DL v R

HOEBEN CJ at CL:

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the sentence imposed upon him on 2 May 2019 in the District Court at Gosford by his Honour Judge Wilson SC (the sentencing judge).

The applicant pleaded guilty to and was sentenced in respect of nine offences under the Crimes Act 1900 (NSW). Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), the applicant received an aggregate sentence of 20 years imprisonment with a non-parole period of 15 years.

The details of each offence, including the indicative sentences, are set out in the table below:

An offence of “aggravated indecent assault”, contrary to s 61M(2) of the Crimes Act (1900) NSW, was taken into account on a Form 1 attached to Count 3. This offence was committed at the same time as Count 3. It involved the applicant sucking both nipples and rubbing the stomach of Emma.

In sentencing the applicant, his Honour allowed a discount of 10 per cent on account of his pleas of guilty. This discount was applied to the indicative sentences. His Honour did not find special circumstances.

The applicant relies on four grounds of appeal:

The applicant is the biological father of the complainant Lucy. Lucy had known her friend, the complainant Emma, since the pair were aged five years. In January 2017, both were aged 13.

In early January 2017, the applicant made arrangements to take both complainants to Norah Head Camping Ground, travelling there on 12 January 2017. Following their arrival, the applicant set up a large tent, which had three internal rooms and two sleeping areas separated by a central living area. The applicant slept in one of the sleeping areas and the complainants slept in the other.

Count 1 was an offence of aggravated indecent assault. At about 1am on 14 January 2017, Emma was sleeping on a mattress on the floor of the tent. She was wearing a nightie and underwear but was not using a sleeping bag as it was hot. She awoke and rolled over to find the applicant lying on the ground next to her mattress. He was rubbing her vagina on the outside of her underwear. Emma asked “What are you doing?” to which he responded “Oh, nothing.” Emma pulled down her nightie which had been lifted to her lower stomach. The applicant then rubbed her stomach and asked “Do you remember what was just happening?” She said “No” and tried to get back to sleep. The applicant continued to massage her stomach. He asked “Do you like me?” and asked her to kiss him, but she refused. Emma felt the applicant’s hand moving lower on her body. She told him to stop. He complied. The applicant asked Emma to stand up and they walked to the middle section of the tent, where the applicant asked Emma to lie on his bed. Emma refused and tried to return to her bed but the applicant grabbed her by the side. She struggled to get out of his arms and went back to her bed.

The applicant again lay on the ground next to Emma asking her “What is wrong?” She told the applicant that she felt uncomfortable. After some further conversation, Lucy woke up and asked “What are you doing?” The applicant replied that he and Emma were just talking. He then left Emma’s sleeping area.

As to counts 2 and 7, at around 9.30pm on 14 January 2017, both complainants returned from watching a movie which had been screening at the camping ground. Upon entering the tent, the applicant handed each complainant a drink of cordial into which he had placed diazepam (valium). This had been prescribed to him to assist him with sleeping. When each complainant complained about the taste, the applicant told them to drink all of it as it was expensive.

After consuming the drink, the complainants walked to the camping ground bathroom to brush their teeth. On the way back to the tent, Emma started to feel dizzy and found it hard to stand up. Lucy assisted her back to the tent. At one stage Emma fell down. Once inside the tent, Emma fell on her bed. The applicant told her she was probably suffering from heat stroke and that they should go to sleep.

Count 3 was an offence of aggravated sexual assault. At about 1.30am on 15 January 2017, Emma was asleep on a mattress on the floor of the tent. This was approximately four hours after she had consumed the drink containing diazepam. She awoke and saw the applicant in front of her. The applicant pulled Emma’s underwear down to her ankles and started rubbing around her genitals before placing his fingers inside her vagina. The applicant then pulled up her nightie and rubbed and kissed her breasts. Emma told the applicant to stop, but he placed his left hand on her chest near her collarbone, holding her down. He then rubbed her breasts and kissed and sucked both nipples. That comprised the indecent assault offence which the applicant admitted on the Form 1 document.

Emma started screaming. The applicant attempted to cover her mouth. Lucy woke up. The applicant told her “I found her naked and I was just gonna put the sleeping bag on her.” Lucy saw that her friend’s underwear was around her legs. The applicant continued to hold onto Emma who was attempting to get away. He told her he would go to gaol because she was making a big disturbance and stated “It wasn’t me, I just found you like that”.

Emma continued to attempt to leave the tent but the applicant held her around the middle of her torso to prevent this, saying to Lucy “I’ll hold her down, she’s just overreacting”. Lucy then assisted the applicant to hold Emma by her arms and around her waist. Emma attempted to get to her telephone but the applicant and Lucy prevented this. Emma eventually ran to the entrance of the tent.

A fellow camper heard Emma screaming. She heard Emma say “Help, get away from me” and the applicant say “Sshhh, sshhh”. The camper asked “Is everything okay?” and the applicant again stated that he had found Emma partially naked and that she was overreacting. Emma ran down the street followed by the camper who subsequently contacted police.

Upon arrival, police observed that Emma was quite sleepy and vague.

Diazepam was detected in the blood samples taken from both complainants. Emma’s blood diazepam level was assessed as being at the low end of the therapeutic range at the time count 3 was committed, but at a level sufficient to cause sedation. The symptoms she displayed (feeling dizzy, falling over) were consistent with being well affected by the sedative drug. The diazepam concentration in the blood sample taken from Lucy was just under the therapeutic range, consistent with consuming less than half a tablet of valium at about 9.30pm on 14 January 2017.

Upon his arrest, police seized the applicant’s iPhone. Subsequent examination of that device revealed that he had undertaken internet searches on it on 13 January 2017 as to how much diazepam to administer to a 50kg female.

When searching the tent, police found a red duffel bag containing two condoms, lubricant, an open packet of diazepam tablets, a roll of duct tape and a Samsung mobile phone.

On 16 January 2017, police executed a search warrant at the applicant’s residence. A number of electronic devices were seized and subsequently analysed. That analysis revealed:

Accordingly, the relevant period during which the offences took place was 17 December 2011 and between 1 June 2016 and 15 January 2017.

The applicant was arrested and charged on 15 January 2017. Except for a period of about two months when he was on bail, the applicant has been in custody since that date.

On 9 February 2018, the matter was listed for trial on 19 November 2018 and given a call over date on 15 November 2018. At the call over on 15 November, the court was advised that the trial was ready to proceed. The presiding judge was told that the matter might resolve and a jury was not empanelled. It was not until 26 November 2018, 11 days later, that the applicant pleaded guilty to nine counts and to one count on a Form 1. Pleas were not entered or required in respect of counts 6 and 11.

The sentencing judge observed:

Later in the sentence judgment, the sentencing judge observed:

The sentencing judge noted that during interviews with police, Lucy detailed a history of verbal and physical abuse that she had suffered at the hands of the applicant. His Honour said:

The sentencing judge noted that on or about 4 October 2016, Emma attended the applicant’s residence to visit her close friend Lucy. During the visit, the applicant filmed Emma in her swimming costume after playing on a slide. The video appeared to focus on Emma from behind. The video was later located on a Samsung phone owned by the applicant.

The sentencing judge set out more detail concerning the production of child abuse material. When interviewed by the Joint Investigation Response Team in respect of count 5, Emma said:

The sentencing judge noted that in relation to count 10, Lucy advised that the applicant would sometimes come into the bathroom when she was in the shower. She said that he took a picture of her when she was facing away. There were five sequential photos of Lucy, dated 8 July 2016, showing her in the shower with her entire body exposed.

The sentencing judge made the following observations in relation to what was depicted in count 12:

The sentencing judge set out substantial parts of Lucy’s victim impact statement. This was a document not authored by her but by a psychologist whom she had been consulting over a period of 2 years. Without setting out its content in full, the statement made it clear that as a result of the applicant’s conduct Lucy had suffered significant mental and physical injuries. The following are excerpts from that statement:

The sentencing judge recognised the importance of assessing the objective seriousness of the offending. He noted that this involved an evaluative assessment of the seriousness of the offending with the starting point being the maximum period of imprisonment, together with any Standard Non-Parole Period (SNPP) which applied. The sentencing judge took into account the abhorrence with which the community regarded the sexual abuse of young children and the emphasis which is given to general deterrence when sentencing for such crimes. The sentencing judge observed that there was no hierarchy of sexual acts for the purposes of the criminal law and that the seriousness of the offending had to be assessed by reference to the context in which it occurred.

The sentencing judge found that because one of the victims was the applicant’s biological daughter, and the other a close friend of his daughter, the seriousness of the offending was increased. This was because of the substantial breach of trust in that the applicant was in the position of a parent to both complainants. The complainants were particularly reliant on the applicant when they were camping. The sentencing judge found that the applicant’s conduct would be viewed by the community “with utter disgust and loathing” and found that the applicant had engaged in heinous conduct for his own perverted pleasure (Sentence judgment [91]).

When having regard to the objective seriousness of the offences involving child abuse and pornography, the sentencing judge relied upon the considerations identified in Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 at [94]. The matters there referred to included whether actual children were involved, the age of the children, the content depicted, the extent of any cruelty or physical harm perpetrated against children, the number of images, the part played by the offender in the activity, the degree of planning and organisation involved and the extent of the dissemination of the material. The sentencing judge concluded that such an assessment made clear that these offences were serious examples of their kind.

The indicative sentences found by his Honour are set out in the table in this judgment. The sentencing judge set out his reasons for indicating those sentences.

In relation to count 1, his Honour had regard to Emma’s age, the degree of physical contact involved, the abuse of trust, the level of coercion and the planning involved. His Honour concluded that the offending in that count was at the midrange of objective gravity.

In relation to count 2, the sentencing judge took into account the breach of trust, the substantial planning and the guideline provided by the maximum penalty. His Honour assessed the objective gravity of that offence at above the midrange.

In relation to count 3, his Honour took into account the breach of trust, the high level of planning and the nature of the offending, i.e. sexual intercourse. His Honour took into account the applicant’s conduct after the offence which involved covering Emma’s mouth to stop her screaming, physically restraining her and persuading his daughter to assist. His Honour found count 3, particularly when regard was had to the Form 1 matter, involved criminality above the midrange of objective seriousness.

In relation to count 5, his Honour took into account the breach of trust but noted that it involved a relatively low level of child abuse material. Accordingly, his Honour assessed it as falling below the midrange of objective seriousness.

For the reasons already set out, his Honour regarded count 7 as involving offending above the midrange of seriousness for offending of this type. His Honour also had regard to the fact that the breach of trust by the applicant on this occasion involved his biological daughter.

In relation to count 8, in addition to breach of trust his Honour took into account that force was involved and that the offending occurred in Lucy’s house where she was entitled to feel safe and protected. His Honour assessed the objective seriousness of the offending to be in the midrange.

In relation to count 9, his Honour took into account the breach of trust, the distress Lucy was clearly suffering and that this was not an isolated incident but rather part of a pattern of abusive and degrading behaviour directed by the applicant towards his daughter. His Honour assessed the objective criminality at or just below the midrange for such offending.

In relation to count 10, his Honour assessed the level of offending at the midrange of objective seriousness.

In relation to count 12, his Honour noted that Lucy was aged only eight at the time of the offence and that while the child abuse material was rated only as category 2 on the scale of child abuse material, the abuse of the position of trust by the applicant significantly increased its objective seriousness. His Honour also took into account as aggravating features the way in which Lucy was confined and the significant extent to which her movements were restricted and her complete helplessness. His Honour assessed the objective seriousness of that offence at midrange.

The sentencing judge was largely dismissive of the applicant’s subjective case. His Honour found that the applicant had no remorse or regret for what he had done and that he had failed to appreciate the seriousness of the offending and its effect on the complainants. The sentencing judge was critical of the attempts by the applicant to justify his behaviour and to minimise its seriousness. His Honour found that the applicant’s excuse that he was going through a period of personal turmoil, which involved the relationship with Lucy’s mother, was completely inadequate to explain the offending. His Honour characterised the applicant’s affidavit which was placed before the court as a self-serving and inaccurate document upon which he could place little weight.

In summary, his Honour found that because of the inconsistencies in the applicant’s evidence he was an unreliable witness. His Honour rejected the applicant’s evidence that he was remorseful. In doing so, his Honour noted that in his affidavit the applicant had focused upon the effects that his offending had on him rather than on the complainants. Because of the applicant’s behaviour and the nature of the offending, his Honour gave little weight to his otherwise good character. In reaching that conclusion, his Honour had particular regard to the breach of trust involved in the offending. His Honour was not satisfied that the evidence established that he had prospects of successful rehabilitation. On that issue, he rejected the evidence of Dr Nielssen on the basis that it relied upon at least one psychological report which was not before the court. Finally, his Honour was not satisfied that the applicant was unlikely to re-offend after his release.

His Honour was not prepared to accept the opinion of Dr Nielssen, a psychiatrist, who interviewed the applicant by audio-visual means while he was in custody. His Honour set out his reasons for that conclusion in the sentencing judgment as follows:

When sentencing, his Honour had regard to the following matters. In relation to consistency, his Honour said that he had regard to the statistics produced by the Judicial Commission of NSW and that the sentence which he proposed to impose was consistent with those statistics and other sentences for similar offending.

His Honour was mindful of the need for proportionality and totality, as referred to in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. His Honour accepted that questions of totality involving concurrency and accumulation were discretionary matters for a sentencing judge (Cahyadi v Regina [2007] 168 A Crim R 41; [2007] NSWCCA 1).

Because of the substantial amount of time which the applicant had spent in custody following his arrest, the sentencing judge backdated the commencement date of the sentence to 20 March 2017. Accordingly, the non-parole period of imprisonment will expire on 19 March 2032.

In relation to the aggregate sentence, the sentencing judge said:

The applicant noted that a report from Dr Olav Nielssen, dated 6 March 2019, was tendered in the sentence proceedings. The Crown objected to two paragraphs under the heading “Document Review” on p5 of the report. Those paragraphs made brief reference to two psychologists with whom the applicant had consulted. The basis for the objection was that the Crown had not seen the reports provided by those two psychologists which had been read and relied on by Dr Nielssen in preparing his report.

The rejected paragraphs read:

Those paragraphs were not pressed by the applicant and were excluded when Dr Nielssen’s report was tendered. The applicant noted that the Crown did not object to the rest of Dr Nielssen’s report being admitted on sentence, nor did it require Dr Nielssen for cross-examination.

The applicant further noted that during the course of the sentence hearing the issue of the tender of the reports by Mr Wiggins and Ms Howell was raised. Counsel for the applicant indicated an intention to tender the report by Ms Howell, dated 29 January 2018. The sentencing judge suggested that the applicant tender the reports by Mr Wiggins but ultimately, no additional material was tendered and the issue was not raised again.

The applicant noted that the Crown submitted that the sentencing judge should give very limited weight to the statements by an offender to a psychiatrist or psychologist reproduced in reports where the offender did not give evidence. The Crown submitted that Dr Nielssen’s diagnosis of depression was based on self-reporting from the applicant because both that diagnosis and the diagnosis of a possible bipolar mood disorder were arrived at without any tests being administered. The Crown submitted that Dr Nielssen’s diagnosis had no nexus with the offending behaviour.

The applicant noted that the Crown did not submit that no weight should be given to Dr Nielssen’s psychiatric opinion.

The applicant submitted that Dr Nielssen’s opinion was relevant to prospects of rehabilitation and to a finding of special circumstances pursuant to s 44(2) of the Sentencing Act.

The applicant submitted that at no time during the hearing or prior to the delivery of judgment on sentence, did his Honour raise as an issue a potential finding that Dr Nielssen’s opinion as to his psychiatric diagnoses carried no weight. The applicant submitted that it was exceptional for a sentencing judge to give no weight to the opinion of a qualified forensic psychiatrist as to psychiatric diagnoses of an offender made following a formal interview. The applicant submitted that this was particularly so where the report containing the opinion was admitted without objection and was not the subject of challenge in cross-examination.

The applicant submitted that in this case, the failure at first instance to mention the possibility of that exceptional and adverse outcome amounted to a denial of procedural fairness, a concept which lay at the heart of the judicial function. The applicant submitted that procedural fairness required a court making an order that finally altered or determined a right or legally protected interest, to afford to the parties a fair opportunity to be heard and advance arguments relating to its own case and to answer the case put against it.

The applicant submitted that this requirement was of particular importance in a criminal proceeding. In such proceedings there was a need to ensure that the convicted person was not taken by surprise. He or she must be given a fair opportunity of meeting the case against him or her so far as that case had not already been put to him or her for answer. The applicant submitted that fair procedure required that considerations of importance to the judicial officer’s conclusion should be drawn to the notice of the parties affected or their representatives so that a fair opportunity was presented for contrary argument to persuade the judicial decision maker to a different view.

The applicant submitted that the sentencing judge’s decision in this case to attach no weight to the opinion of Dr Nielssen took him by surprise. The applicant submitted that the outcome was adverse, unforeshadowed and objectively and subjectively unexpected. It constituted a practical injustice which could have been avoided by the sentencing judge informing the parties of his preliminary attitude and inviting submissions and the opportunity for further evidence.

Crown submissions

The Crown submitted that the law in relation to procedural unfairness was stated in Chong v R [2017] NSWCCA 185 where Basten JA said (Harrison J agreeing, Schmidt J dissenting) at [5]:

The Crown also relied upon DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32 the High Court (Bell, Keane, Nettle, Gordon and Edelman JJ) said:

The Crown relied upon Beech-Jones J in R v Dennis [2015] NSWCCA 297 where his Honour cited with approval the formulation of principle in Dang v R [2014] NSWCCA 47 at [45]:

The Crown submitted that in determining whether there had been a breach of the requirement of procedural fairness, the consequence of any departure from the dictates of proper procedure must be ascertained because what is ultimately in issue is whether unfairness had resulted from the process. The concern of the law is to avoid practical and not merely theoretical injustice: Weir v Regina [2011] NSWCCA 123 at [66] (per Garling J, Macfarlan JA and Johnson J agreeing) Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34] and [37].

The Crown identified, as the issue said to involve unfairness, the decision by the sentencing judge to give no weight to the psychiatric opinion of Dr Nielssen. The Crown noted that the applicant relied upon the opinion of Dr Nielssen in relation to his prospects of rehabilitation and to support a finding of special circumstances.

The Crown identified the relevant portion of the proceedings dealing with this issue as follows:

The Crown submitted that this exchange between the bench and counsel made it clear that there was no denial of procedural fairness. This was because the applicant was appraised of and afforded the opportunity to respond to the concerns raised by the Crown. His Honour considered the viability of Dr Nielssen’s opinion insofar as it was based on two psychological reports that were not before the court. Although his Honour invited the applicant to tender the reports prepared by Mr Wiggins and Ms Howell, that did not occur.

The Crown submitted that in order for the applicant to establish a denial of procedural fairness he needed to identify the proposed finding from which the judge departed without notice to him. The Crown submitted that his Honour had not given a preliminary indication of the weight to be given to Dr Nielssen’s report in the course of the sentence proceedings which was subsequently departed from without notice. The Crown did not make any concession regarding the weight to be attached to the report. The Crown’s written submissions submitted that only very limited weight should be given to the statements by an offender to a psychiatrist or psychologist reproduced in reports. The Crown submitted that Dr Nielssen’s diagnosis of depression was based on self-reporting by the applicant and no psychiatric tests had been administered. Furthermore, it was expressly submitted by the Crown that no conclusion could be drawn from Dr Nielssen’s report that the applicant was someone who was not an appropriate vehicle for specific deterrence or that his moral culpability should be reduced in any way. The Crown submitted that Dr Nielssen’s opinion regarding the applicant’s risk of re-offending could not be accepted.

The Crown submitted that the applicant could not have been taken by surprise so as to give rise to procedural unfairness. This was because the decision to attribute no weight to the report of Dr Nielssen did not constitute a departure from any concession made by the Crown or a preliminary indication given by his Honour. His Honour’s finding that the report was flawed due to lack of transparency in Dr Nielssen’s reasoning and the absence of psychiatric testing pursuant to DSM-V in the report, should have reasonably been anticipated by the applicant. With the exception of the Crown’s supplementary written submissions, the Crown submissions in relation to Dr Nielssen’s report, in particular his diagnoses, were made before the provision by the applicant’s counsel of his written submissions, dated 29 April 2019. There was no response by the applicant to those specific matters raised by the Crown in its initial written submissions and in the sentence proceedings on 15 March 2019.

The Crown submitted that as a result, there was no denial of procedural fairness.

Consideration

In order to resolve this issue, it is necessary to set out in more detail some of the matters which were referred to in Dr Nielssen’s report. In relation to psychiatric history, Dr Nielssen reported:

The applicant said that his next contact was with Mental Health Services after his reception to prison. He said that he saw his general practitioner and a psychologist while on bail who made a diagnosis of depression. He said that he had a screening interview on reception to prison on both occasions. During the current period of remand, he was interviewed by a mental health nurse and had seen a psychiatrist, Dr Satish Dayalan, on two occasions. He said that Dr Dayalan had made a diagnosis of bipolar disorder and prescribed the potent anti-depressant venlafaxine at the standard dose of 150mg per day, in combination with another anti-depressant with sedating properties, mirtazapine (Avanza), at a half dose of 15mg per night.

In response to questions about the presence of symptoms of depression, the applicant said that he had “massive mood swings” with sudden, severe depression, constant negative ruminations, feelings of guilt and worthlessness, fatigue and loss of interest in activities. He said that he had not lost weight as he said “I have always had an issue with my weight” and it “blew out to 159kgs”. He said that he came into prison at 139kgs, left prison at 120kgs, came back into prison weighing 130kgs” and was now trying to lose weight. When asked about the common symptoms of psychotic illness, the applicant denied experiencing hallucinations or voices.

He reported episodes of abnormally elevated mood lasting for several days at a time and he told Dr Nielssen “Now that I have an understanding of it, I would call it hypomania ... There are days when I go, go, go and there is a crash at the end”.

Dr Nielssen set out his findings as follows:

I am not satisfied that these grounds of appeal have been made out. The applicant’s credibility was understood by both sides to be a real issue in these proceedings. It was well open to the sentencing judge for the reasons which he gave, to substantially reject the evidence of the applicant and to treat him as an unreliable witness. That this was going to be an issue in the proceedings was made clear by the Crown’s written submissions and oral submissions. That finding leads to the next issue which is the weight which can be given to the opinion of Dr Nielssen in circumstances where the applicant has been found to be unreliable.

The diagnosis of a depressive illness appears to have been made primarily on the basis of the history given to Dr Nielssen by the applicant. That having been said, most diagnoses of depression are made on that basis by the person seeking psychiatric assistance. There are some tests routinely carried out by psychologists which can indicate the presence of depression but if such tests were carried out, Dr Nielssen’s report says nothing about them or the results obtained.

Counsel for the applicant relied upon a finding of a depressive condition to support a further finding of special circumstances. Given the state of the evidence in this case, and the effect of the largely successful challenge to the applicant’s credit, even if weight were given to that aspect of the report of Dr Nielssen, there was no obligation on the part of his Honour to make a finding of special circumstances.

In relation to the prospects of rehabilitation, the challenge by the Crown to the opinion of Dr Nielssen was justified. It is clear that to some extent (unexplained) Dr Nielssen based his opinion on that of Ms Howell. In the absence of any information as to either the tests carried out by her and the mode of reasoning used by her, Dr Nielssen’s expression of agreement carried little weight. That proposition is further strengthened by the absence of any intellectual analysis by Dr Nielssen of the reasons why he reached such a conclusion as distinct from relying upon the opinion of Ms Howell.

A matter which was not raised in the sentence proceedings but which was potentially available to the applicant was the oft quoted proposition that the existence of a depressive condition can make an offender’s time in custody more difficult and so can be taken into account by way of mitigation. Such an approach is not possible here. There was no evidence about the extent of the applicant’s depressive condition (assuming the existence of such a condition was established on the evidence) and accordingly it was not known to what extent, if at all, the applicant’s depressive condition would have made his time in custody more difficult.

It follows that Grounds of Appeal 1(a) and 1(b) have not been made out.

This ground of appeal was based on the sentencing judge’s observations set out at [26] and [27] hereof. The applicant submitted that by finding that his late plea worked “only to worsen the effect of the offending” the sentencing judge erred. This was because in Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [663] the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) said that while a plea of guilty might ordinarily be taken into account in mitigation of a sentence, a person who pleads not guilty must not be penalised by the imposition of a higher sentence because of such a plea, or the consequent need for a trial, or the conduct of the defence. The applicant submitted that a person may not be penalised for having at one time insisted on his or her right to a trial.

The applicant submitted that although the sentencing judge applied a discount of 10 per cent for the utilitarian value of the pleas of guilty, the application of that discount was of little or no practical benefit to the applicant and contrary to principle if it had been applied to a notional starting point which had been increased as a result of the foregoing error.

In a recent case of Hoskins v R [2020] NSWCCA 18 at [8] Basten JA (R A Hulme and N Adams JJ agreeing) said:

A similar observation had been made by Howie J in R v Robert Borkowski [2009] NSWCCA 102 where his Honour said:

With those principles in mind, and having regard to the fact that the sentencing judge awarded a discount of 10 per cent, it is clear from what his Honour said, that he was not penalising the applicant because there was a significant delay before the applicant entered his pleas of guilty. What his Honour was saying was that because of the special circumstances of this case, the applicant was not entitled to have his pleas of guilty taken into account as a mitigating factor because they were indicative of his contrition and remorse. This was because that delay was likely to have increased the pain and suffering of the victims.

Moreover, his Honour’s finding that the applicant’s late pleas worked “only to worsen the effect of the offending not to mitigate against it” was delivered in the context of subjective matters affecting the applicant’s sentence. In that context, it follows that the applicant’s late guilty pleas were not going to be taken into account as an aggravating factor but were also not going to be taken into account as a mitigating factor. This was because in the circumstances of this case the two victims faced the prospect of giving evidence on the first day of trial and were not relieved of that prospect until 11 days later.

This ground has not been made out.

The applicant submitted that the primary question was not whether the indicative sentences were “unreasonable or plainly unjust” since they were not amenable to appeal. He submitted that the question was whether he could establish that the aggregate sentence which was required to reflect the totality of the criminality, the subject of the sentence proceedings, was “unreasonable or plainly unjust”.

The applicant submitted that matters relevant to an assessment of the objective seriousness of the sexual and indecent assault offences included the mechanism of the assault, the degree of violence used, the physical harm inflicted, the circumstances of humiliation which the complainants experienced and the duration of the offending.

The applicant submitted that in each case of aggravated indecent assault (counts 1 and 8) the mechanism of forced touching involved rubbing or grabbing the complainant’s vagina on the outside of her clothing for a relatively short duration (inferentially probably only momentarily with respect to count 8). The applicant submitted that these circumstances reduce the objective seriousness of the offences. The applicant submitted that the degree of violence was minimal and in the case of count 1 not beyond that which was necessary to commit the offence. The applicant submitted that in neither case was any physical harm inflicted.

The applicant accepted that there was a degree of humiliation experienced by Lucy with respect to the commission of count 8 but that such an humiliating circumstance was absent with respect to count 1 which involved Emma. The applicant accepted that each offence was aggravated by a significant breach of trust.

In relation to count 3, the applicant submitted that the mechanism of forced sexual intercourse involved digital penetration on a single occasion and inferentially for a relatively short time. The applicant accepted that there was a degree of violence after the commission of the offence but that it was not a serious form of violence and did not result in any physical harm.

The applicant submitted that the circumstances of humiliation which Emma experienced did not extend beyond the commission of the offence itself and the aggravated indecent assault which was the basis of the Form 1 offence. The applicant accepted that the objective seriousness of the offence was increased having regard to the degree of planning and breach of trust involved. The applicant also accepted that relevant to the degree of planning was the administration of diazepam to both Emma and Lucy. The applicant submitted that there was a significant overlap when considering the objective seriousness of this offence and the offences committed contrary to s 38 of the Crimes Act.

The applicant submitted that in relation to the s 38 offences, the drug administered had been prescribed for him and was not otherwise unlawful. The applicant contrasted this with a situation where an offender administered (for example) a dangerous narcotic, the specific composition of which was unknown. The applicant submitted that in each case the complainant’s blood diazepam concentration was either at the lower end of or below the therapeutic range. The applicant submitted that although Emma displayed symptoms consistent with being well affected by the drug, she was nonetheless able to perceive what was occurring, escape the tent and retain a memory of events.

As to the offence committed against Lucy, there was no evidence to suggest that the applicant intended to commit any indictable offence against her as distinct from facilitating the commission of the indictable offence against Emma. The applicant submitted that in neither case did the diazepam cause the complainant any permanent physical harm or ongoing functional impairment. The applicant submitted that contrary to the view taken by the sentencing judge, the objective seriousness of the offences contrary to s 38 should have been assessed at the midrange of objective seriousness.

The applicant submitted that in relation to the offences of “produce child abuse material”, each of counts 5 and 10, which involved photographs taken by the applicant of each complainant naked in the shower, fell well below the middle range of objective seriousness for offences of that kind. The applicant submitted that if they had been stand alone offences, they might not have attracted sentences of fulltime imprisonment.

The applicant accepted that the remaining two counts of “produce child abuse material” were arguably more serious in that they involved a greater degree of humiliation of Lucy. The applicant submitted that in neither instance was Lucy naked and in any event the offences fell well below the middle range of objective seriousness.

In relation to his subjective case, the applicant submitted that he did not have a record of sexual or child abuse offences and had a solid work history.

The principles relating to a ground of manifest excess were summarised in Burgess v R [2019] NSWCCA 13 at [36]:

To succeed in making out this ground, the applicant must establish that the aggregate sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]. Consideration of whether a sentence was unreasonable or plainly unjust is undertaken in a context where there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to formulate a sentence for each offence by balancing many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].

There is no doubt that the offending by the applicant was serious. The breach of trust, particularly against Lucy, was of a high level. There was an element of violence and coercion involved in the sexual intercourse offence and the two indecent assault matters. However, it was of a comparatively low level with no permanent physical harm. Similarly, the offences contrary to s 38 while significant, particularly because of the degree of planning involved, were still of a relatively low level and no more than midrange in seriousness. It was also relevant that the period covered by the offending was confined to the two nights in January 2017 and the period between 1 June 2016 and January 2017. The child abuse material, produced on 17 December 2011 when Lucy was aged eight was a separate and stand alone offence not repeated thereafter.

Taking into account the detailed analysis by the sentencing judge, the submissions as to objective seriousness and other matters put forward by the applicant and my own analysis of the objective seriousness of the offending, I have concluded that the aggregate sentence in this matter is so far outside the appropriate range of sentences for offences of this kind, as to be indicative of error and is plainly unreasonable.

It is a regrettable fact that sexual offences committed against children frequently come before this Court, both by way of applicants seeking a reduction in sentence and the Crown seeking an increase. The circumstances of the offending are many and varied. Some of those circumstances are quite horrific, involving abhorrent and disgusting breaches of trust by parents against their children. Even having regard to offending of that kind which is above and sometimes well above the midrange of seriousness, this sentence, particularly having regard to the comparatively low level of offending, is one of the highest which I have seen.

Where his Honour appears to have fallen into error is in relation to his assessment of objective seriousness of the offences and the resulting indicative sentences. When one has regard to the whole of the offending and its seriousness, the principles of totality and proportion appear not to have been properly applied. This is one of those cases where there must have been a misapplication of principle even though how and where is not apparent from the reasons.

It follows that I would uphold Ground of Appeal 3 on the basis that the aggregate sentence imposed by his Honour is manifestly excessive.

Because his Honour’s individual findings of fact have not been challenged but only the consequences of those findings, I propose to set out the aggregate sentence I would impose and the indicative sentences for the individual sentences. In doing so, I have adopted all of the findings of his Honour, including the rejection of special circumstances and disregarding in its entirety the report of Dr Nielssen.

The aggregate sentence I propose is imprisonment for 13 years and 6 months, with a non-parole period of 10 years. The sentence is to commence on 20 March 2017 and expire 19 September 2030. The non-parole period will expire on 19 March 2027.

The indicative sentences are:

The orders which I propose are:

FAGAN J: I agree with the Chief Judge.

CAVANAGH J: I have had the benefit of reviewing the judgment of Hoeben CJ at CL in draft. I agree with the orders proposed by his Honour and, generally, with his reasons, although I take a slightly different view in respect of Ground 1 that is, in relation to the sentencing judge’s treatment of the report of Dr Nielssen.

The sentencing judge rejected the applicant’s subjective case in its entirety. This was because he did not accept the evidence of the applicant and considered that in those circumstances he should give the report of Dr Nielssen no weight at all.

The sentencing judge considered the applicant to be an unreliable witness. He found that he made excuses for his offending which were ridiculous, illogical and which would offend most members of society.

Having given the report of Dr Nielssen no weight and generally rejected the applicant’s evidence on sentence, there was very little left before the sentencing judge in the applicant’s subjective case. As the sentencing judge said:

His Honour was entitled to reject the applicant’s evidence as unreliable. There is no challenge to that finding.

However, customarily on sentencing, a report from a psychiatrist of the type relied upon by the applicant would be given some weight on issues such as remorse, rehabilitation and reoffending. The applicant submitted that the report was relevant to rehabilitation and a finding of special circumstances.

Other than a submission about Dr Nielssen’s opinion as to the prospects of re-offending, the Crown did not submit that Dr Nielssen’s opinion should generally be rejected. It merely raised objection to two paragraphs of the report, which were then not admitted.

The tender of the report of Dr Nielssen took place during the cross-examination of the applicant. His Honour raised the absence of the two reports referred to in Dr Nielssen’s report. Counsel for the applicant responded suggesting that the report of Jenny Howell would be tendered (there is no explanation as to why it was not).

There followed a discussion with Counsel for the applicant as follows:

It is not clear why Counsel did not come back to the tender of the report of Ms Howell as he foreshadowed.

Counsel for the applicant made the following submission on sentence:

The submissions ended as follows:

The applicant did not provide any written submissions to the Court on sentence.

The Crown provided written submissions, including a submission in the following terms:

The comment by Dr Nielssen relating to the risk of re-offending was raised by his Honour:

No indication was given by the sentencing judge to the applicant that no weight at all would be given to anything said by Dr Nielssen. No submission was made by the Crown to that effect. No submission was made that there should be any limitation on the use to which the evidence of Dr Nielssen could be put.

It is correct, as the Crown submits, that the decision to give no weight to the report of Dr Nielssen does not constitute a departure from any concession made by the Prosecution. However, it is also correct that the Crown consented to the tender of the report subject only to its objection to two paragraphs and made no submission that the sentencing judge should give the report no weight. Its only submission was directed at the doctor’s opinion as to the risk of reoffending.

An offender should not assume that, in consideration of sentence, a sentencing judge will necessarily accept his or her evidence. An offender can hardly complain when the evidence is shown to be illogical, absurd or unreliable. However, expert psychiatric evidence is often critical to an offender’s subjective case. Complete rejection of the psychiatric report, without notice to the applicant, may leave the applicant with no subjective case, as occurred in this matter.

In my view, this matter falls within the general description of procedural unfairness given by Basten JA (Harrison J agreeing, Schmidt J dissenting) in Chong v R. [1] As his Honour said at [5]:

As Gordon J observed in HT v R, [2] the content of the requirements of procedural fairness is not fixed; it varies according to the circumstances of each case. The concern is to avoid practical injustice.

The sentencing judge made a series of findings adverse to the applicant, having regard to the absence of any evidence in his subjective case, having given the report of Dr Nielssen no weight at all. The applicant would have been taken by surprise by that approach.

The practical injustice that arises is that the applicant was not afforded an opportunity to address the sentencing judge as to the extent and way in which the report could still be relevant, even allowing for the rejection of the applicant’s evidence (and, in my view, it may still have been relevant to a certain extent).

His Honour found that the applicant’s Counsel had declined to tender the two reports referred to in the report of Dr Nielssen, but that is not apparent from the exchange about those reports. Having regard to the statement by Counsel for the applicant that the report of Ms Howell would be tendered, an indication that the expert evidence critical to the applicant’s subjective case would be given no weight because of his Honour’s view as to its shortcomings, including the absence of the report of Ms Howell, would surely have led to the report being made available to the sentencing judge.

In my view, Ground 1(a) has also been established.