Manners v R

1. [1]

   WARD P: I agree with Coleman J.

2. [2]

   RIGG J: I agree with Coleman J.

3. [3]

   COLEMAN J: Andrew Manners (“the applicant”) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Gallagher DCJ (“the sentencing judge”) in the District Court at Sydney on 23 May 2025.

4. [4]

   The applicant pleaded guilty to a single charge of indecent assault of a child under the age of 10 under the now repealed s 61M(2) of the Crimes Act 1900 (NSW). He was sentenced to 4 years imprisonment with a non-parole period of 2 years and 6 months. The sentence imposed was after a 25% discount for the utilitarian value of the applicant’s early guilty plea. The sentence was backdated to commence on 5 January 2024.

5. [5]

   The offending occurred in 2002. The applicant was charged with the offence on 25 March 2024 while serving a 15-month sentence commencing on 5 May 2023 for offences of possess child abuse material and fail to comply with an extended supervision order (“ESO”).

6. [6]

   The sole ground of appeal is:

Remarks on sentence

1. [7]

   The sentencing judge referred to the victim impact statement (“VIS”) and summarised the immense psychological impact the offending has had on many facets of the complainant’s life. The VIS set out the “devastating and long-lasting damage this offence has caused to her and in her relationships with other people”. Her Honour took this into account in the applicant’s sentence, noting that the sentence must recognise the harm done to the victim and the community by his conduct.

2. [8]

   The applicant was 26 years old at the time of the offence, and the complainant was aged between 6 and 7 years old.

3. [9]

   The applicant was released on parole in Queensland for sexual offences against children on 14 February 2000, and in early 2002 he relocated to Sydney to live with his parents. The complainant’s mother and the applicant’s father were distant cousins and reconnected in about June or July 2002.

4. [10]

   The applicant frequently visited the complainant and would spend the entire day with her and her siblings. The complainant was excited when the applicant visited, and he would cuddle and be affectionate with her. The complainant did have a recollection of occasions when the applicant was inappropriate with her though she didn’t understand the nature of the actions and believed them to be accidental. The applicant would often take the complainant and her younger brother out and treat them to gifts that their parents were not able to due to financial limitations.

5. [11]

   The sentencing judge summarised the offending as follows:

6. [12]

   In late 2002 the complainant was told the applicant was attending a dance competition in Newcastle over the weekend. She did not see the applicant again. On 23 October 2002 breach action was instigated by the Probation and Parole Service, and the applicant’s parole was revoked for the extant Queensland sentence for his failure to comply with restrictions on working with children and reporting obligations. Around this time the complainant confided in a friend from school that something had happened to her when she was a kid but did not provide details.

7. [13]

   She spoke about the matter again to her mother and brother in August 2022; becoming emotional saying that something did happen but that she couldn’t talk about it. On 30 August 2022, she sent a message to her family group chat saying she was sexually assaulted by the applicant as a child. She reported the matter to police in October 2023.

8. [14]

   On 25 March 2024, the applicant was charged with the index offending while incarcerated at Silverwater Correctional Complex for possession of child abuse material and breach of his ESO conditions.

9. [15]

   The applicant is a high-risk offender and was made subject to an ESO on 19 December 2008 for a 5-year period, which was extended for the same duration on 11 December 2015 and was set to expire on 10 August 2025. The ESO remains suspended until the applicant leaves custody and accordingly it will remain in place once he is released to account for the period of his incarceration.

10. [16]

    The sentencing judge summarised the submissions made by both parties in her determination of objective gravity. Her Honour noted that the Crown submitted that the offending fell above the mid-range level due to the young age of the victim and the skin-on-skin contact to her vaginal area. The Crown also submitted that the fact the applicant took advantage of a familial relationship supported this finding, though it did not submit that he was in a particular position of trust.

11. [17]

    Counsel for the applicant had argued that the objective gravity of the offending fell below the mid-range of objective seriousness. Counsel conceded that in the period leading up to the offending, the applicant engaged in grooming behaviour, seeking to win over the trust of the complainant and her family, before exploiting it through his offending. Counsel submitted that her Honour should accept the evidence of the applicant about his own sexual abuse as a child and the existence of a direct causal link between the abuse he experienced and the offending because of his desensitisation to, and the normalisation of, such conduct. It was on this basis that counsel submitted that the applicant’s moral culpability – although necessarily high due to the serious nature of any sexual offence against children – should be tempered by the direct link between the applicant’s own abuse and the psychological disposition which led him to offend against others.

12. [18]

    Her Honour found the offending to be a very serious example of this type of offence, characterising it as follows:

13. [19]

    The sentencing judge was not satisfied on the balance of probabilities that the sexual abuse suffered by the applicant as a child was a direct cause of the offending so as to reduce the objective gravity of the offence. Her Honour did however consider the sexual abuse the applicant suffered as part of the applicant’s subjective case.

14. [20]

    Her Honour recounted the applicant’s long criminal history for offending in both Queensland and New South Wales. His first conviction for offending against children was in 1998 in Queensland where he was convicted of indecently dealing with a child under 12 for which he was sentenced to 16 months imprisonment. Later that year he was sentenced for further offences of indecently dealing with a child under 12 and maintain an unlawful sexual relationship with a child, for which he was sentenced to 4 years imprisonment. He was on parole for these offences when the index offence was committed and ultimately his parole was revoked for the reasons mentioned above at [12]. Her Honour found his being on parole for similar offences at the time of the offending to be an aggravating factor on sentence.

15. [21]

    The sentencing judge summarised the applicant’s criminal history in New South Wales as follows:

16. [22]

    As to the applicant’s high-risk offender classification, her Honour noted he has been subject to an ESO, most recently extended on 11 December 2015 for a period of five years, which remained suspended during periods of incarceration. One of the conditions of the ESO is that the applicant must follow reasonable directions of his departmental supervising officer (“DSO”). On 16 June 2021, his DSO issued him a formal written direction that he must not search for or possess any images that depict children or child-like images or persons who appear to be under the age of 18. On 14 November 2022, the applicant’s laptop was seized by police, and it was determined that he had viewed child abuse material on the device. On a subsequent search of the applicant’s house, police found child abuse material in the form of three images, and four DVDs that contained home recordings, the majority of which depicted young girls. Both the images and the DVDs constituted a breach of his ESO.

17. [23]

    With respect to the submissions made by the Crown, and concessions made by the applicant as to his history of like offending, her Honour found:

18. [24]

    Her Honour referred to a sentencing assessment report dated 30 April 2025. The report outlined the applicant’s living circumstances before his arrest including his good relations with his employer and support provided by his mother. Her Honour noted that report indicated that, as has become clear, the applicant has a history of superficial compliance with supervision and that this supervision is complicated by his insistence that he is capable of self-management. Community Corrections assessed his overall risk of offending as high.

19. [25]

    The applicant gave evidence at the sentence hearing on 2 May 2025 and was not cross-examined. He accepted he breached the trust of the complainant and her family and that had he disclosed his history of child abuse he would not have been allowed into their family.

20. [26]

    On his own insight into the impact of his offending on the complainant, the sentencing judge said of the applicant:

21. [27]

    The applicant disclosed he has been on anti-libidinal medication since 2016 or 2017. The applicant said the treatment rendered his sex drive non-existent and confirmed that this was not a condition of his ESO.

22. [28]

    The applicant wrote a letter of apology addressed to the complainant in which he said he was shocked when he was charged but that he trusted her memory over his own. He described what he did to her as horrendous, unfair and without justification. He said that he deluded himself into thinking his own sexual behaviour was not really hurting anyone. He apologised and said if he could take away her pain and anger, he would.

23. [29]

    Her Honour referred to the psychological report prepared by Dr Pusey dated 11 April 2025.

24. [30]

    Dr Pusey’s clinical observations were informed by various psychometric tests, based on the self-reporting of the applicant. Dr Pusey noted that the applicant exhibits behaviour consistent with Paedophilia Disorder, but that further assessment would be required to confirm this. Dr Pusey diagnosed him with Persistent Depressive Disorder and opined that the applicant would likely meet the diagnostic criteria for Post-Traumatic Stress Disorder (“PTSD”).

25. [31]

    Dr Pusey said the applicant presented with risk factors including a history of antisocial behaviour, cognition and personality patterns, and that he has a high-risk of sexual based recidivism and general and/or violent criminal recidivism. It was noted however that this risk was dependent on the ability of mental health treatment to address the identified risks.

26. [32]

    There were two letters of support before the sentencing judge. Both letters were supportive of the applicant. One, from a former employer, indicated she was willing to provide him with employment and accommodation on his release.

27. [33]

    The sentencing judge also referred to a draft VIS prepared by the applicant, addressed to the person who allegedly sexually abused him. In it the applicant outlined the major impact the offending has had on his life, which included depression and suicidal thoughts. Additionally, the sentencing judge noted that she had read an unsigned statement by the applicant to Queensland Police which set out the specific instances of sexual abuse the applicant can remember being perpetrated against him.

28. [34]

    The applicant wrote a statement about the suicide of his cell mate in April 2025 and its impact on him having witnessed it.

29. [35]

    Under the heading ‘The offender’s mental health and childhood abuse’, with reference to Dr Pusey’s conclusions mentioned above at [30], the sentencing judge found that there was insufficient evidence to establish that any of those conditions materially contributed to the offence. Her Honour did, however, take the applicant’s Depressive Disorder and possible PTSD into account given they would render custody more onerous for him.

30. [36]

    The sentencing judge accepted that the applicant was sexually abused as a child, and that this experience was the context within which the offence occurred. This childhood trauma was found to reduce somewhat his moral culpability and consequently the applicant was found to be a “somewhat less suitable example for general deterrence”. The sentencing judge found the applicant had taken responsibility for his actions and shown remorse.

31. [37]

    As to his prospects of rehabilitation, the sentencing judge made the following findings:

32. [38]

    The sentencing judge made a finding of special circumstances which justified an adjustment of the usual ratio of the parole and the non-parole period. This arose by reason of the applicant’s need for extensive supported supervision in the community and because conditions of custody were more onerous for him. The onerousness of custody arose due to both his mental health conditions and his witnessing of the suicide of his cell mate.

33. [39]

    The sentencing judge noted there was no dispute between the parties that the only appropriate sentence was one of imprisonment. As noted, the applicant was charged with the offence on 25 March 2024 whilst in custody. The Crown submitted that as the applicant was bail refused for the matter since 4 April 2025, it was open to her Honour to backdate the sentence to that date. Counsel for the applicant submitted that in applying the principle of totality, the sentence should commence from 5 October 2023, a 50% backdate during the period the applicant was in custody for other matters.

34. [40]

    The applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years and 6 months. Her Honour, taking into account the principle of totality, determined the starting point for this sentence was 5 January 2024. The earliest date for release on parole is 4 July 2026.

Appeal

1. [41]

   No challenge was made to the sentencing judge’s findings on sentence, nor was there a submission that her Honour’s decision was affected by specific error. Rather, counsel for the applicant submitted that on the basis of examining the whole of the circumstances, the ground of manifest excess is made out.

2. [42]

   The applicant submitted that her Honour erred in her notional starting point and in her weighing of several subjective features in the sentencing synthesis. The applicant submits that the notional starting point of 5 years and 4 months puts it at the high range of offending particularly as there was no standard non-parole period. By reason of the age of the offence and the fact that there was one offence charged over a short period, the applicant says there should have been a lower starting point than her Honour considered appropriate.

3. [43]

   Counsel for the applicant pointed to the fact the indecent assault did not occur over days or weeks but rather involved one event which included a single touching in the context of potentially five others.

4. [44]

   Counsel for the applicant set out several features which she contended had “little to no impact on the ultimate sentence”. They are as follows:

5. [45]

   The applicant submits that in light of these circumstances – being the sentencing judge having erred in her notional starting point and failing to adequately factor the features outlined at [44] above into the synthesis – the sentence was manifestly excessive and a lesser sentence is warranted at law.

6. [46]

   The applicant submitted that in assessing the totality of the sentence imposed by her Honour, the Court should reject the Crown’s submission that there was a period of concurrency of 7 months. The sentence the applicant was serving when charged expired on 4 August 2025, and the sentence in this matter commenced on 5 January 2025. Counsel for the applicant submitted that the Court should have regard to the actual time spent in custody, which given the applicant had been bail refused from the day his non-parole period expired, 4 April 2025, would be 3 months.

7. [47]

   The applicant submitted that the fact that there was no standard non-parole period at the time of the offence weighs in his favour in relation to questions of totality.

8. [48]

   The Crown submits that the sentence appropriately reflects the sentencing judge’s findings as to the facts and seriousness of the offending, the harm caused, the aggravating circumstances and the demands of specific and general deterrence.

9. [49]

   The Crown submitted that the Court should not accept the contention of the applicant that the notional starting point of the sentence should be lower.

10. [50]

    As to the sentencing judge’s overall assessment, the Crown submitted that her Honour’s finding that the offending was “a very serious example” of this type of offending was consistent with authorities on the objective seriousness of skin-on-skin contact with the genital area of a child: Stevenson v R [2022] NSWCCA 133 at [113] (Johnson J, Davies and Bellew JJ agreeing), Ivimy v R [2008] NSWCCA 25 at [42] (Price J, McClellan CJ at CL and Hall J agreeing).

11. [51]

    The Crown submitted that given the harm suffered is an important factor in the assessment of objective seriousness, the sentencing judge’s finding as to the “devastating and long-lasting damage” of the offending on the complainant was consistent with her Honour’s finding on objective gravity: Smith v R [2022] NSWCCA 88 at [53] (Fagan J, Johnson and Harrison JJ agreeing).

12. [52]

    The Crown advanced several factors (both objective and subjective) the sentencing judge considered which weighed in favour of a sterner sentence:

13. [53]

    As to the factors set out at [44] which the applicant argued were not given appropriate weight, the Crown submitted that each of the matters was appropriately taken into account by the sentencing judge in determining the sentence.

14. [54]

    As to the submission by the applicant that the sentencing judge erred in her weighing of the factors enumerated at [44], the Crown noted it is well established that the question of weight in the exercise of the sentencing discretion is a matter typically reserved for the sentencing judge: R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing).

15. [55]

    The Crown submitted that the Court should have regard to the fact that the sentencing judge’s finding of special circumstances resulted in a six-month reduction in the non-parole period and that the commencement of the sentence was backdated by three months.

16. [56]

    The relevant principles applicable to an assessment of manifest excess are well known. They were stated by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows:

17. [57]

    In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, Bell P (Gleeson and McCallum JJA agreeing) stated at [42]:

18. [58]

    An application of those principles to this matter leads to the conclusion that the applicant has failed to discharge the very high burden to demonstrate that the sentence imposed was manifestly excessive.

19. [59]

    The sentencing judge appropriately determined the objective gravity of the offending conduct. It involved some level of planning. It was conceded by counsel for the applicant at the sentence hearing that there was an element of grooming involved. The offence was in the context of about five other incidents of the applicant touching the complainant around the vagina on the same visit.

20. [60]

    The offending was aggravated by the applicant being on parole for similar offences at the time. The impact on the complainant was, as can be expected with child sexual offences of this type, significant and ongoing.

21. [61]

    The sentencing judge properly took into account the applicant’s significant criminal history of sexual offending against children. Even having regard to the acceptance of responsibility by the applicant, his genuine remorse, his voluntarily taking anti-libidinal medication, the sentencing judge found his prospects of rehabilitation as not good, although if he continues with the anti-libidinal medication and whilst he remains under supervision, they may improve.

22. [62]

    I reject the applicant’s submissions that the “notional starting point of the sentence” being 5 years and 4 months, before the 25% discount, in some way demonstrates manifest excess. The sentencing judge’s assessment of the objective seriousness of the offending (being a very serious example of this type of offending) is not challenged. I do not consider the notional starting point is such that it unjustly exceeds the criminality of the offending taking into account the subjective matters of the applicant and the other matters relevant to the sentencing exercise.

23. [63]

    Further, I do not accept the applicant’s submission that the absence of a standard non-parole period for this offence, either taken alone or as part of the consideration of the principles of totality, impacts upon the question of whether the sentence was excessive or plainly unjust.

24. [64]

    Nor do I accept that there is any basis to conclude that the sentence imposed was manifestly excessive by reason of her Honour’s conclusions on the commencement date of the sentence having regard to the other sentence being served by the applicant. Absent the applicant pointing to any specific error (which has not been done), there is no reason to interfere with the sentencing judge’s discretion in this regard.

25. [65]

    In my opinion, the applicant has failed to identify any reason why this Court should conclude that the sentencing judge misapplied principle or that the sentence is so far outside of the range of sentences available that there must have been error.

26. [66]

    The orders I propose are:

    1. (1)

       Grant leave to appeal;

    2. (2)

       Dismiss the appeal.