AK v R

1. [1]

   BEAZLEY P: I have had the advantage of reading in draft the reasons of Johnson J. I agree with his Honour’s reasons and proposed orders.

2. [2]

   JOHNSON J: The Applicant seeks an extension of time to apply for leave to appeal against sentences imposed on him at the Newcastle District Court on 17 September 2013 with respect to a number of sexual offences.

3. [3]

   The Applicant is referred to in this judgment by a pseudonym, AK (which are not his correct initials). Likewise, the names of the young female victims (and their relatives) are not used, with pseudonyms being used in their place. These steps are taken to guard against identifying the victims consistent with the statutory protection provided by s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987.

The Charges and Sentences

1. [4]

   On 11 July 2012, the Applicant was committed to stand trial at the Newcastle District Court with respect to eight charges involving two complainants. He was arraigned on two separate indictments, one for each complainant. The trials were listed back-to-back in the East Maitland District Court to commence on 29 April 2013. This date was vacated in advance and the trials were relisted to commence on 6 May 2013 at the Newcastle District Court.

2. [5]

   In advance of the relisted date, negotiations took place between the Crown and the Applicant’s legal representatives, in consultation with the complainants and the officer-in-charge. On the first day of the trial, 6 May 2013, the Applicant was re-arraigned on a single indictment and his pleas of guilty to the following offences were accepted by the Crown in full satisfaction of the original indictments:

3. [6]

   The Applicant asked the sentencing court to take into account on a Form 1, when sentencing for Count 3, a further offence of aggravated sexual intercourse with Helen, aged 10 years contrary to s.66C(2) (an act of penile anal intercourse with Helen occurring immediately after Count 3).

4. [7]

   I note that the s.66C(2) offences in this case, although carrying a maximum penalty of 20 years’ imprisonment, did not have a standard non-parole period at the time of these offences. The New South Wales Parliament altered the law in this respect in 2015 by enacting a standard non-parole period of nine years for offences under s.66C(2) committed since 29 June 2015: Crimes Legislation Amendment (Child Sex Offences) Act 2015. Of course, this standard non-parole period has no application to the Applicant, and cannot influence sentencing in this case: McGrath v R [2010] NSWCCA 48; 199 A Crim R 527 at 536 [37], 540 [60].

5. [8]

   Following the Applicant’s pleas of guilty, a sentence hearing date was set but was delayed due to the Applicant indicating he wished to traverse his pleas, necessitating a change in legal representation. Ultimately, the Applicant adhered to his pleas and the sentencing proceedings took place on 13 and 16 September 2013.

6. [9]

   On 17 September 2013, the Applicant was sentenced to the following terms of imprisonment:

7. [10]

   The overall effective sentence for the offences comprised a non-parole period of eight years commencing on 6 May 2013 and expiring on 5 May 2021, with a balance of term of three years, three months and two weeks commencing on 6 May 2021 and expiring on 19 August 2024.

8. [11]

   It was agreed by the parties before this Court (T2-3, 16 March 2016) that the sentencing Judge had approached the calculation of sentences, and their imposition, in a somewhat unorthodox way which required correction after 17 September 2013. It is sufficient to observe, for present purposes, that the sentences ultimately imposed by his Honour for the offences were those set out at [9]-[10] above.

Grounds of Appeal

1. [12]

   The Applicant relies upon two grounds of appeal:

Extension of Time to Appeal

1. [13]

   The Applicant was sentenced on 17 September 2013 and relied upon a Notice of Application for Extension of Time and a Notice of Appeal, each dated 8 October 2015.

2. [14]

   An affidavit of the Applicant sworn 10 March 2016 and of his solicitor, Stephen Eccleshall, affirmed 10 March 2016 were relied upon in support of the application for the extension of time. It is apparent from those affidavits that the Applicant sought to take steps to bring an appeal, but that difficulties arose in his communications with Legal Aid NSW and the Court.

3. [15]

   In light of the affidavits, the Crown did not oppose an extension of time being granted to the Applicant.

4. [16]

   Having considered the affidavits bearing upon the question of extension of time, and taking into account the Crown’s concession that an extension ought be granted, I am satisfied that the Applicant should be granted an extension of time to bring the application for leave to appeal against sentence.

Facts of Offences

1. [17]

   An agreed statement of facts was tendered at the sentencing hearing. What follows is drawn from that document.

2. [18]

   In about July 2008, the Applicant (then 44 years old) commenced an intimate relationship with the mother of Helen and moved in with her and her three young children.

3. [19]

   Counts 2 and 3 (the offences against Helen) were committed in 2010-2011. However, according to the agreed statement of facts, “There had been inappropriate sexual touching of the complainant [Helen] by the accused since the winter of 2009, when she was aged eight”.

4. [20]

   On an afternoon between August 2010 and August 2011, when Helen’s mother was out at work, Helen (then nine or 10 years old) was at home with her two younger brothers and the Applicant. The Applicant put a movie on for the boys in the lounge room and asked Helen to come to the bathroom and have a shower with him. She said “No” and went to watch television.

5. [21]

   When Helen went into the kitchen to get a drink, the Applicant closed the door to the lounge room and pulled her into the bathroom. He turned on the shower and made her take off her clothes and get into the shower with him. They were both naked. In the shower, the Applicant touched Helen’s vagina with his hands whilst she told him to stop. When the victim’s mother came home, the Applicant stopped.

6. [22]

   Helen got out of the shower and took her clothes into the back room, dried herself and dressed. She went outside and then walked back into the house, where she told her mother she had been outside. The incident was witnessed by Helen’s eight-year old brother.

7. [23]

   On an afternoon in August 2011, Helen (then 10 years old) had returned home from a dancing lesson. Her mother left the house to go to the shops. The Applicant was cooking dinner in the kitchen and told Helen to go to her bedroom, but she refused, walking back to the lounge room.

8. [24]

   The Applicant followed Helen and, in the hallway leading to the main bedroom, he picked her up and carried her into the bedroom laying her down on her bed. The Applicant told her brothers to go back into the lounge room and wait.

9. [25]

   The Applicant was wearing shorts and a singlet and Helen was wearing pyjamas and underpants. The Applicant held Helen on the bed, pulled her pants down, licked and kissed her body and genitals and then announced he was “going to root” her before commencing penile vaginal intercourse. Helen felt embarrassed, angry and scared.

10. [26]

    After committing the offence which constituted Count 3, the Applicant repositioned Helen and had penile anal intercourse with her (Form 1 offence). She tried to kick him off and was scared. The Applicant stopped when he could hear Helen’s mother and others entering the house. Helen dressed quickly and ran out to the lounge room. The Applicant returned to the kitchen and continued to cook dinner.

11. [27]

    Helen was first interviewed and disclosed these offences on 18 August 2011.

12. [28]

    According to the agreed statement of facts, Helen was assessed on 18 April 2013 by Professor Susan Hayes, a forensic psychologist and Professor of Behavioural Science in Medicine at the University of Sydney. Professor Hayes confirmed a diagnosis of severe expressive and receptive language delay, consistent with verbal reasoning at the lower end of borderline intellectual disability, accompanied by poor adaptive skills.

13. [29]

    Kylie was related to Helen and frequently spent time at her home. Kylie treated the Applicant as an uncle.

14. [30]

    On an occasion in 2010, when Kylie (then aged 10 or 11 years) was present at Helen’s home, she was waiting for her mother to return. Kylie was alone in the house with the Applicant. The Applicant came and stood naked at the entrance to Helen’s bedroom, where Kylie was located. She told him to go away.

15. [31]

    The Applicant went away and got dressed and later sat on the lounge with Kylie. He placed his hand under her underpants and onto her vagina. He left it there until Kylie removed it. After doing this, Kylie got up and sat on another lounge.

16. [32]

    The Applicant was arrested and charged on 20 January 2012.

17. [33]

    He remained on bail until bail was revoked on 6 May 2013 upon his entering pleas of guilty.

The Applicant’s Subjective Circumstances

1. [34]

   The Applicant was born in 1964 and was 46 or 47 years old at the time of the offences. He was 49 years of age at the time of sentence.

2. [35]

   The Applicant had a criminal history containing entries for driving with PCA (1982), assault occasioning actual bodily harm (1987), driving with high-range PCA (1992), driving with high-range PCA (1998), knowingly obtain a benefit by deception (2000), driving with high-range PCA (2002), driving with middle-range PCA and driving whilst disqualified (2005), make false instrument and steal property in a dwelling house (2005) and use false instrument (2005). Sentences imposed for these offences included a community service order (1995), periodic detention (2000) and suspended terms of imprisonment (2002 and 2005).

3. [36]

   The Applicant did not give evidence at the sentencing hearing.

4. [37]

   A report dated 14 August 2013 of Dr Mark Howard, psychologist, was tendered for the Applicant at the sentencing hearing. Having regard to the second ground of appeal, it is appropriate to set out parts of this report.

5. [38]

   Dr Howard met and interviewed the Applicant at the Parklea Correctional Centre on 9 August 2013 and undertook psychometric testing of him. The Applicant provided a history to Dr Howard. The history included the Applicant’s excessive use of alcohol, which had led him to attend an inpatient rehabilitation program at The Glen in 2003 and attendance at Alcoholics Anonymous sessions during 2004.

6. [39]

   Under a heading “Factors Related to Offending”, Dr Howard said (AB61-62):

7. [40]

   Dr Howard expressed a number of conclusions under a heading “Clinical Opinion” (AB63):

8. [41]

   Dr Howard turned to the topic of the Applicant’s sexual attraction towards children (AB64):

9. [42]

   With respect to the Applicant’s risk of sexual reoffending, Dr Howard said (AB64-65):

10. [43]

    Dr Howard made a number of recommendations including the following (AB65):

Some Findings in the Remarks on Sentence

1. [44]

   It is appropriate to set out parts of the sentencing Judge’s remarks on sentence to assist an understanding of the challenges made before this Court on behalf of the Applicant.

2. [45]

   Early in the remarks, his Honour summarised aspects of the offences in the following way (ROS1-2; AB8-9) (emphasis added):

3. [46]

   Soon after, his Honour said with respect to the offences (ROS2-3; AB9-10) (emphasis added):

4. [47]

   After adverting to aspects of the offending conduct, including the Form 1 offence, his Honour continued (ROS4; AB11):

5. [48]

   The sentencing Judge turned to features of Dr Howard’s report and said concerning the risk of reoffending (ROS5-6; AB12-13):

6. [49]

   The sentencing Judge then turned to the issue of remorse, and the level of the Applicant’s insight in a passage which gave rise to the second ground of appeal (ROS6; AB13) (emphasis added):

7. [50]

   His Honour allowed a discount of 10% for the Applicant’s late pleas of guilty (ROS6; AB13).

8. [51]

   A finding of special circumstances was made having regard to the likelihood that the Applicant would spend time in protective custody, and having regard to the Applicant’s limited intellectual capacity (as described in Dr Howard’s report) that would make his time in custody more difficult (ROS6; AB13).

9. [52]

   The sentencing Judge made an assessment of the gravity of the various offences in the following way, in a manner which contributed to the first ground of appeal (ROS6-7; AB13-14) (emphasis added):

10. [53]

    The sentencing Judge referred to a psychological report of Professor Hayes (referred to at [28]) which comprised a victim impact statement from Helen. In that report (AB43), Professor Hayes expressed the opinion that, as a result of the sexual abuse, Helen had developed chronic post-traumatic stress disorder which impacted further upon her development and behaviour. Professor Hayes considered that the impact of the sexual abuse on Helen had been severe. She had experienced confusion, fear and anger which had impacted adversely on her life and education. She had difficulty trusting people and making friends, and was very careful around men. With respect to the report of Professor Hayes, the sentencing Judge said (ROS7; AB14):

11. [54]

    Before moving to impose sentences, his Honour said he wished to “emphasise that it is in this offender’s interest that he seek to address those issues whilst in custody”. His Honour said that he would annex to the sentencing remarks the report of Dr Howard for the assistance of the State Parole Authority and the Probation and Parole Service (ROS7; AB14).

12. [55]

    His Honour then proceeded to announce the sentences in a manner which (as mentioned at [11] above), gave rise to a level of confusion which had been resolved by the time of the hearing in this Court. An affidavit of Marley Zelinka sworn 4 March 2016 was relied upon by the Crown on this aspect and a further affidavit of Mr Eccleshall affirmed 15 March 2016 was filed for the Applicant.

13. [56]

    It is not necessary to set out the technical deficiencies in the initial orders made at first instance, for the purpose of resolving the grounds raised before this Court.

Ground 1 - Suggested Error in the Manner in Which the Sentencing Judge Took Into Account the Uncharged Sexual Conduct of the Applicant

1. [57]

   Ms Wasley, counsel for the Applicant, acknowledged that the agreed statement of facts referred to “inappropriate sexual touching” of Helen by the Applicant since the winter of 2009 (when she was aged eight years) before turning to the specific offences against Helen which occurred in 2010-2011. Whilst submitting that the specific offences against Helen were not said to have been representative counts, counsel acknowledged that it was open to the sentencing Judge to have regard to the earlier improper conduct on behalf of the Applicant on sentence.

2. [58]

   It was submitted for the Applicant, however, that what occurred here was reliance by his Honour on these matters to find “a continuing course of action” or “a continuing course of behaviour”, culminating in a finding that the Applicant “mentored or proceeded to conduct himself in a way that add to this offending” and that “but for the complaint made almost immediately by the child, the offending would have continued” (see [45]-[46] and [52] above).

3. [59]

   Counsel for the Applicant submitted that the only relevance of other sexual activity is to place the offences charged in their context, and to deny the Applicant the leniency to which he might have been entitled if they were isolated incidents: R v JCW [2000] NSWCCA 209; 112 A Crim R 466; MJL v R [2007] NSWCCA 261; R v Gommerson [2014] NSWCCA 159; 243 A Crim R 534.

4. [60]

   It was submitted that the sentencing Judge had erred in taking the uncharged conduct into account as a circumstance of aggravation in respect of Counts 2 and 3, rather than relying upon the conduct to deny the Applicant leniency on the basis that the offences as charged were not isolated incidents.

5. [61]

   The Crown submitted that it was open to the sentencing Judge to have regard to the earlier sexual misconduct on the part of the Applicant. The Crown had submitted in writing to the sentencing Judge that the offences were not isolated incidents or an aberration, and had argued orally that they constituted an ongoing course of conduct as well.

6. [62]

   It was submitted that the findings made by the sentencing Judge were open on the evidence.

7. [63]

   With respect to the submissions for the Applicant that his Honour had erred in particular, in finding that the Applicant’s prior conduct “add to his offending”, the Crown submitted that undue emphasis had been given to this observation. It was noted that his Honour did not specifically make a finding of aggravation.

8. [64]

   The Crown submitted that no error had been established in the manner contended for in the first ground of appeal.

9. [65]

   It was clearly open to the sentencing Judge to have regard to the agreed fact that the Applicant had engaged in inappropriate sexual touching of Helen since the winter of 2009, when she was only eight years of age. It was important that this aspect of the case was not in dispute, although the conduct which attracted this description was not particularised.

10. [66]

    Although the terms “representative counts” or “representative charges” were not used at the sentencing hearing, it was clear that the Applicant’s offences were to be considered against a background of “inappropriate sexual touching” of a girl aged between eight and 10 or 11 years. The principles arising from sentencing in representative count cases have some application to a case such as this.

11. [67]

    Since the decision of this Court in R v JCW, the accepted approach when courts are imposing a sentence in respect of representative counts, in relation to which pleas of guilty have been entered, is as follows:

12. [68]

    It has been accepted that the history should not be used as the basis for sentencing the convicted person for charges other than those in the indictment, or as a matter of aggravation of those charges: R v JCW at 478 [68].

13. [69]

    In Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; 198 A Crim R 395, Basten JA considered (at 408 [67]) that the undisputed fact that the offender committed numerous additional offences (similar to those charged), was relevant to his state of mind in committing the offences charged, his motive, his sense (or absence of sense) of wrongdoing at the time, his willingness to control inappropriate urges for sexual gratification, the effects on the complainant of his conduct and by way of explanation of the fact that the conduct went undetected for a significant period. Following a Victorian line of authority, his Honour considered that the fact that the offences constituted part of an ongoing course of conduct placed them in a higher range of offending (at 408 [68]).

14. [70]

    RS Hulme J applied the principles in R v JCW, confining the use of the uncharged criminal acts in the manner described in that decision (see [67] above).

15. [71]

    As the third member of the Court, I found the reasoning of Basten JA persuasive, but did not consider the Court should depart from the principles in R v JCW in circumstances where no party had invited reconsideration of those principles (at 415 [102]-[104]).

16. [72]

    Since the decision in Giles v Director of Public Prosecutions (NSW), this Court has not been invited to reconsider the principles in R v JCW. Accordingly, with the agreement of Harrison and Garling JJ, I said in R v Gommerson at 547 [68]-[69]:

17. [73]

    I approach the resolution of the first ground of appeal with the principles from R v JCW in mind.

18. [74]

    It was open to the sentencing Judge to have regard to the Applicant’s earlier conduct involving inappropriate sexual touching on sentence. It is regrettable that his Honour did not use the accepted principles, as set out in the Crown’s submissions in the District Court, that the offences were not “isolated incidents or an aberration”.

19. [75]

    That said, it was not erroneous for his Honour to describe the Applicant’s conduct in these offences against Helen in Counts 2 and 3 (and the Form 1 offence attached to Count 3) as being part of a continuing course of action. It may be that the description of conduct as being part of a “course of conduct” may not be apt in a particular case, if the uncharged conduct is said to constitute a small number of incidents. However, the manner in which the uncharged conduct was described in the agreed statement of facts meant that the description was apt in the Applicant’s case.

20. [76]

    The difficulty which arose, however, was the conclusion that the Applicant “mentored or proceeded to conduct himself in a way that add to this offending”. This statement was made in the part of the remarks where an assessment was being made of the objective seriousness of the offences (see [52] above). It is difficult to avoid a conclusion that in saying that these matters “add to this offending”, his Honour was doing anything other than elevating the objective seriousness of the offences by way of aggravation. Such an approach is not available in accordance with sentencing law as it applies in this State.

21. [77]

    I am satisfied that error has been established in accordance with the first ground of appeal.

Ground 2 - Suggested Error in Finding that the Applicant did not Accept that his Offending was of a Class that Cannot and Should Not Ever be Contemplated or Countenanced

1. [78]

   Counsel for the Applicant referred to parts of the remarks on sentence where his Honour adverted to specific deterrence, the risk of the Applicant’s reoffending and his attitude towards his own offences and child sex offences more generally.

2. [79]

   It was submitted that his Honour fell into error in approaching the sentencing exercise upon the basis that the Applicant did “not see at this point that his offending is of a class that cannot and should not ever be contemplated or countenanced” (see [49] above).

3. [80]

   Counsel referred to the report of Dr Howard where it was said that the Applicant had “assumed responsibility for his involvement” in the offences despite his “minimal recall for events directly surrounding the offences” (see [39] above). It was noted that Dr Howard reported that the Applicant “repeatedly expressed remorse for his offending behaviour as alleged and that the prospect that he may have caused harm” to the children involved (also at [39] above).

4. [81]

   It was noted that Dr Howard had pointed to factors relating to risk of reoffending, and had made recommendations concerning therapeutic interventions which could be tailored to address the Applicant’s level of intellectual functioning and literacy.

5. [82]

   Counsel for the Applicant submitted that it was open to his Honour to reject the Applicant’s denial of sexual attraction towards Helen and Kylie provided in his untested account to Dr Howard. It was submitted, however, that it was not open to the sentencing Judge, on the evidence, to find that the Applicant “does not see at this point that his offending is of a class that cannot and should not ever be contemplated or countenanced”. It was submitted that the Applicant’s pleas of guilty and his Honour’s acceptance that the Applicant had shown “some remorse”, militated against such a finding.

6. [83]

   It was submitted that the sentencing Judge relied upon this determination as the basis for placing excessive emphasis on specific deterrence and that, in this respect, the sentencing exercise had miscarried.

7. [84]

   The Crown emphasised that the Applicant had not given evidence at the sentencing hearing and that it was open to his Honour to reject any untested statement made by him to Dr Howard.

8. [85]

   The Crown submitted that the sentencing Judge had not erred in giving what was described as excessive emphasis to specific deterrence in this case.

9. [86]

   It was noted that the Applicant told Dr Howard that he had minimal recall to the events surrounding the offences, and that his Honour took a generous approach in not rejecting the claim of memory loss in the absence of supporting evidence.

10. [87]

    The Crown submitted that the sentencing Judge was entirely justified in querying how the Applicant could fail to appreciate (even with his low intellectual functioning) the problematic nature of his offending against two young girls who were his de facto’s relatives. This was especially so, the Crown submitted, as these were not isolated events with the conduct towards Helen having occurred over a period of some two years in a familial setting, culminating in full penile vaginal and anal intercourse.

11. [88]

    The Crown submitted that the acts ceased only when the Applicant was at risk of being caught (with others entering the house) and ultimately came to an end when Helen made a complaint in August 2011.

12. [89]

    Against this background, the Crown submitted that it was difficult to accept how the Applicant could deny that he had paraphiliac tendencies or sexual attraction towards children, and failed to acknowledge that he had a problem or that his conduct was of a class “that cannot and should not ever be contemplated or countenanced”.

13. [90]

    It was submitted for the Crown that the fact the Applicant had, according to Dr Howard, assumed responsibility and repeatedly expressed remorse did not overcome the difficulties flowing from the Applicant’s own statements to Dr Howard about this offending.

14. [91]

    In circumstances where his Honour had properly rejected the Applicant’s asserted denial, and with inconclusive findings as to the risk of recidivism, the Crown submitted that it was entirely open to his Honour to be particularly concerned with the issue of specific deterrence.

15. [92]

    The Crown submitted that his Honour made clear that particular emphasis needed to be given to specific deterrence in this case, so that his reasoning was apparent in the sentencing remarks: R v Van Ryn [2016] NSWCCA 1 at [187].

16. [93]

    The Crown submitted that no error had been demonstrated under the second ground of appeal.

17. [94]

    The onus lies upon the Applicant to establish error on the part of the sentencing Judge in the exercise of discretion in this case in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. The relevant principles were summarised conveniently by Gleeson CJ, Gummow and Callinan JJ in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25] (footnotes omitted):

18. [95]

    Here, the Applicant contends that his Honour fell into specific error in giving excessive emphasis to specific deterrence.

19. [96]

    The Applicant did not give evidence at the sentencing hearing. The matters relied upon in this respect arise from things said by the Applicant to Dr Howard, as contained in the psychologist’s report.

20. [97]

    The sentencing Judge’s approach to this topic involved consideration of the Applicant’s remorse, his level of insight, his level of frankness in his dealings with Dr Howard and his willingness to explain why he committed serious sexual offences against young girls on a number of occasions. These matters bear upon issues of remorse, the Applicant’s level of insight, the need for specific deterrence and the Applicant’s prospects of rehabilitation flowing from an understanding of why he committed serious crimes of this type.

21. [98]

    This Court has observed that the assessment of the genuineness of remorse is likely to be better informed in circumstances where it is expressed directly, as remorse is an intrinsically subjective matter, the evaluation of which depends upon human interaction: Mun v R [2015] NSWCCA 234 at [29].

22. [99]

    Further, it has been emphasised that considerable caution must be exercised in determining what weight, if any, can be placed upon self-serving and untested statements by an offender contained in a report of a health professional: R v Qutami [2001] NSWCCA 353; 127 A Crim R 362 at 377 [58]-[59], 380 [79]; R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 184-185 [40]-[41]; Mun v R at [40].

23. [100]

    It is necessary to read fairly the various parts of the sentencing remarks where his Honour touched upon this issue. Undertaking this task, it may be seen that his Honour concluded that the Applicant, who had committed serious sexual offences against young girls on a number of occasions, either could or would not characterise his own conduct as being, at least, grossly abnormal sexual conduct so that he did not see, at the time of sentencing, that his offending was of a class that cannot and should not ever be contemplated or countenanced.

24. [101]

    In my view, such an analysis of what his Honour said is unremarkable. It was certainly an approach open to his Honour on the material before the Court on sentence.

25. [102]

    Where a person commits serious sexual offences against children, an assessment of the risk of reoffending and the need for specific deterrence, will involve an examination of not just a formulaic expression of remorse to a psychologist, but the degree of insight the offender has demonstrated into what he did, and why he did it. The Applicant’s claimed lack of memory of the events had the flavour of an avoidance mechanism, sometimes seen in child sex offenders. The balance of the evidence before the sentencing court, essentially the report of Dr Howard, did not in my view, provide a foundation for a more benign approach on the issue of specific deterrence in this case. It should be noted that Dr Howard recommended that the Applicant undergo the CORE program or the Denier’s Program (see [43] above). Of course, the Denier’s Program is used for offenders who deny committing the sex offences for which they were sentenced. This is a practical measure of the Applicant’s limited or absent insight into his child sex offending.

26. [103]

    The sentencing Judge ensured that the relevant authorities would have access to Dr Howards’ report, to assist custodial treatment or counselling which may serve to reduce the Applicant’s risk of reoffending.

27. [104]

    The Applicant has not demonstrated error in the manner asserted in the second ground of appeal. I would reject that ground.

Resentencing the Applicant

1. [105]

   The Court has upheld the first ground of appeal, but rejected the other ground. Error having been demonstrated, this Court is required to exercise its independent sentencing discretion when it resentences the Applicant in accordance with the principles in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 618-619 [43].

2. [106]

   No further evidence was adduced by the Applicant to be placed before this Court in the event that error was established. The Court is to proceed to sentence upon the basis of the evidence which was before the sentencing Judge.

3. [107]

   It was submitted for the Applicant that, in resentencing, this Court would have regard to the limited intellectual functioning of the Applicant. It was submitted that the correct application of sentencing principles would see the Court impose a lesser sentence upon the Applicant for the purpose of s.6(3) Criminal Appeal Act 1912.

4. [108]

   Reliance was placed upon other sentencing decisions for aggravated sexual assault offences: Clarke v R [2009] NSWCCA 49; NW v R [2011] NSWCCA 178 and BIP v R [2011] NSWCCA 224. It was not submitted for the Applicant that these decisions demonstrated a range of sentence for this type of offence. Rather, it was submitted that they provided examples of sentencing by reference to the maximum penalty at the time of the commission of these offences.

5. [109]

   It was submitted for the Applicant that the Court would proceed to impose a lesser sentence in this case.

6. [110]

   If error was demonstrated, the Crown submitted that this Court, having undertaken its task in accordance with Kentwell v The Queen, would not form the opinion that another and more lenient sentence is warranted in law.

7. [111]

   The Crown submitted that the individual sentences, and the overall sentence, were entirely appropriate, given the maximum penalties, the issue of totality for several counts and victims, the findings of objective seriousness, the inclusion of a serious Form 1 matter and the paucity of positive subjective factors.

8. [112]

   The Crown submitted that the appeal ought be dismissed.

9. [113]

   I have approached the question of sentence by consideration of all objective and subjective factors arising in this case, and application of sentencing principles which the law requires to be considered. Having undertaken that task, it is necessary to determine whether a lesser sentence is warranted in law and should be passed: s.6(3) Criminal Appeal Act 1912.

10. [114]

    The Applicant’s offences were serious examples of offending of this type. He was in his mid-40s and committed offences against young girls aged between nine and 11 years. He had access to the girls because his stepdaughter (Helen) lived in the same house as the Applicant and was under his authority (an aggravating factor on Count 3 and the Form 1 offence). He obtained access to the other victim only because she visited the house as a friend of Helen.

11. [115]

    In each case, the Applicant took advantage of the absence of other adults from the house to sexually abuse one or other of the young girls. His conduct towards Helen did not involve isolated or aberrant conduct. The Applicant had demonstrated a sexual attraction to Helen, involving inappropriate sexual touching for some two years (since she had been eight years of age). Although not constituting an aggravating factor on sentence for Counts 2 and 3, these circumstances assist an understanding of the relationship between the Applicant and Helen and bear upon the degree of leniency to which he might otherwise have been entitled.

12. [116]

    The Applicant’s sexual offending had escalated in its seriousness to the point where he engaged in acts of vaginal and anal intercourse with Helen when she was 10 years old. Given the Applicant’s conduct towards Helen, it may be concluded that his sexual offending against her would likely have continued had she not complained on 18 August 2011, not long after the Count 3 and Form 1 offences. Certainly, there was no basis to conclude that the Applicant had determined to cease his offending conduct with the commission of those offences.

13. [117]

    A standard non-parole period of eight years applied to the s.61M(2) offences (Counts 1 and 2) against the background of a maximum penalty of 10 years’ imprisonment for those offences. The curious temporal relationship between these two periods was considered in Corby v R [2010] NSWCCA 146 at [69]-[71]:

14. [118]

    It is appropriate to consider the actual character of the offences under s.61M(2) to assist an assessment of objective seriousness. Count 2 involved a very serious example of an offence of this type, with the Applicant physically forcing Helen to come with him to the bathroom. He made her take off her clothes and get into the shower with him whilst he was naked. He then touched her vagina with his hands whilst the young girl told him to stop. It may be inferred that the only reason the offence came to an end was because Helen’s mother came home at that point.

15. [119]

    The s.61M(2) against Kylie was also serious, involving the Applicant presenting himself to her naked in the doorway. Despite the young girl’s obvious resistance, the Applicant placed his hand in her underpants and on her vagina until she removed it.

16. [120]

    The s.66C(2) offence comprising Count 3 was a very serious example of an offence of this type. When alone in the house, the Applicant picked up Helen and carried her into her bedroom, before removing his pants and holding her down on the bed. He pulled her pants down before licking and kissing her lips, breasts and vagina and then touching her vagina and bottom. He proceeded to insert his penis into her vagina.

17. [121]

    The Form 1 offence involved a s.66C(2) offence committed immediately after Count 3. The Applicant told Helen to bend over and had penile anal intercourse with her. She tried unsuccessfully to kick the Applicant away. The Applicant ceased this conduct when he heard the girl’s mother and others enter the house.

18. [122]

    The Applicant was fortunate to have a very serious s.66C(2) offence such as this placed on a Form 1 for the purpose of sentence. The inclusion of an offence such as this on a Form 1 required the sentencing court to give greater weight in sentencing for Count 3, to the need for specific deterrence, and the community’s entitlement to extract retribution for serious offences: Attorney General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at 159 [42]. In this case, the seriousness of the Form 1 offence called for particular emphasis to be given to specific deterrence, and the need for retribution, in passing sentencing on Count 3.

19. [123]

    Also relevant on the question of sentence was the victim impact statement concerning Helen in the form of Professor Hayes’ report of 18 April 2013. It may be said that the sentencing Judge took a generous approach to the Applicant on this aspect (see [53] above), given the contents of Professor Hayes’ report concerning the harm actually done to Helen as a result of these offences.

20. [124]

    In R v Gavel [2014] NSWCCA 56; 239 A Crim R 469, this Court said at 483 [110]:

21. [125]

    What the Court said in R v Gavel reflects the expectation of what the sexual abuse of a child is likely to produce. In this case, there was additional expert evidence from Professor Hayes concerning the serious harm actually done to Helen as a result of the Applicant’s offending against her.

22. [126]

    This is an important feature in the present case. Young child victims are especially vulnerable. It is important that sentences passed for serious child sexual assault crimes such as this recognise the harm done to the victim of the crime: s.3A(g) Crimes (Sentencing Procedure) Act 1999.

23. [127]

    The Applicant was entitled to a discount of 10% for his pleas of guilty and this Court should maintain that discount on resentence.

24. [128]

    I have kept in mind Dr Howard’s assessment of the Applicant’s intellectual functioning.

25. [129]

    The Applicant’s criminal history does not contain any sexual offences. However, it does contain a range of matters which operate to restrict the extent to which leniency may be provided to him.

26. [130]

    I do not consider that the sentencing decision in Clarke v R, NW v R and BIP v R provide any real assistance to the determination of this appeal. As counsel for the Applicant acknowledged, they do not demonstrate any range of sentencing. They provide a small number of examples of sentences passed upon particular offenders in the circumstances of their particular offences.

27. [131]

    As part of the exercise of this Court’s independent sentencing discretion, I have kept in mind the sentences imposed at first instance. Of course, it is necessary to have regard to those sentences for the purpose of forming the ultimate conclusion as to whether a lesser sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912.

28. [132]

    Having considered the objective circumstances of the offences and the subjective circumstances of the Applicant, in conjunction with application of all relevant sentencing principles, I am of the view that no lesser sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912.

29. [133]

    Having made this finding, I conclude that the appeal should be dismissed.

Conclusion

1. [134]

   I would grant leave to appeal against sentence but dismiss the appeal.

2. [135]

   I propose the following orders:

3. [136]

   HARRISON J: I agree with Johnson J.