Nicholas v R

1. [1]

   ADAMSON JA: I agree with Faulkner J.

2. [2]

   STERN JA: I agree with Faulkner J.

3. [3]

   FAULKNER J: Before the Court is an application under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against the sentence imposed by Hock DCJ (the sentencing judge) on Mitchell Nicholas (the Applicant) following his conviction of 16 sexual offences against three children between 2014 and 2020. The application for leave was heard concurrently with the appeal itself. Leave to appeal ought to be granted. The appeal ought to be dismissed.

Background

1. [4]

   Over a number of years the Applicant sexually abused the two daughters of his partner, KW and TW. On the approach taken by the sentencing judge, the abuse was taken to have begun when the daughters were as young as five years old. The abuse occurred in their home and generally occurred when their mother left the daughters in the Applicant’s care. On one occasion the Applicant sexually abused a third child, a friend of the daughters who was aged 11 at the time. The friend is referred to as EM.

2. [5]

   The Applicant pleaded not guilty to all 16 counts. After a trial lasting 13 days (including 2 days of jury deliberations), on 22 August 2022 the Applicant was found guilty of all 16 counts.

3. [6]

   In her Honour’s remarks on sentence, the sentencing judge recorded that the evidence during the trial established the following facts:

4. [7]

   Having regard to the proposed grounds of appeal (set out below), a matter to note from these findings is that for count 11 the date upon which the office was committed is described as “between 1 January and 31 December 2014.” The offence in count 12 occurred on the same date as count 11. Other than the date of the count 11 and count 12 offences, there is no dispute in this Court about the facts.

5. [8]

   From these findings it can be seen that counts 1 to 10 concerned the first victim, TW. Count 11 to count 15 concerned the second victim, KW. Count 16 concerned the third victim, EM.

6. [9]

   For each count for which the Applicant was convicted, the sentencing judge set out the applicable provision of the Crimes Act 1900 (NSW), the maximum statutory sentence which applied at the relevant time, the standard non-parole period (SNPP), the indicative sentence recorded by her Honour together with the indicative non-parole period (NPP).

Offence against EM

1. [10]

   For the purpose of sentencing, there were two Form 1 matters, namely:

   1. (1)

      attaching to count 10, the Applicant admitted his guilt in respect of a contravention of an Apprehended Domestic Violence Order (ADVO) under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) for which the maximum relevant penalty was imprisonment for two years; and

   2. (2)

      attaching to count 14, the Applicant admitted his guilt in respect of a common assault under s 61 of the Crimes Act for which the maximum penalty was imprisonment for two years.

2. [11]

   The Applicant asked the sentencing judge to take the two Form 1 matters into account and her Honour found it appropriate to do so.

The sentence

1. [12]

   The sentencing judge imposed an aggregate sentence for all 16 offences of 28 years imprisonment commencing on 21 May 2020 and expiring on 20 May 2048. The NPP is 19 years which will expire on 20 May 2039.

The sentence hearing

1. [13]

   The indictment for the count 11 and count 12 charges was in the following terms:

2. [14]

   As can be seen, the indictment for both counts specified the offending period as beginning on 1 January 2014 and ending on 31 December 2014.

3. [15]

   The sentence hearing took place on 12 December 2022 and 3 March 2023. Mr Hogan and Mr Wiggins appeared for the Applicant on both days. The Crown tendered a document entitled “Facts on sentence.”. The Applicant agreed that it represented the appropriate factual findings to be made for the purposes of sentencing. In respect of count 11 and count 12, the “Facts on sentence” document stated:

4. [16]

   The findings of fact made by the sentencing judge are set out in [6] above. Her Honour’s findings accord with the “Facts on sentence”, including the time period during which the count 11 and count 12 offences occurred. The sentencing judge did not make a finding of precisely when those offences occurred during 2014. Neither the Crown nor the Applicant sought such a finding.

5. [17]

   The issue about whether the offences were committed when the Applicant was on conditional liberty was not specifically raised during written and oral submissions on sentencing. The Crown did not refer to it as an aggravating factor for any of the offences, including count 11 and count 12.

6. [18]

   The evidence before the sentencing judge nonetheless addressed the period in 2014 when the Applicant was on conditional liberty. It included the NSW Police Force District Court Report, which contained the Applicant’s criminal record. It recorded that on 17 February 2014, the Applicant was charged with a number of offences, namely, resisting a police officer in execution of duty, two counts of destroying or damaging property worth $2,000 - $5,000, assaulting a police officer in execution of duty without ABH, being a learner not accompanied by driver/police officer/tester, not stopping during a police pursuit, driving recklessly and possessing prohibited drugs. The charges came before the Liverpool Local Court on 1 July 2014 when, amongst other things, the Applicant was placed on conditional release order pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the s 9 bond). At the same time, he was placed on a good behaviour bond pursuant to s 12 (the s 12 bond). There is no dispute this evidence:

   1. (1)

      proved that from 1 January 2014 to 17 February 2014, the Applicant was at liberty, not on conditional liberty;

   2. (2)

      did not address whether the Applicant was on conditional liberty from 17 February 2014 to 1 July 2014; and

   3. (3)

      proved that from 1 July 2014 the Applicant was on conditional liberty.

7. [19]

   At the conclusion of the sentence hearing on 3 March 2023, the sentencing judge reserved. The case was listed for sentencing on 17 March 2023, on which occasion Mr Wiggins appeared for the Applicant. Before proceeding to sentence, the sentencing judge made the following statement:

8. [20]

   No objection was taken to this statement by counsel for the Applicant. The emails to which the sentencing judge referred were not adduced into evidence.

9. [21]

   The sentencing judge then proceeded to sentence.

Reasons of the sentencing judge

1. [22]

   After referring to the victim impact statements of TW, KW and EM, the sentencing judge assessed the objective seriousness of the offences.

2. [23]

   KW was born in early February 2009, which means she was 4 years old on 1 January 2014 and 5 years old on 31 December 2014. As the sentencing judge observed (and there is no dispute), the younger the child, the more objectively serious the offending. Given the range of dates for some of the offences (not just count 11 and count 12), the sentencing judge took the upper age of the victim into account for the purpose of assessing the objective seriousness of each offence. Her Honour did so “in fairness to the offender.” Thus count 11 and count 12 have evidently been considered as offences against a 5 year-old child, not a 4 year-old child. However, at such a young age the materiality of the victim’s age should not simply be considered by reference to the distinction between “4” and “5.” Count 11 and count 12 were materially more serious each month earlier they are taken to have occurred. There was an advantage to the Applicant to have these offences taken as occurring later in 2014 rather than earlier.

3. [24]

   The sentencing judge recorded her Honour’s approach as follows:

4. [25]

   The sentencing judge also had regard to the following matters:

   1. (1)

      counts 1 to 15 being aggravated by the gross breach of trust by the Applicant and the fact that he was in a position of authority in relation to TW and KW, effectively being their stepfather;

   2. (2)

      counts 1 to 15 occurred in the victims’ home where they were entitled to feel and to be safe;

   3. (3)

      the use of force in some of the counts;

   4. (4)

      the specific sexual act committed in each count;

   5. (5)

      the pain caused to the victim in some of the counts;

   6. (6)

      the emotional distress caused to the victims;

   7. (7)

      for the indecent assault counts, whether there was contact with the genital area and whether there was skin-to-skin contact;

   8. (8)

      the fact that in some instances, the Applicant persisted after being asked to stop;

   9. (9)

      the fact that the offences against TW and KW were not isolated but continued over at least two to three years; and

   10. (10)

       the fact that the Applicant used the children for his own sexual gratification with complete disregard for their physical and emotional well-being.

5. [26]

   The sentencing judge did not explicitly indicate “where on a notional scale of objective seriousness each offence fell”, other than in relation to count 16 which the sentencing judge described as being at the lower end of the range of seriousness for sexual touching offences. For the other offences, her Honour said that her assessment of objective seriousness was reflected in the indicative sentence she recorded for each offence. The indicative sentences are set out in the table at paragraph [9] above.

6. [27]

   At the conclusion of the section on objective seriousness, the sentencing judge also considered that the Applicant was on conditional liberty at the time of some of the offending. Her Honour said:

7. [28]

   The sentencing judge then considered the subjective circumstances of the Applicant, observing that he was aged between 19 and 26 at the time of the offending.

8. [29]

   The offending history of the Applicant included three occasions when he was before the Children’s Court at the age of 15. As an adult, in 2014 the ss 9 and 12 bonds were imposed on the Applicant in the circumstances set out above. In 2018, a 12 month community correction order was imposed on the Applicant for common assault (domestic violence related) and destroy or damage property. In July 2019, an 18 month community correction order was imposed on the Applicant for stalking or intimidating, two counts of destroying or damaging property and common assault (domestic violence related). A condition of that community correction order was that the Applicant engage with a psychologist and psychiatrist for treatment. In November 2019, a community correction order and a concurrent intensive correction order were imposed on the Applicant for two offences of contravening an apprehended violence order, stalk or intimidate and common assault. His intensive correction order was interrupted when the Applicant was arrested on 21 May 2020 for the offences the subject of these proceedings.

9. [30]

   Throughout the Applicant’s criminal history, the sanctions imposed have focused on the Applicant’s rehabilitation. Prior to the sentencing in these proceedings, the Applicant had never been in custody.

10. [31]

    Medical evidence tendered for the Applicant during the sentencing proceedings, together with a court ordered psychiatric report, noted that the Applicant had difficulties from a young age. Between four and six years old, he was diagnosed with ADHD. He was prescribed medication for that condition and for behavioural problems. He was subjected to violence by his father and by his stepfather. He was placed in foster care at an early age and “shuffled through various foster care placements”. The sentencing judge considered that the Applicant’s “difficult and deprived background reduce[d] his moral

11. [32]

    culpability to some extent and moderate[d] the weight to be given to general deterrence”. However, the sentencing judge considered that protection of the community in general and of young children in particular remained essential.

12. [33]

    There was evidence of the Applicant having a history of cannabis use and of pathological gambling. The psychiatric evidence diagnosed the Applicant as having a personality disorder.

13. [34]

    None of the psychiatric evidence demonstrated a causal link between the Applicant’s mental health problems and the offending. The sentencing judge nonetheless accepted that the Applicant’s long-standing mental health difficulties will render his time in prison more onerous.

14. [35]

    There was no evidence of remorse for the harm which the offending had caused the three children. The sentencing judge considered that the Applicant’s prospects of rehabilitation were “at least guarded at this stage” but that “it is possible that over time and with the appropriate treatment, the situation may improve”.

15. [36]

    There was some evidence of support in the community and from members of the Applicant’s family.

16. [37]

    The sentencing judge found special circumstances because the sentence will be the Applicant’s first time in custody and because of his significant mental health problems.

17. [38]

    Although the Applicant was arrested on 21 May 2020, since which time he has been in custody, the sentencing judge observed that up until 25 August 2020 his incarceration was served pursuant to an intensive correction order previously imposed but which was revoked upon his arrest. In the Applicant’s favour, the sentencing judge considered that it was nonetheless appropriate that the sentence to be imposed by her Honour be taken to commence on 21 May 2020.

18. [39]

    In formulating the sentence, the sentencing judge took into account the maximum penalty and (where applicable) the SNPP for each of the 16 offences. The sentencing judge considered it appropriate to impose an aggregate sentence for all 16 offences. For the purposes of s 53A(2) of the Crimes (Sentencing Procedure) Act, the sentencing judge recorded the sentence which would have been imposed for each of the 16 offences had separate sentences been imposed, together with the indicative NPP for each such sentence. That record is set out in the table at [9] above.

19. [40]

    The sentencing judge stated that the reasons for not imposing the SNPP for the relevant offences included her Honour’s assessment of the objective seriousness of each offence, the finding of special circumstances and the Applicant’s psychological problems.

Grounds of appeal

1. [41]

   Should leave be granted, the Applicant relies on two grounds of appeal:

   1. (1)

      The court erred in determining that counts 11 and 12 were aggravated as a result of the Applicant being subject to conditional liberty.

   2. (2)

      The sentence is manifestly excessive.

Ground 1 – counts 11 and 12 and the Applicant’s conditional liberty

1. [42]

   At the hearing of the application for leave to appeal, the Crown read two Affidavits from a solicitor. The first was dated 18 June 2024 and the second was dated 26 June 2024. Documents were annexed to the Affidavits which fell into two categories.

2. [43]

   First, there were Local Court documents from 2014 which demonstrate that on 17 February 2014 the Applicant was granted bail in respect of the charges which were laid that day and for which he was convicted on 1 July 2014. These documents were not in evidence before the sentencing judge. The Applicant objected to them being adduced into evidence on the appeal.

3. [44]

   Secondly, there were extracts from the transcript of the oral evidence adduced at the trial which addressed the date on which the events the subject of count 11 and count 12 occurred. The extracts addressed KW’s recollection about when the events occurred, together with evidence about some objective facts, namely:

   1. (1)

      the events occurred when KW was living at a specified address, to which house she moved at the beginning of 2014 – the sentencing judge’s findings of fact included findings that the count 11 and count 12 offences occurred at the specified house, but not the date when KW moved there;

   2. (2)

      the events occurred when KW was at preschool at a specified public school, where she started on 2 February 2014; and

   3. (3)

      KW’s mother commenced her relationship with the Applicant on 15 May 2014.

4. [45]

   The Applicant did not object to the second category of evidence being adduced on the appeal but pointed out that it was only an extract. The Applicant submitted, correctly, that the Court does not have all the evidence which was adduced during the trial and is not able to make its own finding about the precise date when the count 11 and count 12 offences were committed.

5. [46]

   However, the Crown read the evidence on the appeal for a limited purpose. It did not rely on the evidence to prove either that the Applicant was on conditional liberty from 17 February 2014 or that the offences occurred after that date. The Crown relied upon the evidence simply to demonstrate that there was a reasonable basis for the Applicant to make the concession recorded by the sentencing judge. The evidence was adduced in response to a submission by the Applicant that the concession was “wrong” and “should not have been made”.

6. [47]

   As the appeal was ultimately conducted, the Applicant made three sequential submissions in support of Ground 1:

   1. (1)

      it was not open on the evidence before the sentencing judge to make a finding beyond reasonable doubt that count 11 and count 12 occurred when the Applicant was on conditional liberty;

   2. (2)

      on the appeal, the Crown ought not be permitted to adduce further evidence to prove that count 11 and count 12 occurred when the Applicant was on conditional liberty; and

   3. (3)

      even if the Crown’s further evidence is admitted, it does not prove beyond reasonable doubt that count 11 and count 12 occurred when the Applicant was on conditional liberty because it does not exclude the possibility that the offences occurred between 1 January and 17 February which was before the Applicant’s conditional liberty commenced.

7. [48]

   As for the concession recorded by the sentencing judge, the Applicant accepts that it was made in the terms which the sentencing judge placed on the record. The Applicant nonetheless submitted that the concession:

   1. (1)

      was “wrong”, in the sense that the evidence before the sentencing judge did not prove that count 11 and count 12 occurred when the Applicant was on conditional liberty; and

   2. (2)

      “should not have been made”, in the sense it was not in the Applicant’s interests for the concession to be made because it resulted in the count 11 and count 12 offences being aggravated by an unproved factor.

8. [49]

   Although not expressly stated, the Applicant’s argument appears to be that by reason of these matters, he ought not now be precluded from resiling from the concession.

9. [50]

   It may be accepted that it was not open on the evidence adduced at trial to make a finding that the count 11 and count 12 offences occurred when the Applicant was on conditional liberty. The evidence before the sentencing judge, which is set out above, did not exclude the possibility that the offences occurred before 1 July 2014. The evidence proved that the Applicant was on conditional liberty from 1 July 2014 but not earlier.

10. [51]

    However, the sentencing judge was entitled to proceed not just on the basis of findings of fact established by the evidence, but also on the basis of concessions made by the parties, including the Applicant. The whole point of a “concession” is that it relevantly relieves the other party and ultimately the Court of having further to address the conceded matter. The fact that the Applicant made the concession means that the sentencing judge did not make an error by undertaking the sentencing process on the basis that the count 11 and count 12 offences occurred when the Applicant was on conditional liberty: SL v R [2015] NSWCCA 30; (2015) 249 A Crim R 295 at [46] (Davies J, with whom Simpson J agreed).

11. [52]

    Nothing submitted by the Applicant permits him now to resile from the concession. The concession was “wrong” in the very narrow sense submitted by the Applicant but that does not mean it “shouldn’t have been made.”. Whether or not it was in the interests of the Applicant to make the concession cannot be assessed simply by reference to the evidence which had already been adduced before the sentencing judge. Regard might also be had to what further evidence might have been adduced if the concession was not made. The sentencing hearing had concluded on 3 March 2023 after which the issue of conditional liberty evidently arose. The evidence does not reveal precisely how that happened. There is nothing to suggest that the Crown would not have been able to make further submissions or adduce further evidence had the Applicant’s concession not been forthcoming. In this case, further submissions and evidence would not only have been relevant to whether the Applicant was on conditional liberty, but also the age of KW when the offences occurred. Any benefit the Applicant might have hoped to gain from a finding that the offences occurred before he was on conditional liberty might well have been outweighed by the potential detriment from a finding that the count 11 and count 12 offences were perpetrated against a 4 year old victim, or a victim who had only just had her fifth birthday.

12. [53]

    On appeal, the Applicant expressly eschewed any submission about the competency of counsel who appeared for him at the sentencing hearing and to whom the concession is attributed in the record.

13. [54]

    The Applicant has not demonstrated that the concession was anything other than properly made. The Applicant has not demonstrated that there are exceptional circumstances which permit him now to resile from the concession: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81] (Johnson J, with whom McClellan CJ at CL and Rothman J agreed). There was no error by the sentencing judge and Ground 1 ought to be rejected.

14. [55]

    It is not necessary to have regard to the further evidence which the Crown seeks to adduce on the appeal to reach that conclusion. In any event, the Court ought to permit the further evidence to be read and have regard to it for the limited purposes for which it is read by the Crown. The Applicant submits that the concession was not in his interests and therefore he ought to be granted the indulgence of resiling from the concession. Fairness requires that the Crown be permitted to adduce evidence to answer that submission: Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [124] (Hoeben CJ at CL, with whom Johnson and Schmidt JJ agreed).

15. [56]

    The Applicant submits that his case is to be distinguished from Stocco v R because the Applicant did not make his concession until after the sentencing hearing had concluded, by which time the Crown had made all the submissions and adduced all the evidence it thought appropriate and hence, the Crown had not tailored its case in response to the concession. He submitted that, unlike Stocco v R, the Crown will not be prejudiced in the present case if the Applicant is now permitted to resile.

16. [57]

    The distinction is not material. The Applicant’s conditional liberty was evidently raised after the conclusion of the sentencing hearing but before the sentence was pronounced. The issue having been raised, there is no dispute that the Crown would have had an opportunity at that point to make further submissions and adduce further evidence. Leave may have been required, but there is nothing to suggest that it would not have been readily granted. As it turned out, the concession was made by the Applicant and there was no need for the Crown to address the matter further. In this respect this case is the same as Stocco v R. Unfairness will result if the Crown were now to be precluded from adducing evidence about what further material it could have put before the sentencing judge if the concession had not been made.

17. [58]

    The Crown’s evidence shows that the Applicant was on conditional liberty not from 1 July 2014, but from 17 February 2014. The availability of that evidence alone undermines the submission that the concession was not in the Applicant’s interests. A finding that the Aapplicant was not on conditional liberty when the count 11 and count 12 offences occurred could only be made if it was accepted that KW was only 4 years old at the time of the offences, or had only just had her fifth birthday in early February 2014. In those circumstances the sentencing judge’s approach to taking the age of the child at the end of the date range could not be justified.

18. [59]

    The Applicant has not demonstrated a reason why he ought be entitled to resile from the concession in accordance with which he was sentenced. Ground 1 ought to be rejected.

Ground 2 – manifest excess

1. [60]

   Apart from the issue raised by Ground 1, the Applicant accepts that there was no specific error which vitiates the sentencing judge’s exercise of discretion when arriving at the sentence. Absent specific error, Ground 2 depends upon the Applicant demonstrating that the sentence is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at 370-371; [2005] HCA 25 at [25] (Gleeson CJ, Gummow and Callinan JJ).

2. [61]

   In Obeid v R (2017) 96 NSWLR 155 at 241-242; [2017] NSWCCA 221 at [443], R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) distilled from the authorities the following five principles to which regard must be had when it is contended that a sentence is manifestly excessive:

3. [62]

   The Applicant seeks to demonstrate that the sentence was manifestly excessive by identifying six factors which are said to operate to mitigate the sentence, namely:

   1. (1)

      the Applicant’s disadvantaged childhood reduced his moral culpability;

   2. (2)

      the significant mental health problems which the Applicant experienced from a young age;

   3. (3)

      at the time of sentence the Applicant had had limited treatment for his mental health problems;

   4. (4)

      the Applicant’s age at the time of offending, which was 19 at the time of the first offence and 26 at the time of the last offences;

   5. (5)

      the Applicant was capable of maintaining employment and had ongoing support in the community; and

   6. (6)

      at the time of sentence, the Applicant’s prospects of rehabilitation were guarded, and with time and appropriate treatment could improve.

4. [63]

   The Applicant also refers to seven other cases (BR v R [2021] NSWCCA 279; Culbert v R [2021] NSWCCA 38; Young (a pseudonym) v R [2021] NSWCCA 163; DR v R [2022] NSWCCA 151; DH v R [2022] NSWCCA 200; SB v R [2022] NSWCCA 164; and R v BH [2023] NSWCCA 278) which he submits have “some comparable features” to his case. The Applicant submits that his sentence is “notably higher” than the sentence imposed in the majority of his selected cases.

5. [64]

   The Applicant submits that these matters demonstrate that his sentence is unreasonable or plainly unjust and, hence, manifestly excessive.

6. [65]

   The Crown submits that the sentence is not manifestly excessive.

7. [66]

   By reference to relevant JIRS sentencing statistics, the Crown submits that the indicative terms indicated by the sentencing judge and the aggregate term sit towards, but not at, the top of the range of sentences for offences of the kind committed by the Applicant. It is submitted that consistency between the indicative and aggregate terms tends against a suggestion that there has been some latent error affecting totality.

8. [67]

   The Crown emphasises that the offences for which the Applicant has been convicted include six offences of sexual intercourse with a child under 10 years of age for which the maximum sentence is life imprisonment. The six offences spanned three separate incidents. Most of the seven comparative cases put forward by the Applicant were contraventions of s 66A before the maximum sentence was increased to life imprisonment on 29 June 2015. The incremental increases in the maximum sentences for sexual offences against children reveal a clear intention on the part of Parliament. As Simpson AJA said in Ryan v R [2019] NSWCCA 200 at [3]:

9. [68]

   The Crown also emphasises other features of the Applicant’s offending, including the absence of a plea of guilty, the lack of remorse, the lack of insight into his offending and the harm to the children (including the Applicant’s view that he is the victim), and the fact that the indicative NPP’s recorded by the sentencing judge were generally below the SNPP where applicable.

10. [69]

    As the Applicant has been convicted of 16 diverse offences which were perpetrated against three victims who were at different ages when the offences were committed, the Crown submits that a comparison of his aggregate sentence with the aggregate sentence imposed in the seven cases identified by the Applicant at [5962] is of little or no utility: DPP (NSW) v TH [2023] NSWCCA 81 at [50] (Beech-Jones CJ at CL with whom Garling and Yehia JJ agreed).

11. [70]

    The Crown nonetheless refers to two cases (Gibbons (Pseudonym) v R [2019] NSWCCA 150 and Franklin v R [2016] NSWCCA 319) which it compares with the Applicant’s sentence, as well as the indicative sentences and NPP’s recorded by the sentencing judge. The comparison is relied upon by the Crown for its submission that the Applicant’s sentence is not manifestly excessive.

12. [71]

    For Ground 2 to succeed, the Applicant is required to demonstrate that the aggregate sentence is unreasonable or plainly unjust. Merely emphasising the six matters listed in [5861] above falls well short of making good the contention.

13. [72]

    The Applicant experienced disadvantages in his childhood, including ADHD with which he was diagnosed between four and six. He was prescribed medication for ADHD and behavioural problems. He was subjected to violence by his father and his stepfather. He was placed in foster care and was thereafter “shuffled through various foster care placements.”. As the sentencing judge observed, these matters reduce the Applicant’s moral culpability to some extent.

14. [73]

    The Applicant’s mental health problems were continuing at the time the offences were committed. They were substantial. However, as noted in the medical evidence, they were not causally connected to the offending. The Applicant nonetheless submits that they are “significant” to the sentencing exercise. The sentencing judge took them into account because they will make the Applicant’s time in prison more onerous. The Applicant also relies upon the fact that he had had limited treatment for his mental health problems at the time of sentence, but that does not warrant any different consideration of his mental health problems.

15. [74]

    The Applicant’s age at the time of offending (between 19 and 26) is relied upon for two reasons. First, there is the possibility that the Applicant had under-developed emotional maturity and mature executive functioning when the offences were committed. This proposition is put forward as a theoretical possibility, but even that possibility is diminished by the fact that most of the offences were committed when the Applicant was 24 or older, including three contraventions of s 66A when he was 25 and two other offences when he was 26. There is nothing to suggest that the Applicant lacked emotional maturity and mature executive functioning when these later offences were committed. The fact that the offending occurred over an extended period of time and continued when the Applicant was 26 suggests that the offences were not committed for want of maturity.

16. [75]

    Secondly, the Applicant submits that his age at the time the offences were committed warrants a need for greater emphasis on rehabilitation. Reliance on the prospects for rehabilitation is severely undermined in this case because of the Applicant’s lack of remorse and insight.

17. [76]

    The Applicant was capable of maintaining employment but that is not a significant feature of the case when taken into account with all the other circumstances. The Applicant’s community support consists of his family and a testimonial from a neighbour.

18. [77]

    It may be accepted that each of the six matters relied upon by the Applicant is relevant, but even when taken together they are but one part of the whole picture which informs the sentencing exercise. When considered with all other aspects of the case as set out in the remarks on sentence and emphasised in the Crown’s submissions, these matters do not render the Applicant’s aggregate sentence manifestly excessive.

19. [78]

    No different conclusion is warranted by a review of the seven cases with which the Applicant wishes his sentence to be compared. It is true that there are some features of each case which may be compared, albeit at a superficial level, but for each case there are distinguishing features which is inevitable in such a comparative task. The same applies to the two cases referred to by the Crown.

20. [79]

    The utility of making such comparisons was addressed in MLP v R [2014] NSWCCA 183 at [40]-[44], by Bellew J (with whom Macfarlan JA and Adamson J agreed), who said:

21. [80]

    To the extent it is possible, comparison between the Applicant’s sentences and the sentences imposed in the seven cases selected by the Applicant does not demonstrate that the Applicant’s sentence is unreasonable or plainly unjust. Ground 2 ought to be rejected.

Proposed orders

1. [81]

   The orders I propose are:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.