WW v R

1. [1]

   KIRK JA: I agree with Wilson J.

2. [2]

   WILSON J: On 1 August 2022 the applicant, whose name must be anonymised in compliance with s 578A of the Crimes Act 1900 (NSW) and s 15A(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW) to protect his victims, was sentenced by her Honour Judge English to an aggregate term of imprisonment against which he now seeks the leave of this Court to appeal.

3. [3]

   The offences were all crimes contrary to (now repealed) provisions of the Crimes Act. The relevant detail is below, with the sequence numbers of the charges abbreviated, and the offences placed, insofar as is possible, in chronological order.

4. [4]

   A community corrections order (“CCO”) was imposed with respect to the offence committed first in time, sequence 5, an offence of indecent assault on male contrary to s 81. For all other offences an aggregate sentence of 10 years imprisonment was imposed, taking into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the crimes on a series of Form 1 documents. The sentence commenced on 10 June 2022 and will expire on 9 June 2032; a non-parole (“NPP”) of 6 years, expiring on 9 June 2028, was fixed.

5. [5]

   The applicant advances five grounds of appeal against the aggregate sentence, as follows:

6. [6]

   As can be seen, grounds 1, 4, and 5 do not complain of a failure to consider a feature that was required to be considered, but rather, to do so inadequately, or eventually. There is an issue as to whether a ground so pleaded is a complaint amenable to the jurisdiction of this Court, and I will return to that aspect of the matter.

The Proceedings in the District Court

1. [7]

   Having entered pleas of guilty in the Local Court the applicant appeared before her Honour on 10 June 2022 for sentence hearing.

2. [8]

   Apart from charge documentation the Crown tendered an agreed statement of the facts of the applicant’s crimes, his criminal and custodial histories, and victim impact statements from both SW and CW.

3. [9]

   The agreed facts establish that the applicant is the maternal uncle of the two children he abused. He is 11 years the senior of SW and about 13 years the senior of CW. The two boys are brothers. The course of offending began when the applicant was aged 17 or 18 years of age. SW was aged 6 or 7 when his uncle began to sexually assault him, and the abuse continued until he was about 11 years old and told his uncle not to assault him again. CW was also 6 years old when the sexual abuse against him commenced; it continued until he was 11 or 12. Overall, the offences occurred during a period of about 9 years, from 1977 to 1986.

4. [10]

   The abuse began on an occasion in about 1977 or 1978 when SW was visiting his maternal grandparents in Werrington County, with his brother CW and their younger sister. The children visited their grandparents most weeks. During the period of the offending, the applicant worked for the Royal Australian Air Force (“the RAAF”) and was stationed on military bases. He frequently returned to his parents’ home on weekends and would encounter his nephews there.

5. [11]

   On an occasion in 1977 or 1978 when SW was 6 or 7 years of age (and the applicant 17 or 18 years of age) SW and his brother were in the applicant’s bedroom, at their maternal grandparents’ home. The children were playing on the applicant’s computer. The applicant said to SW, “It’s time for me to be playing in your pants”. The applicant sat with SW on the floor, with the bed blocking CW’s view of what then occurred. He pulled SW’s pants down and began to fondle SW’s penis, whilst masturbating himself. This act is reflected by sequence 22/5. It was one of many such incidents, the majority uncharged.

6. [12]

   The first charged offence against CW is sequence 22/21, an offence of indecent assault on a male. CW was aged 6 and the applicant about 19 years old. He and his brother were again in the applicant’s bedroom during a visit to their grandparents, playing with the applicant’s computer. The children were sitting together on the floor; the applicant sat on the floor with them. He asked CW to take his pants off, and then began to fondle the child’s exposed penis. He was masturbating at the same time. As with SW, incidents of this nature happened frequently; most went uncharged.

7. [13]

   Sequences 39, 40 and 27, together with the related offences on Form 1 documents, sequences 14 and 52, all occurred on an occasion when the applicant was babysitting SW, CW and their sister at their home at Tregear. SW was aged 10 or 11 and CW was 8 or 9 years old. The applicant showed the boys some slides of military planes, before telling SW to come into the bathroom with him. He told SW to unfasten his, the applicant’s, belt and zip fly before lowering his pants. The boy was directed to fondle the applicant’s penis (sequence 39). The applicant then removed SW’s pants and fondled the boy’s penis (sequence 14). The applicant next fellated SW (sequence 40). After finishing with SW the applicant called CW to the bathroom, telling him “it’s your turn”. The applicant touched CW’s exposed penis and caused CW to touch the applicant’s penis. The applicant then required CW to fellate him (sequence 52). He then pushed CW in the back so that he was positioned leaning forwards over a basin. Telling CW to lean forwards and to bend over, the applicant grasped CW by his hips and inserted his penis into the boy’s anus (sequence 27). CW immediately jumped away, screaming in pain. The applicant told him, “Next time we’ll use cream so it won’t hurt”. Later, CW saw blood in his underpants.

8. [14]

   Sequences 37 and 17, together with sequences 36 and 38, which were placed on a Form 1 document to sequence 37, occurred on an occasion when the applicant took the children for a ride in a helicopter, which he had specifically arranged for them. SW was about 10 at this time, his brother about 8, and the applicant about 21 years old. After the helicopter flight, the applicant drove the children back to western Sydney. Rather than taking the children directly home, the applicant drove down a quiet road in the Blacktown area and parked. SW was in the front passenger seat and CW in the back seat. After stopping the car, the applicant reclined his seat and laid back in it. He directed SW to unzip the applicant’s pants and fondle his penis (sequence 36). He then directed the child to fellate him (sequence 37). When the applicant began to play with SW’s penis the boy began to cry. The applicant told him to say stop if he wanted to stop and SW did so. The applicant desisted. He began to masturbate, telling SW he was “going to make the white stuff come”, before directing SW to catch the ejaculate in his hands. SW did as he was directed (sequence 38). Before taking the children home, the applicant told SW to wash his hands.

9. [15]

   Sequences 46, 47, and 30, together with the offences on related Form 1 documents, sequences 2 and 49, occurred on an occasion when the applicant took SW and CW to a drive-in cinema at Blacktown. SW was aged 10 or 11 and CW was 7 or 8 years of age; the applicant was 21 or 22. He drove a station wagon at the time. The applicant called to SW to get into the wagon part of the vehicle, where he lay under a blanket. SW did as he was told and got under the blanket with the applicant. The applicant fondled SW’s exposed penis (sequence 2) and then fellated SW (sequence 46). The applicant then caused the boy to fellate him until he ejaculated (sequence 47). SW recalls gagging when the applicant’s penis was in his mouth.

10. [16]

    When CW was in the back of the wagon under the blanket with the applicant, the applicant fondled the boy’s penis (sequence 30) before directing him to do the same thing to the applicant (sequence 49). Later, the applicant took the children home.

11. [17]

    At around this time, when CW was aged 7 or 8 years old, he told members of his paternal family what the applicant had been doing to him. Those relatives told CW’s father, who was the husband of the applicant’s sister. CW’s father spoke to the boy, and CW repeated his complaint, saying that the applicant made him “suck his dick and stuff”. CW’s father asked the applicant’s parents to come and speak with him and CW and CW made the same complaint to his paternal grandparents. They asked him if he was sure it was happening as, if it was, the applicant would have to go on a long holiday. CW was made to promise not to tell his mother, the applicant’s sister. It appears as if no action was taken about the complaint of abuse, and it continued.

12. [18]

    Sequences 11 and 53 both occurred on an occasion when the applicant took SW and CW camping along what was almost certainly the Hawkesbury River, at Mulgoa. SW was aged 11 or 12; his brother was 9 or 10. The applicant was 22 or 23 years of age. He owned a speed boat and trailer and, having picked the children up from their home, drove to a ramp where he launched the boat. They travelled downriver for about 20 minutes before finding a location to camp, on a sandy beach along the riverbank. Having unloaded their gear, the three set up camp, pitching a two-person tent in which to sleep.

13. [19]

    Inside the tent after night fell the applicant lay with one child on either side of him. He first reached out to SW and began to fondle the boy’s penis, before fellating him (sequence 11). SW was able to tell his uncle that he didn’t want to “do it anymore”. The applicant desisted. Turning to CW he said, “Looks like it’s just you and me”. Having already taken off his pants the applicant directed CW to suck his penis. He continued with his penis in the child’s mouth until he ejaculated (sequence 53).

14. [20]

    Sequences 34 and 55, and the associated offences on a Form 1 document to sequence 34, occurred on an occasion when CW was about 12 years old and the applicant about 25. CW was staying with his grandparents for the night; the applicant was at his parents’ home at the same time. Telling CW that he would take him to see a movie the applicant drove CW directly to a hotel at Springwood, where he took him into a room. Taking him immediately to the bed in the hotel room the applicant removed his pants and told the boy to do the same. He then began to fondle CW’s exposed penis (sequence 34) and to suck it (sequence 33). The applicant told CW to do the same to him, and the boy complied, fondling the applicant’s penis (sequence 54) and then taking it into his mouth (sequence 55).

15. [21]

    Many years later, in about 2000, CW told his mother about the abuse he had suffered at the applicant’s hands when he was a child. CW made the same complaint at about this time to his paternal uncle, the applicant’s brother. Again, nothing was done about it.

16. [22]

    In September 2020 SW made a formal complaint to police, completing a statement in late October 2020.

17. [23]

    In November 2020 SW also spoke to the same uncle CW had earlier complained to about the sexual abuse he and his brother had suffered. His uncle, the applicant’s brother, called the applicant and confronted him with the allegation; the applicant did not deny it. Soon after the applicant received a visit from his brother and they discussed the allegations. The applicant was asked, “was it just young boys experimenting?” He replied, “No, it was ongoing”. He complained to his brother of sexual abuse he said had been perpetrated against him or witnessed by his brother when they were children, but his brother had no recollection of any such instances.

18. [24]

    On 18 February 2021 the applicant attended a police station at the request of police. He refused to be interviewed about his nephews’ allegations and was charged.

19. [25]

    A document from the NSW Police stated that the applicant had no criminal convictions. His custodial record was unremarkable.

20. [26]

    SW and CW each prepared a victim impact statement in June 2022 that was received by the sentencing court. SW regards his childhood as having been stolen from him because of the sexual abuse that he endured from age 6 to about age 11. He said that he lost all sense of closeness with other family members, and became shy and withdrawn. He regularly invented excuses, such as feigned illness, to avoid the applicant’s company and sexual abuse by him in these years. SW felt unsafe in his home and with his family and began to run away, staying away from home to evade the applicant’s attentions. This led him to fall in with drug users, and his life took a negative turn. By the age of 15 he was incarcerated in a detention facility. SW is also haunted by guilt, because he ran away and left CW to be preyed upon. SW barely saw his brother in the three decades that followed. The pain of the abuse is ongoing, and SW has resorted to drugs and alcohol to try to numb it.

21. [27]

    CW also gave a harrowing account of the immediate and long term effects of childhood sexual abuse. He felt ashamed of what was done to him and isolated himself from friends, out of fear that others would discover what was occurring. He felt isolated from family too, knowing that no-one in his family had stopped the abuse, even when he complained about it when he was 7 or 8. In Year 7 CW left school and moved away from home to be free of the abuse and his memories of it. He had no relationship with his brother, because SW functioned as a reminder of what had happened to him. Although CW tried to block memories of the abuse, he could not, and became suicidal, attempting to end his life and being placed into a psychiatric hospital. He continues to require treatment for depression, and believes the damage he sustained has affected his wife and children as well as himself.

22. [28]

    The applicant did not give evidence before the sentencing court and expose himself to cross-examination. He relied upon his account to others of relevant matters.

23. [29]

    A report of a forensic psychologist, Yiota Zingirlis, was tendered. Ms Zingirlis was asked to assess the applicant ahead of the sentence hearing with the express purpose of preparing a report for the court. To that end she interviewed the applicant over a two hour period and conducted psychometric testing over a one hour period. Ms Zingirlis had access to the outline of the agreed facts, information from the applicant’s wife, and some medical documentation.

24. [30]

    She noted the applicant to be a 62 year old man (born in 1960), who had been employed throughout his adult life, raised a family, and managed his affairs adequately, and who had not, prior to the commencement of the prosecution against him, had any experience of the criminal courts or mental health services. The applicant gave a history of migration from the United Kingdom to Australia with his family, when he was aged about seven years.

25. [31]

    The applicant’s parents are now dead, but he had a good relationship with them and no notable difficulties during his formative years. He did raise what he referred to as “bullying” from his older brother when they were children. The applicant’s elder brother was often responsible for his supervision, as their parents worked. The applicant said that his brother would hit him for some perceived misdemeanour, put a pillow over his head or place his hands around his neck. He believed that his brother was cautious about this and never left an injury or mark. This conduct occurred weekly until the applicant was aged about 13 years and his brother left home.

26. [32]

    The applicant also referred to his brother as having taught him about sex. When he was about 8 years old the applicant said that his brother and some friends took his pants down and told him that he could “play with” his penis as long as he “didn’t hurt it”. On another occasion when he was 10 years old his brother took him into a closet and each boy fondled the penis of the other. At that same age the applicant said that there was an incident when his brother and friends took his pants off and “flicked” his penis. He reported enjoying this activity, other than when the boys laughed at him on the last occasion, calling him a “little waggle” because he had become aroused by their conduct. This laughter upset him.

27. [33]

    The applicant acknowledged using pornography, which started when he used to look at his brother’s Playboy magazines as a child, but he denied any bizarre or unusual activity. He said he was attracted to adult women.

28. [34]

    The applicant’s education was unremarkable. He achieved his Year 10 certificate, leaving school to enter the RAAF, which he joined at age 19. He retired from the Air Force in 2001, having attained the rank of Flight Sergeant. He continued to work with the RAAF in a civilian capacity for some years, before transferring to a private aeroplane manufacturer in 2010.

29. [35]

    The applicant said that he had dated some female colleagues in the RAAF, but had no serious relationship until he met his now wife, whom he described as supportive of him. The couple have three children, all of whom are now in their twenties. His children have gone on to achieve, and he expressed pride in them. The applicant’s wife said she and the applicant had enjoyed thirty years of “trust and friendship” and had a happy, satisfying relationship.

30. [36]

    The applicant drinks alcohol sparingly and does not use illicit drugs. His health is generally good, although he has diabetes and some age-related conditions, such as gout and hypertension. Prior to the commencement of the current proceedings against him the applicant’s only experience of mental health services was of a screening procedure he underwent on entry to the armed forces. Once he became aware of the police investigation and potential for charges to be laid he became worried by the possible outcome and experienced some disruption to his mood and sleep. He had “fleeting thoughts” of suicide on two occasions.

31. [37]

    In February 2022 he consulted his general practitioner and was diagnosed with depression. He was referred to a psychologist who considered he would benefit from a further appointment. Anti-depressant medication was prescribed, although the applicant did not fill the prescription. He attended counselling sessions with a psychologist and found them helpful.

32. [38]

    The applicant gave Ms Zingirlis an account of being asked by his sister and brother-in-law to look after SW and CW frequently from when he was 14 years old, and believing that he was teaching them about sex as his brother had done for him. He referred to himself as “the cool uncle” and what he did to his nephews as “part of growing up”. He said that he realised what he was doing was wrong when he was in his twenties, and ended the activity. He denied any mental illness at the time of the offending.

33. [39]

    The applicant said that, as he got older, and particularly when he had children himself, he had a greater appreciation of the wrongfulness of his actions, and began to feel significant guilt. Around 2000 CW had complained of the abuse and the applicant’s sister and mother had confronted him. He admitted what he had done. The applicant had no further contact with his nephews.

34. [40]

    The applicant said that he continued to struggle with feelings of guilt and found it difficult to reconcile what he had done with who he believed himself to be. He had been shocked and distressed to learn that CW had attempted suicide in the past and reported that he wished to apologise to his victims.

35. [41]

    He told Ms Zingirlis that he was willing to accept any sentence imposed upon him as he felt there had to be consequences to what he had done. He worried, however, about how he would cope in prison, and felt he may be bullied by others. He was concerned for his family and resigned from his employment a little earlier than he had planned to avoid disclosing information concerning the prosecution.

36. [42]

    The applicant presented as anxious with depressed thoughts, but with no abnormalities of thought, cognition, or perception. He gave a coherent and logical history and displayed reasonable understanding of his circumstances.

37. [43]

    On the administration of “self-report measures” the applicant gave responses to questions placing him in the extremely severe range for depression. A personality inventory that also relied upon the applicant’s self-report noted elevation on the depression scale; the applicant reported symptoms consistent with depression, including disturbed sleep and loss of appetite. Some fluctuation in self-esteem was noted. The applicant reported a high degree of support in dealing with stressors.

38. [44]

    Ms Zingirlis observed:

39. [45]

    Ms Zingirlis regarded the applicant as presenting with a Major Depressive Disorder.

40. [46]

    She was asked by the applicant’s legal representative to comment on the relevance of the “alleged abuse” perpetrated by his brother to his offending behaviour and speculated that:

41. [47]

    Ms Zingirlis regarded the applicant as contrite, having recognised the wrongfulness of his conduct in his mid-twenties. She thought he posed a low risk of sexual recidivism, and that his prospects of rehabilitation were very positive.

42. [48]

    Two reports from Ben Garber, the psychologist that the applicant had seen for treatment in the community, were also before the sentencing court. As at 7 June 2022 the applicant had attended seven therapeutic sessions with Mr Garber. He reported a range of depressive symptoms, with his self-report placing him in the “Extremely Severe” range for depression. The applicant reported his fears of entering prison, his concerns for his family, and the feelings of shame and guilt he said occupied his thoughts. The applicant reported three instances when, in his childhood, he was sexually abused, at ages 8, 10, and 12 years respectively, by his brother, from whom he reported himself estranged.

43. [49]

    Short reports from the applicant’s general practitioner and his endocrinologist noted the conditions for which the applicant was medicated, including diabetes type 2 and hypertension.

44. [50]

    Finally, the applicant and his wife both wrote to the sentencing court. The applicant described the shame and guilt he felt for his crimes. Both referred to his long term employment and stable, supportive family life.

45. [51]

    Her Honour Judge English imposed sentence on 1 August 2022. Having noted the applicable penalties for the applicant’s crimes, and the facts of them, which were accepted by the court, her Honour turned to the subjective case. Observing that the applicant did not give evidence before her, she set out his history, drawn principally from the report of Ms Zingirlis. Referring to the applicant’s health, her Honour observed that the applicant had “numerous health [1] problems”. She noted that, since being charged with the offences before the court, the applicant had experienced mood disturbance and disrupted sleep and had been diagnosed with a major depressive disorder. Her Honour recorded the comments and observations from the psychological reports.

46. [52]

    As to the gravity of the offences, her Honour first referred to the features common to all, being that the applicant was uncle to the children and held a position of authority over them, particularly so on those occasions when they had been placed in his direct care. Some had occurred in the home of the children’s grandparents, a place where they should have been safe from sexual predation; some occurred in the presence of the other child. Her Honour concluded that the offences, which were not isolated, represented a gross breach of trust.

47. [53]

    With respect to sequence 5 her Honour said:

48. [54]

    Her Honour referred to the facts and circumstances of relevance to the assessment of the gravity of the offences individually, and there is no complaint about the conclusions of the sentencing judge in that regard. Sequence 21, the second offence in time, was noted to have crossed the threshold for a sentence of imprisonment established by s 5(1) of the Crimes (Sentencing Procedure) Act, involving as it did skin to skin contact with the penis of a very young child by an adult relative in a position of authority. All the offences that followed were also assessed as deserving of sentences of imprisonment. Although her Honour accepted that the offences that occurred at the home of the applicant’s parents (the children’s grandparents) might be regarded as opportunistic, others – such as those at the drive-in cinema, those following the helicopter flight, and that at the hotel – were very clearly not. Her Honour described those offences where SW and CW were required to perform oral sex on the applicant as heinous; the offence of buggery that had caused CW to cry out in pain, was also regarded as an extremely serious offence. Her Honour concluded that the children were made particularly vulnerable during those offences that occurred after the applicant had taken the children away from their home alone, on an outing with him. She also observed that, although the applicant ceased to assault SW when SW asked him to stop, he turned his focus onto CW thereafter, despite being “well and truly on notice that [his conduct] was unacceptable, unwelcome behaviour”.

49. [55]

    The sentencing judge noted that the offences on the Form 1 documents themselves represented serious criminality and an increase in the penalties that would otherwise be imposed was required. She concluded:

50. [56]

    Some level of accumulation of sentence was found to be necessary, having regard to the number of victims, and the length of time over which the offences were perpetrated.

51. [57]

    Favourably to the applicant, her Honour made a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act, due to the applicant’s age, his “significant health issues”, and the fact that he would find a custodial sentence more onerous than would many other prisoners, due to issues connected with both the nature of his crimes and the conditions of custody at a time when the pandemic was a material feature. The ratio of sentence was varied such that the NPP represents only 60% of the total sentence.

52. [58]

    Her Honour distinguished sequence 5 (with respect to which a CCO was imposed) from the offending which followed, observing that:

53. [59]

    The applicant was concluded to be remorseful, to have entered his pleas of guilty at the earliest opportunity, and to have led an “exemplary life” following the cessation of these crimes. His prospects for rehabilitation were observed to be “excellent”, with her Honour concluding that it was “highly unlikely” the applicant would re-offend.

The Application to this Court

1. [60]

   As earlier noted, the applicant seeks leave to advance 5 grounds of appeal. Grounds 1, 4, and 5 are pleaded as complaints about the weight given or not given to a particular sentencing feature. Ground 1, whilst overly complicated in its articulation, asserts that the sentencing judge gave inadequate weight to the issue of the applicant’s youth at the time of his offending, and thus to the principles that apply when sentencing a child or young person. Grounds 4 and 5, somewhat confusingly expressed with a double negative, are complaints that too much weight was given to, respectively, general and specific deterrence. As the Crown pointed out in written submissions (referring to grounds 4 and 5), a ground of appeal against sentence which asserts that too much or too little weight has been given to a particular feature does not raise a complaint of error of the kind described in House v The King (1936) 55 CLR 499 at 504 – 505; [1936] HCA 40. In that passage Dixon, Evatt and McTiernan JJ said:

2. [61]

   Complaints concerning too much or too little weight given to some matter can be relevant to a ground contending that the order of the sentencing court was “unreasonable or plainly unjust”, as the plurality said in the following passage:

3. [62]

   That statement was specifically endorsed in Markarian v The Queen (2005) 228 CLR 357 at 370 – 371; [2005] HCA 25:

4. [63]

   The principle given in House v The King and applied in Markarian has been regularly applied in this Court. A small sample of its application may be seen in R v Baker [2000] NSWCCA 85 at [11]; Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49 at [25] and [53]; Hillsley v R [2013] NSWCCA 78 at [60]; Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [112] – [113]; and Zhao v R [2016] NSWCCA 199 at [58] – [59]. There are many others. Indeed, the principle is so well known that it was described as “trite” in Ahmad v R [2021] NSWCCA 30 at [18]:

5. [64]

   Nevertheless, this Court is asked by the applicant to find error in the degree of weight given to particular features by the sentencing judge, in circumstances where he has not pleaded a ground of manifest excess, and does not ask the Court to view grounds 1, 4 and 5 as relevant to a complaint of that nature. In my opinion that is the only way in which these proposed grounds could have been legitimately advanced, and can be legitimately addressed by the Court in determining this application.

6. [65]

   As a general statement, counsel should be conscious of both the primacy of the sentencing court in determining the weight to be given to individual features, and the limitations to the Court’s appellate jurisdiction in reviewing the exercise of a sentencing discretion, to ensure grounds advanced are properly pleaded, in accordance with principle.

7. [66]

   Viewing ground 1 in that way, no error is demonstrated. This ground failed to grapple with the reality of the sentencing task that faced her Honour, or to have proper regard to the way the applicant put his case at first instance.

8. [67]

   At the time of the offence against SW reflected by sequence 5, the applicant was aged 17 or 18 years old. That is, he may have been a child at the material time, or he may have been a young adult. He was an adult aged between 18 and 25 years for the balance of the offending conduct. In contrast to the way the applicant argued his case before the sentencing court, he submitted to this Court that he was entitled to have his “youth” taken into account with respect to each of the offences for sentence in such a way that his moral culpability would be held to be reduced, with the requirement for the sentence to achieve retribution also diminished.

9. [68]

   The applicant himself conceded to his brother when confronted by him that his crimes were not committed in the context of “boys experimenting” but were ongoing. Before Judge English the applicant accepted that, whilst his youth was a relevant feature to sentencing for sequence 5, it had diminishing relevance for the balance of the offending conduct, with respect to which there was no suggestion that he was or may have been a child. Applicants are ordinarily bound by the case put below and an application for leave to appeal to this Court should not be viewed as an opportunity to improve upon the case earlier put, or to advance some new mitigatory argument that different counsel is able to formulate: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [79] – [82] per Johnson J.

10. [69]

    Before this Court the applicant contended that the principles that apply when a child is sentenced should have been taken to apply to him for each offence. He referred to the principles given in decisions such as KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22] – [26] and Tamer v R [2020] NSWCCA 333 at [46] as those to be applied.

11. [70]

    In KT the Court was reviewing a sentence imposed upon a boy who was aged 16 years and 11 months when he committed manslaughter. Although KT was sentenced at law because of the seriousness of his crime, as McClellan CJ at CL observed, the statutory guidance provided by s 6 of the Children (Criminal Proceedings) Act was nevertheless relevant. It is those statutory guidelines that inform and underpin modern jurisprudence concerning the sentencing of children. It is necessary only to extract them to recognise their inapplicability to the sentencing of the applicant.

12. [71]

    Having regard to the guidance of s 6, McClellan CJ at CL observed at [22] – [26]:

13. [72]

    The possibility that immaturity may have contributed to the commission of, particularly, sequence 5 would be relevant in the applicant’s case if there was any evidence from which it could be concluded that it was a material consideration in the applicant’s circumstances. Otherwise, the final paragraph of KT quoted above has particular resonance in this matter, but none of the other principles referred to could have the slightest relevance to a sentence to be imposed on a 62-year-old man.

14. [73]

    Even proceeding on the basis that the applicant may have been 17 years old when he committed the offence reflected by sequence 5, his then age is not of itself sufficient to establish on balance that immaturity was a contributory feature to the commission of the offence. That conclusion could be readily drawn of a younger offender, and particularly where the victim of the crime was of similar age to that offender. In such circumstances it could be accepted that there was a degree of childish exploration in the offending conduct, of the kind contemplated by the plurality in RP v The Queen (2016) 259 CLR 641 at 658; [2016] HCA 53. That could not be the case with respect to a 17 or 18 year old offender, where the victims of the sexual offending were his significantly younger nephews, being children who, on the applicant’s own case, he had been given the responsibility of caring for since he was 14 years old.

15. [74]

    There was, in my conclusion, no reasonable possibility that immaturity was a feature in the commission of the balance of the offences. The applicant had left home and joined the Armed Forces at the time of the remaining offences. He lived and worked in a world of adults, and it is fanciful to suggest that he would have had no notion or a reduced understanding of the gross wrongfulness of his conduct towards his much younger nephews. Absent direct evidence to the contrary, no person of at least ordinary intelligence who had reached the age of 18, extending to 25 years of age, could fail to perceive the indefensible nature of the acts perpetrated by the applicant against SW and CW, acts which included oral and anal penetration.

16. [75]

    Immaturity was not a feature that her Honour was obliged to have regard to in the circumstances of this case.

17. [76]

    To suggest that she was obliged to implement principles developed with respect to individuals being sentenced as children or young people when sentencing a 62 year old man is to ignore the foundation of and reasons for the existence of those principles. Her Honour was entirely correct to conclude that the principal relevance of the applicant’s age at the time of the offending was with respect to sequence 5: that, had the conduct reflected by that offence been discovered by authorities at about the time of its commission or relatively soon thereafter, he would have had the benefit of a more lenient sentencing regime than that which he ultimately faced. That feature was appropriately taken into account by the imposition of a CCO.

18. [77]

    Regarding this ground as one pointing to the imposition of an unjust sentence, it has not been made good.

19. [78]

    Ground 2 rests upon an unduly narrow reading of the remarks of the sentencing judge, and a flawed understanding of the principles that apply when a mentally ill offender is sentenced.

20. [79]

    As to the former, the applicant argues that, although he had submitted to the sentencing court that his mental illness would make his time in custody more onerous, the sentencing judge failed to address that argument, or to consider the ways in which his mental illness was relevant on sentence.

21. [80]

    That submission can only be accepted if, as the applicant urges, the references made by the sentencing judge to the applicant’s health are narrowly interpreted as encompassing only his physical health. That interpretation cannot be supported. In her remarks at an early stage, her Honour observed that the applicant had “numerous health problems”, thereafter listing both his physical conditions, such as diabetes, and his mental condition, being a major depressive disorder with suicidal ideation. Later, in making a finding of special circumstances, she referred again to the applicant’s “significant health issues”, finding that the applicant’s “time in custody will be more onerous”.

22. [81]

    By no fair or reasonable reading of the remarks of the sentencing judge could this Court conclude that her Honour overlooked or ignored the evidence of the applicant’s depression. She had specifically included the applicant’s depressive disorder in the list of his “numerous health problems”; it was unnecessary for her Honour to repeat the list of conditions when announcing her finding that special circumstances applied because of the applicant’s compromised health, justifying a lesser NPP than would otherwise apply.

23. [82]

    That is sufficient to dismiss this ground. However, since it is founded on a considerable overstatement of the principles applicable when sentencing a mentally ill offender, it is worth stating what should be well understood: there is no principle of law to the effect that the sentence imposed upon a mentally ill offender must be mitigated by that fact. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] McClellan CJ at CL set out a number of consequences for the exercise of the sentencing discretion that may apply where an offender has a mental illness, or had such an illness at the time of the commission of the offence. His Honour did not state that the various consequences would always apply. In Aslan v R [2014] NSWCCA 114 at [34] the Court quoted the principles set out in De La Rosa and made the point explicitly:

24. [83]

    In the applicant’s case, the “mental illness” from which he suffered was of very limited relevance to the exercise of the sentencing discretion. The depressive disorder, stress and anxiety which the applicant experienced were reactive conditions. They had developed because of the commencement of the prosecution against him for these crimes, and the consequential distress at his exposure as a sexual offender and the likely future imprisonment which the applicant particularly feared. To quote Meagher JA in R v Tanudjaja [2002] NSWCCA 467 at [6] (Wood CJ at CL and G James J agreeing), amending the pronoun, “he claims to have suffered from depression. So be it, he has quite a lot to be depressed about because he committed very serious crimes and prisons were not intended to be holiday camps”.

25. [84]

    Significantly, the applicant did not have a mental illness at the time of his offending, and his condition could have had no relevance to his moral culpability for his crimes. In that his condition was a response to his circumstances, there was no compelling reason to conclude that general deterrence was reduced because of it, or that it eliminated or reduced the need for specific deterrence. If the applicant’s depression persisted, it may, but by no means would, have meant that a custodial sentence would be more onerous for the applicant than for prisoners who are not depressed. Favourably to the applicant, her Honour took his depressive disorder into account in finding that special circumstances had been made out.

26. [85]

    In short, her Honour did not fail to take the applicant’s depressive and associated conditions into account. Although it would have been entirely open to the sentencing court to treat the applicant’s depression as no more than an obvious consequence of being charged with serious crimes, she accepted that it had an impact on the applicant’s experience of a custodial environment, and had regard to it in finding that special circumstances were established. No more could reasonably be expected.

27. [86]

    The applicant contends that he was “the victim of childhood physical and sexual abuse” and that the sentencing court failed to consider the relevance of that feature to the assessment of the applicant’s moral culpability for his crimes. He relies upon his self-report to Ms Zingirlis as evidence in support of his argument. He particularly takes issue with her Honour’s conclusion that the applicant was an example of the frequently seen situation where a trusted family member sexually abuses a child, submitting that the abuse to which he himself was subjected deprived his offending of that character.

28. [87]

    The fact that an offender has been subjected to childhood abuse may, but not will, be a feature relevant to the determination of sentence. Much will depend upon the circumstances. In R v AGR (Court of Criminal Appeal (NSW), 24 July 1998, unrep) James J considered a number of cases that had dealt with offenders who had been abused as children and concluded (at 13):

29. [88]

    As in Dousha v R [2008] NSWCCA 263, in the applicant’s case there was no direct evidence of any causal link between what he described as childhood abuse and the crimes he later committed. The applicant did not give evidence concerning his claims of childhood abuse. His case in that regard was advanced by way of his untested account to uncritical listeners that was reported to the sentencing court. The claims of abuse – abuse which the applicant’s brother did not concede had occurred – were first raised only after the applicant had been charged with the present offending. He gave an account of three instances of unspecified sexual abuse perpetrated upon him by his brother when he was aged 8, 10, and 12 to Mr Garber. To Ms Zingirlis the applicant said he was bullied by his brother. He also referred to an incident when he was 8 years old and two when he was aged 10 years that he described as sexual abuse. It is not clear if these were the same occasions mentioned to Mr Garber.

30. [89]

    Whether the behaviour he described could merit the label “sexual abuse” is uncertain. The first incident was said to have consisted of the applicant’s brother and his friends lowering his pants and telling the applicant he could play with his penis. It is not suggested that any of the children touched the applicant’s genitals. The second incident was said to be an episode of mutual touching by the applicant and his brother. That has the flavour of mutual exploration. The last incident assertedly involved a group of children including the applicant’s brother pulling the applicant’s pants down and “flicking” his penis. The applicant told Ms Zingirlis that he had “generally enjoyed these incidences [sic] at the time” but became upset after the last incident when the children laughed at him for becoming aroused. It was the laughter of the other children that distressed the applicant, not the touching.

31. [90]

    Ms Zingirlis, accepting without question the account the applicant gave of these events, reported to the sentencing court that there could have been an impact upon the applicant’s “psycho-sexual development” (extracted at [44] and [46] above). She referred to research that touched upon the possible impact of childhood abuse upon an individual’s development. Ms Zingirlis did not conclude that there was any causal connection between the asserted incidents involving the applicant’s brother and the applicant’s crimes, and there was no evidence at all that the incidents the applicant described to Ms Zingirlis “contributed to the offender's own criminality”, to use the phrase from AGR.

32. [91]

    Given the unsatisfactory evidence concerning this issue, her Honour was by no means obliged to, firstly, accept that these incidents had occurred; or, secondly, find that they had had any adverse impact upon the applicant; or, thirdly, conclude that they had had a causal role in the commission of the applicant’s crimes. What the applicant said he experienced as a child with other children, and what the applicant as a 17 – 25 year old did to his much younger nephews, were acts of such different character that clear evidence was required of a causal link to make the evidence of relevance to the exercise of the sentencing discretion. There was no such evidence. Despite that, her Honour was prepared to have regard to the assertions concerning childhood abuse in the general mix of subjective features. There was no error in that approach.

33. [92]

    I intend to treat ground 4, a complaint that too much weight was given to general deterrence, as an argument advanced in support of a contention that the sentence imposed was unfair. Even on that basis, however, it cannot be made out.

34. [93]

    The applicant argues that, having regard to the features of youth, childhood sexual abuse, mental illness, and delay, the sentencing judge gave greater weight than was appropriate to general deterrence. He contends that this asserted failure can be readily determined from the severity of the sentence imposed. None of those arguments can be accepted.

35. [94]

    I have already considered the relevance of the applicant’s age at the time of offending, the significance of the incidents he complained of to Mr Garber and Ms Zingirlis concerning the conduct of his brother in childhood, and his depression and anxiety at the time of sentencing. The sentencing judge referred to these features, and had regard to them; she was not obliged to treat them as matters that significantly affected the application of the principle of general deterrence.

36. [95]

    The principle of general deterrence will ordinarily have lesser application when sentencing children, giving way to the prioritisation of treatment and rehabilitation of the young. The jurisprudential philosophy underpinning the principle is that the community’s interest in a young person being rehabilitated and becoming a positive member of society outweighs its interest in seeing young offenders sternly punished: R v Smith [1964] Crim LR 70 at 70; R v GDP (1991) 53 A Crim R 112 at 116. That interest could have no application to a man aged in his sixties when appearing for sentence. Even if it did, it is not the law that general deterrence has no application when sentencing children or young people, a point taken up in GDP, citing R v Broad (Court of Criminal Appeal (NSW), 30 March 1984, unrep). In Broad, Street CJ referred to the need to give attention to the principle of general deterrence as a means by which the antisocial conduct of youthful vandals could be deterred. A more recent example of the continuing relevance of general deterrence may be seen in the sentencing principles applicable to offences of dangerous driving committed by young offenders, where deterrence frequently outweighs rehabilitation. In R v Smith (1997) 26 MVR 353; (1997) 95 A Crim R 373 at 375 – 376 the Court said:

37. [96]

    The guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 affirmed the continuing application of general deterrence to young offenders for this category of offending. In KT at [25] the continuing relevance of general deterrence in certain circumstances when sentencing children was stated.

38. [97]

    With respect to sequence 5, the only offence committed at a time when the applicant may have been a child, the sentencing judge imposed a CCO. That outcome points strongly to the conclusion that general deterrence was not a significant feature in the determination of sentence. For the remaining offences, committed when the applicant was an adult, general deterrence had a very real role to play. The applicant’s crimes are of a kind that, as the sentencing judge commented, frequently occur in a family context, where an offender exploits the access to children provided by a family relationship to sexually abuse a young relative. This Court has repeatedly held that the need to deter others from sexually exploiting children is a very significant consideration when sentencing those who sexually abuse children: R v ABS [2005] NSWCCA 255 at [26]. In the applicant’s case the sentencing judge correctly held that the ongoing nature of the offending in a family setting required the sentence to operate as a deterrent.

39. [98]

    The abuse the applicant asserted he suffered as a child was not something that ameliorated the operation of the principle of general deterrence in the absence of any direct evidence of a causal connection between it and the offences before the court. Nor could the applicant’s current depressive condition require any reduction in the operation of the principle: it was a matter properly taken into account by her Honour in making the finding of special circumstances.

40. [99]

    Delay between offending and sentence, and particularly significant delay as here, calls for a measure of flexibility in the imposition of sentence, but there is no rule that such flexibility is to be achieved by ameliorating the operation of the principle of general deterrence. Whether delay will have any significant downward effect on a sentence is a matter to be determined by reference to the circumstances of the individual matter, a point made in Holyoak v R (1995) 82 A Crim R 502 at 508 – 509:

41. [100]

    The applicant’s circumstances probably fall between these two extremes. The delay in bringing a prosecution against him led to him living what seems to have been a generally positive and rewarding life. He was able to be accepted and continue to work as a member of the RAAF, marry, and establish a family. He was able to rehabilitate himself and present evidence of his rehabilitation to the sentencing court, that being a powerful consideration on sentence. Although the applicant told others he had felt guilty over the years about his conduct towards his nephews, his guilt does not seem to have had any adverse impact upon his enjoyment of life. He enjoyed decades free of punishment and disgrace: Magnuson v R [2013] NSWCCA 50 at [62].

42. [101]

    On the other hand, whilst charging at an earlier time would have meant that any punishment imposed would now be long past, and the applicant would not, in his sixties, have faced incarceration and the ruin of his reputation, his military career would have been denied to him, and any alternative employment prospects would likely have been limited. The stain of conviction as a child sex offender would also likely have inhibited his social interactions with others, impacting on his capacity to establish a stable and happy family and community life. The life that the applicant has enjoyed would not have been open to him.

43. [102]

    It is impossible in this instance to assess where the greatest advantage or disadvantage falls. The sentencing judge was, however, cognisant of the relevance of delay, and took it into account in the sentence imposed for sequence 5, where it was clear there was disadvantage to the applicant in losing the opportunity to be sentenced in the Children’s Court.

44. [103]

    Finally, inherent in the term of the aggregate sentence imposed is a measure of leniency reflecting the applicant’s current personal circumstances, including what her Honour referred to as his “otherwise exemplary life”. No error has been established.

45. [104]

    Like ground 4, this ground is pleaded as a complaint that too much weight was given to specific deterrence. As framed, it shares the same flaw as grounds 1 and 4 in that no House v The King error is identified. It will be treated in the same way as ground 4, as a matter pointing to an unjust sentence.

46. [105]

    The applicant submits that the sentencing judge erred in importing an element of specific deterrence into the sentence to be imposed upon him. He points to a sentence in the remarks to bear that out, wherein her Honour, when dealing with the need for general deterrence, said:

47. [106]

    Setting aside that passing reference, her Honour made a number of findings favourable to the offender, which point to specific deterrence having had a very limited role to play in determining the sentence imposed upon the applicant. She said:

48. [107]

    It is clear from the whole of the remarks that the sentencing judge was conscious of the delay in the prosecution of the applicant and the impact of the prosecution on a man of his age and formerly good reputation. She took that feature into account, as she did contrition, with her Honour finding that the applicant “is genuinely remorseful and contrite”. It is true, as the applicant contends, that her Honour did not conclude that he had voluntarily chosen to end the offending conduct, but that is probably because there was no evidence that that is what occurred. On the contrary, the offending against SW ended when SW told his uncle to stop. The applicant’s response to that was to focus his offending conduct on CW. There was no satisfactory evidence before the sentencing court as to how the abuse of CW came to end. The applicant told Ms Zingirlis that at some point during the period of the offending he had told himself he “should put an end to it”; there was no evidence that he did so, even if his self-serving assertion to the psychologist is accepted as reliable.

49. [108]

    Finally, the sentence itself suggests that her Honour did not give undue weight to specific deterrence. When the gravity of this destructive course of gross abuse of two children who should have been able to look to the applicant for protection is considered, the sentence imposed upon the applicant cannot be regarded as unfair or unjust. Her Honour clearly ameliorated the sentence significantly to take into account delay, the applicant’s rehabilitation and good future prospects, his remorse, his ill health, and the pleas of guilty.

Conclusion

1. [109]

   I propose that leave be granted to appeal against sentence, but that the appeal is dismissed.

2. [110]

   FAGAN J: I agree with Wilson J.