GE v R

1. [1]

   WARD P: I agree with Adamson JA. Neither Ground 1 nor Ground 2 has been made out. Huggett CJDC took into account that the applicant had a limited criminal history and was otherwise of prior good character. The weight attributed to that was a matter for her Honour to assess. Her Honour also properly took into account the applicant’s prospects of rehabilitation. The finding that the prospects were guarded was well in accordance with the report of Dr Seidler. As to Ground 3, which counsel for the applicant accepted was the central issue in the applicant’s conviction appeal, the applicant has failed to establish that the aggregate sentence was manifestly excessive. These offences were very serious. They involved an egregious breach of trust by a father in relation to his young daughter over a two year period, ceasing only when complaint was made. The subsequent voluntary disclosure of other offences was recognised in the additional discount applied in relation to those. Community expectations, contrary to the submission of the applicant’s counsel, required an appropriately lengthy aggregate sentence. The orders proposed by Adamson JA should be made.

2. [2]

   ADAMSON JA: On 1 May 2025, Huggett CJDC (the sentencing judge) sentenced GE (the applicant) by imposing an aggregate sentence of 24 years imprisonment commencing on 22 October 2022 and expiring on 21 October 2046 with a non-parole period of 18 years. The earliest date on which the applicant will be eligible for parole is 21 October 2040.

3. [3]

   The applicant seeks leave to appeal against the sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the following grounds:

   1. (1)

      alleged failure to take into account the limited criminal history of the applicant as a mitigating factor on sentence;

   2. (2)

      alleged failure to properly consider the applicant’s prospects of rehabilitation; and

   3. (3)

      alleged manifest excess.

4. [4]

   The victim of each of the offences for which the applicant was sentenced was the applicant’s biological daughter, who was aged between 9 and 11 years at the time of the offending.

5. [5]

   A summary of the offences (by reference to the section of the Crimes Act 1900 (NSW)), their dates (or period during which the offence was committed), the maximum penalties, the standard non-parole periods (SNPP), if applicable, and the indicative sentences (in years (y) and months (m)) and non-parole periods (NPP), after application of a discount are set out in the table below. Each of the three charges which appears on a Form 1 (pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act)) is in italics below the offence in respect of which it has been taken into account on sentence and the count to which it corresponded before being included on the Form 1.

6. [6]

   The facts on the basis of which the applicant was sentenced were agreed and set out in two statements of agreed facts. One statement covered sequences 1-5, which were recorded on a film which the applicant had taken of the offences. The other statement covered the remaining sequences. The sentencing judge’s summary of the agreed facts is further summarised below.

7. [7]

   The victim has a mild intellectual disability, experiences learning difficulties and has difficulties with speech, reading and writing. On 23 December 2019, the applicant (then aged 40), his wife and the victim (then aged 8) moved to Windale. The applicant would look after the victim after school until her mother returned home from work or study.

8. [8]

   When the victim was 11, she confided in a friend that her father had been doing “bad things to her which made her feel sad”. As a consequence, on 22 October 2022, the police (to whom a report was made by the victim’s friend’s mother) went to the victim’s home to interview the victim. In the course of the interview, the victim disclosed sequences 7 (penile/anal intercourse while the victim was on her hands and knees in the lounge room); 12 (penile/anal intercourse whilst on her knees leaning over the lounge in the lounge room); 13 (penile/anal intercourse whilst the victim was kneeling on the floor and leaning over the bed in the applicant’s bedroom); 15 (making the victim masturbate the applicant’s penis while he was naked); 16 (inserting his penis into the victim’s mouth when she was still on her knees); 17 (penile/anal intercourse and rubbing of the victim’s breast while in the shower); and 20 (the applicant exposed himself, asked the victim to put his penis back into his pants, kissed her on the lips and tried to put his tongue in her mouth before inserting his penis into the victim’s mouth in the kitchen).

9. [9]

   After each incident, the applicant told the victim to keep what had happened secret and promised her that it would never happen again. It was a promise (referred to as a “pinky promise”, being a solemn promise) which he did not keep. The victim told police that the abuse made her body feel “upset and sad”.

10. [10]

    The victim told police that when the penile/anal intercourse would take place, she and the applicant would both be naked. She also told police that there were several (“a fair bit”) occasions when he would come into the lounge room naked. The applicant would either ejaculate in the victim’s anus or masturbate to ejaculation in front of her. He never used a condom.

11. [11]

    After the victim was interviewed, the applicant was arrested. He admitted that there were times during the commission of the offences when the victim appeared to be physically distressed and told him that she wanted it to stop. Despite the victim’s evident distress and entreaties that he stop, the applicant continued to abuse her sexually. He admitted the conduct which she had related in her interview and accepted that the offending had been happening “for a while”, although he said that he could not remember when or how it had started or how many times and where it had happened.

12. [12]

    Initially, the applicant denied that he had ever filmed the victim but subsequently, he contacted police through his solicitor and said:

13. [13]

    The applicant subsequently disclosed the commission of seven further offences (sequences 21-27).

14. [14]

    On one occasion, the applicant directed the victim to lie on his bed in such a way as to expose her genitalia and bottom and took a photograph of her (sequence 21). On another occasion, the applicant directed the victim to stand naked, front on, in the loungeroom with her hands on her hips and took a photograph of her (sequence 22).

15. [15]

    On a further occasion, the applicant showed two five-minute pornographic videos to the victim (sequence 23). The first depicted two females engaging in digital vaginal penetration, cunnilingus and the use of sex toys. The second video showed males and females involved in masturbation and fellatio to ejaculation as well as penile/vagina intercourse and penile/anal intercourse.

16. [16]

    On three occasions, the applicant used a GoPro to film himself sexually abusing the victim by putting his erect penis in her mouth and performing cunnilingus on her (sequences 24, 25 and 26).

17. [17]

    Sequence 27 involved the applicant rubbing the skin outside the victim’s genitalia while in the car while his wife was in the supermarket.

18. [18]

    The appellant admitted that he knew that what he was doing was wrong but he did not seek assistance.

19. [19]

    On 4 August 2023, while the applicant was in custody on remand, his wife located a GoPro which she provided to police. Two recordings, dated 23 December 2020, were found. One video of 11 minutes and 47 seconds duration depicted the victim performing fellatio on the applicant when they were both naked in the applicant’s bedroom (sequence 1).

20. [20]

    One recording depicted fellatio continuing for a few minutes before the applicant applied lubricant to the victim’s genital area. After several minutes, he removed a dildo from where he was manipulating it inside her (whether in her anus or vagina) (sequence 2). In sequence 3, the applicant is shown inserting his penis into the victim’s anus. The victim told him that it hurt and began to cry. He urged her to continue. The recording of sequences 2 and 3 had a duration of 4 minutes and 53 seconds.

21. [21]

    A further recording showed the applicant masturbating his penis and demanding that the victim put her head on the edge of the bed. While she was protesting, the applicant ejaculated into her mouth (sequence 4).

22. [22]

    The final recording showed the victim crying, screaming and physically struggling with the applicant who was pulling her onto the bed. He held her down on the bed and put his penis into her mouth (sequence 5). She appeared to choke.

23. [23]

    Matters in the sentence proceedings will be referred to only if germane to a ground of appeal.

24. [24]

    The Crown tendered the applicant’s criminal history which recorded that on 14 October 1999 the applicant drove in a manner dangerous to the public. He was charged with this offence on 15 October 1999. On 29 June 2000 he was sentenced at Newcastle Local Court and required to enter into a three-year bond, pursuant to s 10 of the Act, with the effect that no conviction was recorded.

25. [25]

    The Crown submitted to the sentencing judge that although the applicant had no prior criminal history (as he had no convictions), he could not be said to have acted out of character, having regard to the length of the offending conduct. It relied on the following passage from Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; (2023) 307 A Crim R 149 at [26]:

26. [26]

    The Crown also submitted:

27. [27]

    The applicant’s counsel made the following submissions in writing to the sentencing judge as to the applicant’s record and prior good character:

28. [28]

    The applicant’s counsel submitted orally that the applicant had “good” prospects of rehabilitation given that he is able and willing to engage in treatment “in a meaningful way”. In writing, the applicant’s counsel submitted that he had “prospects of rehabilitation”, as is evident from the following extract from the submissions:

29. [29]

    I do not propose to summarise the sentencing remarks in full but will refer to those aspects which are germane to the grounds of appeal.

30. [30]

    The sentencing judge took into account, in sequences 1-5, that the applicant was the victim’s biological father and under his authority. Her Honour expressly refrained from taking that factor into account for the offences for which that was a matter of aggravation so as not to breach the De Simoni (The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31) principle.

31. [31]

    Her Honour also took into account the age of the victim at the time of each offence and that, apart from sequence 27, each of the offences was committed in the victim’s home. It is likely that the offences were of relatively short duration (with the exception of sequence 3, which was protracted).

32. [32]

    As to whether the offending was planned, the sentencing judge said:

33. [33]

    Her Honour referred to the victim’s distress and protestations which were evident in some of sequences 1-5 and said that the lack of planning and absence of force or threats of force could not be regarded as mitigating.

34. [34]

    The sentencing judge referred to the harm to the victim, which her Honour took into account pursuant to s 3A(g) of the Act (which provides that one of the purposes of sentencing is “to recognise the harm done to the victim of the crime and the community”) but not s 21A(2)(g) of the Act (which provides that substantial emotional harm, loss or damage caused by the offence is an aggravating factor).

35. [35]

    The sentencing judge said:

36. [36]

    Her Honour said, of the applicant’s moral culpability:

37. [37]

    The sentencing judge said, of relevance to ground 1:

38. [38]

    The sentencing judge accepted that the offender has displayed genuine remorse and contrition, including by reason of his further disclosures after he had been arrested and charged.

39. [39]

    The sentencing judge found that the applicant “poses some risk of reoffending” and that his prospects of rehabilitation were “guarded”. As ground 2 alleges that her Honour failed “to properly consider the applicant’s prospects of rehabilitation”, I propose to set out her Honour’s reasons for the finding:

40. [40]

    Ms Kluss, who appeared on behalf of the applicant in this Court, argued that the sentencing judge had failed to take into account, in the applicant’s favour, his limited criminal history. She submitted that, in circumstances where the Crown had not relied on s 21A(5A) of the Act (where the offender’s good character or lack of previous convictions was of assistance to the offender in the commission of the offence), the sentencing judge was obliged to take it into account as a mitigating circumstance.

41. [41]

    Ms Kluss accepted that it was open for this Court to read the passage set out in [37] above as indicating that the sentencing judge regarded such leniency as was available to the applicant, on the basis of his limited criminal history, as having been used up on the count which was first in time. However, she submitted that this Court ought read this passage as an indication that the trial judge did not take into account the applicant’s criminal history at all.

42. [42]

    It was common ground between the Crown and the applicant’s counsel at the sentence hearing that, although the applicant’s limited criminal history was relevant, its weight was a matter for the sentencing judge and would be affected by the number of offences committed over a lengthy period. Her Honour’s reasons reflected this common ground.

43. [43]

    The proper approach to the relevance of good character to sentencing is set out in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 (Ryan) at [56]. A court must first consider whether the offender is of otherwise good character, disregarding the offences for which the offender is being sentenced. If good character is established (whether negatively (by an absence of criminal convictions) or positively (by evidence of good acts and qualities)): see the discussion in Warton v R [2025] NSWCCA 5 at [66]-[67] (Adamson JA, Ball JA and Fagan J agreeing), the judge must take that fact into account. However, the weight given to it will vary according to the circumstances of the case.

44. [44]

    The reasons of the sentencing judge demonstrate that her Honour applied the approach sanctioned in Ryan. Her Honour found that the applicant was otherwise of good character (in the negative sense that he had a limited criminal history) but did not consider that it entitled him to “any particular leniency”, having regard to the period of the offending conduct. The extract in [37] above indicates that her Honour did not consider that the applicant was entitled to any particular leniency because of the number of offences and the time over which they were committed. The sentencing judge’s reasons indicated that her Honour did take that factor into account, although her Honour did not consider it to be particularly weighty in favour of the applicant.

45. [45]

    The question of what weight to give a relevant consideration is pre-eminently one for the sentencing judge in the exercise of her discretion: R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing).

46. [46]

    Ground 1 has not been made out.

47. [47]

    Ms Kluss submitted in support of ground 2, as follows:

48. [48]

    Each of the matters listed by Ms Kluss was considered and addressed by the sentencing judge, either expressly or by necessary implication. Her Honour did not find there to be no prospects of rehabilitation. Rather, her Honour found that the prospects were “guarded”, an adjective which Ms Kluss used in her oral submission to this Court to describe her client’s prospects of rehabilitation. The sentencing judge noted that the so-called “pro-social” factors advanced on behalf of the applicant to advance a submission that he had prospects of rehabilitation were present at the time of the offending (such as his work record, the lack of criminal history and the absence of adverse issues relating to alcohol or drug abuse). These matters were also referred to by Dr Seidler in her report.

49. [49]

    No error has been demonstrated in the sentencing judge’s assessment of the applicant’s prospects of rehabilitation.

50. [50]

    I summarised the principles which are relevant to a ground of manifest excess in Nataucu v R [2025] NSWCCA 94 as follows:

51. [51]

    Ms Kluss accepted that none of the indicative sentences was “outside the range” of available sentences for the particular offence. Nor did she challenge the sentencing judge’s assessment of the objective seriousness of the offences. However, she submitted that the aggregate sentence was, nonetheless, manifestly excessive.

52. [52]

    In support of this ground, Ms Kluss has assembled several sentences from other cases with a view to identifying particular features of cases where a sentence, including an aggregate sentence, in excess of 15 years imprisonment and 20 years imprisonment respectively has been imposed. She has sought to distinguish other cases from the present by reference to factors such as the number of victims (as she has pointed out, there was “only one” in the present case); predatory conduct (which she submitted was absent in the present case since all but one of the offences was committed at home); and the degree of violence inflicted on each victim (violence being unnecessary in the present case in circumstances where the victim was the applicant’s biological daughter and lived where all but one of the offences were committed).

53. [53]

    This approach is at odds with authority and principle. The process of sentencing is not a matter of data assimilation and analysis by reference to some algorithm determined by reference to previous sentences imposed. Rather, sentencing is a process of instinctive synthesis of relevant factors, including the maximum penalty and SNPP (if any).

54. [54]

    This is not to say that sentences imposed in other cases are not relevant, but rather that their relevance ought not be overstated. In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39, French CJ, Keane and Nettle JJ said at [28]:

55. [55]

    In Director of Public Prosecutions (Vic) v Dalgleish (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41, the High Court allowed an appeal on the basis that the intermediate appellate court, which considered the sentence imposed to be manifestly inadequate, had nonetheless dismissed a Crown appeal on the basis that the range established by then current sentencing practices was dispositive. The plurality (Kiefel CJ, Bell and Keane JJ) at [53] emphasised the need to have regard to the maximum penalty for the offence and the moral culpability of the offender (as well as all other relevant objective and subjective factors) in order to determine the appropriate sentence in a given case. The plurality also referred, at [81] to “the error identified in Kilic [The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48] of treating current sentencing practices as fixing quantitative boundaries within which future sentences were required to be passed”.

56. [56]

    The process of comparison with other sentences becomes even less useful in the context of an aggregate sentence which is imposed for a large range of offences, the indicative sentences for which attract different discounts.

57. [57]

    In the present case, the offending conduct was very serious. The applicant’s moral culpability was high. The mitigating factors were relatively few in the context of the applicant’s egregious conduct against his own biological daughter which continued over a period of about two years when she was aged between 9 and 11. The maximum penalty for two of the offences for which he was to be sentenced (counts 1 and 5) was life imprisonment. He was entitled to discounts for his plea and for his assistance, which were applied by her Honour. The seriousness with which the legislature regards sexual offences against children is evident from the maximum penalties and SNPPs stipulated in the Crimes Act. The maximum penalty for sexual intercourse with a child under 10 years was amended by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) to life imprisonment to reflect the seriousness with which Parliament viewed that crime: New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 12 May 2015 at 407-408

58. [58]

    Having considered the evidence before the sentencing judge, I am satisfied that it was open to her Honour to impose the sentence which was imposed.

59. [59]

    Ground 3 has not been made out.

Leave to appeal

1. [60]

   In order to bring the matter to finality, I am disposed to grant leave to appeal.

Proposed orders

1. [61]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [62]

   WEINSTEIN J: I agree with Adamson JA.