R v Packer

1. [1]

   SIMPSON AJA: I have had the advantage of reading in draft the judgment of Davies J, in which the relevant facts and circumstances are comprehensively stated. The following assumes familiarity with the facts of the respondent’s offences as stated by his Honour, the reasons of the sentencing judge, the grounds of the Crown appeal and the respective arguments of the parties.

2. [2]

   I agree, for the reasons given by Davies J, that grounds 3 and 4 of the Crown appeal should be upheld. I wish to make some observations about ground 1.

3. [3]

   As formulated, ground 1 makes a specific complaint of asserted failure by the sentencing judge to take into account, as an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), that “the emotional harm suffered by the victim NB was substantial”.

4. [4]

   By s 21A(1)(a) and (b) of the Sentencing Procedure Act in determining the appropriate sentence for an offence, a sentencing court is required to take into account such aggravating and mitigating factors as are relevant and known to the court. Subsections (2) and (3) respectively itemise, non-exhaustively, the aggravating and mitigating factors that are, by subs (1), required to be taken into account. Paragraph (c) of subs (1) makes it clear that the specified aggravating and mitigating factors are in addition to any other objective or subjective factors that affect the relative seriousness of the offence for which sentence is being passed. And, by a suffix to subs (1), those matters are in addition to any other matters that are required or permitted to be taken into account “under any Act or rule of law”.

5. [5]

   Within that legislative context, s 21A(2)(g) specifies:

6. [6]

   Justice Davies has set out the emotional harm suffered by NB as a result of the respondent’s offending. It was substantial.

7. [7]

   The sentencing judge expressly declined to take that harm into account. His reason, as stated, was that he could not tie the emotional harm to any of the individual offences, which, he considered, was required by s 21A(2)(g).

8. [8]

   It is well established that, in sentencing an offender for multiple offences, a sentencing court must fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45] per McHugh, Hayne and Callinan JJ, with whom Gummow J agreed. That principle found statutory expression the following year, in s 53 of the Sentencing Procedure Act which (as enacted) required a court sentencing an offender in relation to more than one offence to impose a separate sentence in relation to each offence.

9. [9]

   Pearce was decided, and s 53 enacted, before the advent, in 2011, of aggregate sentencing: Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), which took effect from 14 March 2011. By that amendment, s 53A(1) permitted a court sentencing for multiple offences to impose an aggregate sentence reflecting the totality of the criminality involved. Section 53 of the Sentencing Procedure Act was amended to remove the requirement, when an aggregate sentence is imposed, for the imposition of a separate sentence for each offence. However, the importance of determining the appropriate sentence for each individual offence was recognised and perpetuated in s 53A(2)(b), which requires a court imposing an aggregate sentence for multiple offences to indicate the sentence that would have been imposed for each offence, after taking into account all relevant matters (including aggravating and mitigating factors).

10. [10]

    The principle is further reflected in s 21A of the Sentencing Procedure Act, which focuses on sentencing “for an offence”. The aggravating factors specified in subs (2), including par (g), direct attention to “the offence” the determination of sentence for which is under consideration. Section 21A applies equally to the specification under s 53A(2)(b) of the sentence that would, but for the imposition of the aggregate sentence, have been imposed for each individual offence. It is clear that the specification of the indicative sentence must take into account any harm caused to the victim by the conduct that constitutes the offence.

11. [11]

    It is commonplace in criminal courts that serious harm, emotional or other, is caused to victims of multiple offences. It is not always easy or possible to attribute that harm to any of the individual offences, and, frequently, it will be the case that the accumulation of the offending is the cause of, or increases, the harm. This is such a case. It would defy sentencing logic and principle to ignore the emotional (or other) harm caused by multiple or sequential offending because the harm cannot be tied to any individual offence.

12. [12]

    Because of its express reliance on s 21A(2)(g) of the Sentencing Procedure Act, ground 1 of the appeal as formulated is not made out. But that does not mean that the harm caused to NB should or could be disregarded. It has always been the case that harm caused by an offence (or offences) is a relevant sentencing consideration: see, for example, Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [29] per Gaudron J. The harm caused by the offending (whether that be a single offence or multiple offences) is particularly relevant to the issue of totality.

13. [13]

    The Crown could not, and did not attempt to, isolate any of the 12 offences for which the respondent stood for sentence as the cause of the emotional harm NB suffered. Most likely, it was caused by a combination, or accumulation, of the offences. The sentencing judge was justified in hesitating to attribute the harm to any one of the offences and therefore to treat it as an aggravating factor within s 21A(2)(g). That had the consequence that it was difficult to treat it as a factor in the determination of the indicative sentences. That, however, did not mean that it should be discarded as a relevant and important sentencing consideration. It was properly to be treated as material to the selection of the aggregate sentence, reflecting the totality of the offending.

14. [14]

    Counsel for the respondent was alive to the real issue, which was the failure of the sentencing judge in determining the aggregate sentence to give any weight to the significant emotional harm caused to NB. Having made submissions to the effect that the s 21A(2) aggravating factors must be applied to individual offences, counsel went on to argue that the sentencing judge had indeed taken into account the harm caused to NB. He submitted that the sentencing judge’s reference to “double counting” could only be understood if the harm to NB had already been taken into account. He was not, however, able to identify any passage in the remarks on sentence that demonstrated that that was so. Counsel contented himself with referring to the observations of the sentencing judge that the respondent knew that the offence the subject of count 10 (distributing an intimate image of NB without her consent) would damage her reputation and that that was “undoubtedly … an objectively serious example of” such an offence. As Davies J has pointed out, reputational damage is not the same as emotional harm. These arguments do not persuade me that the sentencing judge took into account, as he ought to have done, the harm caused to NB by the respondent’s conduct

15. [15]

    In cases of multiple offending, where the evidence establishes that injury, emotional harm or damage has been caused, but it is not possible to attribute that injury, emotional harm or damage to any individual offence, is appropriate for a sentencing judge, having determined the indicative sentences for the individual offences, to take the injury, emotional harm or damage into account in the determination of the aggregate sentence.

16. [16]

    While I would not uphold ground 1 as formulated, the failure to take into account the emotional harm to NB supports grounds 3 and 4, that the sentencing judge misapplied the principle of totality and imposed a manifestly inadequate sentence.

17. [17]

    I agree with the orders proposed by Davies J.

18. [18]

    DAVIES J: The respondent was convicted after trial before Judge C Smith SC and a jury of the following offences:

19. [19]

    The respondent also pleaded guilty to Count 9, which was a further offence of threaten to distribute intimate image without consent contrary to s 91R of the Crimes Act. The complainant in this offence was NB.

20. [20]

    The respondent was found not guilty of four other counts of sexually touching without consent where the complainant was FP, and a count of intimidation contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) where the complainant was also FP.

21. [21]

    On 13 August 2021, his Honour Judge C Smith SC sentenced the respondent to an aggregate sentence of imprisonment for 12 years and 8 months commencing 13 August 2020 and expiring 12 April 2033, with a non-parole period of 8 years expiring 12 August 2028. It is convenient to identify the indicative sentences for each of the offences when the facts of those offences are set out later in this judgment.

22. [22]

    The Crown now appeals against the aggregate sentence on the following grounds:

    1. (1)

       The sentencing judge failed to take into account that the emotional harm suffered by the complainant NB was substantial as an aggravating factor pursuant to s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (NSW);

    2. (2)

       (Abandoned);

    3. (3)

       The sentencing judge misapplied the principle of totality in setting the aggregate sentence; and

    4. (4)

       The sentence is manifestly inadequate.

23. [23]

    The Crown accepts that even if error is found in relation to ground 1, it is necessary for the Crown to establish that the sentence is manifestly inadequate.

The offending

1. [24]

   The following facts are taken from the sentencing judge’s Remarks on Sentence (ROS).

2. [25]

   The respondent was born in October 1979 and was aged 39 at the time of the offences. He lived in Blacktown.

3. [26]

   In January 2019, NB arrived in Australia from Nepal on a student visa when she was aged 18. She responded to a job advertisement from the respondent to work at his home. NB accepted the position, and in late April or early May 2019, she moved into his home.

4. [27]

   The offences committed against her occurred during the period from 1 May to 12 July 2019. At the end of that time, NB collected her belongings from the home and on the following day attended at the police station to report the matters to the police.

5. [28]

   FP arrived in Australia in May 2019 from another country when she was aged about 18 or 19. On or about 9 July 2019 she applied for a job as a result of an advertisement from the respondent on Gumtree calling for a live-in housekeeper.

6. [29]

   FP met the respondent on or about 11 or 12 July 2019 and accompanied him to the Blue Mountains.

7. [30]

   On or about 13 July 2019, FP moved into the respondent’s home, effectively having accepted the advertised role.

8. [31]

   On 16 July 2019, police attended at the respondent’s home and arrested him in relation to the matters involving NB. At a later time, the police interviewed FP and charged the respondent in relation to the offences concerning her.

Counts concerning NB

1. [32]

   The respondent was drinking and sharing with NB how his wife had left him, and he was crying at that time. He gave NB a drink which was a mixture of cola and alcohol which she drank. She said she was not feeling well and was feeling a bit dizzy.

2. [33]

   He lifted her onto his shoulder and took her to his bedroom. She said she could feel the numbness in her body and then felt something go into her vagina. The sentencing judge accepted that the respondent had penile-vaginal intercourse with the complainant. NB could not remember exactly for how long this occurred but thought it was about 5 to 7 minutes. She said she felt he had ejaculated. At some point she fell asleep and woke up in the morning.

3. [34]

   The indicative sentence was imprisonment for 6 years 6 months with a non-parole period of 4 years and 3 months.

4. [35]

   The following morning the respondent told NB that they had had sex the previous night and that he had made a video of it. He said she should not worry, and he told her that he would marry her.

5. [36]

   Sometime later, the respondent said he would send the video to her family if she did not listen to him and do whatever he said. At that time the respondent was friends with NB’s parents on Facebook. NB never actually saw any video of them having sex but believed that there was one. She said she was very scared and became very helpless because, as she said, these things are “not acceptable at all in my country”. NB said that if the video reached her family they would break the relationship with her. She said that if the respondent shared what occurred with her, her boyfriend would leave her and blame her for what had happened.

6. [37]

   The indicative sentence was imprisonment for 1 year and 10 months.

7. [38]

   On a later occasion, NB was on the couch, and the respondent said to her that he wanted to have sex with her. He said that if she did not agree she knew what he was going to do. He said, “if you don’t want (sic) then you know what I’m capable of”. NB remembered the video and the threat concerning it. She became afraid, and because her family were very important to her, she agreed to have sex with the respondent.

8. [39]

   They then went into the bedroom and the respondent had penile-vaginal sex with NB. It occurred for about five to seven minutes and he ejaculated. He told her that he “put the thing” inside her because he wanted to have a baby with her.

9. [40]

   The indicative sentence was imprisonment for 6 years and 6 months with a non-parole period of 4 years and 3 months.

10. [41]

    On another occasion, NB was asleep in her bedroom with the door locked. The respondent opened the door in the middle of the night with a key he had, and went into the bedroom. NB was scared.

11. [42]

    The respondent then had penile-vaginal intercourse with her on the bed. He ejaculated.

12. [43]

    The indicative sentence was imprisonment for 6 years and 6 months with a non-parole period of 4 years and 3 months.

13. [44]

    These counts relate to the time when NB told the respondent she was leaving and not returning. The respondent said to her, “I will make you suffer so much that you will never forget”.

14. [45]

    Count 5 was sexual intercourse without consent. The respondent started to take his and NB’s clothes off, and then put his penis into her mouth. NB said that she did not want to do it. He held her head with one hand and his penis with the other. She was screaming, crying, and begging him not to do it. He had his penis in her mouth for about 20 minutes. The indicative sentence was imprisonment for 7 years and 6 months with a non-parole period of 4 years and 11 months.

15. [46]

    Count 6 was attempted sexual intercourse without consent. The respondent tried to have anal intercourse with NB whilst her back was flat on the bed and he was on top of her. He was trying to put his penis into her anus and she was experiencing pain which she could not bear, so she turned around. The indicative sentence was imprisonment for 6 years and 10 months with a non-parole period of 4 years and 6 months.

16. [47]

    Count 7 was sexual intercourse without consent. The respondent put his penis into NB’s vagina. The indicative sentence was imprisonment for 7 years and 6 months with a non-parole period of 4 years and 11 months.

17. [48]

    Count 8 was sexual intercourse without consent. The respondent put a vibrator into NB’s vagina as she was lying flat and he was near her side. She was crying, afraid, and begging him not to do it. The indicative sentence was imprisonment for 7 years and 6 months with a non-parole period of 4 years and 11 months.

18. [49]

    After NB left the respondent’s home, the respondent sent messages to her including threatening and abusive SMS messages. One of the messages said this:

19. [50]

    The communications included explicit images and the threat to disseminate the intimate video.

20. [51]

    The respondent pleaded guilty to this offence. He was accorded a discount of 5% for the plea. The indicative sentence was imprisonment for 1 year 5 months and 3 days.

21. [52]

    In July 2019, a man named Narayan B in Nepal, accepted a friend request on Facebook from a profile operated by the respondent. Narayan was not related to NB, but they lived in a similar area in Nepal. He did not personally know her, he had met her, but she was not a close friend. They did share the same surname, and he knew that she was in Australia as he had been told by a friend. Narayan communicated with the respondent telling him that he knew her and that he was from the same place.

22. [53]

    The respondent then sent him some pictures and a video. The video was about 5 minutes long and it depicted the respondent having sex with NB. Narayan said, “it was a private sex video”, and later Narayan blocked the respondent on Facebook because he thought it was not right.

23. [54]

    The indicative sentence was imprisonment for 1 year and 10 months.

24. [55]

    The respondent recorded himself and NB having penile-vaginal intercourse in his room, NB was on top of the respondent who was lying on the bed. The recording was about 11 minutes long and it was taken from a phone that was near the bed. NB said that she did not know the sexual activity was being recorded.

25. [56]

    The indicative sentence was imprisonment for 1 year and 10 months.

26. [57]

    There were other uncharged acts. After the events which constituted count 3, the respondent would have sex with NB every one to two days. Whenever she said “no”, the respondent would threaten to circulate the video to her family and friends. The sentencing judge indicated that the respondent was to be sentenced in relation to NB on the basis that the counts of sexual misconduct were not isolated acts, and the acts occurred in a context of the earlier threats about the distribution of the video and NB’s acquiescence in those circumstances.

27. [58]

    Further, at a time when NB was living at the respondent’s house, she and the respondent attended at the Births, Deaths and Marriages Registry for the purpose of signing a notice of intention to marry. The sentencing judge accepted that NB did not want to go there nor sign that document.

Counts concerning FP

1. [59]

   On or about 13 July 2019 when FP moved into the respondent’s house, there was sexual activity between them on that evening. The jury returned a verdict of not guilty in relation to that sexual conduct. After that sexual conduct, FP fell asleep.

2. [60]

   At some time later, FP was woken up by the respondent pulling her pants and underpants off and inserting something into her anus. The sentencing judge found it was likely the respondent’s penis. As he did so, the respondent said something like, “please don’t fuck me monster jimmy”. Those words were said by the respondent to mock FP. FP felt pain. She said “please, please stop”. The sexual act lasted for a few seconds.

3. [61]

   The indicative sentence was imprisonment for 6 years with a non-parole period of 3 years and 11 months.

4. [62]

   On a day subsequent to 13 July 2019, FP had been out at a separate cleaning job she had during the day. She returned home to the respondent at about 7.30pm. She was in the kitchen. The respondent kissed her neck and grabbed her breasts. This was done without her consent and she asked him why he was doing it. The respondent laughed and left the room.

5. [63]

   The indicative sentence was imprisonment for 1 year and 3 months.

Grounds of appeal

1. [64]

   NB gave the following evidence at the trial in relation to the threats the respondent made to her concerning the video:

2. [65]

   In NB’s Victim Impact Statement (VIS), she set out what had resulted from the dissemination of the video as follows:

3. [66]

   In his ROS, the sentencing judge said this:

4. [67]

   The Crown submitted that the complainant’s evidence, both at the trial and in her VIS established that she had suffered emotional harm above and beyond that which would normally be anticipated from the offences before the court. The harm was the loss of her family, and potentially her country of origin. Her family had disowned her, and it was unclear if she would ever be able to return to Nepal safely because she had become a victim of sexual assault.

5. [68]

   The Crown submitted, as it had submitted to the sentencing judge, that the aggravating factor of substantial emotional harm was an aggravating factor that applied to every count relating to NB. This included the counts of sexual assault because the substantial emotional harm resulted from the complainant having been sexually assaulted, and the knowledge of that fact acquired by her family and friends.

6. [69]

   The Crown submitted that the sentencing judge considered that the respondent’s knowledge of the harm he was causing, in relation to the dissemination charges, had a significant bearing on the respondent’s moral culpability, but submitted that that was a different matter from the objective seriousness of the offence where it was not taken into account. The Crown submitted that taking that matter into account only on the dissemination charges ignored the harm that flowed from the fact that the complainant had been sexually assaulted.

7. [70]

   The Crown submitted that in the portion of his Honour’s ROS set out at [66] above, his Honour fell into error. This was because his Honour appeared to have found that substantial emotional harm had been made out on the evidence but his Honour declined to take it into account as his Honour was unsure how to do so, and he was being cautious not to double count. The Crown submitted that, in the result, the substantial emotional harm was not taken into account at all on the sentencing exercise.

8. [71]

   The respondent submitted that where there are multiple offences, the aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) must be applied to individual sentences, and not applied in a general or global way.

9. [72]

   The respondent submitted that s 21A(2) is to be applied in conjunction with the common law. At common law, in assessing the seriousness of an offence, it is appropriate to take into account the consequences of the offence and, particularly, any harm resulting from the offence. That approach is given statutory force by virtue of s 3A(g) of the Sentencing Act. The respondent submitted that the sentencing judge, consistently with the common law, took into account the reputational damage to the complainant in his assessment of the objective seriousness of the harm.

10. [73]

    The respondent submitted that the harm which occurred was in his contemplation at the time he distributed the images. That elevated both the objective seriousness and his moral culpability. That was reflected in the indicative sentence of 1 year and 10 months’ imprisonment against the maximum penalty of three years.

11. [74]

    The respondent submitted that his Honour was correct not to apply in a global way the evidence of substantial harm, given the impossibility of dissecting the evidence on a count by count basis.

12. [75]

    In R v Tuala [2015] NSWCCA 8; (2015) 248 A Crim R 502 Simpson J (as her Honour then was) (Ward JA and Wilson J agreeing) said:

13. [76]

    In Muggleton v R [2015] NSWCCA 62; (2015) 250 A Crim R 180, Adamson J (Simpson and Harrison JJ agreeing) said:

14. [77]

    No objection was taken to the VIS at the sentence proceedings, and no application was made to limits its use. The VIS was entirely consistent with the evidence the complainant had given (set out above at [64]).

15. [78]

    Section 21A of the Sentencing Act makes it clear that the aggravating and mitigating factors are considered in relation to “an offence”. The use of the singular “offence” appears in sub-s (1), twice in sub-s (2), and sub-sections 3, 5, 5A and 5AA. In that regard, the sentencing judge was correct in his concern about approaching the matter globally rather than considering which offence or offences might be relevant to a consideration of the aggravating factor in s 21A(2)(g). However, in my opinion, the sentencing judge fell into error in then determining not to find the extent of the emotional harm as an aggravating factor because of a concern about double counting.

16. [79]

    The evidence before the sentencing judge established, with no real doubt, that the complainant had suffered substantial emotional harm, being harm well beyond what could be expected from the offences for which the applicant was convicted. That substantial emotional harm arose principally from the complainant’s background because of the cultural norms within the community from which she came. The evidence disclosed that she was largely alienated from her family and friends in Nepal, what occurred had affected her status in Australia as a student, with the concomitant matter of the need somehow to reimburse her father for the educational fees that she would otherwise have earned whilst working in Australia.

17. [80]

    Two questions arise. First, do the offences constituted by counts 2, 9, 10 and 11 (“the dissemination offences”) have, effectively as an element, the suffering of emotional harm? Secondly, whether or not that is so, can the emotional harm suffered by the complainant be attributed to the offences of sexual intercourse?

18. [81]

    In relation to the first question, the respondent’s submission both at the sentence proceedings and in this Court was that count 10, and possibly counts 2, 9 and 11 anticipate the very sort of harm that ensued in the present case. The purpose of creating an offence of distributing an intimate image without consent, it was submitted, was to avoid harm and suffering to a person who is depicted in the image. In that way, the respondent submitted that a determination of the objective seriousness of the dissemination offences included a consideration of the harm they were intended to avoid.

19. [82]

    That may be true as far as it goes, but many or most offences are enacted with the purpose of avoiding some sort of injury, emotional harm, loss or damage. The purpose of the inclusion of s 21A(2)(g) as an aggravating factor is that in relation to some offending the injury, emotional harm, loss or damage goes beyond what could ordinarily be expected, and amounts to substantial injury or harm. No double counting is involved in that regard.

20. [83]

    The respondent submitted that the sentencing judge’s references to reputational damage to NB at various time during the sentence hearing show that he did take account of the emotional harm to NB. There are two particular problems with that submission. First, reputational damage is not the same thing as emotional harm. Reputational damage is judged objectively; emotional harm is the personal suffering of the complainant viewed from the subjective position of the complainant. A person’s reputation may be damaged without the person suffering emotional harm. Secondly, a reading of the transcript of the sentence hearing shows that the sentencing judge was endeavouring to work through with counsel the difficult issue of the harm suffered by NB. Given what his Honour said ultimately (at [66] above), it is clear that what his Honour said during the sentence hearing cannot be taken to be his final determination of the issue.

21. [84]

    The sentencing judge ought to have found that the dissemination offences were aggravated by reason of the substantial emotional harm suffered by the complainant. The fact that counts 2 and 9 were offences of threatening does not alter the position. NB was considerably harmed by the threats to the extent that she did what the respondent required of her, including unwanted sexual relations, because of her fear that her family would find out what had occurred and was occurring.

22. [85]

    In relation to the second question, although on one approach the substantial harm was caused by the actual distribution of the intimate image, the evidence both at the trial and in the VIS made clear that the reason for the substantial harm was the fact that the complainant’s family and friends became aware that she had engaged, albeit without consent, in sexual relations with the respondent. In the circumstances, it is entirely artificial to distinguish the sexual intercourse counts from the circumstances of their being recorded in the first place and their distribution thereafter.

23. [86]

    In my opinion, the sentencing judge erred in not finding that the substantial emotional harm suffered by NB was a matter of aggravation with respect to the sentence relevant to each of the counts where she was the complainant.

24. [87]

    The Crown submitted that these grounds could be dealt with together because the principal reason why the overall aggregate sentence was manifestly inadequate was on account of the misapplication of the totality principle. The Crown did not submit that the sentencing judge misapprehended the totality principle; rather, the Crown submitted that the overall sentence, when judged against the indicative sentences, revealed that an excessive degree of concurrence had been allowed such that the resulting aggregate sentence was manifestly inadequate.

25. [88]

    The Crown submitted that the aggregate sentence had to reflect the commission of seven offences against s 61I, and an attempted offence against that section, in relation to two separate complainants, over five separate episodes. Further, the sentence had to reflect the substantial emotional harm suffered by NB. The Crown submitted that none of the s 61I offences against NB was isolated, and the dissemination offences reflected discrete, serious criminality that called for a substantial degree of accumulation. The Crown submitted that the offences against NB were committed in circumstances where, to the respondent’s knowledge, NB’s will had been completely suborned on account of his threats.

26. [89]

    The Crown submitted that a number of the sexual intercourse offences involved ejaculation, and the evidence was that the complainant was concerned about pregnancy. There was evidence that the respondent would not permit her to take the morning-after pill. The offences also involved anal penetration, fellatio, and the use of a vibrator.

27. [90]

    The respondent submitted that there was no misapplication of the totality principle by the sentencing judge. The principle is designed to avoid a crushing sentence being imposed. The respondent submitted that the sentencing judge complied with what was said in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].

28. [91]

    The respondent submitted that in the circumstances of this offending, the sentence imposed could be more concurrent than might be appropriate in other cases. The determination of concurrency was within the discretion of the sentencing judge.

29. [92]

    The respondent submitted that the sentencing judge had appropriate regard to his subjective case, and properly made a finding of special circumstances.

30. [93]

    The respondent submitted that the statistics show that the sentence imposed was within the upper range for offences against s 61I.

31. [94]

    The respondent submitted that, of the cases put forward by the Crown, the only one that could properly be regarded as comparative was Mol v R [2017] NSWCCA 76.

32. [95]

    The principles upon which the Court determines an appeal concerning manifest inadequacy or manifest excess in a sentence are well-known. They were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

33. [96]

    In the present matter the basis for the manifest inadequacy is said to derive from error in relation to ground 1, a failure to apply the totality principle appropriately, and because the aggregate sentence does not properly reflect the serious criminality in the offending. In my opinion, a combination of the first two of those matters results in the sentence being manifestly inadequate.

34. [97]

    In circumstances where the evidence demonstrated that NB had suffered substantial emotional harm, and that this aggravating factor was relevant to all of the offences, the error of the sentencing judge in not taking that aggravating factor into account must have resulted in indicative sentences which did not properly reflect the criminality associated with each of the offences.

35. [98]

    Further, even if regard is had to the indicative sentences stipulated by the sentencing judge, the notional accumulation provided for by the aggregate sentence, when considered in the light of the indicative sentences, is inadequate and does not reflect the overall criminality in the offending.

36. [99]

    In R v Hamid [2006] NSWCCA 302 Johnson J said (Hunt AJA and Latham J agreeing):

37. [100]

    In Pannowitz v R [2016] NSWCCA 13, I said at [40] (Hoeben CJ at CL and Beech-Jones J agreeing):

38. [101]

    His Honour found that counts 1, 3 and 4 were in the midrange of objective seriousness, counts 5, 7 and 8 were above the midrange, and count 6 (the attempt sexual intercourse) was at the top of the midrange. The separate offending against FP of sexual intercourse was found to be just below the midrange. All of these offences carried a maximum penalty of 14 years’ imprisonment, and all but the attempt had a standard non-parole period of 7 years.

39. [102]

    Putting aside the fact that the counts of sexual intercourse were effectively representative counts, those involving NB occurred on four separate occasions over a period of two and half months. Throughout that time, the respondent effectively controlled NB by reason of the threats to disseminate a sex video of her to her family. The offence against FP was a further separate occasion.

40. [103]

    The indicative sentences for counts 1, 3 and 4 were each imprisonment for 6 years and 6 months, for counts 5, 7 and 8 a term of 7 years and 6 months, and for count 6 a term of 6 years and 10 months. The indicative sentence in respect of the sexual assault of FP was 6 years’ imprisonment.

41. [104]

    It can be seen, therefore, that the aggregate sentence involved an accumulation that recognised only slightly more than two separate occasions of offending, whether related to NB only or related to each of NB and FP. In that way, punishment for almost all of the other offences of sexual intercourse, attempted sexual intercourse and the dissemination offences is subsumed in a penalty for two offences only. Looked at more broadly, the indicative sentences total 63 years’ imprisonment, but the aggregate sentence is 12 years and 8 months. Whichever way the matter is approached, the aggregate sentence does not appropriately recognise the extent of the criminality involved, and gives the perception that the respondent is not being punished for committing multiple offences.

42. [105]

    The respondent submitted that his subjective case otherwise mitigated the sentence, so that the aggregate sentence was not manifestly inadequate. It may be accepted, as the sentencing judge found, that the respondent suffered from Post Traumatic Stress Disorder, a Major Depressive Disorder and a Substance Use Disorder. Those disorders stemmed from childhood loss of his father and grandfather at an early age, sexual abuse by a neighbour when the respondent was aged between five and seven, and from persistent bullying by his brother throughout his childhood.

43. [106]

    However, since the respondent maintained to the psychologist that both complainants consented to the sex, there is nothing but the mere fact of the disorders to make any causal connection between them and the offending. The psychologist said only that it was not clear if his substance use had any connection with the offending. At best, the disorders make the respondent’s detention in custody more onerous, as the sentencing judge found.

44. [107]

    The sentencing judge was not satisfied on balance that the respondent had good prospects of rehabilitation and was unlikely to offend. His Honour further considered that both specific and general deterrence had a role to play. His Honour did find, in the respondent’s favour, that his criminal record did not disentitle him to leniency, and the way that the respondent conducted the trial was a mitigating factor in the sense of facilitating the course of justice. His Honour also found special circumstances because it was the respondent’s first time in custody and because he would need a longer period to assist in his rehabilitation.

45. [108]

    In all of those circumstances, it cannot be concluded that the respondent’s subjective case should have mitigated very much the appropriate sentence by reason of the seriousness of the offending. That being so, and for the reasons given earlier, I consider that the aggregate sentence was manifestly inadequate.

Residual discretion

1. [109]

   It must then be determined if the Crown has established that the residual discretion not to intervene should not be exercised, so that this Court would proceed to resentence the respondent.

2. [110]

   In my opinion, the discretion not to intervene should not be exercised. The error made by the sentencing judge in not finding substantial emotional harm in relation to each of the offences is a matter of significance, particularly in the face of submissions made to him by the respondent that the dissemination offences had built into them injury to the complainant’s reputation, which was said to be aligned with emotional harm. The present appeal falls well within the class of case where the primary purpose of a Crown appeal is “to lay down principles for governance and guidance of courts having the duty of sentencing convicted persons”: Griffiths v The Queen (1977) 137 CLR 293 at 310.

3. [111]

   No procedural matters provide any support for the exercise of the residual discretion. The appeal was brought promptly, within one month of the sentence being imposed. No submission on the Crown’s part resulted in the error of the sentencing judge, there are no co-offenders for parity issues to arise, and the respondent is not eligible for parole until August 2028.

Resentence

1. [112]

   Reference has been made already to the respondent’s subjective case. The respondent does not demonstrate that the diagnosed mental conditions from which he suffered were in any way causative of the offending about which, on the basis of the psychologist’s report, he does not appear to accept guilt. I agree that the respondent’s record does not disentitle him to leniency, with his previous offending having been sporadic, ceasing in 2008, and not previously involving sexual offences.

2. [113]

   However, on 2 May 2022, the respondent was found guilty by a jury of three offences which occurred on 3 September 2020, some 15 months after the respondent’s arrest on the present charges and, seemingly, whilst he was on bail for the present charges. The first was a break and enter with intent to commit a serious indictable offence, namely, kidnapping. The other two offences were aggravated attempts to have sexual intercourse without consent, the aggravation being that he had deprived the complainant of liberty before the offences. The sentencing for these offences has been adjourned.

3. [114]

   The sentencing judge in the present matter found that he could not be satisfied on balance that the respondent had good prospects of rehabilitation or that he was unlikely to offend. His Honour also considered that there was a role for both general and specific deterrence. The further offences reinforce those assessments with which I agree.

4. [115]

   The sentencing judge accepted that the respondent’s mental conditions would make custody more onerous for him. Evidence received on the usual basis disclosed that the respondent had been affected by the Covid pandemic in the sense of frequent lockdowns, and an inability to have any contact with his mother or his children. The respondent has achieved various certificates of attainment for courses he has undertaken in custody.

5. [116]

   I agree with the assessments of the sentencing judge in relation to the objective seriousness of the offending for each of the accounts. Nevertheless, the failure to take into account the substantial emotional harm sustained by the complainant means that the indicative sentences should be varied.

6. [117]

   Both the Crown and the respondent provided a number of cases said to be comparative. These included Kentwell v R (No 2) [2015] NSWCCA 96, Ewen v R [2015] NSWCCA 117, Lee v R [2016] NSWCCA 66, and Mol v R [2017] NSWCCA 76. Whilst some of those cases might have suggested that the sentencing judge in the present case erred on the lenient side, none was really comparative for what occurred in the present case.

7. [118]

   I would indicate the following sentences:

8. [119]

   No error was made in relation to the complainant FP, and I would not alter the indicative sentences provided for by the sentencing judge.

9. [120]

   Taking into account that there were two complainants, the number of offences and occasions of the sexual intercourse and attempted sexual intercourse without consent, the dissemination offences, the period over which the offending occurred, and the extent of the physical and emotional abuse, particularly of NB, the overall criminality is at high level. I consider that the aggregate sentence should be 17 years’ imprisonment. I would find special circumstances because it is the respondent’s first time in custody and he will need longer time on parole to assist in his rehabilitation, particularly having regard to the later offending. The non-parole period should be 12 years.

10. [121]

    I propose the following orders:

    1. (1)

       Appeal upheld.

    2. (2)

       Quash the sentence imposed in the District Court on 13 August 2021.

    3. (3)

       In lieu, sentence the respondent to an aggregate sentence of 17 years commencing 13 August 2020 and expiring 12 August 2037 with a non-parole period of 12 years expiring 12 August 2032.

    4. (4)

       The respondent will be first eligible for parole on 12 August 2032.

11. [122]

    WILSON J: I agree with Davies J.