PW v R

1. [1]

   BASTEN JA: I agree with Macfarlan JA that there should be a grant of leave to appeal against the aggregate sentence imposed on the applicant in the District Court, but that the appeal should be dismissed. I agree with Macfarlan JA’s reasoning, but would add the following observations with respect to the attempt to demonstrate an error in the exercise of the sentencing discretion by reference to the length of the individual sentences indicated as appropriate, but not imposed.

2. [2]

   The power to impose an aggregate sentence with respect to imprisonment for two or more offences, instead of imposing separate sentences, is provided by s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a provision which commenced in March 2011. The section also provides that when imposing an aggregate sentence, the court “must indicate to the offender, and make a written record of, … the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provisions of this Act) had separate sentences been imposed instead of an aggregate sentence”: s 53A(2)(b).

3. [3]

   It is has been said that subs (2) is “clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges.” [1] This Court has also explained in JM v R: [2]

4. [4]

   However, as the Court further stated in JM: [3]

5. [5]

   There is truth in each of these statements, but their operation will vary according to particular circumstances. Furthermore, they identify the legislative purposes at a high level of generality which provides limited assistance in determining what is required to comply with s 53A(2). Furthermore, they involve conflicting principles. For example, the greater the detail required of a sentencing judge explaining the reasons for the putative individual sentences, the less the benefit of imposing an aggregate sentence. If a detailed explanation of the process of determining each putative sentence were required, together with an explanation as to how the principle of totality would have operated had those sentences been imposed, the complexity of the sentencing exercise is hardly diminished.

6. [6]

   The present case provides an example of the limited “transparency” achieved by stating putative individual sentences. The result is that an assessment of those sentences will give limited assistance in understanding the length of the aggregate sentence. There are three reasons why this may be so.

7. [7]

   First, this was a case in which multiple offences were charged as the result of a single episode of criminal conduct, lasting about two hours, described by the sentencing judge as a period of “relative brevity but significant intensity”. There was a sense in which the level of culpability of the offender, and the objective seriousness of the offending, could not be readily dissected into specific parts, a point acknowledged by the judge. (Of course, many aggregate sentences involve entirely separate episodes of offending and do not give rise to this difficulty.)

8. [8]

   Secondly, in this case each of the four most serious offences was said to merit a sentence being 90% of the aggregate sentence. These putative individual sentences provided useful information only if one knew whether each was assessed in isolation from the surrounding conduct or whether, as seems likely, there was a large overlapping element of moral culpability. Indeed, taken in isolation some of the lesser offences would have warranted non-custodial penalties, were the offender not going to gaol for other offences.

9. [9]

   Thirdly, extracting 12 separate charges from the relatively brief period of offending may have involved a degree of overzealous prosecution. One effect is that the total of the putative individual sentences may appear to justify an aggregate sentence in excess of that which would have been expected viewing the totality of the offending conduct as a single episode.

10. [10]

    These considerations indicate why, in the circumstances of this case, the indications of putative individual sentences provided little guidance as to how the aggregate sentence was fixed. As a practical matter the appeal against the length of the sentence could not have succeeded unless it were possible to say that the sentence was manifestly excessive. No such challenge was run, for reasons which may readily be inferred.

11. [11]

    MACFARLAN JA: The applicant seeks leave to appeal against the sentence of imprisonment imposed on him in the District Court on 27 October 2017. He had appeared for trial in the District Court on 15 August 2017 and pleaded not guilty to 12 counts of sexual offences that he was alleged to have committed against his daughter during a single episode on 21 August 2014. The jury returned verdicts of guilty on 11 of those counts and not guilty on one count (Count 7).

12. [12]

    The sentencing judge imposed an aggregate sentence of imprisonment of 10 years comprising a non-parole period of 7 years and 6 months and a balance of term of 2 years and 6 months. Details of the offences and relevant information concerning them are set out in the following table prepared by the Crown:

The objective circumstances

1. [13]

   The sentencing judge’s findings and observations were to the following effect:

The applicant’s subjective circumstances

1. [14]

   In summary, the sentencing judge made the following findings:

GROUND 1: THAT HER HONOUR ERRED BY IMPOSING IDENTICAL BUT SEPARATE INDICATIVE SENTENCES FOR EACH CATEGORY OF AGGRAVATED SEXUAL ASSAULT, AGGRAVATED SEXUAL INTERCOURSE AND INCITE INDECENT ASSAULT, INFLATING AND CREATING MANIFEST EXCESS IN THE AGGREGATE SENTENCE

1. [15]

   The applicant did not dispute that it is only against the aggregate sentence, and not the indicative sentences recorded by the sentencing judge, that an appeal may be brought (Kerr v R [2016] NSWCCA 218 at [114], applied in subsequent decisions including Nguyen v R [2019] NSWCCA 87 at [65]). Whilst the indicative sentences are not themselves amenable to appeal, they may be a guide to whether error is established in relation to the aggregate sentence, but the fact that indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive (ibid).

2. [16]

   The applicant’s submissions in relation to this ground, as summarised by the Crown, were as follows:

   1. (1)

      The indicative sentences for counts 1 and 4 “were manifestly excessive thus inflating the aggregate sentence. These crimes were of short duration and were subsumed in the overall course of offending”.

   2. (2)

      Her Honour erred in finding that the count 2, 3, 9 and 11 offences were in the mid-range of objective seriousness. The “sucking of the nipples was of very short duration and the licking of the cleavage was not in the same category as the sucking of the nipples episode”.

   3. (3)

      Her Honour erred in finding that the counts 5, 6, 8 and 10 offences were above the mid-range of objective seriousness. “Counts 5 & 8 were 2 episodes of cunnilingus however they attracted the same indicative sentence as the counts for penile sexual intercourse”.

   4. (4)

      Her Honour’s finding that count 12 was above the mid-range of objective seriousness “was erroneous as there is no [SNNP] period for this offence: R v Sivell [2009] NSWCCA 286”.

   5. (5)

      Her Honour erred in grouping the offences into four categories and imposing individual sentences on a “one size fits all” basis when the offences were disparate. “This process inflated the indicative sentences and consequently the final aggregate sentence”.

3. [17]

   It is convenient to address these submissions in reverse order.

Grouping into four categories

1. [18]

   Although the sentencing judge was required to consider each offence individually, there was no reason for her not notionally to group together offences that she considered should be treated similarly. In any event, at the sentencing hearing her Honour foreshadowed that she might take that approach and the applicant’s counsel did not indicate any objection to it. The principle in Zreika v R [2012] NSWCCA 44 that submissions on appeal in sentencing matters should be confined to arguments put below is therefore applicable. Moreover, in oral address on appeal the applicant’s submissions were confined to challenging the contents of the categories rather than the principle of categorisation itself.

Count 12 – incite aggravated indecency

1. [19]

   As indicated by the table in [12] above, the sentencing judge described the count 12 offence as “[a]bove [the] mid-range of objective seriousness”. Although no standard non-parole period is specified in respect of this offence, there was no error in her Honour expressing a view as to the seriousness of the offence in this manner. As recognised in Sivell v R [2009] NSWCCA 286 at [32], where an offence in question has no standard non-parole period specified it is permissible to assess the objective criminality of the offence “on a broad gradient of seriousness” (see also Martin v R [2013] NSWCCA 24 at [39]).

Counts 5, 6, 8 and 10 – the nature of the sexual acts

1. [20]

   The applicant submitted on appeal that because counts 5 and 8 related to offences of cunnilingus, the sentencing judge should not have attributed the same indicative sentences to them as she did to the offences (counts 6 and 10) which involved penile sexual intercourse. As her Honour indicated however there is “no generally applicable hierarchy of offending” determined by the type of intercourse involved and as McCallum J (as her Honour then was) emphasised in R v BA [2014] NSWCCA 148 (with the concurrence of Gleeson JA and Fullerton J), each offence must be assessed according to its own circumstances (at [37]).

2. [21]

   Relevant in the present case was that, in relation to the penile/vaginal penetration counts, penetration was, on the complainant’s evidence, limited and effected with only part of the applicant’s soft penis. On the other hand the acts of cunnilingus involved the applicant licking and sucking on the complainant’s clitoris for a few minutes. In these circumstances, it was open to the sentencing judge to group these acts together and specify the same indicative sentences in relation to each of them.

3. [22]

   On the issue raised by the applicant as to whether the aggregate sentence imposed was manifestly excessive (which the applicant contends it was, irrespective of whether any of the applicant’s particular submissions concerning this ground of appeal are accepted), it should be noted that the indicative sentence specified by her Honour in relation to each of counts 5, 6, 8 and 10 was 9 years imprisonment with a non-parole period of 6 years and 9 months. Each of those indicative sentences was thus only one year short of the aggregate head sentence of 10 years that was imposed and was only nine months short of the non-parole period of 7 and a half years that was fixed as part of the aggregate sentence. Bearing in mind that there were four offences in this category and each of them was assessed, without challenge on appeal, as having an objective seriousness above the mid-range, little, if any, contribution is required from the other offending to conclude that the aggregate sentence was well within her Honour’s discretion to impose.

Counts 2, 3, 9 and 11 – objective seriousness

1. [23]

   The applicant complained that these offences involving, in three cases, sucking on the complainant’s nipple and, in one case (count 11), licking on the cleavage area between her breasts, should not have been found to be within the mid-range of objective seriousness. As has however been said on many occasions, the objective seriousness of a crime is a matter “classically within the role of the sentencing judge” and this Court should be “very slow” to interfere with that characterisation (Mulato v R [2006] NSWCCA 282 at [37] and subsequent decisions including Darcy v R [2019] NSWCCA 159 at [39]). Bearing in mind the nature of the acts, the context in which they occurred and the father/daughter relationship between the applicant and the complainant, her Honour’s assessment was in my view open.

2. [24]

   The applicant also contended that the sentencing judge should not have put the count 11 offence (licking between the complainant’s breasts) in the same category as the counts 2, 3 and 9 offences (sucking the complainant’s nipples). As I have said, her Honour however had a good deal of latitude as to how she categorised the objective seriousness of the offences. The applicant did not in my view establish that it was not open to her Honour to take the view that each of these offences were of a similar objective seriousness, particularly when the applicant’s counsel did not at the sentencing hearing seek to draw any presently relevant distinction between them.

Counts 1 and 4 – aggravated indecent assault

1. [25]

   The count 1 offence involved the applicant poking the complainant’s breast with his index finger and the count 4 offence involved the applicant kissing down the side of the complainant’s waist. The sentencing judge indicated sentences of 18 months imprisonment, with non-parole periods of 13 months, in respect of each offence.

2. [26]

   As noted above, the applicant submitted on appeal that these indicative sentences “were manifestly excessive thus inflating the aggregate sentence. These crimes were of short duration and were subsumed in the overall course of offending”.

3. [27]

   I accept that these indicative sentences appear high when considered in isolation. The sentencing judge however needed to, and no doubt did, take into account the context in which the offences occurred and the father/daughter relationship between the applicant and the complainant. This gave the offences a distinctly different colour to that which they would have had if they were committed in isolation. Moreover, the indicative sentences for these offences appear to have played little if any role in the determination of the aggregate sentence at which her Honour arrived. As I said at [22] above, that sentence was substantially, if not wholly, justified by the first group of offences to which I have referred above (counts 5, 6, 8 and 10). When an impact on the aggregate sentence is allowed for the counts 2, 3, 9, 11 and 12 offences, it can be seen that the counts 1 and 4 offences are unlikely to have had any significant impact at all. Contrary to the applicant’s submission, they cannot be inferred to have “inflated” the aggregate sentence.

4. [28]

   Moreover, it must be emphasised again that an appeal is available only against the aggregate sentence, and not the indicative sentences (see [15] above). Even if the view were taken that the indicative sentences in respect of counts 1 and 4 were excessive, that would not establish that the aggregate sentence was manifestly excessive. The applicant has not in my view established that it was.

GROUND 2: SPECIAL CIRCUMSTANCES

1. [29]

   The sentencing judge’s reasons for declining to find special circumstances were as follows:

2. [30]

   On appeal, the applicant submitted that her Honour erred in not finding special circumstances “by holding that if she did so it would be a form of double counting”. In particular, he submitted that “her Honour erred in principle by finding the Applicant’s mental health status was double counting and a legal basis for declining to find special circumstances”.

3. [31]

   Her Honour however gave careful consideration to the three matters that the applicant submitted constituted special circumstances.

4. [32]

   First, she found that the fact that this would be the applicant’s first time in custody was not of itself sufficient to constitute a special circumstance. On appeal, the applicant did not contest this proposition.

5. [33]

   Secondly, her Honour referred to the fact that in earlier determining the length of the head sentence she had taken the applicant’s health into account. Contrary to the applicant’s submissions on appeal, her Honour did not err in instructing herself in this context that she should avoid double counting. Her approach was consistent with the following observations of Spigelman CJ in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [67] :

6. [34]

   His Honour added in R v Fidow [2004] NSWCCA 172 at [18]:

7. [35]

   As Beech-Jones J said (with the concurrence of Leeming JA and R A Hulme J) in R v AA [2017] NSWCCA 84 at [74]:

8. [36]

   On appeal in the present case the applicant did not contend, and certainly did not demonstrate, that there was any respect in which the evidence concerning his health issues went beyond that which her Honour, properly, took into account in determining the head sentence. His health issues did not therefore warrant further recognition by a finding of special circumstances in relation to the fixing of the non-parole period.

9. [37]

   The third matter that the applicant submitted at the sentencing hearing justified a finding of special circumstances was a need of the applicant for extended supervision in the community to assist in his rehabilitation. Her Honour considered that submission but found that the applicant did not have a need for an extended period on parole for the purposes of his rehabilitation. The applicant did not criticise this finding on appeal.

ORDERS

1. [38]

   For the reasons above, I consider that both the proposed grounds of appeal lack merit. I therefore propose the following orders:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Dismiss the appeal against sentence.

2. [39]

   CAMPBELL J: I agree with the reasons of, and orders proposed by, Macfarlan JA. I also agree with what Basten JA has written especially at [9]-[10]. That the process has resulted in what on one view is an unexpectedly stern sentence does not equate with manifest excess, which was not quite how the challenge was put. As Macfarlan JA’s analysis demonstrates the aggregate sentence was arrived at by incorporation of a high degree of concurrency for the most serious category of offending, and indeed generally.