DC v R

1. [1]

   ROTHMAN J: I have had the benefit of reading in draft the reasons for judgment of Yehia J. I agree with the orders proposed by her Honour and with her Honour’s reasons.

2. [2]

   WILSON J: I have had the benefit of Justice Yehia’s judgment in draft and I agree with the orders her Honour proposes.

3. [3]

   As her Honour concluded, error must be found in the orders of the sentencing Judge because of the misapprehension his Honour’s reasons reveal as to the standard non-parole period applicable to sequences 13 and 14. That error was one his Honour was led into by the parties appearing before him on sentence.

4. [4]

   It is important in sentence matters that legal representatives provide the court with accurate information as to matters of law. Sexual offences constitute a category of crime where legislative change has been frequent, and frequently significant, and there is a particular responsibility upon counsel in such matters to ensure that the relevant law has been carefully ascertained and the court properly assisted. Errors of this nature which, by resulting in an appeal, no doubt cause additional distress to any complainant and stress to the applicant, would then be avoided.

5. [5]

   Whilst the error requires this Court to re-sentence the applicant as Yehia J has concluded, no lesser aggregate sentence is warranted in law than that imposed at first instance. These were extremely serious sexual offences involving two children, and repetitive and persistent criminality, of a high order. Yehia J has proposed that a finding of special circumstances should be made, with a lesser non-parole period consequentially fixed. I agree with her Honour, for the reasons she has given.

6. [6]

   YEHIA J: By Notice of Appeal filed 14 October 2022, DC (“DC” or “the applicant”) seeks leave to appeal from the aggregate sentence imposed on him by his Honour Judge King SC (“the sentencing Judge”) in the District Court at Sydney on 3 September 2021, in relation to a series of sexual offences committed against two victims, RC and KT.

7. [7]

   The applicant pleaded guilty in the Local Court. The indicative sentences were discounted by 25% to reflect the utilitarian value of the pleas. The following table sets out the sequences, offences, the maximum penalties, standard non-parole periods (“SNPP”), and the indicative sentences, in respect of each offence:

8. [8]

   On 3 September 2021, the applicant was sentenced to an aggregate term of imprisonment of 13 years and 6 months, with a non-parole period of 10 years imprisonment, commencing on 23 April 2021. The non-parole period expires on 22 April 2031. The aggregate head sentence expires on 22 October 2034.

9. [9]

   As the Notice of Intention to appeal was filed out of time, the applicant requires an extension of time within which to file the notice. That application is not opposed. For the reasons which follow, there should be an extension of time, leave to appeal should be granted, and the appeal allowed. While the aggregate sentence is an appropriate proportionate sentence, special circumstances exist warranting a reduction of the non-parole period.

Background of Offences

1. [10]

   In early 2010, RC (then aged 14 years old) moved into a caravan on the front lawn of the home of the applicant’s then-partner, MS. The applicant lived elsewhere. During a camping trip that took place on 28 July 2020, after the applicant’s 33rd birthday, the applicant told RC that he “wanted her”. [1] It was also noted that there was flirting and “touchy-feely stuff going on” [2] between them. The sentencing Judge noted that RC indicated that she thought that the applicant and her may have kissed once, but nothing else happened. After the camping trip, while RC was still 14 years old, she went to the applicant’s residence. Both the applicant and RC were on the applicant’s bedroom floor. The applicant removed his and RC’s clothing. RC sat on top of the applicant. The applicant had penile-vaginal intercourse with RC, and subsequently ejaculated onto her body.

2. [11]

   A couple of days later, MS’s daughter attended the applicant’s residence and upon her arrival, she saw RC sitting on the applicant’s lap. The applicant and RC informed MS’s daughter that:

3. [12]

   MS’s daughter returned home and informed her mother.

4. [13]

   The applicant’s then-partner came to learn of the applicant’s interest in RC, at which point she confronted him. MS also attempted to bring RC back to her residence, but RC would not leave. The applicant said words to the effect:

5. [14]

   MS contacted police who attended, and removed, RC from the applicant’s home and returned her to the home of MS. RC then went to live with her parents.

6. [15]

   A couple of days after her 15th birthday, RC returned to live with the applicant. The applicant thereafter maintained an unlawful sexual relationship with RC from the day after her 15th birthday until just before her 16th birthday, that is, between 24 August 2010 and 22 August 2011. RC described that the sexual relationship started “pretty much straight away”. [5]

7. [16]

   During that period, the applicant had penile-vaginal intercourse with RC on an ongoing and regular basis. RC told police that they would have sex daily. The intercourse was “whenever and whatever [the applicant] wanted”. [6] RC described the intercourse as “pretty rough” [7] at times, with the applicant throwing RC around and pulling her hair. The applicant ejaculated inside RC’s vagina on occasion while, at other times, he would “pull out” [8] before ejaculating on her body. RC told police that the sex would happen at “any time of the day” [9] and “at least every day” [10] (Sequence 21). The applicant is 18 years older than RC.

8. [17]

   The applicant’s offending, in relation to KT, took place on four separate occasions in 2014. KT was 10 years old at the time of each offence. The applicant was approximately 36 or 37 years old and 26 and a half year’s older than KT. A year earlier, in 2013, the applicant had commenced a relationship with KT’s mother, which continued until 2018. They had a son together, who was born in 2015.

9. [18]

   On the first occasion, sometime in 2014, KT’s mother left KT in the care of the applicant. The applicant and KT were seated on a couch in the lounge room watching television. The applicant rubbed KT’s vagina on the outside of her clothing. The applicant persisted despite KT getting up and moving away. The applicant pulled KT towards him and instructed her not to move, before removing KT’s pants and again rubbing her vagina, this time touching her skin directly (Sequence 8). After the applicant stopped, he told KT not to tell anyone.

10. [19]

    A week later, while he was again caring for KT, the applicant led KT to his bedroom under the pretence of showing her something on his phone, before asking her to fellate him. When KT refused, the applicant grabbed her hair and forced KT to her knees where KT performed fellatio on him (Sequence 13). After some time, KT pushed the applicant away. The applicant picked KT up before placing her on the bed, removing her clothes, and performing cunnilingus on her (Sequence 14). He then attempted, unsuccessfully, to insert his penis into her vagina and have penile-vaginal intercourse with her. KT described the applicant putting his penis “against the hole…bit of [her] vagina”, [11] which hurt but did not penetrate her. As he did so, he touched her bottom and breasts (Sequence 15).

11. [20]

    On another occasion, KT sought comfort in the bed that her mother shared with the applicant after having a nightmare. The applicant rubbed KT’s vagina on top of her clothing for approximately 10 minutes (Sequence 12). KT indicated that this incident occurred before the tonsillitis incident and after the second and third occasions.

12. [21]

    In December 2014, while KT was sick with tonsilitis and was sleeping on the lounge, she woke to the applicant playing with her vagina. He rubbed KT’s vagina both on the inside and outside of her clothing (Sequence 16). KT’s brothers were at home at the time but were outside gardening. KT recalled that the applicant “…started playing with my vagina…and I woke up to him…” [12]

The Compliant to Police, Arrest and ERISP

1. [22]

   On 28 November 2019, KT’s mother, SH, took KT to Maitland Police Station, where she was interviewed. The applicant was arrested at Maitland Police Station on 5 December 2019. He participated in an electronically recorded interview in which he denied the allegations, but admitted to having rubbed KT when she was in bed with him and SH in circumstances where he was sedated by medication and thought she was SH. [13]

Ground of Appeal

1. [23]

   The applicant relies on a single ground of appeal, namely, that for two offences, the sentencing Judge took into account a non-existent SNPP.

2. [24]

   Sequences 13 and 14 were offences against s 66C(2) of the Crimes Act, which specifies a maximum penalty of 20 years imprisonment. The offences were specified as having occurred between 31 December 2013 and 1 January 2015. At the time the offences were committed, there was no SNPP.

3. [25]

   On 29 June 2015, the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) (“Child Sex Offences Amendment Act”) commenced. Schedule 2 of the Child Sex Offences Amendment Act had the effect of inserting a SNPP of nine years for offences against s 66C(2).

4. [26]

   At the time of the amendment, Parliament also inserted Part 27, clause 68 into Schedule 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), which states:

5. [27]

   S 25AA of the CSPA provides:

6. [28]

   The applicant submitted that it follows that the nine year SNPP did not have a retrospective effect and did not apply to sequences 13 and 14 in this case.

7. [29]

   The sentencing Judge was wrongly informed that a nine year SNPP applied. His Honour wrongly took into account a SNPP of nine years in determining the appropriate indicative sentences in relation to sequences 13 and 14. The applicant relies on the sentencing Judge’s remarks on sentence, where his Honour:

   1. (1)

      referred to a nine year SNPP as applying to these two offences;

   2. (2)

      stated that the SNPP, where applicable, remains a relevant guidepost even where there has been a plea of guilty; and

   3. (3)

      specified an indicative non-parole period for these charges. A requirement that only applies to offences that carry a SNPP: see s 54B(4) of the CSPA.

8. [30]

   The applicant submitted this was an error that affected the indicative sentences for sequences 13, 14, and the aggregate sentence. Furthermore, it was submitted that a lesser sentence is warranted at law and that this Court would find special circumstances. In sentencing afresh, it was submitted that the applicant’s childhood background, as well as his overall neuropsychological profile, should result in some reduction in moral culpability and the emphasis to be given to punishment and general deterrence. The applicant submitted that a finding of special circumstances was warranted.

9. [31]

   In support of that contention, the applicant relied upon the remarks of Simpson J (as her Honour then was) in R v Millwood [2012] NSWCCA 2 at [69] (Bathurst CJ and Adamson J agreeing):

10. [32]

    The respondent conceded the ground of appeal.

11. [33]

    The respondent accepted that it is open to this Court to find that the ground of appeal is made out and that the error is such that this Court must exercise the sentencing discretion afresh. The respondent submitted that in exercising the discretion afresh, this Court would conclude that no other (lesser) sentence is warranted at law and, accordingly, would dismiss the appeal.

Applicant’s Subjective Case

1. [34]

   The applicant did not give evidence in the sentencing proceedings. He relied on a report of Sarah Brann, Forensic Psychologist, dated 24 May 2021. The applicant also relied on and a report of Lisa Zipparo, Clinical Neuropsychologist, dated 24 June 2021, as well as brief medical records produced by Greta Medical Centre.

2. [35]

   The applicant was born in 1977. He was 44 years old at the time of his sentence and between 33 and 37 years old when he committed the subject offences. The applicant has prior convictions for offences including common assault (2008, 2009 and 2012), possess prohibited drug (2008), and a driving offence (1999).

3. [36]

   The applicant grew up on the Central Coast of New South Wales as one of seven children. He had close relationships with both parents but said they harboured “deep, dark family secrets”. [15] The applicant’s parents died within six months of one another in 2013 or 2014, after the offending against KT. The applicant reported being disciplined with a jug cord and wooden spoon. Ms Brann concluded that the applicant’s account suggested he was exposed to “avoidant forms of coping and suppressing emotions”. [16]

4. [37]

   When the applicant was aged five, his nine year old sister had her leg amputated after doctors mistakenly applied a plaster too tightly to her leg. The applicant was bullied at school about his sister’s disability. A few years after his sister lost her leg, his oldest sister suffered a drug overdose. She had run away from home at the age of 15, worked in Sydney as a sex worker, and developed a serious drug addiction. The applicant remembered driving to Sydney in the middle of the night to visit his sister in hospital.

5. [38]

   The applicant’s eldest brother, who was 14 or 15 years older than him, was violent at family events. The applicant reported being scared of his brother as a child. His brother committed a driving-related homicide whilst intoxicated, which led to a significant court case as well as emotional and financial stress to the family. In 2020, the applicant learned this brother had sexually abused three of his sisters during their childhood, the accounts of which are detailed in the reports of Ms Brann and Ms Zipparo.

6. [39]

   The applicant attended two primary schools and two high schools. He achieved average grades and left school at the age of 14. He was expelled for threatening to shoot a teacher after the teacher publicly humiliated him. He did not have access to a firearm.

7. [40]

   After leaving school, the applicant worked in various positions, including at a sawmill, commercial fishing, painting, game harvesting, and at an abattoir. He also started his own painting and gardening business.

8. [41]

   The applicant provided a history of infrequent alcohol consumption but reported having drunk excessively on several occasions during the period of his sexual offending. He began smoking cannabis at age 14 and has continued to do so daily since that age.

9. [42]

   Between 2010 and 2014, the applicant reportedly smoked two grams of cannabis per day, 3.5 grams of methylamphetamine (ice) every three days and used hallucinogens (acid) on weekends. The applicant reported abstinence from all substances since his arrest in 2019 and told Ms Zipparo that “he had never accessed drug and alcohol counselling but had always managed to stop abusing substances when he decided to do so”. [17]

10. [43]

    Ms Zipparo noted that the applicant described symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder (PTSD). She administered a PTSD checklist, the results of which indicated the following:

11. [44]

    Ms Zipparo reviewed the applicant’s neuropsychological profile and opined:

12. [45]

    In summary:

13. [46]

    Ms Zipparo stated:

14. [47]

    In light of the applicant’s impulsivity and “significant difficulties regulating his behaviours”, [22] Ms Zipparo recommended that the applicant consult a psychiatrist for appropriate treatment of his anxiety disorder. She was also of the view that the applicant would benefit from participating in a child sex offender therapeutic program, whether in a custodial or community setting. In the long-term, in order to reduce the applicant’s risk of reoffending, he will require intensive ongoing trauma-informed psychotherapy to “help address his dissociative amnesia from childhood events and to assist him to address psychological issues caused by his likely traumatic upbringing”. [23]

15. [48]

    Sarah Brann explored the applicant’s attitudes towards his offending and found that his account of the offending “lacked accountability”. [24] He presented with “offence-related cognitive distortions”, [25] and he lacked insight into his position of power and authority in comparison to the youth and immaturity of the victims. Regarding RC, Ms Brann stated:

16. [49]

    In relation to the offending against KT, Ms Brann observed:

17. [50]

    Ms Brann opined:

18. [51]

    Ms Brann administered risk assessments that placed the applicant in the “average risk category” [29] and “moderate risk category” [30] relative to other sexual offenders. Ms Brann concluded:

19. [52]

    Neither Ms Brann nor Ms Zipparo commented on any direct nexus between the applicant’s mental and cognitive impairment and the offending conduct.

Remarks on Sentence

1. [53]

   The sentencing Judge assessed the objective seriousness of the offence of persistent sexual abuse of a child under 16 (Sequence 21) as falling towards the upper end of the mid-range of objective seriousness. In making that determination, his Honour had regard to the following factors:

   1. (1)

      there were many occasions of penile-vaginal intercourse;

   2. (2)

      each penetrative act would have constituted an offence against s 66C(3) with a maximum penalty of 10 years imprisonment, which is towards the lower to mid-range of offences covered by s 66EA;

   3. (3)

      the sex was at times rough, and it occurred whenever the applicant wanted it;

   4. (4)

      the offending occurred over one year;

   5. (5)

      the victim was aged 15;

   6. (6)

      the applicant was 33 and, therefore, 18 years older than the victim; and

   7. (7)

      the applicant was not in a position of authority over the victim.

2. [54]

   For the first four months of the period over which the applicant offended against RC, the applicant was on conditional liberty in the form of a 7 month suspended sentence imposed on 17 May 2010 in respect of an offence of common assault (domestic violence), contrary to s 21A(2)(j) of the CSPA.

3. [55]

   In determining the objective seriousness of the offence, contrary to s 66EA of the Crimes Act, the sentencing Judge stated:

4. [56]

   The sentencing Judge assessed the objective seriousness of each of the offences committed against KT as follows:

5. [57]

   For the indecent assault offences, the sentencing Judge took into account the following factors:

   1. (1)

      the victim was aged 9 or 10 in circumstances where the offence provision covers children under 16; and

   2. (2)

      the nature of the conduct on each occasion, including the fact that sequences 8 and 12 involved skin-to-skin contact, and the fact that sequence 8 extended to the applicant persisting after the victim moved away from him.

6. [58]

   For the sexual intercourse and attempted sexual intercourse offences, the sentencing Judge took into account the following factors.

   1. (1)

      The victim was aged 10, which is at the bottom of the 10 to 14 age range covered by the offence provision;

   2. (2)

      On one occasion, the applicant persisted, by pushing the victim to her knees by grabbing her hair, despite the victim’s resistance; and

   3. (3)

      In respect of sequence 15, his Honour had regard to the fact that the applicant touched the victim’s bottom and breasts during and after the attempted vaginal intercourse.

7. [59]

   The sentencing Judge observed that each of the offences committed by the applicant against KT involved a breach of the position of trust he held within KT’s family unit, contrary to s 21A(2)(k) of the CSPA, and occurred in KT’s home, contrary to s 21A(2)(eb) of the CSPA.

8. [60]

   The sentencing Judge considered the Victim Impact Statements of RC and KT but did not find the harm occasioned constituted an aggravating factor.

9. [61]

   The sentencing Judge made several findings concerning the applicant’s subjective case. The applicant’s past criminal history was “not of any significant adverse effect in relation to sentencing for this matter”. [33]

10. [62]

    The sentencing Judge summarised the applicant’s subjective case and the expert reports tendered on his behalf. His Honour concluded that the material did not disclose an environment of systemic or endemic abuse, or any particular social disadvantage or deprivation as would operate to reduce the applicant’s moral culpability. The applicant’s background did not reduce his moral culpability in the sense described in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 73 (Bugmy), but his background was “still relevant to the instinctive synthesis of determining the sentence”. [34] The sentencing Judge stated:

11. [63]

    The applicant presented a moderate risk of reoffending, and the sentencing Judge assessed the applicant’s prospects of rehabilitation as “guarded”. [36] The applicant had not expressed remorse or contrition concerning any of the offences.

12. [64]

    In an exchange with the Crown, the sentencing Judge noted that there was no diagnosis of PTSD:

13. [65]

    The applicant had engaged in victim-blaming in respect of both victims and continued to lack awareness of the potential impacts of his offending. Although the applicant’s level of intellectual functioning may have some impact on his level of insight, the sentencing Judge noted that it was evident that the applicant appreciated, at the time of the offending, that he was committing offences.

14. [66]

    The evidence relating to the applicant’s background and his psychological and neuropsychological profile was not taken into account to reduce the applicant’s moral culpability or the weight to be afforded general deterrence. Instead, the sentencing Judge took into account these factors as relevant to the instinctive synthesis of determining the appropriate sentence. [38]

15. [67]

    The indicative sentences were discounted by 25% to reflect the utilitarian value of the plea of guilty. In relation to totality, the sentencing Judge observed that the aggregate sentence needed to reflect that there was offending against two entirely separate victims; that the offence concerning RC took place over a one-year period; and that the offences committed against KT comprised four separate occasions.

16. [68]

    The sentencing Judge declined to find special circumstances (other than rounding down the non-parole period) noting that the applicant did not require treatment for drug and alcohol issues and the aggregate sentence itself incorporated a significant period on parole that was likely to exceed the necessary period of supervision.

Re-sentence

1. [69]

   Where error is established, it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the purpose of sentencing and the factors that the CSPA, and any other Act, or rule of law, require or permit: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

2. [70]

   The applicant takes no issue with several findings made by the sentencing Judge. In particular, the applicant does not challenge the assessment of objective seriousness made in relation to each offence. Insofar as it is necessary to do so, I agree with the assessment of objective seriousness made by the sentencing Judge in each case.

3. [71]

   The applicant’s neuropsychological profile reveals symptoms consistent with complex PTSD and intellectual functioning in the borderline range. Neither expert commented on a direct nexus between those conditions and the applicant’s offending conduct. The sentencing Judge did not find any causal relationship between the applicant’s mental health, impaired intellectual functioning, and the offences that were committed. Although this finding was not challenged by a specific ground of appeal, the applicant urges this Court, on re-sentence, to make a finding that the applicant’s moral culpability is reduced as is the weight to be afforded punishment and deterrence.

4. [72]

   The ways in which mental disorders, intellectual impairment and similar conditions may impact the exercise of sentencing discretion have been considered in many previous cases. In R v Israil [2002] NSWCCA 255, Spigelman CJ explained at [22]–[26]:

5. [73]

   The relevant principles were summarised by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194 at [177]:

6. [74]

   A reduction in moral culpability results where an offender’s mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending.

7. [75]

   The sentencing task should not be approached in “an unduly technical or restrictive way”: see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence.

8. [76]

   While a sentencing Judge should not become preoccupied with the issue of “causation” as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing).

9. [77]

   Having considered the psychological and neuropsychological material, I am not persuaded that the applicant’s overall neuropsychological profile operates to reduce his moral culpability or the weight to be afforded punishment and general deterrence.

10. [78]

    The applicant’s overall criminality demonstrates a persistent course of sexual offending against two children, one being 10 years old at the relevant time. The applicant engaged in sexual intercourse with RC over a period of one year. His sexual misconduct in respect of RC was not impulsive, nor demonstrative of impaired mental flexibility.

11. [79]

    The applicant’s criminal acts against KT were persistent and, on occasion, involved the use of force. Furthermore, the behaviour involved some deliberation and a breach of trust that is inconsistent with impulsivity.

12. [80]

    The applicant’s reliance upon a disadvantaged childhood as operating to reduce his moral culpability and the emphasis on punishment and deterrence is also unpersuasive. Although the applicant reported several difficult experiences in childhood, which included his sister’s drug overdose and his oldest brother’s erratic and violent conduct, the account of sexual abuse of his sisters was only revealed to him in 2020. [39] The evidence does not establish that he was aware of the sexual abuse in the household during his childhood over the time he committed the offences.

13. [81]

    There is no evidence that the applicant was himself sexually abused as a child. To conclude, at this stage, that any dissociative amnesia around relevant autobiographical information is suggestive of having been sexually abused as a child, is highly speculative.

14. [82]

    The applicant’s childhood background, mental health issues and low intellectual functioning are all matters relevant to the process of instinctive synthesis in determining a proportionate sentence. The sentencing Judge had regard to the applicant’s background and the expert reports in determining the aggregate sentence. I cannot agree with the applicant’s contention that a lesser aggregate sentence is warranted. The applicant’s crimes are very serious, involving persistent sexual misconduct against two children. In respect of one victim, aged 10 years at the time of the offending, the applicant breached the position of trust he enjoyed within KT’s family unit.

15. [83]

    I am, however, satisfied that special circumstances exist warranting a variation of the statutory ratio.

Special Circumstances

1. [84]

   A finding of special circumstances, which permits an adjustment downwards of the non-parole period, is a discretionary finding which must rest on a conclusion that the offender’s circumstances are sufficiently special to warrant its exercise: see Kelloway v R [2016] NSWCCA 95 at [21]; R v Fidow [2004] NSWCCA 172 at [22]. There is no statutory prescription of the matters which might constitute special circumstances: see R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25.

2. [85]

   In R v Simpson (2001) NSWLR 704; [2001] NSWCCA 534 at [54] (Simpson), this Court considered the proper approach to be adopted in relation to the issue of special circumstances. The scope of the considerations relevant to the determination of special circumstances encompass the full range of issues that are relevant to the determination of the minimum period of actual incarceration. The exercise of discretion must ensure that the non-parole period reflects the minimum period of incarceration which the offender must serve for the crimes, given all the relevant circumstances of the case.

3. [86]

   In many cases, the requirements of rehabilitation and the desirability of a longer period of supervision to achieve rehabilitation will give rise to a finding of special circumstances. However, it is not the only perspective. In Simpson, Spigelman CJ at [59], observed:

4. [87]

   Ms Brann and Ms Zipparo observed that the applicant would benefit from undertaking a sex-offender program. Such treatment is essential given the applicant’s lack of insight and “victim blaming”. [40] It is also recommended that the applicant receive ongoing psychotherapy in relation to his reported amnesia of childhood events.

5. [88]

   The requirement for treatment may not, by itself, have been sufficient to constitute special circumstances, given that the sentence imposed would provide a considerable period of supervision. However, there are several additional factors that, in combination, warrant a finding of special circumstances and a variation of the statutory ratio.

6. [89]

   The applicant’s mental health issues and impaired intellectual functioning are relevant to the hardship that the applicant will experience in custody. The absence of an opinion from Ms Brann and/or Ms Zipparo that the applicant’s time in custody will be more onerous does not prevent this Court, on re-sentence, from making such a finding if it is available on the evidence.

7. [90]

   This is the first time that the applicant serves a term of full-time imprisonment. His intellectual shortcomings and mental health issues are likely to make it difficult for him to negotiate many of the challenges that present in custody. The applicant has already been the victim of physical violence in prison [41] and has been locked in for days at a time as a result of COVID-19 restrictions.

8. [91]

   The affidavit of DC, affirmed on 13 January 2023, is tendered on the usual basis. The applicant has been assaulted three times since being in custody, once while on remand at Shortland Correctional Centre and twice at Junee Correctional Centre (Junee). The applicant was locked in for 28 days at the Metropolitan Remand and Reception Centre (MRRC) while he was on remand. He was locked in for 56 days while held at Junee. The applicant continues to suffer from anxiety, although he is prescribed antidepressants. His sister, with whom he had a close relationship, died whilst he was in custody. He could not attend her funeral.

9. [92]

   The applicant’s impulsivity, poor behavioural regulation, and compromised executive functioning, are more likely to render him vulnerable in an environment that involves forced association, exposure to violence and intimidation, loss of privacy, and loss of personal autonomy.

10. [93]

    Furthermore, given the lengthy period the applicant will spend in custody, he will require a longer than usual additional term to readjust to life in the community. This is particularly so given his low intellectual functioning. The combined force of these factors warrants a finding of special circumstances and a variation to the statutory ratio.

11. [94]

    Accordingly, I would propose the following orders:

    1. (1)

       The time within which to file the Notice of Intention to Appeal is extended.

    2. (2)

       Leave to appeal granted.

    3. (3)

       The appeal allowed.

    4. (4)

       The sentence imposed by King SC DCJ on 3 September 2021 in the District Court of New South Wales is set aside.

    5. (5)

       In lieu thereof, the applicant is re-sentenced to an aggregate term of imprisonment of 13 years and 6 months, commencing on 23 April 2021, and expiring on 22 October 2034.