R v AD

HOEBEN CJ at CL: This is an appeal by the Director of Public Prosecutions (DPP) pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on the respondent by her Honour Judge Flannery SC (the trial judge) at the Sydney District Court on 15 May 2020.

The respondent was found guilty by a jury after a six week trial. The jury found the respondent guilty of 22 sexual offences, committed between 1978 and 1987, against eight victims. He was the uncle of five of the victims and the cousin of three of the victims. The evidence established that he was their elder, a position which carried certain responsibilities. The victims were aged between six and fourteen years of age.

On 15 May 2020, the trial judge imposed an aggregate sentence of 14 years to date from 22 November 2017 and to expire on 21 November 2031 with a non-parole period of 8 years to date from 22 November 2017 and to expire on 21 November 2025 (57 per cent of the head sentence).

On 15 May 2020 the respondent was notified that a Crown appeal was being considered. The Notice of Appeal, relying on the sole ground of manifest inadequacy, was signed by the Deputy Director of Public Prosecutions on 11 June 2020. It was lodged that day and served on the respondent in custody on the following day.

KJK gave evidence in the trial when he was aged 50. Counts 1 – 3 occurred when he was aged eight or nine years in 1978. They occurred in the respondent’s home in Barbers Lane when the respondent was looking after KJK and his siblings because their parents were working.

Counts 1 and 2 occurred when KJK was eating some biscuits that were on a bench. The respondent’s brother’s partner, June, was angry that the biscuits had gone and told the respondent about the biscuits. The respondent yelled and called KJK “a stupid little c---.” RD (the respondent’s brother) and June left the house.

KJK was taken by the respondent into a room and the door was locked. He was not sure whether something was pushed up against the door or a knife was put in between the beams.

The respondent told him to take off his clothes. The respondent put him on a box or a bench table and then he pushed him against the wall and tried to put his penis in KJK’s mouth. KJK was crying. The respondent slapped and swore at him. He told him to shut up. The respondent’s penis was erect and that was something KJK had not seen before. The respondent then forced his penis into KJK’s mouth (Count 1 – indecent assault). KJK tried to move his head to get away from him but the respondent was holding his head, so he could not move. That happened for a few minutes, during which KJK was crying.

KJK was sitting on the box or bench table up against the wall when the respondent lifted his legs up and put his penis into his anus (Count 2 – buggery). KJK felt pain in his anus when that occurred. The respondent ejaculated on his stomach which was something that he had not seen before. KJK was “horrified, terrified. I didn't know what was going on”.

The respondent told him that if he did not shut up “he would tell my mum and dad that I was stealing from him”. KJK believed this threat and he did not say anything because he would get into trouble from his father.

KJK said it happened at other times, many times. He said that “I can’t say how many times. I know it was a lot” and it would happen virtually every time he went to Barbers Lane.

On another occasion, the respondent put his penis into KJK’s anus (Count 3 –buggery). That was a time KJK could distinguish because RD and June came back into the house and the respondent was flogging him. The respondent was swearing and telling him to shut up and then RD and June came to the door and the respondent told them that KJK was “mucking up again”.

Counts 1 – 3 were not isolated. Similar events would occur virtually every time the respondent had the opportunity. After the occurrence of Counts 1 and 2, KJK started to wet himself. He also needed to go to the doctor about his anus.

The respondent was KJK’s uncle, his mother’s youngest brother. KJK said “Spiritually, in my culture, we, from day dot, we’re taught to respect our elders. It’s a, you know, they’re treated like God to us, and we just, yeah, we just, we’ve got a, it’s just about respect when it comes to elders in our tradition”. (This was a reference to the Aboriginality of the respondent and all of his victims.)

The respondent was in a position of trust as an uncle and a position of authority as an elder. At the time of Counts 1 – 3, KJK was in the care of the respondent.

KJK did not complain because he was frightened and “[b]ecause, as I said before, in our culture you grow up respecting your elders”. He explained that he tried to block things out, he tried to push it away so he could deal with it.

Count 4 involved the respondent lying on top of RS and telling her that he was going to rape her. RS was one of ten children. She lived on the Bowraville Mission with her mother. Her mother “was a good mum but then she started drinking a lot and started smoking the weed”. For a period of time RS went to Stuarts Point School and lived in the Barbers Lane farmhouse with the respondent, RD, and June.

The respondent was a nephew of RS’s mother. RS looked up to the respondent and RD as brothers, first cousins and she respected them as elders. That meant that she had to listen to them and do what they told her to do.

When RS was aged 11, she had been watching TV in the lounge room when she got roused on by the respondent. She went into her bedroom and she climbed up onto the top bunk. She lay on her stomach and then the respondent came into the room and climbed onto the top of the bunk and lay on top of her.

Her arms were folded under her chest and she was lying with her stomach touching the mattress. The respondent’s head was in line with her head and then the respondent whispered really softly in [her] left ear “I’m going to rape you”. RS froze and thought that he was going to “have, like, something like sex” (Count 4). She froze and could not move and the next thing she remembered happening was the door opened and RD and June came into the room and that was when the respondent got off her (Count 4 – indecent assault).

RS said that she did not tell anybody about what had happened to her on the bunk bed. She said it was because she felt shame and just kept it to herself and did not want to tell anyone. She had not told anyone until she told her twin sister in 2000.

MJ is the younger sister of RS. Towards the end of 1976 or 1977, her mother and siblings returned from Townsville to Bowraville. She did not know her biological father. She was one of ten children. The family lived on the mission. Her mother left the kids with other people and her mother drank a lot. Her mother lived a nomadic lifestyle.

Her mother left the four sisters with their cousins at the Barbers Lane farmhouse for a period in 1978. She was eight years old. The respondent was like a brother to her. He was supposed to look after her. He was the authority figure and was like her parent at the time. He was her guardian and a person that her mother trusted.

When she was walking from the farmhouse, the respondent grabbed her and pulled her into his room. He put her on the bed and he started lying on top of her. Her legs were hanging over the bed, he started rubbing up and down like he was having sex and he was touching her down near her vagina area. The respondent’s hand was, firstly, on top of her clothing, then he ended up putting his hand inside her underpants. Then he started putting his fingers inside her vagina (Count 5 – indecent assault).

A girl came to the door and was told to go away. Then the respondent locked the door. The respondent unbuttoned his overalls and pulled out his penis. He lay on top of her, lifted her legs up and put his penis inside her vagina (Count 6 – carnal knowledge). After the respondent removed his penis from her vagina, she felt stuff coming down her leg. She sat up and he gave her a towel and told her to wipe herself and go to the toilet. When she went to the toilet she saw blood. There was blood on her legs. Her vagina hurt, as did her legs and her hip, as well. At the time, she did not know what the wet stuff was between her legs.

There was evidence that this was not an isolated incident. There were times when they were swimming in the river that the respondent would “[r]ub you up” and “[h]e'd be touching you under the water”.

The respondent told MJ not to tell anyone and “he always threatened us”. She understood that she was not allowed to tell anybody about what he was doing to her and her words were “[h]e would bash me. If he didn't bash me he’d bash my sister, [PS], or else he’d kill me or kill her if I told anyone”. She believed him when he said that.

MJ gave evidence about trying to tell her mother when she was aged about 12. Her mother told her to “[s]hut up and that I was lying and she punched me in the mouth”. MJ said that after that happened, she was very scared and she did not say anything.

MJ gave evidence that she was supposed to protect her sister (PS). She blamed herself for failing to do so. She said “I didn’t know then but I know now. I feel very ashamed”. She said “[i]t’s hard to talk about everything, like, what happened. I don’t want to be here. I don’t want to talk about it”.

PS is the younger sister of MJ and RS and she was aged six or seven at the time that they were at Barbers Lane.

PS said that when the family lived in Bowraville, her mother was drinking alcohol, gambling and partied all the time. The children were left with different relatives. PS looked up to the respondent and RD because they were the strong males in the family and they were trusted.

PS said that at Barbers Lane they were treated as “slaves” and that they were “belted every day”. PS was down at the vegetable garden when the respondent called her away from the group and they went away so no one else could hear them. He said to her “[d]o you want a hiding or a punch up the c---?”. She did not want to get a hiding so she said “[y]eah, I’ll do the other thing” because she did not know what that was.

The respondent asked her to play a touch and feel game. He got her to close her eyes and he wrapped his scarf around her eyes so she was wearing a blindfold. He then told her to get on her knees. She did not know why she had to do this so she started getting really frightened. The respondent asked her to put her hands out. When she put her hands out, she was still blindfolded and he put something in her hands which was soft. She subsequently realised that this was his penis. The respondent’s penis got hard and he guided her hands down to his testicles. During all this time he was moaning and groaning. PS was kneeling and blindfolded. The respondent placed PS’s hands on his penis (Count 9 – indecent assault).

The respondent then grabbed the back of PS’s head by her hair and tilted her head back. He was trying to open her mouth to put his penis in her mouth. She had her teeth clenched while the respondent was holding her jaw and trying to open her mouth to put his penis inside it (Count 10 – indecent assault).

As the respondent was trying to get her mouth open, she bit down. She did not know whether she bit his finger or his penis. He yelled out and swore and pushed her back down to the ground. He held her hands and slapped her.

The respondent guided PS’s hand while she was still kneeling wearing a blindfold. He was moving her hands with his hands and she could hear his hands moving. He was trying to open her vagina with his fingers and was moaning and groaning and guiding her hands down to his penis. He was masturbating his penis (Count 11 – indecent assault).

PS was really frightened. The respondent could not get her pants off because she was moving and kicking too much. The respondent was bigger than her and she was kicking and yelling and she started screaming. When she did that he slapped her more. He slapped her and then settled in between her legs and let go of her hands to take off her pants fully. He spread her legs wider and he was trying to open her vagina. He then put his fingers inside her vagina (Count 12 – indecent assault).

The respondent was spreading PS’s legs more and more. She was stunned from the hits she had received. She was seeing stars. She was crying and could feel his penis on her thigh and groin. She then felt immense pressure and pain when he put his penis inside her vagina (Count 13 – carnal knowledge). She yelled out and he hit her. She felt burning, stinging and pain. The respondent started moving in and out. PS had the blindfold on the whole time and was lying there in fear.

The respondent told her not to say anything to anyone because no one would believe her. He said that he would bash her brother and would hurt her other sisters. PS went into the house and had a shower. She was bruised, shaking and crying. She cleaned herself up because she did not know what else to do. PS was bleeding and had pain in her vagina area. She believed that the respondent would bash her brother because the respondent was one of the strong males in the family. Everyone listened to them or they would be bashed.

PS gave evidence that the first time that she told anyone about what happened was when she made her statement in 2010 to a detective.

RK was in year 3 in 1979. RK is the brother of KJK, TD and MT. He was aged nine. The respondent was in custody from 19 July 1978 until 7 September 1979. The count involving RK happened in the period 8 September 1979 to 31 December 1979 when the respondent was on parole.

On an occasion during that period RK opened the front door to his family home in Kempsey and went into the house to change out of his school clothes. He went towards the toilet area when he heard footsteps behind him. He turned and saw the respondent coming towards him.

The respondent put one hand over RK’s mouth and used the other hand to push RK into the bathroom. The respondent locked the door. The respondent pushed RK to the tiled bathroom floor. The respondent pulled down RK’s pants and pushed his penis into RK’s anus (Count 14 – buggery). RK felt a very sore feeling and was crying at the time. He gave evidence: “[i]t was horrible, it was terrible and he did not care about what was happening to me”. The respondent only stopped when there was a knock at the front door.

RK gave evidence that he had tears rolling down his cheeks and face and he was frightened for his father because the applicant had threatened to hurt him if RK said anything about what had happened. After it was over, RK pulled up his pants and then noticed that there was blood on his underwear.

TD is the sister of KJK, RK and MT. Counts 15 and 16 were in respect of one incident which occurred between 1978 and 1981, when she was aged six, seven or eight. She was with her parents and her siblings at Macksville during the holidays. She was playing with her cousins in the backyard. When she came into the kitchen to go to the bathroom, the respondent grabbed her from behind and took her into another room. The respondent had his hand over her mouth. He was holding her really tightly, so she could not move. He put a knife into the door so as to lock the door. He pushed her down so that she was lying with her back on a bed. The respondent pulled her shorts and underpants off and started to use his finger to open her vagina. The respondent rubbed his finger up and down her vagina (Count 15 – indecent assault).

TD saw the respondent pull out his penis. He was rubbing it up and down her. The respondent placed his penis onto her vagina and went inside her so that the lips of her vagina were penetrated (Count 16 – carnal knowledge). She saw “white stuff coming out”. At that time, she did not know what the white stuff was. The respondent told her not to say anything.

TD gave evidence that when she walked to the door, she was walking in a funny way. She was wobbling because her vagina was stinging. She noticed that her vagina hurt when she had a bath that night.

The respondent was TD’s mother’s brother. TD gave evidence that she had a lot of respect and trust for the respondent and that he was supposed to protect her. TD gave evidence that she respected the respondent as an elder.

CD is the daughter of LD, who is the sister of the respondent. CD is deaf and illiterate. She first obtained a hearing aid when she was 12 or 13. She viewed the respondent as a father figure because she did not have a father. She respected the respondent as an elder. She had to obey what elders said and if she did not do so she would get into trouble. The respondent lived with her in her house. Her mother lived between two houses. When her mother was not living with CD, CD was with her uncle or on her own.

When CD was aged six or seven, she went camping with her relatives and the respondent. Because it was starting to get cold, she and others were sent out to collect firewood. While she was doing this, the respondent approached her and told her to lie down. The respondent then stretched her swimming costume with his hands and put his penis into her vagina (Count 18 – sexual assault). The respondent told CD not to say anything. She obeyed because he was her elder. After that incident, CD felt wet between her legs. Before she jumped into the water she noticed that she had white stuff in between her legs.

Counts 19 and 20 were part of the same incident which occurred in CD’s home in Macksville when she was aged eight.

Her sister, VD, and her brother and cousins were at home and it was a time when her “pop”, KD Senior, and her mother had gone shopping. She had finished school for the day and the respondent was the only adult in the house.

During a game of hide and seek, she went with her sister into a back room. They hid in a cupboard, her sister on one side and she on the other.

The respondent came in and opened her door first. The respondent said “[d]on’t make a noise”. The respondent told her sister to leave. The respondent then locked the door behind him and told CD to lie down on the bed. The respondent put his finger in her vagina, stopped for a while, then he pulled it out (Count 19 – sexual assault). CD sat up and pulled her pants up.

The respondent told her that he wanted to try something else. He described it as “our game”. He pulled his pants down and placed his penis into her mouth (Count 20 – sexual assault). The head part of the respondent’s penis went into her mouth and the respondent had his hand behind her head. After this happened, she washed her mouth out with soap and was crying.

Counts 18 – 20 were not isolated. CD gave evidence of other times that the respondent would come into her room and get into her bed in her home. The reason she did not tell anyone was that she felt ashamed, embarrassed and did not want her partner to look at her differently.

MT was the eldest girl in the K family. She lived with her grandmother on the Bellbrook reserve at Kempsey. She is the sister of KJK, RK and TD.

The respondent is her mother’s brother. That meant that he was supposed to be a father figure to her as well. She viewed him as a father figure and respected him. When she was a child, she was taught to obey him.

Counts 21 to 25 occurred on the same day. MT was aged 14 and this event occurred in the school holidays in 1982. She was at home, playing hide and seek with the respondent when there were no other children around. When she went to hide, the respondent came over to her and said “[b]oo, I found you”. The next thing was that the respondent walked into the room and put a knife into the door. He said to MT “[i]f you don’t be quiet, I am going to use that knife”.

The respondent pushed her onto the bed. She was scared, intimidated and feared for her life. Her shorts were taken off by the respondent and then he put his finger into her vagina. He put one finger in and then he put two fingers in (Count 21 – sexual assault). She was crying, telling him to stop but he would not. The respondent had sharp nails that hurt her vagina. She kept telling him it was hurting but he continued to get rougher and rougher.

The respondent then put his penis into MT’s vagina (Count 22 – sexual assault). The respondent turned her over and told her to get on her knees. The respondent put his penis into her vagina (Count 23 – sexual assault) and she continued to tell him to stop but he would not. The respondent told her to turn over. While she was lying on her back, the respondent put his penis in and kept on thrusting his body up and down (Count 24 – sexual assault).

The respondent put his penis in MT’s mouth (Count 25 – sexual assault). The respondent ejaculated in her mouth. Her evidence was that this made her sick and she wanted to vomit. The respondent threatened MT by saying “[i]f you ever open your mouth or saying anything to anyone, I will hurt your grandmother. I’ll kill your grandmother”. MT took notice of that threat because she had grown up with her grandmother. This was not an isolated incident. There were other times where things happened but she could not specifically differentiate them. She could particularise Counts 21 – 25 because of the threat to use the knife.

The following matters were placed before her Honour:

The respondent did not give evidence on sentence. His subjective case was presented in a psychological report of Mr Patrick Sheehan, dated 17 March 2020 (Exhibit 1), medical records (Exhibit 2) and a transcript of a conversation with KJK (Exhibit 3).

Oral submissions were made by both parties by AVL on 1 May 2020.

On 22 November 2019, PS and MJ read out their Victim Impact Statements. The officer in charge of the investigation read RS’s Victim Impact Statement. The statement of PS described the devastating impact of the respondent’s offending on her, which included a fear of the dark, waking in terror, broken sleep and hypervigilance with her own children. She said that on occasions she could physically smell the respondent. PS said:

MJ’s Victim Impact Statement described the devastating impact that the respondent’s conduct had on her life. The abuse impacted her relationship with her mother because she was angry that her mother left her with the respondent. She had intense feelings of self-blame. She felt that she should have protected her sisters. The abuse impacted her sexuality. She has nightmares and cold sweats. It caused her to be a heavy drinker and took away her childhood. She described the abuse as a “dark secret eating me up inside”.

RS’s Victim Impact Statement described the profound impact of the respondent’s criminal conduct on her. She still could hear his voice. She could not trust anyone. She started smoking marijuana. She was filed with rage. She said:

The effect of the offending on KJK, TD, RK, CD and MT was set out in a schedule tendered before the trial judge (Exhibit A, document 9).

KJK gave evidence that:

TD gave evidence that the respondent was her mother’s brother and the significance of that for her was that “He broke my heart”. She did not call out for help when the offending occurred:

RK gave evidence:

CD gave evidence that she did not tell anyone about what happened because she was “ashamed, embarrassed, and I didn’t want my partner, that I live with now, to look at me different. CD said that she has nightmares and her husband cannot sleep with her.

Her Honour found (Sentence judgment 9.5) that “each of the offences was at the very least a serious example of its type”. Her Honour noted the ages of the victims, the use of threats for Counts 1 – 3, 9 and 13 – 16 and that they took place in or around the home.

Her Honour found that the offending occurred opportunistically, involving very little planning and no grooming. Her Honour found that the offending against KJK, MT and CD was more serious because the offending was not isolated. Her Honour found that Counts 5 and 6 against MJ were isolated occasions. Her Honour found that on occasions, the respondent used his position as a relative to assist in the offending. Her Honour qualified that finding by noting that he was a young man at the time and this reduced the significance of that as an aggravating factor.

Her Honour took into account the uncertainty surrounding COVID-19 and adopted the observation of Wilson J in RC v R; R v RC [2020] NSWCCA 76 at [254]:

Her Honour took into account that prison would be hard for an older offender because each year in prison represented a substantial portion of the remaining years of his life and there would be little opportunity for him to live down the shame and disgrace relating to the offences in circumstances where his life expectancy was 71½.

Her Honour accepted that some accumulation of sentences should occur for each offence, although where the convictions arose from the same event or similar conduct, the level of accumulation ought to be small. Her Honour accepted that submission on the basis that the severity of a term of imprisonment was exponential and not linear and that this allowed for a substantial degree of concurrence.

Her Honour noted that the sentence which she would impose would reflect the fact that the preponderance of the offences occurred in 1978 or 1979 and that there were eight victims and that some of the offences were committed on the same occasion and that the onerous nature of a prison sentence was not just a product of its length.

Her Honour found that condign punishment was required for grave and repeated sexual offences committed against children, particularly by a person in a position of trust and authority. Her Honour noted that the sentences must be in accordance with sentencing patterns at the time of sentencing and regard must now be had to the understanding of the trauma of sexual abuse on children which emerged from the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (MFI 3, Sentence judgment 19.8).

Her Honour noted that although general deterrence had a lesser role to play because of the respondent’s deprived background, it was still of some significance so as to ensure that others, particularly those who were in a position of trust or authority do not offend in a similar way.

The respondent was born in January 1958. He was aged 62 at the time of sentence. His criminal record contained mainly driving matters and so did not disentitle him to leniency. Her Honour noted that he was on parole for larceny when he committed Count 14.

He was born and raised on the mid-North Coast area of New South Wales to Aboriginal parents and was the ninth of eleven children. He had been mainly looked after by his parental grandmother, because his mother had passed away when he was young and his father was an itinerant worker. Her Honour found that his primary care givers did not abuse substances but that the broader family did and that alcohol abuse was widespread among that broader family (Sentence judgment 10.8).

He had been raped by three persons when he was aged six or seven, who threatened to kill his father if he said anything. This had a profound effect on him and created hostile views towards Aboriginal people and caused him to harbour homicidal fantasies about murdering his assailants (Sentence judgment, 11.3).

From the age of nine or ten, he stole alcohol and tobacco and drank as frequently as possible. He moved to a remote region when he was aged 15. He did not complete year 10. He had consumed cannabis during most of his adult life. When in his 20s and 30s, he had drunk alcohol daily. He had initially worked as a seasonal farm labourer but had been on a disability support pension since 2008 secondary to physical illness. This was a quadruple heart bypass in 2008 which was repeated in 2009. He had a number of other medical issues including a Hepatitis C diagnosis in 2009, blindness in one eye from a fight in the 1990s and chest pain requiring admission to hospital in 2017.

The respondent had experienced persistently poor health since entering custody in 2017. In January 2018, his diagnoses were recorded as coronary artery disease with a history of acute myocardial infarction and coronary artery bypass grafts. In 2019, he was diagnosed with asthma, diabetes and cirrhosis of the liver. He experiences painful swelling in his legs which interferes with his capacity to walk. He had been using a walking frame for three months before sentence (Sentence judgment 13.5).

Mr Sheehan noted that although the sexual abuse the respondent had suffered had been a source of stress for him over the years, and was possibly related to the present offences in a material way, the respondent was unable to describe the sequelae to those events in a way that would establish a link between them and the symptoms of post traumatic stress disorder. Despite those reservations, the trial judge was satisfied that there was a connection. Mr Sheehan thought that the present offences would be consistent with a diagnosis of paedophilic disorder and noted that although the offences occurred 37 years ago, there was not a remission rule for this disorder. He considered that the respondent’s history of alcohol use was sufficiently pathological to meet the criteria for “an alcohol use disorder severe in sustained remission in a controlled environment”.

Mr Sheehan considered that the respondent’s history supported a diagnosis of anti-social personality disorder, although to what extent he was conduct disordered in childhood was obscured by his limitations as a historian. Mr Sheehan noted that the respondent’s offending appeared to have been attenuated in his late 40s, which was consistent with the course of an anti social personality disorder (Sentence judgment 14.2).

In relation to remorse, Mr Sheehan noted that the respondent denied many of the offences and although he admitted some behaviour against one of the male victims, he denied penetrating him. In respect of that victim, the respondent told Mr Sheehan that he did not know why he did it and that he asked himself that question every day “Maybe I just wanted to know what it felt like. It probably affected him the same as it affected me when it happened to me” (Sentence judgment 14.7). Her Honour noted Mr Sheehan’s assessment that the respondent was at average risk of re-offending. On that issue, Mr Sheehan took into account that the respondent had spent the last 34 years unsupervised in the community without further sexual offending (Sentence judgment 14.9).

In addition her Honour made these additional findings:

The primary purpose of a Crown appeal against sentence is to lay down principles of law for the governance and guidance of courts having the duty of sentencing convicted persons. In the exercise of its jurisdiction under s 5D of the Criminal Appeal Act the Court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [26]; Bugmy v The Queen at [24]. The Crown must negate any reason why the residual discretion of the Court not to interfere should be exercised: Green v The Queen; Quinn v The Queen at [36].

A Crown sentence appeal based on a claim of manifest inadequacy of sentence requires the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single “correct” sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [325]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538 [58].

Manifest inadequacy is a conclusion and does not depend on the establishment of specific error: Dinsdale v The Queen at [6].

Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the complainants of the crimes in question but also in the general public; they are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.

The Court might also conclude that the inadequacy of the sentence appealed was so marked that it amounted to “an affront to the administration of justice” which risked undermining public confidence in the criminal justice system: Green v The Queen; Quinn v The Queen at [42]. In such a case, the Court was justified in interfering with the sentence.

The Crown submitted that the sentence imposed was required to reflect the objective seriousness of the offending, to reflect the impact on the victims and the trauma which they suffered. The Crown submitted that the proper application of the totality principle required an appropriate recognition of the objective seriousness of the offending and the harm suffered by each victim. The Crown noted that in this case, there were twenty two offences, eight separate victims and ten specific occasions when offending took place. This did not take into account the offending against three of the victims which was described as continuing over a period of time. The Crown submitted that the aggregate sentence of 14 years with a non-parole period of 8 years did not satisfy those requirements.

The Crown submitted that the appeal should be allowed so as to provide further governance and guidance to sentencing courts. This would ensure that due consideration continue to be given by such courts to the adequacy of sentences imposed for child sexual abuse. This was particularly so when the child sexual abuse involves multiple victims and multiple offences. Such sentences must reflect the high level of criminality of offences of that kind. The Crown submitted that such sentences will usually include an element of general deterrence and should reflect the significance of s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The Crown submitted that there was a disconnect between the finding by her Honour as to the seriousness of the offending, i.e. that each offence was “at the very least a serious example of its type” and the aggregate sentence. In order to make out that proposition, the Crown relied upon a number of what were said to be errors on the part of her Honour, the total effect of which was to make clear that the aggregate sentence was manifestly inadequate.

The Crown submitted that her Honour failed to have any regard to the complete absence of remorse on the part of the respondent. The Crown submitted that this was particularly striking when one had regard to the sexual assaults which the respondent had experienced as a child at the hands of three assailants and their effect upon him. The Crown submitted that the respondent, more than many others, would have been aware of the consequences for a victim of offending of that kind. The Crown submitted that when one had regard to what the respondent said to Mr Sheehan, it was clear that he had no regard to those matters when he committed the offences, and no insight into the effect of his offending on the three victims who suffered his abuse over a substantial period of time.

I agree with the Crown submission that her Honour erred in failing to have regard to the respondent’s lack of remorse in respect to any of the offences. The exchange between the respondent and Mr Sheehan at [24] of his report is particularly chilling:

The Crown submitted that although the appeal was against the aggregate sentence, regard had to be had to the indicative sentences and the part they played in producing the aggregate sentence. The Crown submitted that when that exercise was carried out with the indicative sentences, it was obvious that a very substantial amount of notional concurrency had been involved to produce the aggregate sentence. The Crown submitted that, given the effect on the victims in relation to which there was no challenge in the sentence proceedings, it was again obvious that there was a significant disconnect between the objective seriousness of the offending and the aggregate sentence. This was so when regard was had to the observation of her Honour:

The Crown submitted that the aggregate sentence was well below the legislative guideposts which the maximum sentences available for these offences represented. The Crown submitted that by fixing maximum penalties, such as life imprisonment, the parliament had made it clear how serious these offences were. In this case, four of the offences had maximum penalties of life imprisonment with others having maximum terms of 14 and 10 years. The Crown submitted that against that background the aggregate sentence inadequately took into account the life long psychological effects brought about by offences of this kind on young and vulnerable children. This was evident when regard is had to the high level of violence which accompanied these offences, i.e. punches and the use of brute strength by a male in his twenties against children who except in two cases only, were all under the age of 10.

The Crown submitted that while full weight had to be given to the background of violence and deprivation in which the respondent was raised and to the consequent reduction in his moral culpability, regard still had to be had to the objective seriousness of the offending. This had to take into account both the violence associated with the actual offending itself and the long term psychological consequences for the victims. The Crown submitted that although this was a difficult sentencing exercise with a strong subjective case for the respondent, this should not have been allowed to become the overriding consideration given the seriousness of the offending and the comparative helplessness of the victims.

The Crown submitted that in the circumstances of this case, her Honour erred in taking into account the spontaneity of the offending and the lack of grooming as matters favourable to the respondent. The Crown submitted that in doing so, her Honour failed to take into account that the respondent did not need to engage in any grooming because his threats and violence towards the victims had achieved a situation where they would not complain and he could abuse them with impunity. The Crown submitted that in such circumstances, questions of grooming and spontaneity were irrelevant.

The Crown submitted that her Honour erred in taking into account the extent of the delay between the offending and the proceedings as a matter favourable to the respondent in that by not offending for more than 30 years, the respondent had demonstrated that he was substantially rehabilitated and no longer a danger to the community. The Crown submitted that such considerations needed to be substantially discounted when regard was had to the means used by the respondent to remain at liberty for such a long period. The unchallenged evidence was that the respondent used threats of injury and death to terrorise his young victims into silence for many years. The Crown submitted that, as an older member of the victims’ family, the respondent was in an ideal position to know their vulnerabilities and make threats which would have the most effect on the particular victim. For example, in the case of MT who had been raised by her grandmother, his threat was to kill the grandmother.

The Crown noted that in relation to special circumstances, the trial judge found:

The Crown submitted that while the finding of special circumstances on that basis was open, her Honour double counted the respondent’s health factors when she also took them into account when assessing his subjective case. The Crown submitted that in those circumstances, the health factors were taken into account in reducing the head sentence and were therefore reflected in the non-parole period (Regina v Fidow [2004] NSWCCA 172 at [18]).

The Crown submitted that in addition her Honour had made a finding of special circumstances without any consideration of whether there was a need for rehabilitation and if so, over what period of time. The Crown submitted that the adjustment for special circumstances was very substantial and resulted in a non-parole period which was 57 per cent of the head sentence. The Crown submitted that this failed to set a non-parole period which represented the minimum time that the respondent should spend in custody.

The Crown submitted that when all of those matters were taken into account, they demonstrated errors in her Honour’s reasoning, which produced an aggregate sentence which was so low as to be unreasonable or plainly unjust.

For the reasons set out by the Crown, I am persuaded that the sentence imposed by her Honour is manifestly inadequate.

The above analysis does not end the matter. Even though error has been demonstrated, the Crown must also satisfy this Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised (CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9).

The following matters militate against the exercise of the residual discretion in the present case:

It follows that I have concluded that the residual discretion to decline to intervene in this sentence should be not be exercised.

Apart from the matters to which the Crown has made specific reference, there was no challenge to the other findings by her Honour. Accordingly, when re-exercising the sentence discretion, I accept the findings of fact by her Honour and in particular the strength of the respondent’s subjective case. This has regard to his present health difficulties, how they will impact on him while in prison and the substantial reduction in moral culpability which must flow from his deprived upbringing.

In carrying out the re-sentencing exercise, I have had regard to the up to date material in relation to the respondent’s health set out in his affidavit of 14 September 2020 and that of the solicitor from Legal Aid, David Mulligan, of 11 September 2020. Mr Mulligan’s affidavit has annexed to it copies of records produced by Justice Health relating to the respondent.

It is clear from that material that as anticipated in the sentence proceedings, the respondent’s health has deteriorated while he has been in custody. However, none of the specific conditions is directly life threatening other than his heart condition which was always the most serious of his ailments. It is largely as a result of that material that the proposed increase in sentence has been, in all the circumstances, comparatively modest.

Moreover, there is no need to adjust the indicative sentences proposed by her Honour. The complaint made by the Crown was not so much about their adequacy but the failure of the aggregate sentence to reflect those indicative sentences.

Having regard to those matters, the sentence which I would impose is imprisonment with a non-parole period of 10 years and a balance of term of 5 years. Accordingly, the orders which I propose are as follows:

ROTHMAN J: I have had the considerable advantage of having read the draft reasons for judgment of Hoeben CJ at CL, and the concurring reasons of N Adams J. I agree with each of them and with the orders proposed by Hoeben CJ at CL.

The respondent to this Crown appeal had a devastatingly deprived background and childhood. He was the victim of sexual abuse as a child. This affects his moral culpability, but, as a consequence, he is aware of the profound life-long trauma that it usually causes.

His deprived background, while sad and relevant, must give way to the general deterrence necessary to end such intergenerational conduct. It is inconsistent with principle to treat aboriginal victims of crime, and potential victims of future undeterred crime, as less deserving of protection and vindication than others. [1]

N ADAMS J: I have had the opportunity of reading the judgment of the Chief Judge in draft. I adopt the summary of the background to this appeal and relevant principles at [1]–[95]. I also adopt his Honour’s summary of the Crown submissions at [96]-[109].

Despite this strong subjective case, the respondent stood to be sentenced for horrific child sexual assaults against eight vulnerable young children.

The sole ground of appeal was that the aggregate sentence was manifestly inadequate. I propose to consider the competing submissions regarding the particulars relied upon under this ground in turn.

The finding of objective seriousness made by the sentencing judge was as follows:

Her Honour had earlier noted Mr Evers’ submission that:

It is well established that matters relevant to the assessment of the seriousness of an offence of sexual intercourse with a child under 10 years of age include how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim’s compliance with the demands made and subsequent silence, and any immediately apparent effect on the victim: R v AJP (2004) 150 A Crim R 575 at [25], per Simpson J. It was no doubt based on these factors that her Honour found that the offences were “at the very least serious”.

Despite this finding, her Honour also found that the offending was “opportunistic”, “involved very little planning” and did not involve “grooming”. The finding by her Honour that the offending did not involve grooming is hardly surprising given the violent and threatening circumstances of some of the offending. But the question arises as to how the lack of grooming could be a mitigating factor in this case in the same vein as the factors of the offending being opportunistic and involving very little planning.

Another factor relevant to the objective criminality of the offending was the fact that the respondent was in a position of trust and authority to the victims. Her Honour accepted that to be the case when she stated:

The respondent stood to be sentenced on 22 offences on eight victims over ten occasions. The maximum penalties were as follows:

Her Honour imposed an aggregate sentence. The indicative sentences were as follows:

Not only was there significant concurrence as between the separate offences, a very generous finding of special circumstances was made by her Honour under s 44(2) of the Sentencing Act. After imposing an aggregate sentence of 14 years imprisonment, her Honour varied the statutory ratio to 57% on the basis of the respondent’s poor health (a factor which had already formed part of her Honour’s reasons for ameliorating the head sentence). It is accepted that her Honour had a broad discretion in relation to this finding of special circumstances. But the non-parole period reflects the minimum period the offender must spend in custody having regard to the purposes of punishment and objective and subjective features of the case: Bugmy v The Queen (1990) 169 CLR 525 at 537; [1990] HCA 18; Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 628. From the victim’s perspective in the present matter, the respondent was sentenced to only one year in prison in relation to each of them.

I am satisfied that there was an excessive degree of concurrency in the aggregate sentence imposed.

The question of delay was a significant feature in the sentencing process and was treated as one favouring the respondent. Her Honour’s reasons reflect that the following submission was put to her on the relevance of delay by Mr Evers at sentence:

The respondent submitted in this Court that the delay in this matter caused detriment to him and was, thus, a mitigating factor. It was acknowledged by Mr Evers that the factor of delay is less likely to be a mitigating factor in child sexual assault cases, but it was submitted that those cases were distinguishable in this case.

I am not satisfied that this was a clear case in which the factor of delay ought to have operated solely in favour of the respondent. Cases where delay has been found to be a mitigating factor have included those where conduct on the part of the prosecuting authorities has caused the applicant to remain in a state of “uncertain suspense” such as The Queen v Todd [1982] 2 NSWLR 517 at 519 or where there has been extra-curial punishment via the media, as occurred in Holyoak v The Queen (1995) 82 A Crim R 502. (“Holyoak”) However, as Allen J noted in Holyoak:

The delay between offending and detection did permit her Honour to make favourable findings about the respondent’s prospects of sexual re-offending. After this period of sexual offending between 1978 and 1981, he did not come to the attention of police for any sexual offending thereafter and his criminal history was relatively minor. In 1978, when he was 19 years old, he was sentenced to two years imprisonment for stealing a motor vehicle. The non-parole period was 12 months to date from 19 July 1978. He was on parole for this offence when he committed count 14 against RK. His criminal history thereafter was confined to the following matters. He was placed on a 2 year good behaviour bond for an assault in 1989. He was imprisoned for 3 months in 1990 for further assaults. He was fined for another assault in 1996. He was imprisoned in 1999 for 9 months, with a non-parole period of 4 months for driving offences. He was imprisoned in 2002 for 3 months for assault occasioning actual bodily harm. In 2004, he was imprisoned for 12 months for driving offences. He was imprisoned for 2 months and 15 days in 2004 for possessing an offensive implement in public place.

It is to be accepted that, based on the respondent’s relatively minor criminal record, the respondent’s risk of re-offending was low and it was open to her Honour to make the positive findings she did in this regard. But the respondent should not otherwise have benefited from the delay. I am satisfied that the weight placed on delay in favour of the applicant is another factor that led to the imposition of a manifestly inadequate sentence.

The Crown submitted that the aggregate sentence imposed does not reflect the impact on the victims’ health and wellbeing as described by them in their evidence and at sentence.

Following the Royal Commission into Institutional Sexual Abuse, on 31 August 2018, s 25AA of the Sentencing Act commenced. It is, relevantly, in these terms:

“In the sentence proceedings PS and RS and MJ read statements they had prepared in which they detailed the significant effect upon them of the offender's abuse. I have also had regard to the transcript extracts provided by the Crown which refer to the impact of the abuse on KK, TD, RK, CD and MT.

The Crown also referred me to Volume 3 of the Final Report of the Royal Commission into Institutional Child Sexual Abuse which outlines the effects of trauma on a child's development which ‘can shape their health and wellbeing throughout their life’ and includes affecting the ability to form secure childcare giving attachments and interpersonal relationships, causing lasting changes in the endocrine, automatic and central nervous systems, and disrupting the capacity to emotionally regulate.

Each of the victims has described how the abuse has affected their health and wellbeing throughout their lives in ways consistent with what the Royal Commission found. I take those matters into account pursuant to s 3A of the Crimes (Sentencing Procedure) Act.”

(Emphasis added.)

The respondent relied upon these comments by her Honour in support of his submission that the sentence adequately reflected the impact on the victims and the level of trauma suffered. The Crown, on the other hand, submitted that the aggregate sentence imposed did not reflect or explain how it reflects the significant trauma to each of the eight victims in this matter.

It is now widely accepted that, at the time when these offences occurred, there was a lack of awareness in the community of the considerable life-long damage that can be inflicted on children by sexual abuse such as that which occurred in this matter. Hoeben CJ at CL has already summarised the evidence of trauma provided by the individual victims above at [5]-[62]. Her Honour had also seen the victims give evidence at the trial.

The need to sentence under s 25AA was another factor which made this a difficult sentencing exercise. Her Honour was required to sentence the respondent with regard to the statutory maximum penalties applicable in the 1970s but in accordance with current sentencing patterns and practices and, in particular, what is now well known about the ongoing trauma of such childhood sexual abuse. Although it is clear that her Honour stated that she had taken the victim’s trauma into account, I accept the Crown submission that it was not explained how it was reflected in the aggregate sentence imposed.

Although four of the offences for which the respondent stood to be sentenced carried a maximum penalty of life imprisonment, some of the others had very low maximum penalties (much lower than the same conduct would attract now).

Recently, in WB v R [2020] NSWCCA 159 Davies J (with whom Bell P and I agreed) considered a ground of appeal that the sentencing judge had erred in finding that the sexual offending against the child in that case had resulted in substantial injury. The ground was rejected but in doing his Honour observed the following at [63]:

The respondent submitted that a sentence for historical child sexual offences imposed after the enactment of s 25AA need not necessarily be substantially different from those imposed prior to its enactment. This is because there has been a growing awareness of the impact of this offending over time since the 1980s reflected in statements of principle made by this and other appellate courts.

I am satisfied that, consistent with the observations of Davies J in WB v R, with which I concurred at the time, that it may well be easier to make a finding of substantial injury to a child for a sentence imposed on a historical child sexual assault offence after the enactment of s 25AA if the maximum penalty is so low as to enable a conclusion that the significant lifelong trauma such offending can inflict on a child is not already reflected in the maximum penalty. Despite this, as stated above, the Crown did not make a submission to her Honour that “substantial” injury was an aggravating factor in this case so the question does not squarely arise.

At the hearing of this appeal, the Crown pointed to the lack of remorse shown by the respondent as another feature militating against leniency. This is a striking feature of this case. The respondent maintained his innocence at sentence and, in the face of an overwhelming Crown case, all eight victims were required to give evidence of the details of his offending at trial. That was clearly his legal right and lack of remorse is not an aggravating factor. But this approach by the respondent was surprising for two reasons.

The first reason why the lack of remorse in this matter is striking is because admissions were made by the respondent in a recorded conversation, pursuant to a warrant, between the victim KJK and the respondent on 17 October 2017 prior to his arrest. This recording was before the jury at the trial. After some small talk KJK introduced the topic by suggesting that his mother had asked KJK to talk to the respondent. He then said this to the respondent:

Despite these admissions, the respondent did not plead guilty to any of the charges involving KJK at trial. Instead, it was put to KJK in cross-examination that all the applicant ever did to him was lie on top of him and rub himself against him without penetration. This was denied by KJK.

The second surprising feature of the lack of remorse in this matter is that the respondent was well aware of the trauma such offending has on young children because he described the impact it had had on him to Mr Sheehan, the psychologist who prepared a report for the proceedings on sentence. Hoeben CJ at CL has referred to this issue at [89] above. Her Honour had regard to Mr Sheehan’s report as follows:

This finding was one open to her Honour. But given the profound impact such offending had on the respondent, this made his lack of remorse even more stark.

Her Honour made no mention of the respondent’s lack of remorse in her Reasons. Although, as stated above, a lack of remorse is a not an aggravating factor, a finding of remorse is a mitigating factor. The respondent’s aggregate sentence of 14 years with a non-parole period of 8 years was for a sentence where there was no discount for a plea of guilty and no finding of remorse.

The Crown attached a schedule of cases to its written submissions said to be comparable to this case. It would appear that this was in response to the observations of Price J (with whom Garling and Wright JJ agreed) in R v Hill [2020] NSWCCA 197 at [100]-[101] that:

For these reasons, I am satisfied that the sentencing discretion miscarried and a manifestly inadequate sentence was imposed. Although this was a difficult sentencing exercise, the respondent’s strong subjective case caused inadequate weight to be given to the objective seriousness of the offending: Regina v Rushby [1977] 1 NSWLR 594; Regina v Dodd (1991) 57 A Crim R 349.

I am also satisfied that the Crown has established that the residual discretion should not be exercised in this matter: CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9. The respondent submitted that one reason why the discretion should be exercised is because no further guidance is needed with respect to principles involving serious sexual offences against multiple victims. I disagree. The fact that there are no comparable cases to the respondent’s matter suggests the contrary.

This case concerns the issues considered by the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 (“Munda”), as to how the court approaches the sentencing exercise when both the offender and the victims come from a disadvantaged background, as the respondent and victims did in this matter. As the court observed in Munda at [54], the role of the criminal law is, inter alia: