Nataucu v R

1. [1]

   ADAMSON JA: I have had the benefit of reading the reasons of Hamill J in draft and agree with the orders proposed by his Honour and, substantially, with his reasons, save for the following matter. I do not agree that the sentence imposed was “very heavy”, having regard to the sentencing considerations, including, most significantly, the objective seriousness of the conduct and the “guideposts” (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]) of the maximum penalty and standard non-parole period.

2. [2]

   As Hamill J has acknowledged and the High Court has said on many occasions, statistics may indicate a “range” of sentences that has been imposed. Where a ground of manifest excess is raised, it is usual for a range of past sentences in arguably comparable cases to be relied upon. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa) at [303]-[304], Simpson J said the following about this “range”:

3. [3]

   In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54], the High Court observed that this extract from De La Rosa “accurately identified the proper use of information about sentences that have been passed in other cases.” In Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41], French CJ, Hayne, Kiefel and Bell JJ said (footnotes omitted):

4. [4]

   HAMILL J: Ilaitia Nataucu (“the applicant” or “Mr Nataucu”) seeks leave to appeal against a sentence imposed by his Honour Judge Coleman SC in relation to two counts of aggravated sexual intercourse with a child aged between 14 and 16 years. Those are offences against s 66C(4) of the Crimes Act 1900 (NSW) each of which carries a maximum penalty of 12 years imprisonment. There is an associated standard non-parole period of 5 years. Mr Nataucu pleaded guilty in the Local Court and received a sentencing discount of 25%.

5. [5]

   After a sentencing hearing in the District Court sitting in Armidale on 26 September 2023, his Honour delivered an ex-tempore judgment and imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years and 4 months. The applicant raised a single ground of appeal asserting that the sentence is manifestly excessive.

The facts of the offences, the charges, and the applicant’s admissions

1. [6]

   The victim (“N”) was born in early July 2007 and was aged between 12 and 14 years when the applicant committed four sexual offences against her. Mr Nataucu was born in Fiji in September 1978 and was working on a cotton farm at Moree at the relevant time. He and N’s mother had been in a relationship since 2016 and N saw him as a father figure. The victim lived in Inverell with her mother and sister (“I”). The applicant lived with them on weekends while living and working in Moree from Monday to Friday.

2. [7]

   I’s brother (“NE”) was visiting from Queensland from January to May 2020. The victim and NE were at home with the applicant, and he told NE to go outside. N went to go outside with NE, but the applicant called her back. When she returned the applicant was masturbating and continued to do so until he ejaculated. The victim was 12 years of age and this appears to be the first offence which was charged as carrying out a sexual act towards a child aged between 10 and 16 years. This was sequence 3 and was on a Form 1 to be taken into account in sentencing for count 1: Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”), ss 31-35.

3. [8]

   Count 1 (sequence 4) related to a time after N’s 14th birthday in 2021. The victim was alone in her bedroom when the offender entered her room and rubbed his penis on the outside of her vagina. He then inserted his penis into the child’s vagina. The victim called out for her sister which caused the applicant to stop what he was doing.

4. [9]

   Count 2 (sequence 6) occurred shortly before Christmas in 2021 when N, her sister and the applicant were at home while N’s mother was at work or in town. The offender entered N’s bedroom where she was alone watching television. He pulled her to the edge of her bed, removed her pants and underwear and licked her vagina. He then pushed his penis against her vagina and said words to the effect of, “Let it go inside of you.” His penis penetrated N’s vagina causing pain and bleeding. He touched her breasts over her shirt while having sex with her.

5. [10]

   A fourth charged offence (sequence 7, which was also taken into account on the Form 1 attaching to count 1) involved the applicant pulling his pants down when the victim entered his room, grabbing the victim and using her hand to rub his penis.

6. [11]

   In January 2022, the victim told her mother that the applicant had touched her in a sexual way. When the mother first confronted the applicant, he said “nothing happened.” In April of that year, the mother again spoke to the applicant and said the father of I and NE intended to report the matter to the police. The applicant asked, “Can you do something?” and the mother again asked him, “Did you do it?” to which the applicant replied:

7. [12]

   The applicant said he would stay where he was and was ready for the police to come. The matter was reported to police on 17 April 2022. N gave her mother more detailed information on 18 April 2022, telling her:

8. [13]

   The investigators interviewed N on 20 April 2022 and police travelled from Inverell to Moree the following day to arrest the applicant. He said, “I have been waiting for you to come.” He declined the opportunity to speak to a lawyer and agreed to be interviewed. In the interview, which was electronically recorded, the applicant admitted to having penile/vaginal intercourse with the victim.

9. [14]

   Mr Nataucu entered pleas of guilty in the Local Court, agreed to have sequences 3 and 7 taken into account in sentencing, and was committed for sentence on 20 April 2023. He remained in custody from 21 April 2022 until he was sentenced.

Personal circumstances and mitigating features

1. [15]

   Mr Nataucu had no previous criminal offences recorded against him. His family and personal history and his attitude towards the offences were before the sentencing Court in the form of a report prepared by a psychologist Julie Dombrowski.

2. [16]

   Ms Dombrowski described the applicant as respectful and friendly in their interview and said his mood was appropriate to the situation. He said he developed sexual feelings towards the victim as she began “developing secondary sex characteristics (eg breast development)”. He did not minimise the wrongfulness of his conduct and did not blame his step-daughter in any way. He expressed remorse saying “I shouldn’t have [done] it ... I was wrong … I should have stopped myself”. He demonstrated some understanding of the potential harm caused by child sexual abuse saying “Because she is young … It changes her life … There is a picture in her mind (ie memory) that should not be there.”

3. [17]

   Mr Nataucu grew up on the outskirts of Nadi, Fiji with his parents, older sister and two younger brothers. His parents were subsistence farmers growing and selling casava and taro. Their home and crops were destroyed in a cyclone, seemingly more than once. He was raised as a Christian and described his family as loving and supportive. He attended school until he was 16, and said his performance at school was “average” although he was never suspended or expelled. After leaving school he moved to Nadi to work and has a solid work history in Fiji and Australia. He worked for several years for the Fijian Water Authority and has completed various vocational courses and certificates since moving to Australia. He told Ms Dombrowski that employers regularly offered him more work because of his work ethic.

4. [18]

   When Mr Nataucu was in his twenties, both of his parents and one of his brothers died of various illnesses. At the age of 36, he moved to Australia to work and support his family. He maintains contact with his family in Fiji who remain supportive despite their knowledge of his offending conduct and incarceration.

5. [19]

   Ms Dombrowski expressed the opinion that his risk of recidivism was relatively low and would be reduced further by participation in sex offence specific programmes. She recommended professional monitoring or supervision upon his return to the community.

The sentencing judgment

1. [20]

   The sentencing Judge recounted the agreed facts and considered the respective submissions as to the objective seriousness of the offending. His Honour concluded that the “circumstances of these offences [are] at the mid-range, but they are serious examples of such offences” because they involved insertion of the penis into the child’s vagina and, in the case of count 2, caused pain and bleeding. His Honour considered that count 2 was more serious than count 1. His Honour also made findings as to the objective seriousness of the two matters on the Form 1. His Honour took into account the abuse of trust and the fact that the offences were committed in the victim’s home, a place where she was entitled to feel safe. He described the abuse by a father figure as “abhorrent” given the child’s entitlement to be nurtured and cared for by their parents. He treated these matters as aggravating circumstances of the offending or as part of his assessment of the objective gravity of the offending.

2. [21]

   His Honour found matters of mitigation in the applicant’s early pleas of guilty, his expressions of remorse, his prior good character and lack of a criminal record. He considered those last two matters of “very little weight” as submitted by the Prosecutor and conceded by his lawyer at the sentencing hearing.

3. [22]

   His Honour referred to the details in Ms Dombrowski’s report and held that there is “no relevant matter which would reduce his moral culpability” but accepted his expressions of remorse and insight into the offending, and said “it appears his prospects of re-offending are low … [and] he should … be able to move on with rehabilitation”.

4. [23]

   The sentencing Judge applied the 25% sentencing discount to which the applicant was entitled and correctly said the Form 1 matters increased the significance of specific deterrence and retribution while noting that he was not imposing sentences for those offences. He decided to impose an aggregate sentence and said there should be a degree of (notional) concurrence but some accumulation to reflect “the separate criminal acts perpetrated against the victim on separate dates.” His Honour said:

5. [24]

   For the purpose of s 53A(2)(b) of the Sentencing Act, his Honour nominated the following indicative sentences:

6. [25]

   The indicative sentences resulted from starting points of 7 years (count 1) and 7 years and 6 months (count 2) reduced by the 25% sentencing discount. As noted in the first paragraph of this judgment, the aggregate term of imprisonment was 8 years with a non-parole period of 5 years and 4 months.

The application for leave to appeal

1. [26]

   The applicant did not contest any of the findings made by the sentencing Judge. In particular, it was not submitted that his Honour erred in finding that the offences fell within “the mid-range” of objective seriousness. However, it was submitted that the outcome was properly categorised as excessive and that the starting points for the indicative sentence on both counts “reflect terms more commonly imposed for [offences under s 66C(4)] in the upper range of seriousness”.

2. [27]

   While accepting that only so much could be gained by interrogation of sentencing statistics and comparison with other cases, Ms McGee took the Court to the statistics maintained by the Judicial Commission to show that the sentence imposed on the applicant was amongst the highest imposed for offences under s 66C(4). It was submitted that it would be expected that such sentences would be imposed where the criminality was at the top of the putative range of seriousness for offences under s 66C(4) rather than for offences falling in the middle of the range of seriousness. That was particularly so where, as here, the applicant pleaded guilty at an early stage, made admissions and demonstrated remorse, had good prospects of rehabilitation and where the particularised counts were not representative in the sense that they represented individual instances of an ongoing pattern of offending.

3. [28]

   Ms McGee went on to analyse past cases where sentences of a similar magnitude to that imposed on the applicant were imposed for more serious offending or where similar offending was met with less stern punishment.

4. [29]

   The respondent cited well known authorities which urge caution in placing too much reliance on the outcome of past cases and on statistics. Counsel pointed to distinguishing features of the cases relied on by the applicant and referred to other cases suggesting the sentence imposed on the applicant may fall within a legitimate discretionary range. Counsel submitted that it was necessary “to look beyond the assessment of objective seriousness made in a particular case and [to] consider the underlying offending conduct.” It was submitted that the sentencing Judge considered the applicant’s subjective case and features such as his remorse and prospects for rehabilitation.

5. [30]

   The respondent submitted the following features of the case, each considered correctly by the sentencing Judge, would lead the Court to conclude that the sentence was not unreasonable or plainly unjust:

   1. (1)

      The maximum penalty and standard non-parole period considered against the sentencing Judge’s assessment that the offences were in the mid-range but “serious examples of such offences”.

   2. (2)

      The fact that count 2 caused pain and bleeding to the vagina.

   3. (3)

      The age of the victim fell at the lower end of ages caught by s 66C(4).

   4. (4)

      The 27-year age gap between the applicant and the victim.

   5. (5)

      The nature of the intercourse being penile/vaginal intercourse.

   6. (6)

      The offending was not isolated.

   7. (7)

      The aggravating circumstance that the offence occurred in the victim’s home.

   8. (8)

      The Form 1 offences meant that personal deterrence and retribution were of greater significance.

   9. (9)

      The need for some notional accumulation within the aggregate sentence.

Consideration and determination

1. [31]

   The principles governing the disposition of a ground of appeal asserting that a sentence is manifestly excessive (or inadequate) are well established.

2. [32]

   Sentencing involves the exercise of a broad discretion to determine the appropriate sentence and primary judges are “allowed as much flexibility in sentencing as is consonant with consistency of approach”; there is no “single correct sentence”: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [46]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27]. An appellate court “may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion”: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. What must be established is that the sentence imposed was manifestly unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ) and [59] (Kirby J).

3. [33]

   Where no patent legal error is established, “it may not appear how the primary judge has reached the result embodied in [their] order, but, if upon the facts it is unreasonable or plainly unjust, the appellate 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.

4. [34]

   In Dinsdale v The Queen, Gleeson CJ and Hayne J said at [6]:

5. [35]

   In reaching a conclusion as to whether a sentence is manifestly excessive or inadequate, a consideration of sentencing statistics may be useful but must be undertaken with caution: see, for example, Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [59], [66] and [91] and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] and [55].

6. [36]

   Similar considerations apply to comparisons with specific past sentencing cases. In Hili v The Queen; Jones v The Queen it was said at [54] (with citations omitted):

7. [37]

   On the other hand, as Basten AJA (with whom Mitchelmore JA and Wright J relevantly agreed) said in Baldwin-Davies v R [2024] NSWCCA 220 at [14]-[15]:

8. [38]

   Ms McGee fairly and properly acknowledged these limitations in both her written and oral submissions to the Court. The Court is grateful for her diligence in providing relevant statistical information and authorities that provide some assistance in evaluating her fundamental proposition that the sentence imposed in this case fell outside of the wide range of sentences that may have been appropriate for this particular applicant and these particular offences.

9. [39]

   With the circumspection urged in the authorities referred to in the last few paragraphs I turn to consider the statistics and some past sentencing cases. In terms of the statistics, as well as considering the graphs annexed to the applicant’s submissions, I have consulted the Judicial Commission’s database online.

10. [40]

    The statistics from 24 September 2018 to 30 September 2024 demonstrate that of the 60 offenders charged and sentenced to a term of imprisonment under s 66C(4), only 3 offenders (5%) received a sentence of 7 years for the “principal offence”. That suggests the indicative sentences for the “mid-range” offences in counts 1 and 2 were very high.

11. [41]

    However, the statistics for aggregate sentences show that 5 offenders (8.3%) received an aggregate sentence of 12 years, and around 40% of offenders received an aggregate sentence of 7 years or more. When one goes behind those raw statistics, two of the aggregate sentences in the range of 12 years were imposed (or overturned) on appeal: see Cridland v R [2024] NSWCCA 243 and Director of Public Prosecutions (NSW) v Wolinski [2024] NSWCCA 139. Unsurprisingly, each of those cases involved more individual offences and more serious objective criminality than that disclosed in the applicant’s case. One (Cridland v R) did not involve a plea of guilty.

12. [42]

    Looking at the cases where an aggregate sentence of 8 years was imposed (that is, the same aggregate sentence as was imposed on the applicant), all but one of the five offenders had a criminal record. Beyond that, the database does not contain enough specific information to make any meaningful comparison.

13. [43]

    Ms McGee focused on a comparison between the indicative sentences nominated by the sentencing Judge and the statistics relating to the “principal offence”. I accept that this comparison suggests that the indicative sentences nominated for the applicant fell at the very top of the “range” for all offences under s 66C(4). That has some significance given that the applicant’s offences were objectively held to be in the “mid-range”, he had no previous record, quickly acknowledged his offending and demonstrated contrition. However, beyond that, little can be derived from the statistics for the reasons discussed by the High Court in the cases referred to at [35]-[36].

14. [44]

    The most significant of the comparable cases to which the Court was taken were JP v R [2024] NSWCCA 96 and GG v R [2018] NSWCCA 280. Other cases, such as BIP v R [2011] NSWCCA 224 and Clarke v R [2009] NSWCCA 49, were decided before the introduction of the standard non-parole period in 2015. They remain of some assistance, but less than those which were decided afterwards. The fact is that the sample size and availability of genuinely comparable cases is small.

15. [45]

    JP v R involved two offences under s 66C(4). One offence involved digital penetration and the other penile/vaginal penetration. The offences were committed on the offender’s step-daughter who was aged 14. The offences occurred on a single night. The applicant initially denied the offending but ultimately pleaded guilty and received a 25% discount for his plea. He was held to be remorseful. He had some mental health issues, but these did not reduce his moral culpability. JP had a criminal record which disentitled him to leniency. The sentencing Judge nominated indicative sentences of 3 years for count 1 and 4 years and 5 months for count 2. Her Honour imposed an aggregate sentence of 5 years with a non-parole period of 3 years and 3 months. It is self-evidently correct to say that this is a substantially shorter sentence than that imposed on the applicant. However, the offences committed by JP occurred on a single night, whereas the applicant committed the two charged offences some months apart and the first of the matters taken into account on the Form 1 occurred a year or two earlier when the victim was just 12 years old.

16. [46]

    GG v R was a considerably more serious case than that of the applicant. There were two offences under s 66C(4), one of which involved inserting a butt plug into the 15-year-old victim’s anus and the other involved penile/vaginal intercourse while using sex toys in an apparent attempt to stimulate the child’s vagina and anus. There was a further offence charged under s 91H(2) of the Crimes Act (producing child abuse material) carrying a maximum penalty of 10 years. The applicant groomed the victim, who was his step-daughter and known by him to be a vulnerable and troubled teenager, over a considerable period of time. A specific offence of “grooming” under s 66EB(3) of the Crimes Act was taken into account in sentencing. One of the offences was held to be above the mid-range of objective seriousness. The applicant received a 25% sentencing discount on three of the counts and a 10% discount for the fourth offence. The sentencing Judge imposed an aggregate sentence of 7 years and 9 months with a non-parole period of 5 years, 9 months and 23 days.

17. [47]

    An error in the sentencing process was conceded by the prosecution and this Court (Payne JA, Schmidt and Fagan JJ) was called upon to exercise the sentencing discretion afresh. Each of the appellate judges concluded that no lesser sentence was warranted and the appeal was dismissed. Schmidt J described the degree of concurrency in the sentence at [140] as “a very favourable outcome” from the offender’s perspective. Payne JA said at [10] that GG’s subjective case entitled him to some leniency but agreed with Schmidt and Fagan JJ that no lesser sentence was warranted and indicated at [12] it was “unnecessary to indicate the aggregate sentence and indicative sentences I would have imposed”.

18. [48]

    While the actual sentence imposed on GG ostensibly supports the applicant’s contention, the observations of the Court of Criminal Appeal show that the sentence imposed was considered to be a lenient one given the gravity of the offending. Further, the outcome in a single comparable case could rarely, if ever, support a ground that a particular sentence is manifestly excessive.

19. [49]

    As Gleeson CJ and Hayne J emphasised in Dinsdale v The Queen whether a sentence is manifestly excessive is a conclusion. The helpful and thorough submissions made on behalf of the applicant, and an analysis of the statistics and outcomes in other cases, support the proposition that the sentence imposed on the applicant was a very heavy one.

20. [50]

    An application of an instinctive synthesis approach supports the same conclusion. The applicant had no prior convictions and an excellent employment history. He promptly admitted his guilt and expressed genuine remorse and insight into the wrongfulness of his behaviour. He demonstrated an awareness of the damage his conduct would have on his step-daughter and had good prospects of rehabilitation. His offences fell in the broad mid-range of objective seriousness and he was entitled to a 25% sentencing discount.

21. [51]

    On the other hand, his conduct represented an egregious breach of trust and he sexually abused a child in his care on four separate occasions over a period of many months, or years if one takes into account the offence on the Form 1 which occurred when the victim was 12 years old. Both counts involved penile/vaginal intercourse with the second count causing pain and bleeding. The maximum penalty and standard non-parole period must be borne steadily in mind.

22. [52]

    The sentence imposed in the District Court – while a very heavy one in all of the circumstances of the case – cannot properly be described as plainly wrong, unjust, or unreasonable. I have considered the submission that the combination of the stern indicative terms coupled with the degree of notional accumulation may have led to a manifestly excessive aggregate sentence. However, I have concluded that the aggregate sentence is not manifestly excessive, and the single ground of appeal cannot be sustained.

Orders

1. [53]

   For those reasons, I would make the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [54]

   IERACE J: I agree with the orders proposed by Hamill J and with his Honour’s reasons.