the trial judge’s finding that the applicant had otherwise been a person of good character and had good prospects of rehabilitation (at [120]). The case has similarities to this one given the vulnerability of the complainant (albeit for different reasons), the fact that a number of offences were committed over the course of a few hours against one person, and that the offences were videoed (albeit there was no separate charge relating to that action in Wan). Both cases involved five counts under s 61I. Those offences in Wan were characterised as having somewhat lower objective seriousness than here (the sexual intercourse counts all involved fellatio). On the other hand, in Wan there were also eight convictions for indecent assault, compared to the one other count here relating to recording intimate images. Taken as a whole, this case represents somewhat more serious offending than what was addressed in Wan.

10. [63]

    In Jackson, being another Crown appeal against sentence, the defendant had been found guilty of four counts of sexual assault without consent contrary to s 61I after a jury trial. The charges involved acts of digital-vaginal penetration, fellatio, cunnilingus and penile-vaginal intercourse. The complainant was 19 years old and the respondent was 62 years old at the time of the offending. The complainant had gone to the respondent’s farm to visit her brother (JM), who worked and lived on the farm. She had been accompanied by JM’s girlfriend. The offences were committed at the respondent’s house on his farm when the respondent entered the spare bedroom where the complainant was staying overnight. This Court considered the complainant was vulnerable “based on the combined circumstances of the age and power differential between her and the respondent, together with her geographical isolation” (at [66], note also [51]). That was so even given her brother and his girlfriend were sleeping in a shed nearby, and though the respondent’s 10 year old daughter and two male friends of his were sleeping in the house (see at [51]). The trial judge had sentenced the respondent to an aggregate term of imprisonment of 3 years 6 months with a non-parole period of 1 year 10 months. This Court held that sentence was manifestly inadequate, resentencing the respondent to a term of imprisonment of 6 years with a non-parole period of 4 years. In upholding the appeal McNaughton J, speaking for the Court, said this:

11. [64]

    The Crown argued that there were the following significant differences between that case and this one:

    1. (1)

       The complainant in that case was far less intoxicated and was to that extent less vulnerable. Yet, as noted, the Court found that the complainant there was vulnerable, just as was the case here.

    2. (2)

       The level of isolation of the complainant here was greater insofar as she was “completely isolated”. Given the Court’s finding about vulnerability in Jackson, this does not appear a material distinction.

    3. (3)

       The offending there did not include acts of humiliation, nor recording. It can be accepted that the offending here was different, and somewhat more serious, insofar as it involved the use of a whip, dildo, and filming and taking photographs.

    4. (4)

       The offending period there was considerably shorter. That point has some force, albeit it is not clear over what period the offending took place here.

12. [65]

    In sum, the offending in the case at hand was somewhat more serious than both of the two cases emphasised in submissions. That being said, both Wan and Jackson are sufficiently similar to throw useful light on the appropriate sentence in this matter. Both involve multiple counts under s 61I relating to complainants who were vulnerable. It is also important to note that in both of those cases the accused men had pleaded not guilty, whereas here there was no dispute that the applicant was entitled to a 25% discount on sentence for his plea of guilty.

13. [66]

    The applicant’s offences involved serious criminality. Even so, the aggregate sentence of 13 years was a very heavy sentence, especially when it is understood that on an undiscounted basis it was a sentence in the order (very approximately) of some 17 years 4 months. It is one that is starkly different to the head sentences of 8 years and 6 years imposed in Wan and Jackson respectively.

14. [67]

    Taking account in particular of appropriate considerations of totality and the two cases referred to, the sentence was manifestly excessive. Ground 3 is made out.

Resentencing

1. [68]

   As noted, the applicant did not challenge the sentencing judge’s characterisation of the objective seriousness of the offences, as identified above at [19]-[25]. We proceed on the same basis.

2. [69]

   Nor did the applicant challenge the other findings made below, save with respect to not sufficiently taking into account the applicant’s disadvantaged background and in not assessing his risk of re-offending and prospects of rehabilitation (which were criticised by the applicant for the purposes of grounds 1 and 2).

3. [70]

   Alike with the sentencing judge, we are not persuaded that the applicant’s disadvantaged childhood and adolescence was such as to have some causal effect on his offending. Ms Edwige’s opinion that it was “a contributing factor to the offences committed” (see above at [38]) was not supported by any significant reasoning, and we are not persuaded to accept it.

4. [71]

   However, again like his Honour, we do consider that the applicant’s disadvantaged background does mean there was some limited reduction in the applicant’s moral culpability. We also take into account his general good character prior to the current offending. We also agree with his Honour that the applicant’s limited criminal history does not disentitle him to appropriate leniency in the sentence. As the Crown accepted in its submissions below, the sexual offences appear out of character for the applicant.

5. [72]

   As noted above at [53], the Crown accepted that it would be appropriate to make a finding that the applicant has good prospects of rehabilitation. We so find. We consider he has a relatively low risk of re-offending.

6. [73]

   We take into account the importance of general deterrence, the need for denunciation of and accountability for the applicant’s serious offending, and the harm caused to the complainant. We take into account the 7 year standard non-parole period for the s 61I offences.

7. [74]

   We note that there is no evidence of contrition or remorse having been expressed by the applicant, beyond the bare fact of his guilty plea, such as would mitigate his sentence. We do note, in his favour, that he facilitated the police having access to his phone, including advising them how to access a private photo album and directing them to the videos and photos he had taken of the complainant. We accept that the offence was not part of a planned or organised criminal activity. That being said, as the Crown submitted below, such sexual offences are commonly opportunistic, so this point has limited mitigatory weight.

8. [75]

   The applicant does not dispute that no penalty other than imprisonment is appropriate.

9. [76]

   We take into account the various ways in which detention will be particularly onerous for the applicant, as identified by the sentencing judge. The applicant provided an affidavit on the usual basis for re-sentencing. The contents of the affidavit do not materially advance what had earlier been reported to Ms Edwige, as was taken into account below. These matters, along with the fact that the applicant would benefit (as Ms Edwige stated) from having support for a lengthy period of time, lead us to conclude that there are special circumstances for the purposes of setting a non-parole period. It is appropriate to identify non-parole periods for the s 61I offences shorter than the standard non-parole period in light of all the sentencing considerations that we have identified.

10. [77]

    It is not disputed that the applicant is entitled to a 25% discount for his early plea of guilty, to be applied to the indicative sentences.

11. [78]

    Taking account of all these considerations, we indicate the following sentences for the six counts:

    1. (1)

       For count 1 (penile-vaginal intercourse) and taking into account the Form 1 offence (inserting a dildo into the complainant’s vagina), a non-parole period of 3 years 4 months and a sentence of 5 years.

    2. (2)

       For count 2 (fellatio), taking into account the Form 1 offence (attempting to insert a dildo into the complainant’s anus), a non-parole period of 2 years 3 months and a sentence of 3 years 6 months.

    3. (3)

       For count 3 (the intentionally record intimate image offence), a sentence of 18 months.

    4. (4)

       For count 4 (the first digital penetration) and taking into account the Form 1 offence (possess prohibited drug), a non-parole period of 1 year and 4 months and a sentence of 2 years.

    5. (5)

       For count 5 (the intercourse offence involving the whip), a non-parole period of 2 years and a sentence of 3 years.

    6. (6)

       For count 6 (the further digital intercourse offence), a non-parole period of 1 year and 4 months and a sentence of 2 years.

12. [79]

    An aggregate sentence is appropriate. Taking due account of the considerations of totality addressed above (at [57]-[59]) there should be a substantial degree of concurrency. We conclude the appropriate sentence is a term of imprisonment of 8 years 6 months, commencing on 20 April 2023 (being when the applicant was detained for these offences), with a non-parole period of 5 years 6 months. The applicant will first be eligible for parole on 19 October 2028.

Orders

1. [80]

   The orders of the Court are as follows:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal upheld.

   3. (3)

      Quash the sentence imposed in the District Court on 19 July 2024 and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 8 years 6 months, with a non-parole period of 5 years 6 months, commencing on 20 April 2023. The applicant will become eligible for parole on 19 October 2028.