R v PC

1. [1]

   DAVIES J: I agree with Fagan J and with the additional remarks of Bellew J. In particular, I endorse the remarks of Fagan J at paragraphs [55] to [58] of his Honour’s judgment.

2. [2]

   BELLEW J: I have had the advantage of reading, in draft, the judgment of Fagan J.

3. [3]

   I agree with his Honour's conclusions in respect of ground 1, for the reasons his Honour has given.

4. [4]

   As to ground 2, I agree that the sentence imposed upon the respondent was manifestly inadequate. My reasons for reaching that view accord generally with those expressed by Fagan J. However, I wish to make the following further observations.

5. [5]

   In the course of his judgment, the sentencing judge said the following:

6. [6]

   Although these parts of his Honour's judgment appeared under the heading “Submissions”, both the Crown and senior counsel for the respondent before this Court agreed that what was contained in those paragraphs should be construed as conclusions. Adopting that approach, which in my view was entirely appropriate, it follows that the sentencing judge concluded that:

7. [7]

   There is, in my view, a significant displacement between those conclusions and the sentence which was ultimately imposed.

8. [8]

   The objective seriousness of the respondent’s offending needs no further comment. Moreover, this was a case in which the respondent advanced little in the way of a subjective case. Whilst a report of Mr Borenstein, psychologist, was tendered before the sentencing judge, such report was, in my view, of little or no weight. Although Mr Borenstein listed a number of factors under the heading “Opinion” (at page 9), he in fact expressed no opinion in that section of his report at all, but simply re-stated matters of history which had been communicated to him by the respondent at the time of the interview. The principal (and on one view, the only) opinion expressed by Mr Borenstein in his report was that the respondent’s risk of re-offending was “low”, an opinion that his Honour apparently used to support a conclusion that such risk was “very low”. Further, as Fagan J has pointed out, the applicant has continued to deny the offences, has expressed no remorse, and has not accepted responsibility for the offending of which the jury found him guilty. In those circumstances, it is difficult to determine the basis on which his Honour found the respondent had “excellent” prospects of rehabilitation.

9. [9]

   Fagan J has also pointed out that there was no basis to support the finding reached by the sentencing judge that the respondent's motivation was “not purely sexual”. Further, his Honour appears, in the same passage of his reasons, to have used an assessment made by Mr Borenstein that the respondent had the “potential” to act impulsively to find that he had, in fact, acted in that way in offending. For the reasons set out by Fagan J, the nature of the offending, and the escalation in its seriousness, tended wholly against a conclusion that the respondent had acted impulsively.

10. [10]

    Finally, senior counsel for the respondent was critical of the Crown who appeared before the sentencing judge (who was not the Crown before this Court), and effectively submitted that if a conclusion were reached that the sentence imposed was manifestly inadequate, the evidence supported a further conclusion that the Crown who appeared on sentence had contributed to that outcome. Specifically, it was submitted that the position taken by the Crown on sentence had amounted to “little more than the simple bald assertion that there should be a custodial sentence”.

11. [11]

    In my view, any suggestion that the Crown did not properly assist the sentencing judge, or worse still, led the sentencing judge into imposing a sentence which was manifestly inadequate, is entirely without foundation. The Crown who appeared on sentence provided lengthy written submissions to the sentencing judge which comprehensively addressed the relevant issues (by reference to authority) and which culminated in the submission that a full-time custodial sentence was the only appropriate outcome. The Crown’s assistance to the sentencing judge therefore went substantially beyond making a “bald assertion” that full-time custody was appropriate.

12. [12]

    Senior counsel for the respondent also asserted that the Crown who appeared on sentence did not properly assist the sentencing judge because his approach did not include “assisting the (sentencing) judge with the arguments as to what should be the indicative sentences, the specific findings, the way in which they should relate and therefore what the final form of judgment should be”. In my view, had the Crown sought to “assist” the sentencing judge in the manner suggested by senior counsel for the respondent, the Crown would have been acting contrary to authority: see Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [23].

13. [13]

    There was no failure on the part of the Crown who appeared on sentence to properly assist the sentencing judge. Any suggestion that the Crown’s conduct played any part in the imposition of a manifestly inadequate sentence should, in my view, be firmly rejected.

14. [14]

    I agree with the orders proposed by Fagan J.

15. [15]

    FAGAN J: This is a Crown appeal against sentences imposed by his Honour Judge M Williams SC in the District Court at Goulburn on 5 November 2021. His Honour presided over a trial by jury of the respondent on six counts of indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) and one count of act of indecency contrary to s 61N(1). Verdicts of guilty were returned on all charges. The offences were committed between 1 January 2016 and mid-October 2018 against the respondent’s stepdaughter who was aged between 13 and 15 during the charge period. The respondent was aged about 34-36 at the time. He resided with the victim’s mother in a de facto marital relationship. The household included two other children, both younger.

16. [16]

    For each of the s 61M(2) offences the maximum penalty is 10 years imprisonment and a standard non-parole period of eight years applies. The maximum penalty for the act of indecency contrary to s 61N(1) is 2 years. His Honour imposed a Community Corrections Order pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for each offence. The Community Corrections Orders were made for varying terms, the longest being 15 months, all to be served concurrently. Each order is subject to a condition that the respondent should continue to receive mental health treatment as deemed necessary by his treating professionals. The order in relation to count 7 is subject to an additional condition that the respondent complete 200 hours of community service.

17. [17]

    The grounds of the Crown appeal are:

Facts

1. [18]

   Up until 2008, the victim and her younger sister were in the sole care of their mother as a single parent. In early 2008 the victim’s mother met the respondent and commenced a relationship with him. He moved into the family home in about the middle of that year. The victim was then slightly less than six years old and her sister was four. The mother and the respondent had a child together, a son, born during 2009. From when the respondent moved into their home the victim and her sister related to him as their father and called him “Dad”.

2. [19]

   The details of each offence, as proved to the satisfaction of the jury primarily through the evidence of the victim, were as follows (the duration of the Community Corrections Order under appeal is stated in brackets at the end of each summary):

3. [20]

   In pre-recorded evidence that was played back to the jury, the victim described many similar instances of indecent touching additional to the individual events in the seven counts. This evidence was admitted to establish the context of the acts that constituted the offences, in a relationship with the respondent that was sexualised by him: DJV v R [2008] NSWCCA 272 at [28]. The evidence of the additional similar instances was relevant on sentence as showing that these offences were not isolated but were part of a course of conduct over a significant period: as in, for example, Carrington v R [2021] NSWCCA 257 – see [65]. The fact of there being seven counts, alone, showed that the individual matters could not be treated as isolated events.

4. [21]

   The victim said that the respondent touched her thigh with his hand as he was driving whenever she was in the front passenger seat. This occurred routinely throughout the charge period. She said:

5. [22]

   The victim did not claim that on every such occasion the respondent’s hand came in contact with her vagina over her clothing, as described in relation to count 1. She gave this answer:

6. [23]

   The victim said that conduct such as that described in count 2, of the respondent sitting near the victim’s feet on the lounge and lifting her feet to place them in contact with his penis through his clothing, was also a regular occurrence. Sometimes she would feel his erect penis through contact with her foot and sometimes an erection was evident from the visible outline of his clothing in the groin area. When asked how often this happened the victim gave the following answer:

7. [24]

   The victim said that if she moved her feet away:

8. [25]

   On the night of the social gathering referred to in count 3, the victim was at one time lying in long grass, hiding, as part of a game with the other children. The respondent approached her from behind. When she heard him and turned onto her back to see who was approaching, the respondent placed his hands on the ground on each side of her head, leaned his body over her in what she described as a “push-up” position and tried to lie on top of her. She pushed him off and ran away.

9. [26]

   The victim also gave evidence of grooming behaviour on the part of the respondent. One aspect of this was his repeated suggestion that she should move in with him, alone, to accommodation at a location away from the family home. He made frequent phone calls to enquire about rental accommodation, such as granny flats. He told the victim that he was doing this so that they could move in together. The victim also said that the respondent opened a bank account for her and deposited $300 into it, which he said she could use to buy phone credits and anything she wanted. He instructed her not to tell her mother or sister about this.

10. [27]

    On one occasion the respondent told the applicant that he intended to ejaculate on her pillow. Evidence was adduced of extremely lewd text messages sent by the respondent to the victim, suggesting sexual acts that she might perform with a schoolboy friend of hers. The victim said that throughout the charge period the respondent frequently and persistently sent her text messages professing romantic and/or sexual interest, which she paraphrased as:

11. [28]

    In July 2016 the victim informed a female friend of her mother about the sexual touching by the respondent. The victim told the friend that she wanted it to stop. The friend informed the victim’s mother, who became angry, accused the victim of making it up and ceased contact with her friend. After the events of counts 6 and 7 on 13 October 2018, shortly before the victim turned 16, she complained directly to her mother about the respondent’s conduct towards her. This led to the respondent moving out of the home on about 11 November 2018. The victim then opened up to her mother about more of what had occurred and on 15 November 2018 she provided information to police. The offender was arrested on 22 January 2019 and charged with indecent assault. He declined to participate in an interview.

Subjective circumstances of the offender

1. [29]

   The respondent was born in 1981. He has an older brother and sister. His father left the family when the respondent was in year 7 (presumably, aged about 12 or 13) and the respondent has not seen him since. The respondent left school part way through year 8. Sometime thereafter he commenced working as an arborist and he later obtained a formal qualification for that work from a Technical and Further Education College. He has continued to work as an arborist up to the present time. At the date of sentence the respondent had worked for two years with one employer, who described him as honest and reliable.

2. [30]

   In 1998, at the age of 17, the respondent was a passenger in a vehicle that collided with an 80-year-old pedestrian who was crossing a roadway against a red light. The respondent was apparently horrified by that experience. Later, at the age of 22 in April 2004, he was involved in another more shocking road accident. He was the front seat passenger in a vehicle being driven by his friend at 140 km/h on a dirt road. The vehicle left the road and crashed into a tree, killing the friend. The respondent was traumatised by this and was prescribed antianxiety medication for a time, apparently by his general practitioner. The respondent had been a regular user of cannabis from the age of 14 and he increased his use of the drug after the accident, continuing to use it until early 2019. He also used alcohol to excess in response to the psychological effects of his experience in the 2004 accident.

3. [31]

   Mr Borenstein, psychologist, prepared a report concerning the respondent, which was tendered in the sentence proceedings. The respondent described to Mr Borenstein symptoms consistent with Post-Traumatic Stress Disorder (“PTSD”), attributable to the 2004 accident. PTSD was first diagnosed by Dr Taylor, psychiatrist, in April 2019. Consistently with Mr Borenstein’s report the learned judge observed that the respondent’s PTSD had no “meaningful causal connection with the offending”.

4. [32]

   The relationship between respondent and the victim’s mother lasted for 11 years until it ended in late 2018. A year later he formed a relationship with another female partner. They were married in about May 2020 and remained in stable relationship at the date of sentence, with a daughter of their own aged about six months. The respondent’s new partner is supportive of him, notwithstanding the prosecution. His mother and siblings are also supportive.

5. [33]

   The respondent has prior convictions for driving with low range blood alcohol content (2002), entering enclosed lands (2003), driving while disqualified (2003 and 2004) and fraudulent appropriation (2004). The learned sentencing judge justifiably regarded this record as not significant in the determination of an appropriate penalty for the matters before him.

Absence of remorse, risk of reoffending

1. [34]

   The respondent has continued to deny the offences, including in his interview with Mr Borenstein. He told a Community Corrections Officer who prepared a Sentence Assessment Report that he “felt sick at the nature of the allegations” and that he regarded the offences “to be the worst kind”. In a letter to the sentencing judge the respondent said that despite having defended the charges “I still respect the decision of the court”. The sum of all this is that the respondent has not expressed remorse or accepted responsibility for the crimes of which he has been found guilty.

2. [35]

   Mr Borenstein administered actuarial tests to assess the likelihood of the respondent reoffending. These produced a range of probabilities between “the very low category” and “a low risk category”. The learned sentencing judge concluded that the respondent has:

Ground 1 – erroneous consideration of Child Protection Registration

1. [36]

   Section 24A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is in the following terms:

2. [37]

   Before the sentencing judge the written submissions of the respondent’s counsel included the following:

3. [38]

   With respect, that submission, as written, did not make sense. His Honour apparently understood it as an invitation to treat the respondent’s obligation to register under the Child Protection (Offenders Registration) Act 2000 (NSW) as a form of extra-curial punishment, to be taken into account in reduction of penalty upon application of the principles considered in R v Daetz [2003] NSWCCA 216 at [62] (James J, Tobias JA and RS Hulme J agreeing). The learned sentencing judge said this:

4. [39]

   In view of the fact that the written submission to which the learned judge referred was not expressed in meaningful terms, it is not apparent what his Honour intended by taking into account the requirement of registration “to a limited extent, as [counsel] puts it”. In the context of his Honour’s reference to “extra-curial punishment meted out by others” it is sufficiently clear that his Honour treated the matter of registration as a factor that should reduce the severity of the sentence imposed. This was prohibited by s 24A of the Crimes (Sentencing Procedure) Act and constituted appellable error. Ground 1 should therefore be upheld. This ground is not of great significance because, in the circumstances of this Crown appeal, the Court would not be disposed to exercise its residual discretion in favour of interfering with the sentence unless manifest inadequacy should be established under ground 2.

Ground 2 – manifest inadequacy

1. [40]

   In R v BJW [2000] NSWCCA 60, a case concerning sexual abuse of a 13-year-old girl in a family setting, it was observed at [21] (Sheller JA, James and Dowd JJ agreeing) that:

2. [41]

   In the present case the victim evidently feared the possible consequences of making open complaint, within her own family, about the respondent’s sexual impropriety. Hence, she first raised the subject with her mother’s friend. The victim’s fears were then realised when the respondent denied having sexually touched her and her mother reacted with disbelief and anger. The victim had to endure the respondent’s misconduct for more than two more years before he left the family home.

3. [42]

   The respondent’s frequent touching, constituting the context and relationship within which these offences were committed, showed that the seven counts were elements in a near constant sexual pursuit of the victim over three years. This took place in the victim’s home, in the family motor vehicle and, on one occasion, at a family social gathering. The harm done to the victim went beyond the intrusion, embarrassment and indignity of each individual instance. Through combination and continuity of the respondent’s acts the victim suffered a perpetual state of sexual threat and siege, backed by angry reaction whenever she sought to avert the respondent’s incessant touching. The pattern of the respondent’s outbursts when the victim pushed his hand away or retreated from his presence amounted to a form of coercion for subsequent offences. The victim expressly described having put up with his conduct at times in order to avoid angry scenes.

4. [43]

   The following are extracts from the victim impact statement:

5. [44]

   That eloquent description of the adverse effect upon the victim’s sense of security and well-being, through her mid-teens from age 13 to 16, coincides with what the Court would infer as the inevitable effect of a course of conduct such as that which was proved against the respondent in the seven counts. In addition, it can readily be inferred beyond reasonable doubt that the victim will carry psychological scars of the experience well into adulthood. The breach of trust on the part of the respondent not only aggravated the wrongfulness of his conduct in point of law, it also exacerbated the insecurity and helplessness the victim was made to feel.

6. [45]

   Applying the principles upon which the Court is to determine an appeal concerning manifest inadequacy or excess in a sentence, as summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], I consider that ground 2 should be upheld. The effective sentencing outcome, being concurrent Community Corrections Orders of 15 months duration with 200 hours of Community Service, was plainly inadequate. Although this conclusion “does not depend upon attribution of identified specific error in the reasoning of the sentencing judge” (see Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]) and normally would not admit of detailed elaboration, in the present case I consider it apparent that the inadequate penalty is directly attributable to the learned judge having significantly underrated the objective gravity of the offending.

7. [46]

   In his Remarks on Sentence his Honour categorised counts 1, 2 and 3 as “towards the lower end of the range of objective seriousness” and counts 5, 6 and 7 as “below the mid-range”. For the s 61N(2) offence in count 4 (masturbating in the victim’s presence), where no standard non-parole period is prescribed, his Honour did not designate any position on the notional scale. With respect, his Honour unduly confined his attention to the physical content and circumstances of each offence in isolation. His assessment of objective gravity did not take account of the persecutory and harassing effect of each instance when seen in the context of the other offences and of the surrounding similar conduct that was not the subject of any charge. Repetition and continuity gave each event a harmful potency well beyond that which would be associated with relatively moderate sexual touching if committed only once.

8. [47]

   The learned judge referred to the victim impact statement and acknowledged that “the effect of this type of offending is long-lasting on young children”. His Honour referred in general terms to the importance of recognising and taking into account, for the purposes of sentencing, the harm done to the victim of a crime. Again with respect, this reference to long-term harm was relatively perfunctory and the penalties imposed show that, in his assessment of objective gravity, his Honour cannot have given sufficient weight to the serious effect of these offences when understood as part of a course of conduct.

9. [48]

   In Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 Basten JA (with whom Hulme and Latham JJ agreed) said at [146]:

10. [49]

    In R v JRD [2007] NSWCCA 55 Howie J explained the significance of taking into account other charged offences as bearing upon the relative seriousness of any individual count, as follows:

11. [50]

    A course of offending may also make it appropriate to impose higher penalties for offences later in time, where there appears a persistent repetition of the commission of like offences with a mounting and/or accelerating level of criminality: R v Swadling [2004] NSWCCA 421 at [61]-[68]; R v Bavadra [2000] NSWCCA 292 at [37]; Qing An v R [2002] NSWCCA 189 at [75].

12. [51]

    His Honour concluded that the respondent’s motivation for the offending was “not purely sexual but a combination that includes other emotions”. It was not open to his Honour to find any relevant motivation for the indecent assaults by the respondent upon his 13-15 -year-old stepdaughter, or for him masturbating in her room while she lay in bed, other than that of indulging his grossly improper sexual interest. If any other motive could meaningfully be imputed it could not mitigate the criminality of such conduct.

13. [52]

    His Honour also appeared to draw from Mr Borenstein’s report that an “acting-out” element of the respondent’s personality led him to “act impulsively without considering the consequences of his actions”. To the extent that his Honour took into account an affirmative finding to that effect, it was not open on the evidence. There were seven offences spread over three years and they were perpetrated in the context of frequent and regular additional acts of sexual touching. The offences could not be regarded as stemming from impulsivity.

Residual discretion

1. [53]

   In my view the Crown has discharged its burden of showing that the Court’s residual discretion as to whether it will interfere with manifestly inadequate sentences should in this case be exercised by quashing the sentences and resentencing the respondent. Each of the offences called for a term of full-time custody. General deterrence, denunciation of the offending conduct and recognition of the harm done to the victim are dominant sentencing considerations in this case. The sentence that is to be substituted has to be moderated to take into account that the respondent commenced his interactions with the Community Corrections service from soon after the orders were made by the learned sentencing judge, although he has not yet performed any of the community service and reporting requirements were suspended from 14 February 2022.

Resentence

1. [54]

   I propose the following orders:

   1. (1)

      Allow the appeal on grounds 1 and 2.

   2. (2)

      Quash the sentences imposed by his Honour Judge M Williams SC on 5 November 2021.

   3. (3)

      In lieu thereof the respondent is sentenced to an aggregate term of imprisonment of 2 years commencing on 25 March 2022 comprising a non-parole period of 1 year and 6 months commencing on 25 March 2022 and expiring on 24 September 2023 and a balance of term of 6 months commencing on 25 September 2023 and expiring on 24 March 2024.

   4. (4)

      The respondent will be entitled to be released to parole at the expiry of the non-parole period on 24 September 2023.

   5. (5)

      The indicative sentences of imprisonment for the respective offences are as follows:

Restriction on publication

1. [55]

   By force of s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) the name of the victim may not be published or broadcast in any way that would connect her with the prosecution of the respondent. Publication of the victim’s name to the general public or to a section of the public by newspaper or by radio or television broadcast or on the Internet or by any other means of dissemination would infringe the section: sub-s (2). The effect of s 15A extends beyond explicit naming of the victim and forbids any reference to information that would identify her or would be likely to lead to her identification: sub-s (5).

2. [56]

   In order to comply with s 15A of the Children (Criminal Proceedings) Act the respondent is referred to in this judgment only as “PC”, the victim’s name has not been mentioned, the locality in which the offences occurred has not been specified and the names of persons connected with the respondent’s background have not been given. The victim was a vulnerable young person when these offences were committed. The suppression of all of this information in compliance with the statute serves Parliament’s purpose of protecting her against the embarrassment she might feel if she should be identifiable from the terms of the Court’s judgment.

3. [57]

   However, it is pertinent to observe that this regime of protection for the victim also shields the respondent from being exposed in his community as a person who has committed these wrongs. The natural caution of media organisations with respect to reporting on trials and appeals that are subject to s 15A of the Children (Criminal Proceedings) Act means that the prosecution and sentencing of offenders in this class barely receives any publicity at all. The anonymization of the offender that is required, indirectly, by the Act operates in a way that is likely to detract greatly, if not completely, from the general deterrent effect of the sentences passed in such cases.

4. [58]

   Sentences that are imposed upon stepfathers who sexually abuse their stepdaughters could be expected to have a significant deterrent effect if publicised within the communities within which the offences have been committed. Members of local communities would likely take notice of sentencing outcomes in relation to offenders whom they either know or know of. Sexual offending within this category of family relationship recurs with high frequency and has done for decades, as may be seen in the judgments of criminal courts across the country. The pattern constitutes a very concerning, persistent and widespread criminal phenomenon. The regime of anonymization of these judgments, necessitated by s 15A, and the associated dearth of media publicity, makes it difficult to avoid the conclusion that the judges are, for all practical purposes, merely talking to each other and to the legal profession when pronouncing sentences in these cases. The object of deterrence, dependent as it is upon public knowledge and attention, is likely being defeated. In my view this subject would warrant the attention of the Law Reform Commission, to consider whether there is a means by which adequate and meaningful publicity could be given to deterrent sentences in these cases without compromising the privacy and protection of young victims.