DS v R

MITCHELMORE JA: The applicant seeks leave to appeal from the sentence imposed upon him on 23 November 2023 by Judge Huggett in the District Court for 14 sexual offences that he committed between 1975 and 2021 against five child victims, each of whom was related to the applicant. Both s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW) prohibit publication of the identity of the victims or any matter which could identify them.

The applicant was committed for trial on an indictment containing 22 counts relating to four of the five victims (CG, LMC, PS and MS). On 8 March 2023, he was arraigned before her Honour and a jury and entered a plea of not guilty. The trial commenced and one victim, CG, gave evidence which concluded on 9 March 2023. The trial was then adjourned to 14 March 2023 in order for the parties to attend to what her Honour described as “appropriate matters related to potentially resolving the charges”.

When the trial resumed on 14 March 2023, the applicant was rearraigned and entered pleas of guilty to 12 of the 22 counts. In addition to sentencing the applicant for the counts on the indictment to which he pleaded guilty, her Honour sentenced him for two offences relating to the fifth victim, LM, to which he pleaded guilty in the Local Court and which were committed to the District Court for sentence.

I have set out the 14 offences to which the applicant pleaded guilty in the following table. For each offence, I have included a reference to the count on the indictment or (in the case of the last two offences) the sequence number and a summary of the charge, the victim, and the applicable provision of the Crimes Act. I have also included the maximum penalty for each offence and her Honour’s indicative sentence:

Her Honour sentenced the applicant to an aggregate term of imprisonment of 22 years to date from 20 September 2021 and to expire on 19 September 2043, with a non-parole period of 16 years and 6 months dating from 20 September 2021 and expiring on 19 March 2038. The applicant sought leave to appeal against the sentence on three grounds:

The Crown accepted that it is open to this Court to find that the sentencing judge had erred in the manner alleged in ground 1, and that the error had the capacity to influence the aggregate sentence that her Honour imposed. For the reasons outlined below I agree that ground 1 is made out, and that it is necessary to resentence the applicant as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”). Ultimately, my conclusion on resentence is that no lesser sentence is warranted in law. Accordingly, I would grant leave to appeal and dismiss the appeal.

The Crown tendered two sets of agreed facts, one relating to the offences on the indictment against CG, LMC, PS and MS, and the other relating to the offences against LM. The Crown also tendered the applicant’s criminal history and an extract from the Bar Book Project regarding Childhood Sexual Abuse. Each of the five victims prepared a victim impact statement which the Crown tendered. LMC and PS read their victim impact statements, as did CG in part (the balance was read by her support person), while the Officer in Charge read the victim impact statement of MS and a different officer read the victim impact statement of LM.

The applicant tendered three psychological reports prepared by Dr Sharon Klamer, forensic psychologist. In her first report, dated 18 May 2023, Dr Klamer noted that she had been instructed not to discuss with the applicant his account of, or attitude towards, the offending. The stated purpose of Dr Klamer’s second report, dated 31 October 2023, was to discuss with the applicant the details of his offending, which she did in an interview with him on 26 October 2023. The third report, dated 14 November 2023, also referred to this purpose but added that the report served to outline this information in the interview “and to discuss the relevance of this to his risk of recidivistic behaviour”.

It is necessary to refer to the agreed facts in some detail. In so doing, I will draw upon the sentencing judge’s identification of particular features of each of the offences that were relevant to objective seriousness. The applicant took issue with an aspect of the sentencing judge’s approach to his subjective case (ground 2) but no issue was taken with her Honour’s findings regarding the offending and its objective seriousness.

The applicant was born in November 1953. He was married to CS and they had four children, a son and three daughters, PS, LMC and KM. PS and LMC were two of the victims of the offences on the indictment to which the applicant pleaded guilty, while KM’s daughter, LM, is the victim of the offences to which the applicant pleaded guilty in the Local Court. The fourth victim, CG, is the adopted younger sister of his wife, meaning that CG is the applicant’s sister-in-law. The fifth victim, MS, is the applicant’s great-niece.

The applicant is older than CG by some 11 years. At the time of the offending constituting count 2 (unlawful carnal knowledge of a girl of or above 10 years and under 16 years contrary to s 71 of the Crimes Act), CG was approximately 10 years old. The offence occurred on a day in March 1975, on or around the day PS was born. The applicant asked CG to come back with him to the unit he shared with CS at the time in order to help him look after their two other children (LMC and her brother) because CS was in hospital with the baby. When CG arrived at the unit, she discovered that no one else was there.

CG was wearing a skirt, a t-shirt, a jumper and underwear. The applicant instructed CG to take off her underpants, lie on the bed and place her hands above her head. The applicant used rope to tie CG’s wrists to the bedhead, and he also tied her legs. He then began rubbing his exposed penis on the outside of CG’s vagina before placing the head of his penis into the start of the vaginal canal. CG recalled that the penetration was sufficient to hurt but not to make her bleed.

The applicant kept CG at the unit for most of the day, and eventually told her to put her underpants on. He gave her a $2 note and walked her out the front door, threatening her not to say anything to anyone. CG later told the CS (the applicant’s wife and CG’s adoptive sister) about what happened when she was in hospital, and said that she was going to go home and tell their mother. The applicant’s wife told CG not to do that because the applicant was the father of her children and was supporting her and making money for the family. As the sentencing judge said, there was no evidence that the applicant was responsible for what his wife said to CG. CG did not tell her mother at that time.

The sentencing judge found that the particular matters that were relevant to the objective gravity of count 2 included:

LMC is one of the applicant’s biological daughters. There is an age difference of approximately 19 years between the applicant and LMC. The offences against LMC occurred from when she was approximately 6 years old (count 6) to when she was approximately 15 years old (count 14). With the exception of count 13, all of the offences occurred in the family home.

Count 6 (indecent assault upon a female under the age of 16 years contrary to s 76 of the Crimes Act) occurred on a day in June 1978, when LMC was approximately six years old. She was playing outside the family home in Bidwell with two children who lived nearby. The applicant called her to come inside, and she went into the living room and approached the applicant. He immediately touched LMC’s vagina on top of her clothing with one of his hands (that being the act the subject of the count) and began masturbating himself with his other hand He then told LMC to hold his penis and instructed her on how to masturbate him. LMC remembered touching the applicant’s penis but could not recall if she masturbated him or if he ejaculated. This was the first time she had seen a penis. The incident was of short duration and afterwards she went back outside to play.

Relevantly to the objective gravity of this count, the sentencing judge identified that LMC was six years old, which was “very far removed from the upper age threshold for this offence”. The touching that was the subject of the offence occurred over her clothing. At the time of committing the offence, the applicant was masturbating himself and instructing LMC as to how to masturbate him.

Count 7 (indecent assault upon a female under the age of 16 years contrary to s 76) occurred when LMC was around seven or eight years old. The applicant woke her in the night and took her into the living room, removed the bottom half of her pyjamas and told her to lie on the lounge. He then rubbed Vaseline on his penis, laid down on his side and told LMC to lie in front of him. The applicant placed his penis between the upper part of LMC’s legs, such that his penis touched her vagina, and rubbed his erect penis back and forth against her vagina before ejaculating on her legs. After getting a towel and wiping between her legs, the applicant told LMC to put her pyjamas back on and go back to bed. Particular matters that the sentencing judge considered were relevant to the objective gravity of this offending included LMC’s age which, at seven or eight, was far removed from the upper threshold of the offence, and that it involved skin-to-skin contact and the applicant ejaculating on LMC.

Count 8 (sexual intercourse without consent, knowing there is no consent, with a person under the age of 16 years contrary to s 61D(1) of the Crimes Act) occurred sometime in 1984, when LMC was in Year 6. The school camp to Canberra was approaching and LMC needed a new coat for the camp. She asked the applicant if she could go on the camp and said that she needed a new coat, to which he replied, “You can go on camp if you suck my cock. I will give you $10 for the new coat”. In the leadup to the camp, LMC came home one evening with a note about the camp. She was home alone with the applicant and he approached her and said, “Suck my dick, don’t use your teeth and keep your mouth wide open.” When she told him she did not want to do that, the applicant replied, “If you want the coat, you’ll do it.” The applicant held LMC’s head and forced it on to his penis, moving it back and forth until he ejaculated into her mouth, causing her to gag. He instructed her to swallow his ejaculate, which she did, causing her to gag and heave again.

The sentencing judge found that particular matters that were relevant to the objective gravity of count 8 included:

Counts 9 and 10 were offences of sexual intercourse with a person of or above the age of ten years and under the age of 16 years and under authority contrary to s 66C(2) of the Crimes Act. The offending occurred sometime in 1986 when LMC was 13 years old, and she and her brother had been left in the applicant’s care for a few days. The applicant told LMC that she would be sleeping in his bed that night, and he locked the back door from the inside (LMC’s brother slept in a room attached to the back of the garage). LMC did not want to sleep in the applicant’s bed because she was scared of him.

When LMC was on his bed, the applicant undressed her, rubbed Vaseline on his penis and on her vagina and then made her sit on top of him. The applicant grabbed her waist and moved her body back and forth on his penis, such that his penis was rubbing outside her vagina. He then used his fingers to rub the outside of LMC’s vagina and labia, and then in and around her labia (count 9). The applicant then performed cunnilingus on LMC (this was not charged) and while this was occurring he got on top of her and instructed her to fellate him. The applicant said to LMC, “You like what I’m doing, your vagina is wet and moist”. LMC was gagging when the applicant’s penis was in her mouth, and he ejaculated in her mouth and told her to swallow (count 10). Afterwards LMC’s vagina and labia were sore and burning.

The sentencing judge identified the particular matters that were relevant to the objective gravity of counts 9 and 10 as including:

Count 11 (a further offence contrary to s 66C(2) of the Crimes Act) occurred sometime in 1986 when LMC was 13 or 14 years old. LMC was alone with the applicant on a Saturday evening and was in the loungeroom when he came in, pushed her onto the floor and lay on top of her. He put his hands down her pants and ripped her pants and underwear. LMC started screaming “Rape, rape, rape, someone help me” and the applicant said, “Shut up or I’ll hit you”. He then covered LMC’s mouth and inserted his finger into her vagina twice, moving his finger up and down inside her vagina and causing her to feel pain and burning. LMC could feel the applicant’s erect penis against her leg, and she placed her foot in the crook of his arm, which pushed his arm out. The applicant responded by hitting LMC across the face with his open palm, causing her immediate pain and burning to her face and cheek.

The applicant started to undo his pants, and LMC pleaded, “No, please stop, someone help me”. He suddenly stopped and went to the bathroom. LMC’s vagina was sore. A few hours later, when her mother returned home with LMC’s maternal aunt and her partner, LMC said, “Dad raped me with his finger.” The applicant denied this and called LMC a liar.

In addition to LMC’s age at the time, which was approximately in between the lower and upper age thresholds for the offence, the sentencing judge considered the following matters to be relevant to the objective gravity of this offending:

Count 12 (indecent assault of a person of or above the age of 14 years and under the age of 16 years and under authority contrary to s 61E(1A) of the Crimes Act) occurred sometime between March 1986 and November 1988, when LMC was between 13 and 15 years. When she was alone with the applicant in his bedroom, he pulled out a small metal vibrator and used it on LMC’s genital area. He said to her, “We are working up to put my cock into your vagina. Let me put it in now.” LMC replied “No, no, no.” She could not recall if he had his penis out at the time. Relevantly to the objective gravity of this offending, the sentencing judge noted that LMC was slightly above midway between the lower and upper age threshold and that the offence involved the use of a vibrator.

Count 13 (another offence contrary to s 61E(1A) of the Crimes Act) occurred sometime between December 1987 and January 1988, when LMC was 15 years old. The applicant was teaching LMC to drive, and she was driving in bushland in Nowra and he was sitting in the passenger seat. LMC observed the applicant masturbating and while doing that he attempted to put his hands down her pants, causing her to slam on the brakes, which made the applicant stop. After this occurred, LMC intentionally drove so badly that the applicant would not give her driving lessons. Relevantly to the objective gravity of this offence, the sentencing judge noted that LMC was approaching the upper age threshold and that the offence was committed while the applicant was purportedly teaching her to drive and while he was masturbating.

Count 14 (assault with intent to have sexual intercourse with a person of or above the age of 10 years and under the age of 16 years and under authority contrary to s 66D of the Crimes Act) occurred sometime in 1988, when LMC was 15 years old. The agreed facts on sentence record the following:

LMC’s sister, PS, recalled a night before her family went to look at “boats”, when she heard her mother say, “No, [DS], leave me alone”, and “No, [DS], go fuck [LMC], leave me alone”. PS heard her father get up and go into LMC’s room and she heard LMC screaming for help.

PS is also the applicant’s biological daughter, with a 22-year age difference between her and the applicant. Count 15 (indecent assault upon a female under the age of 16 years contrary to s 76 the Crimes Act) occurred sometime in 1980, when PS was around 5 years old. She was playing outside with a neighbour when the applicant called her home. The applicant was lying on the bed in PS’s brother’s bedroom with his pants undone. The applicant said to her, “My cock is sore, can you help me, I need you to rub it better”. He took PS’s hand and placed it on his penis and started moving it up and down, before taking her other hand and placing it on his penis and using both of her hands to rub his penis up and down.

The applicant then said to PS, “Can you kiss it better?”. PS said that she couldn’t, so he moved to the edge of the bed and PS kissed his penis a few times (count 15), asking “Is it better?”. The applicant said, “Kiss it more”. PS did this and then the applicant asked her to rub it more, to which she replied that she could not because her hand hurt. The applicant placed his hand over PS’s hand and continued to masturbate until he ejaculated. He then said, “Good girl”. PS asked if she could go back outside and play, which he allowed. In her remarks on sentence, her Honour identified the following particular matters as relevant to the objective gravity of the offence:

Count 20 on the indictment was an offence of maintaining an unlawful sexual relationship with MS, then a child under the age of 16, contrary to s 66EA(1) of the Crimes Act. The victim, MS, is the applicant’s great-niece and is approximately 40 years younger than him. The offence occurred in the period between 2004 to 2008, when MS was 11 to 15 years old and the applicant was 50 to 55 years old.

From the age of two, MS’s parents would drop her at the home of the applicant and his wife, where they would look after her. In her early teenage years, MS would go there every Saturday and the applicant’s wife would teach her to bake. MS recalled the first incident of unlawful sexual activity occurring on one such Saturday morning in 2004, when she was 11 years old. After she and the applicant’s wife finished baking, MS went into the applicant’s bedroom to watch the horse races with him, while the applicant’s wife was in the lounge room watching television.

The applicant sat on the bed next to MS and he used his fingers to rub her legs, starting on the outside before moving to the inside of her thigh. He then moved off the bed and knelt in front of MS, placing his hands on her knees and trying to open her legs. MS said, “No” and tried to move away from him, but the applicant climbed on to the bed on top of her and said, “It’s okay, it’s going to be okay”. MS was continually saying, “No” and the applicant was “shushing” her.

The applicant removed MS’s underwear and moved his body down so that his head was between her legs and used his mouth and tongue to perform oral sex on MS. MS’s ears were ringing and felt like she could not move. The applicant stopped and moved away from MS, and she dressed and left the room. Similar incidents became a regular occurrence when MS was at the applicant’s home between 2004 and 2008. The applicant would perform oral sex on MS, and then he started to use his fingers to penetrate her vagina whilst performing oral sex. The incidents occurred so frequently that MS could not remember how many times it happened.

In 2006 or 2007, when MS was 13 or 14, she was at the applicant’s home for the weekend. When she was in the living room with the applicant’s wife, the applicant called out to MS from his bedroom. When she walked into the bedroom, the applicant said wanted to show her something. MS asked what that was, whereupon the applicant pushed her against the window in the bedroom (the blinds were closed) and stood behind her. MS tried to turn around and get away but the applicant kept turning her back to face the window while also trying to pull her trousers down. MS said, “No, I don’t want to”. The applicant then pushed MS’s trousers down and placed his penis between her thighs and against her vagina. He moved his body back and forth causing his penis to rub between her thighs and against her vagina. At some point he stopped and MS pulled her pants up and returned to the loungeroom where the applicant’s wife was.

As the sentencing judge observed, recognising that the gravamen of the offence committed was the maintenance of an unlawful sexual relationship, the duration of the unlawful relationship was four years and the nature of the unlawful sexual, being cunnilingus, digital penetration, and on one occasion, the applicant forcefully masturbating himself by rubbing his penis against MS’s vagina. The maximum penalties for the unlawful sexual activity during the offending period were:

LM is the applicant’s granddaughter. There is an age difference of approximately 55 years between the applicant and LM, and at the time of the offending she was approximately 13 years old. The applicant would regularly collect LM from school, take her to the home he shared with his wife for between an hour and an hour and a half, and then take her to netball practice.

Sequence 3 (intentionally sexually touching a child of or above the age of ten years and under the age of 16 years contrary to s 66DB(a) of the Crimes Act) occurred on a day in June 2021 when the applicant collected LM from school and brought her to the home he shared with his wife. LM was sitting on the floor in her grandmother’s bedroom watching a movie on her phone. The applicant walked into the room and climbed across the bed towards LM, telling her to hurry up because he was about to take her to netball practice. The applicant then used his hands to rub up and down LM’s thighs, including her inner thigh, before placing his hands on her vagina and rubbing up and down over her clothing. This occurred for about half a minute. The applicant stopped when LM said, “Okay let’s go”, and he took her to netball. The sentencing judge noted that LM was 13, in between the lower and upper age threshold, and that the touching occurred over her clothing.

Sequence 2 (another offence contrary to s 66DB(a) of the Crimes Act) occurred on a day in the school holidays in June/July 2021, when LM (still aged 13) and her two younger brothers were at their own home and under the care of the applicant and his wife. LM, who was wearing jeans and an oversized shirt, was lying on her bed resting her laptop on her knees doing homework. The applicant entered the room and, after a brief conversation, sat on the bed near her feet. He then placed his hand on the bottom of LM’s leg, around her shin and moved it up to her inner thigh and in between her legs whereupon he rubbed her vagina up and down over her clothes. The applicant stopped when LM’s grandmother called out to ask about lunch and he walked out of the bedroom. As with sequence 3, the sentencing judge noted that LM was 13, in between the lower and upper age thresholds, and that the touching occurred over LM’s clothing. Her Honour also noted that the offence occurred in LM’s home.

The agreed facts in relation to LM indicate that on 21 July 2021, a report was received at the Child Abuse Unit Illawarra relating to LM. Investigators met with LM on the same day and she took part in an electronically recorded interview, disclosing the two incidents of sexual touching that were the subject of sequences 2 and 3. The applicant was arrested on the same day. He declined to participate in an electronic interview but consented to a DNA sample being taken by buccal swab. As a result of applicant’s arrest in relation to LM the other four victims came forward, and on 22 September 2021 he was arrested and charged in relation to offences committed against them. The applicant was bail refused from that time.

As the sentencing judge found, the criminal histories that the Crown tendered indicated that the applicant had no relevant criminal history (I will address her Honour’s findings on good character below). The victim impact statements that were read by or on behalf of the five victims were described by her Honour as expressing, as common themes, “feelings of shame, confusion and anxiety, persistent stress, problems with relationships, trust and sleep and flashbacks”, as well as struggles being around older men. Her Honour stated:

As the sentencing judge observed, the evidence about the applicant’s personal circumstances was contained in the three reports of Dr Klamer. In her first report, Dr Klamer recorded that the applicant was the middle of ten children born to his parents, with the family having relocated from South Australia to Broken Hill before settling in the Lake Macquarie area. The applicant’s father was an alcoholic who was physically abusive to his mother and his siblings. His father’s violence towards his mother resulted in her hospitalisation on occasion, and at times the applicant and his siblings would leave the family home in the middle of the night to seek help from neighbours and friends to protect their mother. The violence reduced in frequency and severity when the applicant and his siblings grew older and could stand up to their father, although it persisted.

There was also financial stress throughout the applicant’s childhood, due to the size of the family, his father’s limited employment opportunities and the amount of money he spent on alcohol. The applicant recalled catching rabbits or kangaroos to provide additional food for the family.

The applicant attended high school until the age of 15 and denied any learning difficulties, leaving school to pursue paid employment. He was consistently employed across a range of jobs, including working at Woolworths for over 20 years. He identified providing for his family as a primary goal, although financial difficulties persisted particularly after the move to Nowra.

The applicant met his wife when he was 18 years old, and they married shortly thereafter. He described their relationship as stable and positive and denied any significant conflict. Her physical and mental health had deteriorated over the last 15 years following a work-related injury; and their sexual and non-sexual intimacy had been impacted by their physical separation when the applicant moved to Tamworth some eight years ago (his wife was unable to accompany him due to her workers compensation requirements).

The applicant had a limited history of substance abuse. He consciously focused on avoiding alcohol so as to distance himself from any resemblance to his father. The applicant’s alternative coping strategies included work and spending time alone in the bush, or at the beach. He described a limited social support network, which Dr Klamer considered likely adversely affected his coping strategies.

The applicant had some health issues although he reported to Dr Klamer at the time of her first report that his health felt stable and settled at his current custodial location. The applicant denied any mental health difficulties before being charged. Since being charged, he had attempted to overdose twice with blood pressure medication and reported an attempt to commit suicide by cutting his wrists. On the psychological assessments that Dr Klamer administered, the applicant appeared apathetic about his future and disclosed feeling helpless and hopeless. Dr Klamer stated in her first report at [29]:

In his interview with Dr Klamer in October 2023, which formed the basis of the second and third report, the applicant acknowledged that when he was six or seven years old he was sexually abused by an older sibling. The abuse stopped when he told another sibling who addressed the issue. He did not disclose details of the sexual offending again until some five years ago when further siblings discussed similar experiences. Dr Klamer described the applicant’s insight into any possible impact of such sexual abuse as limited. She expressed the opinion that given his overall disadvantaged development, the applicant’s sexual victimisation as a child “likely further contributed to distortions in the development of prosocial emotional, behaviour and sexual self-regulation, contributing to the commission of the index offences”.

In relation to the offending, the applicant told Dr Klamer that he had pleaded guilty to all allegations to obviate the need for the victims to give evidence. He accepted responsibility for offences against “victims two and four” (LMC and MS), and acknowledged further incidents in relation to victims one (CG) and five (LM) that were misinterpreted. The applicant expressed ongoing frustration about the remainder of the allegations, “unsure why the victims would accuse him of such behaviour, particularly victim three [PS]”. In her third report, Dr Klamer noted that in relation to the offences he admitted or partially admitted to, the applicant provided the following details:

Dr Klamer identified a number of distorted beliefs and cognitions relating to the victims, which “likely contributed to the commission of the offences”. As to MS, for example, the applicant said that “she told me things … built up to it … we were left alone too often”. He denied any deviant sexual fantasies, although given the offences occurred over several years against five victims and with varying degrees of intrusiveness, which suggested to Dr Klamer that the applicant likely entertained sexual fantasies and/or was sexually attracted to the victims at the time of his offending.

In her third report, Dr Klamer provided the following updated case conceptualisation:

After setting out the facts on sentence, addressing the victim impact statements and summarising the material in Dr Klamer’s reports, the sentencing judge addressed a submission made by the applicant that he was entitled to a degree of leniency given aspects of his background and upbringing. Her Honour accepted that it was “clear” the applicant had experienced deprivation and dysfunction “which had and continues to have an enduring impact on him”. Her Honour said that she took this into account “in a general way”. However, she was not satisfied that the evidence established “that there are factors personal to him that are causally connected with or materially contributed to the commission of the offences or that reduce his moral culpability”.

In relation to good character, the sentencing judge noted that the applicant did not have a previous criminal history but found that the weight to be given to this was “substantially diminished by reason of the fact he committed so many serious offences over a lengthy period of time”. Although the applicant was in his early 20s when he began offending, her Honour had no doubt that he knew that his behaviour was “not only illegal but very wrong”. Her Honour found that the applicant’s moral culpability was high.

The reports of Dr Klamer suggested that the applicant had very little insight into his offending and that any apparent remorse was questionable. Her Honour was prepared to find that the applicant presented as a low risk of reoffending in light of his predicted age upon release and the fact that his access to children at that time would be limited. Her Honour assessed his prospects of rehabilitation as guarded, noting that he continued to deny sexual attraction to children. As a result of the offences the applicant was not in contact with his family, which the sentencing judge accepted would make his experience in custody more onerous.

Taking into account the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), her Honour noted that ensuring the applicant was adequately punished for his offending was an important factor in the sentencing exercise, noting the courts’ repeated emphasis of the serious nature of sexual offending against children. Deterrence was also a very important consideration, as was denunciation. Her Honour took into account the delay between the offending and the sentencing, noting that there was no evidence that the delay in making complaints had left the applicant in a state of suspense of the kind that Street CJ referred to in R v Todd [1982] 2 NSWLR 517 at 519-520. Her Honour also referred to the impact of the delay in terms of the applicant being older when he served his sentence, which would be more onerous than if he were he younger and fitter. However, that needed to be balanced against the fact that “having sexually assaulted five victims over many, many years, he escaped justice for decades and enjoyed a life in the community free from the punishment for his crimes”.

In relation to totality, the sentencing judge recognised that regard must be had to the fact that the applicant committed “multiple separate instances of serious sexual offending against five victims over a period just short of five decades”. At the same time, her Honour acknowledged that by reason of the number of offences committed and their nature, if she were partially to accumulate to reflect repeated nature of the offending the result would be the imposition of a sentence that would be manifestly excessive. Faithful compliance with the totality principle meant “that the offender has received a relatively modest accumulation for his offending”. In fixing the appropriate overall aggregate sentence, her Honour took into account all matters that could have amounted to special circumstances and did not reduce the statutory ratio.

As I have noted above, on 14 March 2023, after his trial had commenced and CG had given evidence, the applicant entered pleas of guilty to 12 of the 22 counts on the indictment. Pursuant to s 25D(1) of the Sentencing Procedure Act, if an offender pleads guilty to an offence dealt with on indictment “at any time before being sentenced”, the court “is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section”. As Bell CJ stated in R v Doyle (2022) 108 NSWLR 1; [2022] NSWCCA 81 at [6] (Bellew and Ierace JJ agreeing), s 25D is “mechanical in the sense that a specified percentage reduction of the sentence that would otherwise have been imposed must be applied in the circumstances specified in the statute” and “[n]o element of discretion is involved”.

Section 25D(2) sets out the following discounts:

In the present case, the applicable numerical discount for the applicant’s guilty pleas in respect of the counts on the indictment was 5%: s 25D(2)(c). The fact that CG had given evidence before the applicant entered those pleas did not alter that statutory fact: WP v R [2024] NSWCCA 77 (“WP”) at [108]. However, as in WP, the parties provided the sentencing judge with incorrect information on the application of the statutory discount. The Crown wrongly submitted on sentence that a numerical discount under s 25D was not available in circumstances where the plea was entered after CG had given evidence, albeit also acknowledging the benefit of applicant entering pleas when he did in terms of saving the other victims from having to give evidence. Counsel for the applicant did not take issue with those submissions.

The sentencing judge accepted those submissions and did not apply the statutory discount, stating:

The first sentence of this extract was wrong as a matter of law. Although s 25F(8) of the Sentencing Procedure Act provides that the failure by a court to comply with Division 1A does not invalidate the sentence imposed, as Wilson J noted in WP at [109], that provision must be read with s 101A, which provides that “[a] failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence”. As Simpson J observed in R v Tuncbilek [2004] NSWCCA 139 at [33], in relation to s 54B(5) of the Sentencing Procedure Act (now s 54B(7)), which is expressed in similar terms to s 25F(8), the provision “does not preclude this Court finding error where there is demonstrated non-compliance with the provisions of the Sentencing Procedure Act”; see also Panetta v R [2016] NSWCCA 85 at [36] (N Adams J).

By reason of the error affecting the 12 counts on the indictment to which the applicant pleaded guilty, it is necessary for the Court to consider whether, in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”), “some other sentence, whether more or less severe is warranted in law and should have been passed”. That exercise necessarily includes resentencing on the two offences involving the victim LM, even though the sentencing judge made no error in applying a 25% discount in relation to the indicative sentences for those offences (the applicant having pleaded guilty to those offences in the Local Court).

In the event that the Court moved to resentence, the applicant relied on a brief affidavit that he swore on 28 November 2024. He referred to being content in his present custodial circumstances, being employed in the kitchen as a cook for about four and a half days per week. He described having little to no contact with anyone outside of custody. Consistently with the basis on which the sentencing judge sentenced the applicant, he described receiving no visits from family. The applicant deposed that his wife was not in good health and was taking steps to divorce him; and that his son was looking after CS.

I have addressed the nature of the offending conduct in detail above. As the sentencing judge found, the applicant engaged in sustained offending of a very serious kind over a lengthy period of time, against five victims. Her Honour identified a number of features of the applicant’s offending which are relevant in this regard:

In relation to the applicant’s subjective case, counsel for the applicant accepted that the sentencing judge had taken the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) into account. However, he submitted that on resentencing this Court should find, contrary to the conclusion of the sentencing judge, that the applicant’s personal circumstances were causally connected to his offending and should have resulted in a reduction to his moral culpability. By ground 2 of his notice of appeal, the applicant had submitted that the sentencing judge should have found, on the basis of Dr Klamer’s reports, that factors personal to the applicant were causally connected to the commission of the offences or materially contributed to his offending, relying on the approach adopted in Lloyd v R [2022] NSWCCA 18 at [32] and Lupton v R [2024] NSWCCA 29 at [146]. If such a connection were so found, it might result in a greater reduction than would otherwise be the case for moral culpability.

In R v MJ [2023] NSWCCA 306 (“MJ”), Simpson AJA made the following observations about the question of “whether a causal link needs to be established between childhood deprivation and disadvantage and the commission of the offence for which the sentence is to be passed”:

Ultimately, Simpson AJA considered that to disregard the effects of childhood disadvantage because no causal connection with the offence for which sentence is to be imposed is established ignores “the subtleties and nuances of the considerations that the plurality in the High Court in Bugmy recognised”. The essential question, in her Honour’s view, was the assessment of the offender’s moral culpability: at [13].

Before the sentencing judge, the Crown did not take issue with Dr Klamer’s findings about the profound deprivation that marked the applicant’s upbringing, including his exposure to sexual abuse as a child. The Crown did submit that there was no causal link to be drawn with the offending. The sentencing judge so found; and I do not consider that her Honour erred in so finding. In so far as Dr Klamer there noted a “possible impact” of the applicant’s background on his sexual development, in her third report she noted that the applicant denied any deviant sexual fantasies (about which Dr Klamer expressed the scepticism to which I have referred at [52] above); and described his sexual relationship with his wife as “normal”. Dr Klamer subsequently expressed the view that the applicant was generally unhappy during his periods of offending and failed to manage this appropriately; and that while he did not say so explicitly, “it is possible that he failed to meet his sexual and emotional needs within his marital relationship and potentially used sex (with the victims or more generally) to cope with negative emotionally (sic)”. Consistently with the qualified manner in which Dr Klamer expressed the above views, her views in her updated case conceptualisation were also contingently expressed.

Nonetheless, as Simpson AJA observed in MJ, it does not follow from the absence of such a causal link that the applicant’s background had no effect on his moral culpability for the offences he committed. Referring to the principles in Bugmy in Dungay v R [2020] NSWCCA 209, N Adams J stated:

I have considered the applicant’s subjective circumstances, as detailed in the reports of Dr Klamer. As the sentencing judge found, it is clear that the applicant experienced deprivation and dysfunction which had an enduring impact on him. In this way, his background warranted some reduction of his moral culpability for the offending, but not to a significant extent having regard to the period of time over which the applicant committed the offences; the number of victims, in respect of each of whom he was in a relationship of trust; the age of the victims at the time of the offending; and the particular circumstances surrounding the offences. It is necessary also to consider the other sentencing considerations in s 3A of the Sentencing Procedure Act, which include ensuring that an offender is adequately punished for the offences, denouncing the conduct of the offender, recognising the harm done to the victim of the crime and the community and deterring the offender and others from committing similar offences.

The maximum penalties, set out in the table at [4] above, reflect the seriousness of the applicant’s offending conduct. The offence against MS, being the maintenance of an unlawful sexual relationship which took place over four years when she was aged between 11 and 14, was, on its own, an extremely serious offence, carrying a maximum penalty of life imprisonment. The other offences carry a maximum penalty of either 6 years or 10 years imprisonment.

The victim impact statements give but a sense of the personal suffering that the applicant’s offending has inflicted across generations of his own family. For CG, LMC and PS, the impact of the offending upon them has been lifelong. The feelings they expressed were reflected in the victim impact statements of MS and LM, who are younger in age and for whom the offending was more recent. The content of the victim impact statements was consistent with what the sentencing judge described as “the generally profound and enduring impact of sexual abuse upon children, particularly when the perpetrator is someone within the family”.

I have taken into account the sentencing judge’s assessment of the applicant’s risk of reoffending as low and his prospects of rehabilitation as guarded. As the primary judge found, the delay between the offending and sentencing means that the applicant will be older when serving his sentence which will make it more onerous, balanced against which is that by avoiding justice for his many offences over many years the applicant had enjoyed a life in the community for many years free from punishment for his crimes.

The applicant’s plea of guilty certainly spared LMC, PS, MS and LM the trauma associated with giving evidence and was of benefit in that regard. However, he showed little insight into his offending as disclosed to Dr Klamer, and there was no challenge to the primary judge’s conclusion that there was little evidence that would permit a finding that he was remorseful.

Counsel for the applicant on the appeal submitted that a lesser sentence should be imposed having regard to the nature of the error in ground 1, which affected 12 of the 14 offences. He submitted that making no reduction in the indicative sentences would not reflect the policy behind the statutory numerical discount scheme, as it would provide, in effect, no acknowledgement for the applicant’s pleas. While I accept that submission has force, the function of the Court on resentence is to exercise an independent sentencing discretion, consistently with Kentwell at [42]:

As counsel for the applicant also accepted, consistently with Kentwell the exercise that this Court must undertake on resentence does not involve starting with indicative sentences that her Honour imposed for the offences on the indictment and reducing them by 5%. As he also accepted, the exercise of the sentencing discretion afresh may result in starting points on the indicative sentences that are higher than those of the sentencing judge, such that the mandatory reduction would not lead to a lesser indicative sentence.

Further, having regard to the multiple counts on the indictment, a reduction in any or all of the indicative sentences for the individual counts would not necessarily lead to the imposition of a lesser aggregate sentence (which is what the appeal is from). The correct approach was described in Kentwell at [43]:

After emphasising this passage from Kentwell in Giacometti v R [2023] NSWCCA 150 at [136], Hamill J observed at [137] that in determining the question in s 6(3), “consideration must be given to the question of how much notional accumulation should exist between the indicative sentences for the individual offences”. That necessarily involves “a discretionary judgment in relation to which a key consideration is the extent to which the criminality for one offence is encompassed by the sentence imposed for another (or the others)”.

Having weighed all of the above matters, even incorporating the numerical discount of 5% for the pleas on the indictment to the indicative sentences at which I arrived, considering the extent of notional accumulation that would be appropriate in determining the aggregate sentence and non-parole period I would have imposed a sentence of at least the same magnitude as that imposed in the District Court. It follows that no other sentence is warranted for the purposes of s 6(3) of the Criminal Appeal Act. I would dismiss the appeal.

I propose the following orders:

WALTON J: I have had the advantage of reading the draft judgment of Mitchelmore JA and additional observations proposed to be made by N Adams J. I agree with the conclusions reached by Mitchelmore JA and her Honour’s reasons for judgment. It follows that I also agree with the orders proposed by her Honour. I would also wish to associate myself with the observations made by N Adams J.

N ADAMS J: I agree with the orders proposed by Mitchelmore JA for the reasons provided by her Honour. I would make the following additional observation concerning the question of whether a lesser sentence was warranted in this matter.

At the hearing of this appeal, the applicant’s counsel submitted that this Court would impose a lesser sentence on the applicant when resentencing him because to do otherwise would mean that there was no acknowledgment of the policy behind the statutory numerical discount scheme. It is understandable that an offender who is deprived of a 5% discount at first instance and successfully appeals on that ground would expect that on resentence he would receive at least 5% less (putting to one side for the moment the complicating factor of the discounts being applied to the indicative sentences rather than to the aggregate sentence). But that is not what the High Court held in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

As Mitchelmore JA has explained, when this Court resentences an applicant, the original sentence is put to one side and this Court exercises its sentencing discretion afresh. It is highly likely that in doing so, this Court will arrive at a different sentence. That is particularly so when the applicant is being sentenced for multiple serious offences and an aggregate sentence is to be imposed. As the High Court has stated, there is no “correct” sentence”: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 is [27].

Sometimes the new aggregate sentence imposed will be higher than that which was imposed at first instance and sometimes it will be lower. Sometimes the new aggregate sentence will be higher even though some of the indicative sentences were lower, but the application of the totality principle has resulted in a greater degree of notional accumulation. Sometimes the new aggregate sentence will be higher even having regard to factors favourable to the applicant which were not taken into account by the sentencing judge, including a discount. In such a case, it does not mean that there was no recognition of the discount. It simply means that, consistent with a proper application of the principles derived from Kentwell v The Queen, this Court arrived at higher indicative sentences before the application of the discount and went on to arrive at a higher aggregate sentence. In such cases, the practice is to dismiss the appeal for the reasons explained in RO v R [2019] NSWCCA 183. That is what occurred in this case.