Wright v R

1. [1]

   STERN JA: Following a trial by jury, on 2 February 2022, the applicant was convicted on two counts of sexual intercourse with a child under 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW) and four counts of inciting a child under 10 years to commit sexual intercourse contrary to ss 66A(1) and 80G of the Crimes Act. All of these offences were committed between 31 July 2017 and 27 August 2019, against either the daughter (IM) of the applicant’s then partner, or by inciting IM and MM (IM’s brother and the son of his then partner) to commit sexual acts upon each other. Whilst there was some uncertainty as to the timing of the offences, it was accepted for the purposes of sentencing that at the time IM was aged at most six years old and MM was aged at most four years old. The applicant pleaded not guilty to all charges. He did not give evidence at trial. His case was set out in his interview with police on 5 November 2020, which was tendered at trial, in which he denied any wrongdoing.

2. [2]

   Each charge carried a maximum penalty of life imprisonment with a standard non-parole period of 15 years. On 30 September 2022, the applicant was sentenced to an aggregate term of imprisonment of 23 years, with a non-parole period of 16 years and 6 months, both dating from 5 November 2020, the date of the applicant’s arrest. He has been in custody since that date.

3. [3]

   The applicant seeks leave to appeal under ss 5(1)(b) and (c) of the Criminal Appeal Act 1912 (NSW) against both his conviction and sentence on the following grounds:

   1. (1)

      That the Court erred in law by holding that a prosecution tendency notice (the tendency notice) served on the defence on 13 January 2022 with a trial commencing on 17 January 2022 was “reasonable notice” within the meaning of s 97(1)(a) of the Evidence Act 1995 (NSW) (ground one); and

   2. (2)

      That in the circumstances the applicant’s aggregate sentence is manifestly excessive because the indicative sentences are manifestly excessive (ground two).

4. [4]

   The applicant needs an extension of time, under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021, for the filing of his application for leave to appeal. In support of this he read an affidavit from his current solicitor, annexing an affidavit from his former solicitor, which shows that to a limited extent delays were caused by difficulties in obtaining relevant transcripts or in the grant of legal aid. In the main, the delays appear to have been occasioned by reason of the applicant changing solicitors or not providing solicitors with moneys on trust and delays in providing instructions. The Crown opposed both the extension and leave to appeal. Notwithstanding the somewhat inadequate explanation for delay, and my conclusions set out below as to the merit of the two proposed grounds of appeal, I would grant the application for an extension of time and, consistent with the observations of N Adams J in Xu v R [2023] NSWCCA 93 at [40] (Garling and Hamill JJ agreeing), grant leave to appeal.

5. [5]

   However, for the reasons set out below, both grounds of appeal should be rejected and the appeal dismissed.

The charges

1. [6]

   The charges on which the applicant was convicted were:

   1. (1)

      The applicant had sexual intercourse with IM, a child under 10 years old, namely aged 4, 5 or 6, contrary to s 66A(1) of the Crimes Act (involving cunnilingus by the applicant on IM) (count one);

   2. (2)

      The applicant had sexual intercourse with IM, a child under 10 years old, namely aged 4, 5 or 6, contrary to s 66A(1) of the Crimes Act (involving the applicant being fellated by IM) (count two);

   3. (3)

      The applicant incited IM to have sexual intercourse with MM, a child under 10 years old, namely aged 2, 3 or 4, contrary to ss 66A(1) and 80G of the Crimes Act (involving the applicant inciting IM to fellate MM) (counts three and five); and

   4. (4)

      The applicant incited MM to have sexual intercourse with IM, a child under 10 years old, namely aged 4, 5 or 6, contrary to ss 66A(1) and 80G of the Crimes Act (involving the applicant inciting MM to perform cunnilingus on IM) (counts four and six).

Ground one: did the trial judge err in finding reasonable notice for the purpose of s 97 of the Evidence Act

1. [7]

   On ground one, the applicant’s narrow contention is that the trial judge erred in law in finding that the tendency notice, served on 13 January 2022, was “reasonable notice” for the purpose of s 97 of the Evidence Act. As that was the applicant’s only objection to the admission of the tendency evidence at trial, the consequence of the trial judge’s finding that reasonable notice had been given was that the Crown was permitted to rely upon the tendency evidence.

2. [8]

   On 27 August 2021 the matter was set down for a 10-day trial to commence on 17 January 2022. The applicant was arraigned on 10 September 2021.

3. [9]

   On 13 January 2022 the Crown served the tendency notice. The tendency evidence sought to be relied upon was explained in the tendency notice as follows:

4. [10]

   The tendency sought to be proved was the applicant’s tendency:

5. [11]

   The Crown then identified a number of common features of the allegations, being that:

6. [12]

   The substance of the tendency evidence was identified as being contained in questions and answers in the JIRT interviews with IM and MM. Those interviews were in any event both proposed to be tendered by the Crown in support of the counts involving the individual complainants.

7. [13]

   The applicant objected to the tendency notice.

8. [14]

   The trial could not commence on 17 January 2022 due to the applicant’s counsel suffering from Covid. Thus, on 17 January 2022 the trial was adjourned to 24 January 2022, but a direction was made that the question of whether the Crown should be permitted to rely upon the tendency evidence be heard on 19 January 2022. No objection was made to that course by either side.

9. [15]

   At that hearing, both parties relied upon written and oral submissions.

10. [16]

    At the hearing on 19 January 2022, the Crown openly accepted that the tendency notice had been served “late”, albeit that there was no reference during submissions to the timeframe within which the tendency notice should have been served. The only explanation the Crown gave for the late service of the tendency notice was that he was the charge certifier back in April 2021 and when it came to his attention on 13 January 2022 that a tendency notice had not been prepared, one was prepared that day. He described the lack of a tendency notice as a “quite glaring omission”. He did not seek to offer any excuses for this. His submission was, however, that:

11. [17]

    The Crown also submitted that the tendency notice did not change the evidence that would be before the jury, but provided:

12. [18]

    The Crown’s submissions addressed both the question of reasonable notice and the admissibility of the evidence.

13. [19]

    The applicant’s written submission was, in essence, that:

14. [20]

    In oral submissions, the applicant’s counsel confirmed that the only issue taken was that the period of notice given, which he accepted was in fact 11 days given the adjournment, was not reasonable. He submitted that in the context of the Early Appropriate Guilty Pleas (EAGP) process, “is four days before trial reasonable notice?” There was then the following exchange:

15. [21]

    When the trial judge put to counsel for the applicant that the trial was in fact unlikely to start until one day in the week starting 24 January 2022, and that this may go “some significant way to assuage the unreasonableness”, he said:

16. [22]

    Given these concessions, the predicate before the trial judge was that the timing of service of the tendency notice had had no practical impact upon the applicant. There was no suggestion of any unfairness, and there was something only a hair’s breadth from a concession that, even if temporal matters alone were considered, reasonable notice had been given if the focus was on the time period between service of the tendency notice and the actual commencement of the adjourned trial.

17. [23]

    The hearing before the trial judge on this issue was conducted on the basis that the question for the Court was whether, notwithstanding what was accepted to be late service of the tendency notice and a “glaring omission”, the requirement of reasonable notice in s 97 of the Evidence Act was met. None of s 99 of the Evidence Act, District Court Rules 1973 (NSW), r 10C, or Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 31.5, which are now relied upon as necessary considerations in any decision under s 97 of the Evidence Act as to whether reasonable notice of a tendency notice has been given, were expressly referred to in submissions.

18. [24]

    In an ex tempore judgment handed down on 19 January 2022, the trial judge ruled that reasonable notice had been given and, as that was the only objection to this evidence, that the tendency evidence should be admitted. In so concluding, the trial judge noted that service of the tendency notice was “late”. Her Honour held that “in a general sense, serving a tendency notice four days before trial arguably is not reasonable notice”. However, in the particular facts and circumstances of the case, such notice had been given. Her Honour relied in particular upon the following:

19. [25]

    The Crown contended before this Court that this was, in effect, an order of the trial judge that reasonable notice had been given for the purposes of s 97 of the Evidence Act. In this regard, the Crown sought to draw a distinction between the trial judge’s decision that reasonable notice for the purposes of s 97 of the Evidence Act had been given, which was an irrevocable free-standing ruling, and a ruling on the admissibility of the tendency evidence, which can be changed in the course of the trial. As regards the latter, it has been held that that is not an interlocutory order or judgment for the purposes of s 5F of the Criminal Appeal Act: see eg R v F [2002] NSWCCA 125; 129 A Crim R 126 at [10] (Wood CJ at CL, Meagher JA and Bell J agreeing).

20. [26]

    There was no interlocutory appeal against the trial judge’s judgment on this issue. The trial started on 25 January 2022, some 12 days after the tendency notice was served. In the course of the trial the jury was directed that it could have regard to tendency reasoning, as specified in the tendency notice.

21. [27]

    Section 97(1) of the Evidence Act provides:

22. [28]

    In R v AC [2018] NSWCCA 130 this Court (Meagher JA, Bellew and Fagan JJ) considered the role and utility of a tendency notice under s 97 of the Evidence Act (in the context of addressing an application under s 100 of the Evidence Act, discussed below). At [23], the Court explained the purpose of the notice requirement in s 97 as being:

23. [29]

    A second and related purpose is:

24. [30]

    A further, overarching, purpose of a tendency notice was highlighted by Gageler J in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [105], namely that it provides procedural fairness to other parties.

25. [31]

    The purposes identified above necessarily inform the proper construction of s 97. Consistent with these, and without intending to be exhaustive, the timing of service of the notice relative to trial, any adverse impact on a party consequent upon the timing of service, the nature and breadth of the evidence relied upon by way of tendency evidence, and whether or not that evidence was already in the brief of evidence or identified as evidence that the Crown may rely upon at trial would be relevant to ascertaining whether reasonable notice under s 97 has been given.

26. [32]

    It was not suggested in this case that any of the purposes identified above were not met. Indeed, whilst not adverted to in terms, I am satisfied that (to the extent relevant) the trial judge’s decision in substance addressed these purposes.

27. [33]

    Section 99 provides:

28. [34]

    The relevant rule of court for the purpose of s 97 is r 10C in Pt 53 of the District Court Rules. This provides:

29. [35]

    Rule 31.5 of the UCPR provides:

30. [36]

    As is clear, the Crown did not comply with r 31.5 in serving the tendency notice.

31. [37]

    Whilst not relied upon by the applicant, the Evidence Regulation 2020 (NSW), reg 5, sets out a number of requirements as to what must be stated in a tendency notice. There is no suggestion in this case that the tendency notice did not meet the requirements of this regulation.

32. [38]

    Section 97 of the Evidence Act was considered by Cavanagh J in R v Russell (No 2) [2022] NSWSC 1793. In that case a tendency notice, which identified a volume of documents spanning some 15 years, had been served eight days prior to the commencement of a trial. Cavanagh J said, at [9], that what may be deemed reasonable notice for the purposes of s 97 depends on the circumstances of the particular case. In finding at [13] that reasonable notice had been given “in all the circumstances”, Cavanagh J relied upon the confined nature of the issues in the case. There is no suggestion whatsoever in R v Russell (No 2) that the question of whether reasonable notice had been given under s 97 had to be determined by reference to any rules of court (in particular, UCPR, r 31.5) made for the purposes of s 97 having regard to the terms of s 99 of the Evidence Act. Similarly, in R v LN (No 1) [2017] NSWSC 119, Johnson J considered, at [70]-[78], whether reasonable notice had been given of a tendency notice without any reference to any rules of court made under s 99 for the purpose of s 97 of the Evidence Act. Moreover, in R v Anderson [2015] NSWSC 1474 at [5], McCallum J (as her Honour then was) described it as a “misapprehension” to suggest that “there is a specific requirement to give 21 days’ notice of an intention to adduce tendency evidence”. Her Honour added:

33. [39]

    Section 100 of the Evidence Act gives the court a discretion, on application of a party under that section, to direct that the tendency rule is not to apply to particular tendency evidence despite a failure to give notice under s 97.

34. [40]

    The applicant’s contention as to error is premised upon two underlying submissions.

35. [41]

    First, he submits that the trial judge erred in finding that reasonable notice had been given for the purpose of s 97 of the Evidence Act in this case, where the tendency notice was not served until some four days before the trial had been listed to commence. Whilst he accepts that whether or not notice is reasonable for the purposes of s 97 depends not just upon temporal matters but also upon the circumstances of the case more generally, and that by the time of the trial judge’s decision the only step in the trial that had been taken was that he had been arraigned and the trial had been adjourned to commence on 24 January 2022 at the earliest, he says that the period of notice in this case was simply too short to be reasonable notice under s 97.

36. [42]

    This contention should be rejected. Having regard to the purposes of the reasonable notice requirement in s 97 of the Evidence Act, I agree with the trial judge that reasonable notice of the Crown’s intention to rely upon tendency evidence was given. There was no suggestion whatsoever that the late service of the tendency notice caused any prejudice or unfairness to the applicant, indeed the applicant’s counsel conceded as much in his submissions before the trial judge. Further, by the time the trial judge determined the issue, it was clear that the applicant would have some 11 days’ notice of the tendency sought to be proved, and the circumstances and conduct relied on to establish it. In circumstances where there was no new evidence relied upon to establish the tendency, the purposes of the reasonable notice requirement in s 97 had been met. Contrary to the applicant’s contention, that is so irrespective of the probative force of tendency reasoning on the facts of this case.

37. [43]

    Second, he submits that a court is obliged to consider the question of reasonable notice under s 97 having regard to the terms of s 99 of the Evidence Act and UCPR, r 31.5. In substance, his submission was that the fact or extent of non-compliance with UCPR, r 31.5, was a mandatory relevant consideration when determining whether reasonable notice had been provided under s 97. The applicant submits that the trial judge erred in failing in her reasons for decision to refer to s 99 of the Evidence Act and UCPR, r 31.5, albeit that those matters were not drawn to the trial judge’s attention by either party, because they were matters that her Honour was bound, as a matter of jurisdiction, to consider. He contends that, as a matter of law s 99 of the Evidence Act and the relevant rules of court made under s 99, condition the power of the court to find under s 97 that reasonable notice has been given. Whilst he puts this as a constructive failure to exercise jurisdiction falling within the principle recognised in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [23]–[27] (Gummow and Callinan JJ) that principle is of doubtful relevance in this case given that the complaint here is not a failure to respond to a substantial, clearly articulated argument. Rather, the applicant’s contention is more aptly characterised as being that the trial judge’s decision is affected by jurisdictional error because she failed to have regard to a mandatory, relevant consideration within the principle identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40, 44; [1962] HCA 40.

38. [44]

    The contention falls at the first hurdle because the trial judge expressly said, during argument, that she understood the applicant’s contention as being that:

39. [45]

    That shows that the trial judge was well aware of, and considered, the “notice requirements”, which in context must have been a reference to UCPR, r 31.5. On this basis, the contention that the trial judge failed to consider those notice requirements, and the fact (and presumably extent) of non-compliance, must fail. Whilst the trial judge did not refer to the notice requirements in her reasons, this does not mean that she did not consider them. Moreover, these requirements must be taken to have underpinned the notion of “late service” of the tendency notice, which her Honour referred to in her reasons for decision when explaining the Crown’s submission. In R v Reardon [2002] NSWCCA 203, at [31], Hodgson JA (Simpson and Barr JJ agreeing) said in relation to the requirements of s 192 of the Evidence Act that “[t]o require a bald incantation of regard to the section or to the items referred to would be to promote an empty formality”. The applicant’s contention that, in effect, a judge must expressly refer to the requirements of UCPR, r 31.5, in his or her reasons for decision, suffers from the same flaw.

40. [46]

    In any event, the applicant’s contention as to error would have failed as a matter of statutory construction having regard, as is conventional, to the text, context and purpose of s 97: see eg Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]; recently described as “the required approach” to statutory construction: Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd [2025] HCA 23 at [34] (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ). Here, it is necessary to focus upon text and purpose, no contextual material having been put before the Court.

41. [47]

    Starting with text, there is nothing in s 97 which suggests that the question whether, as a matter of timing, reasonable notice of an intention to adduce tendency evidence has been given must be determined by reference to the fact or extent of non-compliance with any regulations or rules of court made under s 99. To the contrary, s 97 suggests (as was held by McCallum J in R v Anderson) that the question of whether or not a tendency notice is reasonable is one to be evaluated by the Court, having regard to the purpose of s 97 in the context of the Evidence Act as a whole. Had it been Parliament’s intention that the Court had to consider non-compliance with the requirements of regulations or rules of court when determining whether reasonable notice had been given for the purpose of s 97, Parliament could readily have said so. Equally, had Parliament intended that the evaluation of whether reasonable notice has been given for the purpose of s 97 should be constrained by any regulations or rules of court made under s 99, Parliament could readily have made s 97 “subject to” such rules or requirements.

42. [48]

    Consistent with this, albeit having regard to alleged defects in the form of a tendency notice, in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [84], the question of compliance with s 97(1)(a) of the Evidence Act was determined without reference to the regulations made for the purpose of s 97 (in that case, the Evidence Regulations 2009 (Vic), reg 7).

43. [49]

    Similarly, there is nothing in s 99 which supports the applicant’s contention. Section 99 simply says that notices must comply with regulations or rules of court made for the purposes of s 99. That does not suggest that the fact or extent of non-compliance with any such regulations or rules of court must be taken into account when determining whether the notice in fact given was reasonable for the purposes of s 97.

44. [50]

    In this regard, it should be observed that in s 97(2)(a), Parliament provided that:

45. [51]

    It is clear from this that, where it intended to do so, Parliament included provision as to how other provisions in the Evidence Act impacted upon the task for the court under s 97. The fact that no such provision was made as regards regulations or rules of court made under s 99 stands against the construction propounded by the applicant.

46. [52]

    Turning to purpose, the purpose underlying s 97, as discussed above, is not served by requiring the Court to have regard to the fact or extent of non-compliance with the requirements of any regulations or rules of court made under s 99 when evaluating whether reasonable notice has been provided. Rather, the aims of ensuring that procedural fairness is given, that parties have a reasonable opportunity to address and respond to a tendency notice and that attention is directed to the tendency sought to be proved and the circumstances and conduct relied on to establish it, suggest that the question whether a tendency notice gives reasonable notice should be determined by reference to all of the relevant circumstances before the court at the relevant time.

47. [53]

    As for the purpose of s 99, it is readily understandable why Parliament may have wanted to provide for regulations or rules of court to set out how notices under ss 97 and 98 of the Evidence Act are to be given, and such regulations or rules might well cover matters such as the form of a notice, how and upon whom it is to be served, the content and also, as with UCPR, r 31.5, timing. There is nothing in either ss 97 or 98 going to such matters. A notice which fully complied with any relevant regulations or rules of court might be argued, on that basis alone, to be reasonable: see eg Katzmann J in Moroccanoil Israel Ltd v Aldi Foods Pty Ltd [2017] FCA 823 at [114] (overturned on other grounds: Aldi Food Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93); see also R v AC at [5]. Indeed, ordinarily (although cases where this would not be so may well arise) it is likely that a tendency notice which fully complied with the time periods set out in UCPR, r 31.5, would meet the requirement of reasonableness in s 97 from the standpoint of timing alone. In practice, that would confer real practical advantages upon parties in criminal proceedings and promote the efficient administration of justice.

48. [54]

    That does not, however, suggest that Parliament intended that a court must take into account the fact or extent of non-compliance with any regulations or rules of court made under s 99 in evaluating all the circumstances of the case to determine whether reasonable notice has been given for the purposes of ss 97 and 98. That is, of course, not to say that a court might not, in an appropriate case, rely upon non-compliance with the Evidence Regulation, reg 5, or UCPR, r 31.5, in support of a conclusion that reasonable notice had not been given: see eg R v AN [2000] NSWCCA 372; 117 Crim R 176 at [62] (Kirby J, Priestley JA and Greg James J agreeing).

49. [55]

    Having regard to the matters set out above, the applicant’s contention should be rejected. In a case such as the present, where the Crown does not seek positively to rely upon compliance with UCPR, r 31.5, and where the lateness of the tendency notice was accepted by the Crown and taken into account by the trial judge, the trial judge did not err in not making any express reference in her reasons to the terms of s 99 of the Evidence Act or UCPR, r 31.5.

50. [56]

    In these circumstances, it is unnecessary to address the Crown’s further contention that her Honour should be taken to have “otherwise ordered” for the purposes of UCPR, r 31.5.

51. [57]

    Ground one should be rejected.

Ground two: is the sentence manifestly excessive

1. [58]

   As already noted, the sentencing judge imposed a head sentence of 23 years and a non-parole period of 16 years and 6 months. Her Honour nominated indicative sentences as follows:

   1. (1)

      count one – 10 years with a non-parole period of 7 years;

   2. (2)

      count two – 14 years with a non-parole period of 10 years;

   3. (3)

      count three – 16 years with a non-parole period of 12 years;

   4. (4)

      count four – 13 years and 6 months with a non-parole period of 9 years and 6 months;

   5. (5)

      count five – 11 years with a non-parole period of 8 years; and

   6. (6)

      count six – 11 years with a non-parole period of 8 years and 6 months.

2. [59]

   As is apparent, there was significant aggregation.

3. [60]

   Whilst the applicant accepts that there is no appeal against an indicative sentence: JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40] (R A Hulme J, Hoeben CJ at CL and Adamson J agreeing); Evans v R [2017] NSWCCA 281 at [41] (Adamson J, Hoeben CJ at CL and Davies J agreeing), relying upon the judgment of Walton J (Davies J agreeing) in Kelly v R [2023] NSWCCA 104 at [43], he contends that all of the indicative sentences, but particularly that for counts one, five and six, were manifestly excessive. He submits that this reveals why the aggregate sentence is manifestly excessive having regard to the purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. [61]

   There was no dispute between the parties as to the background facts relevant to sentencing. By way of background, the applicant was sentenced on the basis that, at the time of the offending, MM was four years of age and IM was aged six.

5. [62]

   The conduct the subject of count one occurred during the evening when everyone in the house was asleep. IM was laying down on a lounge in the loungeroom and as she was falling asleep, she heard the applicant say, “Wake up, wake up.” The applicant was sitting beside her. He pulled down her clothing. She pulled them back up however he pulled them back down again. He performed oral sex on her. She said to him, “Please stop” however the applicant told her to shut up and persisted. There was no credible or reliable evidence as to how long this episode lasted.

6. [63]

   The conduct the subject of count two occurred on the same evening, after the events the subject of count one. The applicant told IM to perform oral sex on him but she said “no”. He then told her to do it and he twice threatened that he would kill her. She did what he had told her to do. She told him she was tired but he told her to keep doing it and to use her whole mouth. She started to choke but he told her to keep doing it. This episode, potentially encompassing also count one, lasted for about ten minutes until he said “Finished”. The applicant’s threat to kill IM was characterised as having forced her to perform the oral sex.

7. [64]

   Count three involved the applicant telling IM to perform oral sex on MM and when she said “no”, he said “Otherwise I’ll kill you”. She then did so. The applicant then told MM to tell IM to pull down her pants. She did so. The applicant told IM to lay on the floor, which she did, and MM then performed oral sex on IM. This was count four. On another occasion the applicant yelled several times at MM to perform oral sex on IM and the applicant pulled down IM’s pants and underwear. MM then did what the applicant had told him to. This was count five. After this occurred, the applicant told IM to perform oral sex on MM. The applicant pulled down MM’s pants and underwear and IM did what he had told her to do. This was count six.

8. [65]

   IM and MM reported this to their biological father in early January 2020. On the same day they told their mother what had occurred, and it was reported to the police later that month.

9. [66]

   At all relevant times, the applicant resided with the victims and was entrusted with their care, often being left alone and in a supervisory role with them. A further fact agreed between the parties was that the applicant had engaged in similar conduct on at least another occasion, as MM had said that “it happened over 3 or 4 months”, and “several times” meaning “more than once”, and IM had said that “it happened six more times” and “it’s happened two times”. It was agreed between the parties that this eliminated any finding that the conduct was isolated, spontaneous or otherwise out of character for the applicant.

10. [67]

    The applicant had a history of offending. When he was aged 19 he was sentenced as a juvenile for ten offences in Queensland, committed on unknown dates, involving:

    1. (1)

       Two charges of carnal knowledge against the order of nature with circumstances of aggravation, for which he received a recorded conviction of each charge and three years’ probation; and

    2. (2)

       One charge of wilfully expose a child under the age of 12 to an indecent video tape with circumstances of aggravation and seven charges of indecent dealing with a child under the age of 12 years with circumstances of aggravation, for which in aggregate, he received a recorded conviction of each charge and two years’ probation pursuant to s 132 of the Juvenile Justice Act 1992 (Qld) to be served concurrently.

11. [68]

    The charges in (1) involved carnal knowledge by anal intercourse with a child aged eight with whom the applicant was living in the victim’s family home.

12. [69]

    The applicant’s criminal history also involved a number of offences in New South Wales for driving with a prescribed content of alcohol, a 2-year community corrections order (CCO) imposed on 17 October 2019 for two charges of common assault, which the applicant breached on 8 December 2019, resulting in a fine of $500 for contravening a CCO. He also had been fined for offences of destroy or damage property in 2019 and an offence of stalk/intimidate and intend fear of physical/mental harm in 2012.

13. [70]

    As would be expected, the victim impact statements emphasised the trauma that both the victims and their family endured following the offences. IM has suffered from anxiety, confusion, sleepless nights and countless nightmares. Her emotional state and behaviour have been significantly affected. MM’s behaviour has also been impacted and now suffers from fits of rage and struggles with feelings of paranoia and a lack of self-worth.

14. [71]

    Although the age of the victim is an element of each offence, in assessing the objective seriousness of the offences, the sentencing judge took into account where the ages of the victims sat within the range of ages specified in the offence. It is not contended that her Honour erred in doing so.

15. [72]

    As to count one, the sentencing judge found that this was at the mid-range for this kind of offending. Her Honour found that the offence was founded upon sexual gratification and that the offending was aggravated by the applicant’s persistence in the face of IM’s protestations and the age gap between the applicant and the victim. In respect of count two, having regard to the two threats to kill her and the applicant’s persistence notwithstanding that IM was choking, the sentencing judge found this to be well above the mid-range and towards the lower end of the high range of objective seriousness. In assessing the objective seriousness of each of counts three to six, the sentencing judge took into account the high degree of humiliation that the victims would have suffered. Count three was assessed to be more objectively serious than count two, involving a threat to kill, two children under 10, and being committed for sexual gratification, and her Honour found that it was “towards if not at the lower end of the high range”. Count four was found to be just below the lower end of the high range and definitely well above the mid-range having regard to the circumstances and the logical inference that MM had heard the threat to kill IM. Count five was at the high end of the mid-range of objective seriousness. Count six was also at the high end of the mid-range. As to both counts five and six, the sentencing judge took into account that the applicant repeatedly yelled at MM commanding him to have oral sex with IM when perpetrating count five and immediately before count six, the offending was for sexual gratification and that the applicant was in a position of authority over the victims and their mother was not at home.

16. [73]

    It was not contended that the sentencing judge erred in her assessment of objective seriousness.

17. [74]

    The applicant relied upon a psychological report of Dr Sidhu. The applicant reported to Dr Sidhu that he may have been sexually abused when he was four years old by his aunt and uncle when he and his brother stayed with them over weekends, however he could not confirm this with certainty as he was unable to remember the events. The applicant said that he could “remember bits and pieces” but that the memories were fleeting and fragmented. All he recalled was that he and his brother had regularly stayed with his aunt and uncle on weekends and neither his brother nor parents have ever spoken about why they all of a sudden stopped staying with them. Dr Sidhu’s report records that the applicant “did not endorse any symptoms consistent with features of post-traumatic stress disorder” and “denied any symptoms consistent with psychosis or mania”.

18. [75]

    The applicant reported problematic alcohol consumption in 2020 with him drinking one and a half cartons of beer daily. He described feeling jittery if he did not drink first thing in the morning and being dependent on alcohol. This coincided with the breakdown of his relationship with the victims’ mother. The applicant also reported attempting suicide, but stopping himself, following the breakdown of an earlier relationship in 2009.

19. [76]

    The applicant denied having any juvenile offending history to Dr Sidhu, who was only provided with the applicant’s New South Wales history. The applicant told Dr Sidhu that he had been charged but never sentenced in relation to his juvenile Queensland offending. That was not true.

20. [77]

    Dr Sidhu conducted a dynamic risk assessment using a “Risk of Sexual Violence Protocol” assessment. Dr Sidhu had not been informed of the applicant’s conviction of the subject offences, but in any event conducted the risk assessment on the assumption of a not guilty plea but a finding of guilty. On that basis, the applicant was assessed as being at a moderate risk of sexual reoffending. The sentencing judge found that this assessment was of limited value as the Queensland convictions had not been provided to Dr Sidhu and that it was concerning that the applicant did not inform Dr Sidhu of his conviction for the subject offences. She thus approached Dr Sidhu’s risk assessment with “extreme caution”. The sentencing judge found that the applicant’s extreme minimisation and denial, and his reversion to alcohol and failure to use appropriate coping mechanisms, were risk factors.

21. [78]

    The sentencing judge found that there was little other than the applicant’s long history of work that pointed to good prospects of rehabilitation, although the strong family support he seems to have had and his continued connection with his children and siblings were also of note. Her Honour was ultimately guarded with respect to the applicant’s prospects of rehabilitation.

22. [79]

    The sentencing judge found a number of aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act. First, counts two and three, which were separate and distinct events that occurred some time apart and to different victims, involved threats of violence to the victims. Secondly, the applicant had a record of previous convictions, albeit that the previous offence of sexual misconduct was committed whilst he was a juvenile. Thirdly, each of the offences were committed in the victims’ home, a place where they were entitled to feel safe and protected. Fourthly, the applicant abused a position of trust and authority in relation to both victims as he was their de facto stepfather and caring for them in their mother’s absence. Fifthly, in relation to counts three to six, the offences involved multiple victims. Finally, both victims were vulnerable due to them being very young for the purposes of s 21A(2)(l).

23. [80]

    In the absence of a psychological report in relation to the victims, the sentencing judge did not make a finding that the offending was aggravated by the fact that substantial emotional harm was caused pursuant to s 21A(2)(g). However, the sentencing judge took judicial notice of the trauma experienced by sexually abused children. The sentencing judge also found that the offending was mitigated by the fact that there was no evidence that any physical injury was sustained (pursuant to s 21A(3)(a)) and that the offending was not part of a planned or organised criminal activity (pursuant to s 21A(3)(b)), noting that the offending was opportunistic in nature.

24. [81]

    Dr Sidhu’s report records that the applicant continued to deny the offences and that he believed all the charges were fabricated, including his juvenile sexual offence, and the sentencing judge noted this as a clear risk factor. Her Honour observed that no finding of remorse could be made.

25. [82]

    The sentencing judge found special circumstances and adjusted the statutory ratio on the basis that the applicant would require a lengthy period of time on parole to assist him to reintegrate into the community after a lengthy amount of time in custody and due to the effect of Covid protocols on those in custody. The sentencing judge also made a minor finding of special circumstances to reflect the fact that it was the applicant’s first time in custody beyond the one to two days he was held in custody following the breach of the CCO.

26. [83]

    The sentencing judge observed that, having regard to the principle of totality, the aggregate sentence represented only a small percentage of the indicative terms. Her Honour also noted that she had reviewed the overall aggregate sentence so as to ensure it represented the minimal period required for such serious offending while not crushing any prospects of rehabilitation.

27. [84]

    The sentencing judge had regard to the fact that the offending occurred on three discrete encounters, supporting a significant degree of concurrency. The aggregate sentence imposed represented only a small percentage of the sum of the indicative terms.

28. [85]

    The relevant principles applicable when a sentence is said to be manifestly excessive have been re-stated by this Court on many occasions. On an appeal based on manifest excess the applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). As summarised by the Chief Justice in Kelly v R at [13] by reference to the judgment of R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], there are well-established limitations upon the ambit of appellate intervention on the grounds that a sentence is manifestly excessive:

29. [86]

    Even where an indicative sentence is assessed as being manifestly excessive, it does not necessarily follow that an aggregate sentence is manifestly excessive. The relevant question in that circumstance will be whether the aggregate sentence reflects the totality of the criminality involved: Jackson v R [2021] NSWCCA 15 at [116] (Price J, Hoeben CJ at CL and Fagan J agreeing); JM v R at [39]-[40] (RA Hulme J, Hoeben CJ at CL and Adamson J agreeing).

30. [87]

    In the present case, neither the indicative sentences, nor the aggregate sentence imposed, were manifestly excessive given the six offences of which the applicant was convicted. Child sex offences are well known to be of the utmost seriousness. In the present case, the nature of the offending, including the very young age of the children (which is one of the elements of the offence), the threats to kill IM which were made in the course of some of the offending, the abuse of trust and the inciting of sexual intercourse between young siblings, and the other material before the sentencing judge, plainly support the sentences imposed.

31. [88]

    It follows that ground two should be rejected.

32. [89]

    The orders of the Court should be:

    1. (1)

       An extension of time for filing an application for leave to appeal, and leave to appeal, are granted.

    2. (2)

       The appeal is dismissed.

33. [90]

    McHUGH JA: I agree with Stern JA.

34. [91]

    GARLING J: I agree with the orders proposed by Stern JA for the reasons which her Honour gives.