R v AB

1. [1]

   THE COURT: This is a Crown appeal pursuant to Criminal Appeal Act 1912 (NSW), s 5D against the sentence imposed on the respondent (“AB”) by her Honour Judge Wass SC (the sentencing judge) in the District Court on 15 February 2021.

2. [2]

   The single ground of appeal is that the sentence was manifestly inadequate, and accordingly “unreasonable or plainly unjust” such that this Court “may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance” (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40).

3. [3]

   In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58], Gaudron, Gummow and Hayne JJ said of sentencing appeals on the ground of “manifest excess or manifest inadequacy”:

4. [4]

   The task of sentencing requires that the sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender is to be sentenced and the personal history and circumstances of the offender (Wong at [72]). In Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31, the Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) emphasised at [27]:

The offences

1. [5]

   The respondent pleaded guilty to an indictment containing nine offences. A further three offences were taken into account by way of Form 1s. The nine offences involved the performance and photographic recording of sexual acts on two occasions (29 June 2018 and 29 July 2018) with a 14 year old boy, who the respondent (then aged 25) had met online, as well as contemporaneous and subsequent exchanges of photos and videos containing sexually explicit images of the boy. The respondent and complainant had met after connecting using the internet application “Grindr”.

2. [6]

   Five counts (counts 1, 2, 4, 6 and 8) were for the offence of sexual intercourse with a person of or above the age of 14 years and under the age of 16 years, contrary to Crimes Act 1900 (NSW), s 66C(3). Three counts (counts 3, 7, 9) were for the offence of using a child of or above the age of 14 years for the production of child abuse material, contrary to Crimes Act, s 91G(2)(a). The remaining count (count 5) was for the offence of committing an act of indecency with a child under the age of 16 years knowing the act of indecency was being filmed for the purpose of the production of child abuse material, contrary to Crimes Act, s 61O(2A) (since repealed). Of the three Form 1 offences, two were offences of sexual intercourse with the complainant and one for possessing child abuse material (being that related to count 9).

The sentence

1. [7]

   At the time he was sentenced, the respondent had spent eight and a half months in custody prior to being released on bail on 28 March 2020. The sentencing judge dealt with the nine offences and matters to be taken into account under Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), s 10(1)(b), in each case without proceeding to a conviction and making an order discharging the respondent under a 2 year conditional release order.

2. [8]

   Section 10(1)(b) relevantly provides:

The issue in the appeal

1. [9]

   The issue raised by the Crown’s appeal is a narrow one which turns on the particular circumstances of the respondent’s offending and his personal history and circumstances or subjective case. The sentencing judge introduced her analysis of that case (ROS[38]) as follows:

2. [10]

   In its written submissions to this Court, the Crown accepts that the respondent had a powerful subjective case, and did not resile from the concession made in the sentencing hearing that “alternatives to a further sentence of full-time imprisonment were available to the sentencing judge”.

3. [11]

   The Crown’s position in the appeal is that, given the objective seriousness of AB’s offending and the need for a sentence that reflected the principles of general deterrence, denunciation and recognition of harm to the victim, “sentencing the respondent without recording a conviction was unreasonable”.

4. [12]

   As the ground of appeal implicitly accepts, the Crown does not contend that the sentencing judge acted upon any wrong principle, took into account extraneous or irrelevant matters, failed to have regard to factors that were to be considered, or mistook the facts in any respect which is apparent from the sentencing judge’s remarks.

Continued use of pseudonyms

1. [13]

   As the remarks on sentence contain details of the respondent’s history as a victim of child sexual abuse and of his sexual offences against the complainant when a child, the sentencing judge used pseudonyms to refer to each of them. For the same reasons, we propose to adopt those pseudonyms in these reasons. They are “AB” for the respondent and “AS” for the complainant.

2. [14]

   There are statutory provisions which prohibit the publication of any matter which identifies or is likely to identify (1) the complainant in connection with this proceeding; and (2) the respondent in connection with earlier proceedings for offences committed by his family members, in respect which he was a complainant and/or witness: see Crimes Act 1900 (NSW), s 578A(2); and Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a). The former prohibition is engaged because each of AS and AB was the “complainant” in proceedings for a “prescribed sexual offence” as defined in the Criminal Procedure Act 1986 (NSW). The latter prohibition is engaged because each of AS and AB was a child when the relevant offences to which those respective proceedings relate were committed.

The offending

1. [15]

   There is no challenge to the sentencing judge’s findings as to the background to and circumstances of the offending. The following brief summary is taken from her Honour’s remarks on sentence (R v AB, District Court (NSW), Wass SC DCJ, 15 February 2021, unrep).

2. [16]

   The complainant’s Grindr account used a fictitious email account and suggested that he was over 18, though he was only aged 14. The offending occurred between late June 2018 and 6 September 2018. During that period the respondent and complainant exchanged 12,379 SMS messages.

3. [17]

   The respondent and complainant met on two occasions. On each, they engaged in numerous sexual acts which involved unprotected penile/anal sex and the respondent penetrating the complainant with a dildo or vibrator. By the time of the first, the respondent believed the complainant to be 15 years old and was aware that he (the respondent) was acting illegally, notwithstanding that the complainant was an apparently experienced and willing participant in their sexual activity.

4. [18]

   The first encounter making up counts 1 to 5 and one of the Form 1 matters occurred in the early evening of 29 June 2018 at the respondent’s home. Those counts are described more graphically at ROS[18] and in the statement of agreed facts attached to those remarks. On 29 July 2018, on the occasion of their second encounter, the complainant again went to the respondent’s house, where they engaged in “numerous sexual acts”. That encounter made up counts 6 to 8 and one of the Form 1 matters, and again is described more graphically at ROS[20]-[21] and in the statement of agreed facts.

5. [19]

   The sentencing judge treated each of these occasions as a single sexual experience. Each of the charged offences and the three further offences to be taken into account carried a maximum penalty of 10 years imprisonment. The sentencing judge noted that this was a “clear guidepost to the seriousness of the offending” (ROS[120]). The sentencing judge regarded the offending with respect to each offence to be “slightly below the mid-range for offences of this kind”, also noting that there was “little to differentiate them from each other in terms of the level of seriousness” (ROS[15]).

6. [20]

   The extraordinary number of messages exchanged in the period June to September 2018 included photographs of the complainant naked in suggestive and sexual poses, and performing sexual acts including particular acts which the respondent had requested him to perform and photograph. Those messages, and specifically the child abuse material, are the subject of count 9. That material is described in more detail at ROS[23]-[26] and in the statement of agreed facts.

7. [21]

   At the time he was arrested on 12 July 2019, the police seized the respondent’s mobile phone and located the video which was the subject of count 9 and the Form 1 offence of possessing child abuse material.

Respondent’s personal history and circumstances

1. [22]

   Before his arrest, the respondent had no criminal record and no entries in his custodial history of any custodial infringements.

2. [23]

   His evidence on sentence included a written statement that he had prepared and confirmed on oath, which “provided an outline of the events of his life” and in particular the extensive childhood sexual abuse suffered by him from when he was aged 5, at the hands of his mother and numerous others.

3. [24]

   The sentencing judge annexed that confidential statement to her remarks on sentence, and recorded a summary of the relevant events at ROS[47]-[73], including:

4. [25]

   That confidential statement was accompanied by a short document outlining his experience as a victim of childhood sexual abuse:

5. [26]

   The sentencing judge found (ROS[39]) that:

6. [27]

   Her Honour found that the time of the offending was one of “extreme stress in [the respondent’s] life”. In May 2018, he was required to give evidence in the trial of his mother’s brother-in-law regarding the offending against him. The sentencing judge found that his experience in that trial as a witness subjected to “humiliating and distressing” cross-examination had “an indirect causal link on his offending” (ROS[80], [81]).

7. [28]

   Addressing specifically the period between May and September 2018, the sentencing judge found:

8. [29]

   At ROS[97], her Honour recorded that the medical evidence made clear that “[the respondent’s] abhorrent behaviour has been moulded by his extreme childhood experience”. That conclusion was supported by the evidence of Dr Christopher Lennings, a clinical psychologist, in his report of 26 September 2020, and the evidence of Dr Sathish Dayalan, a consultant forensic psychiatrist, in his report of 9 December 2020. None of that evidence was challenged.

9. [30]

   Dr Lennings’ evidence was that at the time of the offending, the respondent was in a “hypomanic state” as a result of the stress suffered from his participating in the trial of his mother’s brother-in-law in May 2018. This state was found to have resulted in a significantly increased sex drive, impaired his ability to think clearly, and contributed to reckless behaviour, including abusing cocaine and MDMA.

10. [31]

    Dr Dayalan’s opinion included that around the time of the offending (pp. 10-11):

Prospects of rehabilitation

1. [32]

   Looking forward, the sentencing judge made the following findings concerning the respondent’s prospects of rehabilitation:

2. [33]

   Nevertheless having undertaken his Higher School Certificate in 2010 and obtained a 96 ATAR, the respondent went on to complete two science degrees specialising in forensics and criminology, and at the time of sentencing was in the middle of completing a degree in law and Aboriginal studies. Her Honour continued:

Was the sentence manifestly inadequate?

1. [34]

   Sentencing Procedure Act, ss 10(2) and 10(3) are relevant in relation to the exercise of the discretionary power conferred by s 10(1)(b). They provide:

2. [35]

   In Hoffenberg v District Court of New South Wales [2010] NSWCA 142, Basten JA made the following observations of the “deliberative” process called for by the application of s 10 (at [8], [10]):

3. [36]

   In this appeal, the Crown does not contend that the sentencing judge failed to give consideration to any of the factors specified in s 10(3)(a)-(c), or that her Honour failed to have regard to any specific matter that ought properly have been the subject of consideration.

4. [37]

   Ultimately, the question for this Court is whether in all the circumstances, and notwithstanding the width of the sentencing discretion, there must have been some misapplication of principle in her Honour’s conclusion that it was not necessary to proceed to conviction in respect of each of the offences to which the respondent pleaded guilty.

5. [38]

   There are two particular matters which the Crown submits, considered separately or taken together, “required” the recording of a conviction, such that in the absence of her Honour’s having done so, there must have been a failure properly to exercise her discretion. The first of those matters is the objective seriousness of the respondent’s offending, and the second in relation to the task of sentencing for that offending, the need for “general deterrence, denunciation and recognition of harm to the victim”.

6. [39]

   The recording of a conviction is a “formal and solemn act marking the court’s, and society’s disapproval of a defendant’s wrongdoing” (R v McInerney (1986) 42 SASR 111 at 124; (1986) 28 A Crim R 318 at 329 (Cox J)).

7. [40]

   In Cobiac v Liddy (1969) 119 CLR 257 at 269; [1969] HCA 26, Windeyer J, forming part of a majority which affirmed the exercise of a magistrate’s statutory discretion not to proceed to conviction in respect of drink driving offences, observed:

8. [41]

   With reference to these observations, in R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ (with whom McInerney and Ireland JJ agreed) said in relation to the predecessor to Sentencing Procedure Act, s 10:

9. [42]

   As Sofronoff P of the Queensland Court of Appeal stated in R v ZB [2021] QCA 9 at [6]; (2021) 287 A Crim R 519, referring to the Queensland statutory equivalent to Sentencing Procedure Act, s 10(3):

10. [43]

    Her Honour had regard to what this Court held with respect to the application of s 10 in Re Attorney General’s Application under Section 37 (No. 3 of 2002) (NSW) (2004) 61 NSWLR 305; [2004] NSWCCA 303 at [132]:

11. [44]

    That passage from the judgment of Howie J (with whom Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreed) is extracted in R v Mauger [2012] NSWCCA 51 at [20], and in turn was referred to by the sentencing judge at ROS[129]. The Crown relies on the correctness of the sentencing judge’s conclusion that, assessed objectively, the relevant offending was “slightly below the mid-range”, with little to differentiate one offence from the others (ROS[15]).

12. [45]

    In assessing whether the “penalty imposed” would reflect the objective seriousness of the offence if no conviction was registered, the sentencing judge “took into account” that the respondent had served more than eight months in custody. Her Honour also found that period of imprisonment was “at times cruel and unusual” and “often extremely confronting” for reason that it harked back to the periods of incarceration the respondent had endured as a child; and because one of the offenders against him and in relation to whom he was to give evidence was housed in the same part of the prison (ROS[91]-[92]).

13. [46]

    In relation to further punishment by imprisonment, the Crown does not challenge the sentencing judge’s findings as to there being “little need for further punishment” of the respondent (ROS[116]) where, having offended in “extenuating circumstances” (ROS[115]), he had served his time in custody in the circumstances described above. Nor does it suggest that the objective seriousness of his offending required that he be subjected to any further period of imprisonment. Nevertheless, the Crown contends that the objective seriousness of the offending necessarily required that convictions also be recorded.

14. [47]

    As to considerations of general deterrence, denunciation and protection of the community, the sentencing judge considered that the uniqueness of the respondent’s case “make[s] it one for which general deterrence is not a particularly important matter” (ROS[100]) and “renders it almost ineffective as a tool for general deterrence” (ROS[124]).

15. [48]

    Whilst the Crown accepts that there may have been a “reduced need for general deterrence given the respondent’s subjective case”, it points to the sentencing judge’s observation at ROS[100] that “even those who have suffered in their life need to understand if they too offend meaningful penalties will be imposed by the Courts”. In those circumstances it contends that the overall penalty imposed – which did not include the recording of convictions – did not take account of a need (though reduced) for general deterrence and denunciation, particularly in a case involving child sexual abuse.

16. [49]

    In support of that proposition, the Crown relies on the observation of Hoeben CJ at CL in EG v R [2015] NSWCCA 21 at [42] as to the heightened need for general deterrence, denunciation and protection of the community in such cases. However, that observation does not purport to state a rule of general application to all such cases. It must necessarily be qualified by reference to the particular circumstances of each case, as Hoeben CJ at CL’s immediately following observation recognised:

17. [50]

    For similar reasons, it was open to the sentencing judge to conclude, as her Honour did, that general deterrence and denunciation had little part to play in the respondent’s punishment (ROS[124]):

18. [51]

    There remains the Crown’s submission that the recognition of harm to the victim, taken with the matters dealt with above, required that convictions be recorded. At the same time, it is not suggested that the sentencing judge did not take the recognition of harm to the victim into account when determining a sentence.

19. [52]

    Nor could it be, in view of her Honour’s remarks at ROS[107]:

20. [53]

    In weighing that consideration, the sentencing judge determined that the “non-recording of a conviction… far outweighs a requirement of punishment, denunciation, or deterrence” (ROS[136]). That assessment was open on the evidence.

21. [54]

    In so concluding, the sentencing judge expressly took into account the following matters: (1) that the respondent had “battled severe and continued abuse, social isolation and has significant mental issues as a result”; that he had “offended in the extenuating circumstances” described; that he appeared “to have been punished almost all of his life”; that there was “little need for further punishment”; that “the community ha[d] absolutely nothing to fear from him”; and that there remained a need to “encourage the offender to continue on with his remarkable progress, including the commencement of his study – his third degree – of law” (ROS[115]-[117]); (2) that the fact of a conviction would do little to support the respondent not to offend in the future, or to protect the community, and that the imposition of strict conditions on a two year bond would perform the same function (ROS[125]); and (3) that the recording of a conviction had the potential to operate to his disadvantage in view of his professional aspirations (ROS[124], [135]).

22. [55]

    Adopting the language of Sofronoff P in ZB, the exceptional circumstances of this case make it one in which the respondent’s short period of serious criminal offending as explained and understood, whilst certainly serious and an “insult to the common good”, is not such as must deserve the community’s denunciation by the recording of convictions. The respondent was subjected to horrific sexual abuse as a child. That abuse shaped his emotional and sexual development. The serious offending to which he pleaded guilty occurred whilst he was in a “hypomanic state” due to extreme stress suffered as a result of assistance provided in proceedings prosecuting one of his abusers. It was not suggested that he should be subjected to any further period of imprisonment. He has good prospects of rehabilitation and, having completed two science degrees, is in the process of completing a degree in law and Aboriginal studies. The recording of his convictions may not assist the progress of that rehabilitation.

23. [56]

    The analysis so far does not address two remaining arguments of the Crown, which can be disposed of shortly.

24. [57]

    First, accepting that statistics have been found to be of limited use in determining a sentencing appeal, the Crown nevertheless notes that the Judicial Information Research System’s statistics do not indicate that there is any record of a non-conviction being imposed for multiple offences pursuant to Crimes Act, s 66C(3). That may be so. However, the absence of such cases is no doubt explained by the most exceptional and rare circumstances of the present case.

25. [58]

    Secondly, in its written submissions the Crown suggests that the sentencing judge’s reliance on the decisions in R v Mauger and R v Le [2019] NSWSC 633 was misplaced, where in each of these cases, the sentencing judge found that the objective seriousness of the charged offence was at the “very lowest end” or “very bottom” of the scale or range of seriousness. In each of those cases, no conviction was recorded, in the former after an appeal and in the latter by the trial judge.

26. [59]

    In dealing with those cases, the sentencing judge referred to Brennan J’s construction of the phrase “nature of the offence” in Walden v Hensler (1987) 163 CLR 561 at 577; [1987] HCA 54, when appearing in similar legislation to Sentencing Procedure Act s 10(3), as “taking account of the conduct which constitutes the offending and the actual circumstances in which the offence is committed”. Her Honour appears to have treated these references to the offending conduct and circumstances of the offending as taking into account matters beyond those which would be taken into account in assessing the objective seriousness of the offending. That probably involved error, but not error which is relied on or which was material to her Honour’s reasoning. Rather, in addressing the question raised by s 10, which plainly permits consideration of extenuating circumstances, her Honour’s focus remained on the respondent’s conduct and the circumstances of his offending, as well as her assessment of the objective seriousness of that offending (ROS[131], [133]).

27. [60]

    For these reasons, the appeal should be dismissed. The sentence imposed was not manifestly inadequate notwithstanding that it did not include the recording of convictions for the undoubtedly serious offences to which the respondent pleaded guilty.