Corliss v R

1. [1]

   BRERETON JA: I have had the benefit of reading, in draft, the judgments to be delivered by Johnson J and by Lonergan J, in the latter of which the factual basis on which the applicant was sentenced are fully set out. For the reasons given by their Honours, I agree that grounds of appeal 1 and 2 must fail. I also agree with their Honours that the applicant’s motion, lodged in person after the hearing of the appeal, should not be entertained, particularly when he has solicitors on the record, who eschew prosecution of the motion. I have the misfortune, however, to disagree with their Honours’ conclusions in respect of Ground 3. And I also disagree with the view expressed by their Honours as to the application of (NSW) Crimes (Sentencing Procedure) Act 1999, s 25AA (“the Sentencing Procedure Act”).

Ground 3

1. [2]

   The applicant was sentenced before the commencement of s 25AA of the Sentencing Procedure Act. In that context, the sentencing judge rightly proceeding on the basis that for historical offences of the kind in question here, an offender was to be sentenced in accordance with the law and sentencing practices applicable at the time when the offences were committed. [1] Such an approach was in accordance with authority: in R v MJR, [2] a five-judge bench of this Court held that it was appropriate for a court to take into account: “… the sentencing practice as at the date of commission of an offence when sentencing practice has moved adversely to an offender.” That extends to the fixing of a non-parole period. [3]

2. [3]

   In proceeding on that basis, her Honour also rightly observed that it had become accepted that the sentencing outcomes during the period when the subject offences were committed typically involved non-parole periods of between 35% and 50% of the head sentence. [4] That too was in accordance with authority: in MPB v R, [5] Garling J observed:

3. [4]

   I entirely accept that this did not mean that her Honour was required by law to set a non-parole period in the order of one-third to one-half of the head sentence. Her Honour was required, in compliance with s 44 of the Sentencing Procedure Act to fix a non-parole period that represented the minimum period of imprisonment required to be served by the offender having regard to all of the purposes of justice, and (in the context of historical offences such as those in question here) taking into account historical sentencing practices for such offences. As was said in Denham v R: [6]

4. [5]

   However, having recorded an intention to sentence “in accordance with the law and sentencing practices applicable at the time when the offences were committed”, and having noted that at that time non-parole periods were typically between 35% and 50% of the head sentence, [7] her Honour found that the historical sentencing practices constituted “special circumstances” on account of which the non-parole period should be reduced below the statutory proportion, and proceeded to state indicative sentences for each offence, including indicative non-parole periods: [8]

5. [6]

   In respect of each offence, the indicative non-parole period stated by her Honour was, or very closely approximated, 50% of the indicative total sentence. Without further explanation, however, her Honour then imposed a sentence of 7 years imprisonment, with a non-parole period of 4 years and 4 months, which represented 62% of the aggregate sentence.

6. [7]

   As Johnson J observes, the approach of nominating an indicative non-parole period for each indicative sentence was not required for these offences. However, as her Honour explained, that course was taken, very properly, “to ensure transparency” in sentencing – in other words, fully to expose her Honour’s reasoning. When one has regard to her Honour’s statement to the effect that the offender was to be sentenced in accordance with the law and sentencing practices applicable at the time when the offences were committed, [9] coupled with the indicative sentences which included in respect of each count a non-parole period of 50% of the head sentence, and the absence of any explanation for a non-parole period of a higher proportion, her Honour’s reasoning points inexorably to an aggregate non-parole period of 50% of the aggregate sentence. If her Honour had concluded that such an outcome was less than the minimum period which the offender must spend in full-time custody, one would have expected to see that in the remarks; but there is nothing in them to that effect.

7. [8]

   For the most serious offence – sequence 7 – the indicative sentence was 5 years and 3 months, with a non-parole of 2 years and 7 months. The ultimate aggregate sentence was 7 years, representing an accumulation element of 1 year and 9 months. Yet the non-parole period of 4 years and 4 months also included an accumulation element of 1 year and 9 months. In other words, the whole of the accumulation element was included in the non-parole period. That is an anomalous and discordant outcome, and if there was any reasoning supporting it, it is not disclosed, and it is not self-evident. In my view, such a result is to be explained as a slip, in that having determined to apply an accumulation element of 1 year and 9 months to the head sentence, the same accumulation element was also inadvertently applied to the non-parole period.

8. [9]

   For those reasons, in my opinion ground three succeeds. No other flaw in the sentencing judge’s approach being apparent, the head sentence of 7 years should stand, but the non-parole period should be 50% thereof, being 3 years and six months.

Section 25AA

1. [10]

   My view in that respect is a minority one, and because the majority view is that no ground of appeal succeeds, the question of the impact of s 25AA of the Sentencing Procedure Act where this Court, after a successful appeal, re-sentences an offender who was sentenced before s 25AA commenced, does not require determination, and I would prefer to reserve it for a case in which it does. However, as the other members of the bench have proceeded to express a considered view, with which I respectfully disagree as a matter of law, and which I consider may if applied in other cases be productive of great and serious injustice, I feel constrained to offer my reasons for being of a different opinion.

2. [11]

   The function of this Court on an appeal against sentence is governed by (NSW) Criminal Appeal Act 1912, s 6(3):

3. [12]

   The phrase “pass such other sentence” refers back to “some other sentence … is warranted in law and should have been passed”, and thus to the sentence that should have been passed by the sentencing judge, when the sentence was passed. It does not refer to a sentence which should now be passed if the offender first came before the court for sentence at the time of the appeal.

4. [13]

   That view of s 6(3) accords with what was said by Mason CJ and McHugh J in Radenkovic v The Queen: [10]

5. [14]

   As that passage makes clear, the injustice involved in an offender, who on appeal succeeds in demonstrating that the sentencing judge ought to have imposed a lesser sentence, becoming exposed to a more severe sentence because of a change in sentencing practices after the sentence, is plain.

6. [15]

   It is to be noted that this Court’s judgment in MJR, [11] and the High Court’s judgment in Radenkovic v The Queen, [12] stand for two distinct principles. As explained above, [13] MJR holds that when sentencing an offender for an historical offence, the sentencing court should have regard to the sentencing practice as at the date of commission of an offence (at least when sentencing practice has moved adversely to an offender). Thus, generally speaking and absent statutory provision to the contrary, an offender should be sentenced in accordance with the sentencing practises that prevailed at the time of the offence. I will call this the “historical sentencing principle”. It refers the sentencing judge to the law and practice at the date of the offence. Radenkovic, on the other hand, states that when a court of criminal appeal resentences an offender because it has quashed the sentence initially imposed, the offender should ordinarily be resentenced according to the law as it stood at the time of the original sentence, particularly when that law was more favourable than the law at the hearing of the appeal. That is because an offender is entitled to a sentence in accordance with law at the date on which it is passed, and ought not be deprived of it just because the sentencing judge made an error. I will call this the “resentencing principle”. It refers a court of criminal appeal to the law at the date of the original sentence. Although, in MJR, Spigelman CJ found some assistance in what had been said – in a different context – in Radenkovic, [14] the two principles are distinct. They deal with different questions, and direct the court to the law at different times.

7. [16]

   Nothing in Kentwell v The Queen [15] or Betts v The Queen [16] detracts from the “resentencing principle”. Kentwell states that upon resentencing, the Court of Criminal Appeal may take into account all relevant matters, including evidence of events that have occurred since the sentence hearing. [17] That is a reference to matters of fact. Kentwell does not state that, contrary to Radenkovic, a court of criminal appeal should on resentencing apply the law as at the date of the appeal, where it has changed adversely to the offender since the sentence hearing. To do so would be inconsistent with the command of s 6(3) to pass such sentence as should have been passed. On the other hand, evidence of rehabilitation since the sentence informs the sentence that “should have been passed” by showing, albeit by more recent evidence, what the offender’s prospects of rehabilitation truly were; such evidence may show that a more optimistic view should be taken of prospects of rehabilitation.

8. [17]

   Section 25AA (Sentencing for child sexual offences) relevantly provides:

9. [18]

   I accept, unreservedly, that s 25AA was intended to abolish, in respect of the offences to which it applies, the “historical sentencing principle”, for offenders coming before the court for sentence after its commencement. This is clear from s 25AA(1), and resort to the extrinsic material and the authorities, referred to by Johnson J, only reinforces it. Where I differ is that I do not accept that s 25AA evinces any, let alone a very clear, indication of statutory intention (of the kind contemplated in Radenkovic), to affect in any way the “resentencing principle”, for an offender who was first sentenced before s 25AA commenced.

10. [19]

    The extrinsic material referred to by Johnson J [18] plainly evinces an intention to displace the practice of sentencing offenders (in respect of offences to which s 25AA applies) in accordance with the historical sentencing practices that applied at the time of the offence. But in my view they say nothing about the entitlement of an offender to a sentence in accordance with the law that obtained at the date of the sentence. There is absolutely nothing in them that indicates that the slightest consideration was given to the position of an offender who had already been sentenced, and appealed successfully against it. Nor even does the dissenting judgment of Mason P in R v MJR, referred to by Johnson J, which may be a persuasive statement of why, at first instance, offenders should no longer be sentenced in accordance with historical sentencing practices, but says nothing about the position of one who has already been sentenced before a change in the law. It is one thing to deprive child sex offenders who have escaped detection and prosecution for years, of the benefit of the sentencing practices that applied at the time of their offending. It is quite another to deprive those who have been convicted and sentenced, purportedly in accordance with the law as it stood at the time of sentencing, to the entitlement to a sentence in accordance with law at the date of sentencing, and to expose them to a more severe sentence because the judge makes an error in the original sentence.

11. [20]

    Aside from the extrinsic material, the remaining basis on which it is said that an intention that s 25AA apply to the Court of Criminal Appeal when resentencing is to be discerned, is that the definition of “court” in s 3(1) of the Sentencing Procedure Act includes the Court of Criminal Appeal, so that a “court” referred to in s 25AA includes the Court of Criminal Appeal. However, that definition of “court” long predated the introduction of s 25AA, and provides a faint basis for thinking that the Court of Criminal Appeal was in mind when s 25AA was introduced. In any event, s 25AA plainly will and does apply to the Court of Criminal Appeal when resentencing an offender who was first sentenced after the commencement of the provision. No clear, let alone “very clear”, intention that it should apply to an appeal by an offender who is sentenced before s 25AA commenced can be discerned. Nor can any intention to deprive an offender of the right to be sentenced in accordance with law and practice at the date of the sentence can be discerned from this. Nor do the general terms of s 25AA displace the specific direction to this Court in s 6(3) of the Criminal Appeal Act, to the effect that it is to pass the sentence which it considers the sentencing judge ought to have passed.

12. [21]

    While s 25AA clearly manifests an intention that in sentencing, for the first time, an offender for historical sex offences, the sentencing practices of today and not those that obtained at the time of the offence should be applied, in my view it does not manifest any intention that an offender who has already been sentenced before the commencement of s 25AA but, because of a successful appeal, comes to be resentenced after its commencement, should on that account be exposed to greater jeopardy, and deprived of the right to a sentence in accordance with the law at the date of the original sentence.

Conclusion

1. [22]

   In my judgment, leave to appeal should be granted, the appeal should be allowed, the sentence should be quashed, and in lieu thereof the applicant should be sentenced to 7 years imprisonment with a non-parole period of 3 years and 6 months, being eligible for release on parole on 11 October 2021.

2. [23]

   JOHNSON J: I have had the advantage of considering in draft the judgment of Lonergan J.

3. [24]

   I agree with the orders proposed by her Honour, but will set out my own reasons for that conclusion. Lonergan J has set out the facts of the offences together with several findings and conclusions of the sentencing Judge and submissions made in this Court concerning the grounds of appeal. It is not necessary to repeat those matters in this judgment.

4. [25]

   As will be seen, apart from a conclusion that no error has been demonstrated to enliven this Court’s resentencing function under s 6(3) Criminal Appeal Act 1912 (NSW), I have also addressed the question of the proper construction and application by this Court of s 25AA Crimes (Sentencing Procedure) Act 1999 (NSW) where an offender was sentenced before the commencement of s 25AA.

5. [26]

   The interrelationship between s 6(3) and s 25AA was fully argued, apparently for the first time, at the hearing of this application. The fact that this issue was the subject of a reserved judgment has been noted in other appeals to this Court (see, for example, Franklin v R [2019] NSWCCA 325 at [144]). This issue is of some importance. Although not strictly necessary to do so as s 6(3) is not reached in this application, it is appropriate for the Court to express a conclusion on this issue.

First and Second Grounds of Appeal

1. [27]

   There is some overlap in the issues raised by the first and second grounds of appeal. Both grounds relate to an assessment of the objective gravity of the offences, with Ground 2 focusing upon the starting point for the offences in Sequences 6 and 7.

2. [28]

   The present offences, of course, were committed long before the introduction of the system of standard non-parole periods in 2003. The requirement of a sentencing court to make a finding concerning objective gravity of offences of this type arose from general law sentencing principles.

3. [29]

   In Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, this Court said at [46]:

4. [30]

   The concept of objective gravity or objective seriousness under the general law involves a range of factors including the nature and conduct of the offence in question, the age of the victim, the relationship between the offender and the victim and other objective features of the offence, together with other circumstances which account for criminal conduct: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]. The overlapping concept of “moral culpability” arises for consideration in a similar way: Tepania v R at [113].

5. [31]

   As the extracts from the sentencing remarks referred to by Lonergan J (at [114], [120] and [124]) make clear, the sentencing Judge gave careful consideration to the objective gravity of these offences and the associated question of moral culpability of the Applicant.

6. [32]

   With respect to Ground 1, I do not accept the Applicant’s submission that her Honour erred in failing to adequately assess the objective seriousness of the offending. The findings with respect to objective gravity made by the sentencing Judge were clear and understandable. The descriptions of the offences were accompanied by a short finding or conclusion with respect to the gravity of the particular offence. Sentencing law does not require any more than this and this is especially so where the offences for which sentence is to be imposed do not carry a standard non-parole period: Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [143]. This is not a case where the sentencing Judge made bare findings of fact with no assessment at all being made concerning objective seriousness: R v Van Ryn [2016] NSWCCA 1 at [133]-[136].

7. [33]

   The assessment of objective seriousness of an offence is quintessentially a matter for the sentencing Judge: Mulato v R [2016] NSWCCA 282 at [46]. The question is whether or not the particular characterisation which the sentencing Judge gave to the circumstances of the offence was open to the sentencing Judge: Mulato v R at [37]. In order for this Court to interfere with the assessment made by the sentencing Judge, error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40: Mulato v R at [46]. The assessments made by the sentencing Judge were both open and appropriate in the circumstances of this case.

8. [34]

   It must be kept in mind, as well, that the offences for which the Applicant was sentenced were representative counts. In approaching the question of sentence, it was appropriate for the sentencing Judge to take into account that the charged offences were not isolated ones nor were they aberrations on the part of the Applicant: AK v R [2016] NSWCCA 238 at [66]-[76]. Although this is not a factor which elevated the objective gravity of the offences, it bears upon sentences to be passed for a series of sex offences committed against a child victim.

9. [35]

   The approach adopted by the sentencing Judge accorded with that required by law and no error is demonstrated with respect to the first ground of appeal.

10. [36]

    The second ground of appeal focuses attention upon the starting points for indicative sentences for offences contained in Sequences 6 and 7. Each involved an offence of carnal knowledge with a girl aged between 10 and 16 years, an offence under s 71 Crimes Act 1900 (NSW) punishable by a maximum penalty of 10 years’ imprisonment.

11. [37]

    It is for the Applicant to demonstrate error in accordance with the second ground of appeal. Her Honour proceeded by way of aggregate sentence. It is the aggregate sentence which is the operative sentence in relation to which error is to be demonstrated. If error can be demonstrated with respect to an indicative sentence or sentences, that may assist the demonstration of error in the aggregate sentence, but the Court must keep in mind that it is the aggregate sentence which must be impugned and not the indicative sentences: Vaughan v R [2020] NSWCCA 3 at [89]-[92].

12. [38]

    Once again, it is for the Applicant to demonstrate that it was not open to the sentencing Judge to utilise the indicative sentences identified for each of Sequences 6 and 7: Mulato v R at [46]. Of course, this Court is not simply re-exercising the sentencing discretion for this purpose. Error in accordance with the principles in House v The King must be demonstrated to allow a finding that the indicative sentences selected by the sentencing Judge were not open in the circumstances of the case.

13. [39]

    With respect to the offence in Sequence 6, before taking into account the 25% discount for the Applicant’s plea of guilty, the starting point was six years’ imprisonment. Applying the same approach, the starting point for the offence in Sequence 7 was seven years’ imprisonment.

14. [40]

    As the sentencing Judge found, the offence in Sequence 6 involved an act of sexual intercourse which took place in the Applicant’s vehicle at a time when the victim was 12 or 13 years of age and the Applicant was about 32 years old. There was a significant age difference between the Applicant and the victim. This constituted an act of sexual abuse following a process of grooming on the part of the Applicant. The Applicant’s grooming of the victim included buying her presents which he told her to hide from her parents, showing her pornographic magazines, talking about sex including condoms, lubrication, sexual intercourse and masturbation. He exposed his erect penis to the victim and masturbated in front of her, telling her not to say anything to others about what he was doing.

15. [41]

    The Sequence 6 offence culminated in penile/vaginal intercourse. The fact that the Applicant was wearing a condom had more to do with self-preservation than any concern for the welfare of the victim whom he was sexually exploiting. I see no error in the sentencing Judge’s setting of an indicative sentence for this offence, including the starting point used for this purpose.

16. [42]

    With respect to the offence in Sequence 7, it is necessary to keep in mind that the Sequence 2 indecent assault offence was taken into account on sentence. In taking this Form 1 matter into account, it was appropriate for the sentencing Judge to have regard to the Form 1 offence with a view to increasing the penalty that would otherwise be appropriate for the primary offence in Sequence 7. It was appropriate for the sentencing Judge to give greater weight to the need for personal deterrence and the community’s entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [22]-[23]. This approach will generally lead to the imposition of a longer sentence than would otherwise be required if the Form 1 offence was not taken into account: Abbas v R at [23]; RL v R [2018] NSWCCA 274 at [53]-[57].

17. [43]

    The Sequence 2 offence was one of assault female and commit act of indecency under s 76 Crimes Act which, if prosecuted separately, is punishable by imprisonment for 6 years. The Sequence 2 offence was committed when the victim was 12 or 13 years of age and the Applicant was about 32 years old. He locked the victim in her bedroom before covering her mouth and nose. When she called out to her siblings, the Applicant told the victim to be still and quiet. He then lay on top of her when they were both fully clothed. The Applicant placed himself between the victim’s legs and she attempted to keep her legs together resisting his assault. The Applicant then simulated a sex act against the body of the victim and pushed down on her in a rough manner. The gravity of the Sequence 2 offence, to be taken into account on the Form 1, was such that it was well open to the sentencing Judge to impose a longer sentence for the Sequence 7 primary offence given the gravity of the Sequence 2 offence.

18. [44]

    The Sequence 7 offence occurred when the victim was 13 years of age and the Applicant was about 32 years old. The Applicant locked the door of the bedroom of the victim’s brother whilst she was in that room. At the request of the Applicant, the victim removed her underwear, lay on the bed with her legs spread similar to a manner she had seen in pornographic magazines which the Applicant had shown her during the grooming process. The Applicant, who was naked from the waist down, then placed a condom on his penis and applied a lubricant before placing his penis into the victim’s vagina. The victim said that this was uncomfortable and hurt as the Applicant persisted. This was the first time that the victim had engaged in sexual intercourse.

19. [45]

    The narrative of the offence in Sequence 7 well supports the findings made by the sentencing Judge with respect to it. After the Form 1 offence was taken into account, it was well open to the sentencing Judge to nominate the indicative sentence selected for the offence in Sequence 7.

20. [46]

    The second ground of appeal should be rejected.

The Third Ground of Appeal

1. [47]

   The Applicant contends that the sentencing Judge erred in failing to give full effect to historical sentencing practices for child sex offences.

2. [48]

   In the course of the sentencing remarks, her Honour said (ROS15):

3. [49]

   Her Honour returned to the issue of historical sentencing practices immediately before passing sentence (ROS16):

4. [50]

   Her Honour fixed a non-parole period which constituted 62% of the aggregate sentence.

5. [51]

   Her Honour adopted the approach of nominating a non-parole period for each indicative sentence even though that course was not required for these offences: s 54B(4) Crimes (Sentencing Procedure) Act.

6. [52]

   The Applicant was sentenced on 12 April 2018 prior to the commencement of s 25AA Crimes (Sentencing Procedure) Act which came into effect on 31 August 2018. The sentencing Judge had regard to general law principles applicable at the time with respect to sentencing for historical child sex offences. The complaint here is that her Honour fell into error in imposing a non-parole period for the aggregate sentence which exceeded the 50% selected for the indicative sentences.

7. [53]

   It is necessary to say something about the principles which applied to sentencing for historical child sex offences before the commencement of s 25AA. These were general law principles which were to be taken into account principally as a result of the decision of the majority of the Court of Criminal Appeal in R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 (Spigelman CJ, Grove and Sully JJ, Newman AJ, Mason P dissenting). In that case, the majority held that where sentencing practice had moved adversely to an offender, it was necessary to have regard to the sentencing practice as at the date of the commission of the offence. I will return to the decision in R v MJR later in this judgment.

8. [54]

   There can be no doubt that the sentencing Judge in this case had regard to general law principles applicable at the time of the offences with respect to sentencing for historical child sex offences. What her Honour was required to do as well was to have regard to s 44 Crimes (Sentencing Procedure) Act concerning the relationship between the non-parole period and head sentence for the offence. This statutory provision operated in this case in circumstances where there were no such provision in existence at the time of the present offences. Her Honour had regard to historical sentencing practices in determining that special circumstances should be found, leading to a variation of the non-parole period for the aggregate sentence from 75% to 62% of the full term.

9. [55]

   The submission for the Applicant in support of Ground 3 was similar to that advanced for the Applicant in Woodward v R [2017] NSWCCA 44 where R A Hulme J (Beazley P and Bellew J agreeing) said at [91]-[94]:

10. [56]

    This approach was confirmed in Denham v R [2016] NSWCCA 309 where the Court said at [109]:

11. [57]

    In the present case, her Honour was not required at law to set a non-parole period in the order of one-third to one-half of the head sentence. Her Honour was required to comply with s 44 Crimes (Sentencing Procedure) Act and, in that respect, to take into account historical sentencing practices for offences of this type. That is the approach which her Honour took on sentence.

12. [58]

    The operative sentence was the aggregate sentence and the non-parole period fixed for that sentence: Vaughan v R at [89]-[92] (see [37] above). Having identified (unnecessarily) non-parole periods for the indicative sentences, her Honour expressly had regard to past sentencing practices as part of the overall sentencing process. Having taken that factor into account, together with other aspects bearing upon the question of special circumstances, her Honour fixed a non-parole period for the aggregate sentence which was 62% of the head sentence.

13. [59]

    No error is demonstrated in her Honour’s approach on this aspect. There is no step in the process which her Honour overlooked or mistook. There was no entitlement on the part of the Applicant to have, as part of some suggested automatic process, a non-parole period fixed for the aggregate sentence which was in the order of 50%.

14. [60]

    This ground of appeal is based upon an erroneous understanding of the general law principles with respect to historical sentencing practices which applied prior to the commencement of s 25AA.

15. [61]

    I reject the third ground of appeal.

Application of s 25AA Crimes (Sentencing Procedure) Act 1999 in this Court Where the Original Sentence was Passed Before the Commencement of s 25AA

1. [62]

   As noted earlier in this judgment, this Court heard full and competing submissions as to whether s 25AA was to be applied by the Court in the event that it moved to resentence a person for offences where the original sentence was imposed before the commencement of that provision. This issue was posed somewhat starkly in the present case because Ground 3 itself asserted an error on the part of the sentencing Judge in the approach which she took to the imposition of sentence for historical sex offences.

2. [63]

   I have reached the conclusion that no error has been demonstrated by the Applicant so that the Court does not move to the exercise of its independent sentencing discretion for the purpose of s 6(3) Criminal Appeal Act in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

3. [64]

   However, for the reasons explained earlier (at [25]-[26]), it is appropriate to consider the important issues raised concerning the proper construction and application of s 25AA by this Court in the context of the exercise of its powers under the Criminal Appeal Act.

4. [65]

   Section 19 Crimes (Sentencing Procedure) Act provides as follows:

5. [66]

   Section 25AA provides:

6. [67]

   The definition of “court” in s 3(1) Crimes (Sentencing Procedure) Act includes courts exercising criminal jurisdiction including the Court of Criminal Appeal. It is clear that a “court” referred to in s 25AA includes the Court of Criminal Appeal exercising its sentencing function under s 6(3) Criminal Appeal Act.

7. [68]

   It should be kept in mind that s 25AA provides for two areas of express reform:

8. [69]

   To assist the proper construction and application of s 25AA, it is appropriate to say a little more about the general law principles abolished by that provision.

9. [70]

   It appears from the judgment of Spigelman CJ in R v MJR that s 19 Crimes (Sentencing Procedure) Act played an important part in his Honour’s reasoning. After referring to s 19, the Chief Justice derived assistance (at [24]-[25]) from the decision in Radenkovic v The Queen (1990) 170 CLR 623; [1990] HCA 54, noting the statement by Mason CJ and McHugh J in Radenkovic v The Queen that “considerations of justice and equity” may be called in aid by an appellate court when resentencing an offender so that a more favourable law (to the offender) as it stood at the time of the original sentence should be applied on resentencing. Spigelman CJ then continued at [26]-[27]:

10. [71]

    The dissenting judgment of Mason P in R v MJR has been acknowledged as a powerful statement in support of what has become the legislative scheme now contained in s 25AA. Mason P said at [37]-[41]:

11. [72]

    Later, Mason P stated at [57]-[60] (emphasis added):

12. [73]

    For the purpose of interpretation of s 25AA, regard may be had to extrinsic material, in particular to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision itself, taking into account its context in the Act and the purpose or object underlying the provision: s 34(1)(a) Interpretation Act 1987 (NSW).

13. [74]

    There are two bodies of extrinsic material which are available for this purpose:

14. [75]

    With respect to s 25AA, the Attorney General said in the second reading speech (emphasis added):

15. [76]

    Towards the end of the second reading speech, the Attorney General said:

16. [77]

    Recommendation 76 of the Royal Commission was in the following terms (Report, Criminal Justice Parts VII-X and Appendices, page 322):

17. [78]

    The Report of the Royal Commission identified the foundation for the historical sentencing principle, based upon Radenkovic v The Queen and R v MJR, in the following way (Report, page 308) (footnotes omitted):

18. [79]

    In expressing conclusions in support of Recommendation 76, the Royal Commission said (Report, page 318):

19. [80]

    A little later, the Royal Commission said (Report, page 320) (emphasis added):

20. [81]

    The Royal Commission continued (Report, page 321) (emphasis added):

21. [82]

    What can be seen then is that the rationale underlying the introduction of s 25AA(1) was the overturning of the general sentencing principle contained in the majority judgment in R v MJR, based as it was upon the reasoning in Radenkovic v The Queen. So much is clear from the Royal Commission Report and the second reading speech, both of which provide a clear understanding of the legislative intention in enacting s 25AA.

22. [83]

    To the extent that part of the reasoning in R v MJR and Radenkovic v The Queen imported concepts of fairness to the offender, the clear intention was for the legislation to recalibrate the principles to be applied in all sentencing decisions made by all courts (including the Court of Criminal Appeal) in child sexual offence matters after the commencement of s 25AA on 31 August 2018. The statutory approach in s 25AA(1) reflects the broad approach identified by Mason P in R v MJR and in other jurisdictions considered by the Royal Commission, including the United Kingdom.

23. [84]

    It has sometimes been said that reliance upon the intention of the legislature as an aid to interpretation of a statute is not straightforward given that the intention itself may be elusive or not readily identifiable: Pearce, “Statutory Interpretation in Australia”, LexisNexis Butterworths, 9th edn, 2019, paragraphs 2.3-2.4. Professor Pearce observed (at paragraph 2.4) that “the most valuable recent statement” in this respect was made by Gageler J in Work Health Authority v Outback Ballooning Pty Ltd (2019) 93 ALJR 212; [2019] HCA 2 at [74]-[77]. Gageler J said at [75]-[77] (footnotes omitted):

24. [85]

    The text of s 25AA, confirmed by relevant extrinsic material, makes clear the intention of the legislature to abolish forthwith for the purpose of all sentencing decisions for child sexual offences falling within s 25AA(5), the general law principle with respect to past sentencing patterns and practices for historical child sexual offences. The intention of the legislature having been made clear in this way, it is the duty of sentencing courts (including the Court of Criminal Appeal) to give effect to that legislative intention.

25. [86]

    To the extent that considerations of fairness to offenders who have committed historical child sexual offences arise for consideration, it was the clear legislative intention to require attention to be given to contemporary sentencing patterns and practices, with s.19 confirming that the maximum penalty for the relevant offence is that which applied at the time of the commission of the offence: s 25AA(4). In addition, s 25AA(2) makes clear that any relevant standard non-parole period is that which applied at the time of the offence and not at the time of sentencing.

26. [87]

    These features constitute the express statutory qualifications to the otherwise absolute operation of the provision which confines the attention of all sentencing courts to current sentencing patterns and practices for child sexual offences.

27. [88]

    If the Applicant’s submission was upheld so that s 25AA was not to be applied by this Court on resentence, then the whole section would need to be put to one side. This would have the effect that s 25AA(3) would also be inapplicable.

28. [89]

    In Franklin v R, with the agreement of Gleeson JA and Cavanagh J, I said at [125]-[128]:

29. [90]

    In the present case, a victim impact statement dated 19 March 2018 was before the sentencing Judge and this Court. In this statement, the victim outlined the terrible consequences for her of the Applicant’s offences. She states that the commission of these offences in her adolescent years has had “a huge impact upon [her] emotional wellbeing” and affected very significantly her school years and many aspects of her life. She speaks of “the heavy burden of thirty-nine years living with the negative effects that this crime has had on my personal, professional and social life”. She concludes her eloquent statement with the words “While I am a victim of crime in this court, in my own mind, importantly, today I am a survivor of child sexual assault’.

30. [91]

    The rationale for enactment of s 25AA(3) is well demonstrated by the victim impact statement in this case.

31. [92]

    It would fly in the face of the statutory purpose of s 25AA if this Court, in exercising its function under s 6(3) Criminal Appeal Act, was able to, in some way, bypass s 25AA and apply the discredited principles and understanding which s 25AA was intended to remove. Using the words of the Attorney General in the second reading speech, this approach would serve to perpetuate “our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim”.

32. [93]

    It is not open to this Court, in exercising its s 6(3) function, to avoid, on a type of discretionary basis, the clear and mandatory statutory injunction contained in s 25AA(1) and (3).

33. [94]

    As Spigelman CJ observed in R v MJR at [26] (see [70] above), it is open to Parliament to manifest an intention in legislation to alter the approach favoured by the majority in R v MJR. That is precisely what has occurred in the enactment of s 25AA. As the extrinsic material referred to earlier makes clear (see [73]-[81]), the rationale contained in Radenkovic v The Queen concerning the approach of an appellate court in resentencing has also been excluded by the enactment of s 25AA. The legislation has determined what considerations of justice and equity are applicable with the enactment of s 25AA.

34. [95]

    If the Court had found error and moved to the exercise of sentencing discretion under s 6(3), the Court would take into account all relevant matters, including any evidence of the Applicant’s progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].

35. [96]

    The determination of the question whether a lesser sentence is warranted in law for the purpose of s 6(3) involves an assessment made by reference to such additional evidence as may be admitted before the Court of Criminal Appeal with this Court to apply the law applicable to the particular case. In this case, consideration of the question whether another sentence “is warranted in law” would require application by the Court of Criminal Appeal of the mandatory provisions in s 25AA(1) and (3) Crimes (Sentencing Procedure) Act. The use of the present tense in the expression “is warranted in law” indicates that regard must be had to the current law to the extent that it is intended to operate with respect to any resentencing exercise undertaken by this Court in the face of error on the part of the sentencing Judge: Crump v R [2016] NSWCCA 2 at [68].

36. [97]

    The law to be applied in this respect is contained in s 25AA and it is not open to this Court to disregard the intention of the legislature clearly reflected in this provision.

37. [98]

    The Applicant derives no support concerning the operation of s.6(3) from the decision in Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51. In that case, it was acknowledged that this Court is a court of error and that, for the purpose of determining whether error is demonstrated, this Court cannot have regard to a change in the law to determine whether error is demonstrated in the original sentence: Elliott v The Queen at [33]-[36]. That scenario is far removed from the present case.

38. [99]

    If this Court was moving to exercise the s 6(3) function concerning the Applicant, the approach to s 25AA to be applied is that identified by this Court in R v Cattell [2019] NSWCCA 297 at [103]-[126]. There, Price J (Hoeben CJ at CL and Campbell J agreeing) explained the rationale for s 25AA and the steps to be adopted by a sentencing court applying that provision.

39. [100]

    With respect to the present case, it is sufficient to observe that application of s 25AA(1) and (3) would not provide assistance to the Applicant on resentencing. It should be noted that, unlike the position in Franklin v R at [145], all the offences for which the Applicant was sentenced fall within the definition of “child sexual offence” in s 25AA(5). Accordingly, no part of the sentencing exercise in the Applicant’s case would require attention to be directed to historical sentencing patterns and practices which are not affected by the enactment of this provision.

Conclusion

1. [101]

   The Applicant has not made good any of his grounds of appeal so that it is not necessary to embark upon the exercise of independent sentencing discretion under s 6(3) Criminal Appeal Act.

2. [102]

   However, if the Applicant had demonstrated error so that the s 6(3) exercise was required, then s 25AA was to be applied by this Court as part of that process. I have addressed this issue for the reasons explained earlier in this judgment (at [25]-26]).

3. [103]

   For the reasons expressed by Lonergan J at [173]-[180], I was satisfied that the Court should not receive unsolicited material from the applicant after judgment had been reserved in circumstances where he had been, and remained, legally represented and where his own lawyers did not seek to make further submissions.

4. [104]

   For the reasons contained in this judgment, I agree with Lonergan J that leave to appeal against sentence should be granted, but that the appeal ought be dismissed.

5. [105]

   LONERGAN J: The applicant, Patrick Corliss, seeks leave to appeal against a sentence imposed in the District Court by Herbert DCJ on 12 April 2018. He was sentenced in respect of three counts of assault female and commit act of indecency upon a victim under 16 years of age, and two counts of carnal knowledge of a girl aged between 10 and 16 years of age. Also taken into account on a Form 1 was one count of assault female and commit act of indecency upon a victim under 16 years of age.

6. [106]

   The sentencing judge imposed an aggregate sentence of 7 years with a non-parole period of 4 years and 4 months.

7. [107]

   The offences took place between 1 January 1979 and 31 December 1980. The legislative provisions creating those offences have changed since that time. It is well known that the maximum penalty prescribed for the kinds of acts perpetrated by the applicant have increased markedly in the 40 years since these offences were committed.

8. [108]

   The offence of assault female and commit act of indecency (victim under the age of 16 years) contrary to s 76 of the Crimes Act 1900 (NSW) had at the time a maximum penalty of 6 years imprisonment.

9. [109]

   The offence of carnal knowledge of a girl aged 10 to 16 years contrary to s 71 of the Crimes Act had at the time a maximum penalty of 10 years imprisonment.

10. [110]

    There were no standard non-parole periods applicable to any of the offences.

11. [111]

    For the reasons that follow, I am of the view that none of the grounds of appeal are made out. No error has been shown and the appeal should be dismissed.

12. [112]

    By operation of s 578A(2) of the Crimes Act, the publication of the victim’s name or any other information that might identify her is prohibited. At the time the matter proceeded for sentence before Herbert DCJ, a pseudonym was provided for the applicant on the basis that the publication of his name would tend to identify the victim. It was conceded by counsel for the applicant before this Court that there was no need for the non-publication order to extend to the applicant’s name and the previous order was varied accordingly.

The appeal

1. [113]

   The applicant relies on three grounds of appeal:

   1. (1)

      Her Honour erred in failing to adequately assess the objective seriousness of the offending;

   2. (2)

      Her Honour erred in determining the starting point for sequences 6 and 7;

   3. (3)

      Her Honour erred in failing to give full effect to the historical sentencing practices as her remarks suggest she intended.

The offences

1. [114]

   The sentencing judge was provided with an Agreed Statement of Facts signed by the applicant. The victim was born in 1966. She lived with her mother, her stepfather and a younger brother and sister in [a suburb in Sydney]. The offending was extracted in detail by her Honour:

2. [115]

   The applicant made various admissions during pretext calls recorded in September and October 2016. Evidence of these calls was placed before the sentencing judge. In one of those calls the applicant admitted to other offending. This comprised sequence 6 and was described in the sentencing remarks as follows:

The Sentencing Remarks

1. [116]

   Having summarised the facts of the offending, her Honour made reference to the contents of the victim impact statement, noting the long term effects of the offending upon the victim’s life, including an unsuccessful suicide attempt and difficulty with trust and forming relationships. Her Honour took into account the harm done to the victim and to the community consistent with R v Previtera (1997) 94 A Crim R 76.

2. [117]

   In assessing the objective seriousness, her Honour took into account the differential between the age of the victim, 12 to13 years old and that of the applicant, 31 or 32 years old.

3. [118]

   Her Honour classified sequence 3 as “objectively serious, as an act involving direct genital contact with a 13 year old child”. [21]

4. [119]

   For sequence 4, her Honour noted that “this was an offence which involved aggressive conduct by the offender and the indecent act was fellatio”, placing it “in the highest range of objective seriousness for an indecent assault”. [22]

5. [120]

   In respect of the other sequences her Honour observed:

6. [121]

   Her Honour noted that the applicant acknowledged in the pretext call that he had done the wrong thing, admitting that he “should have known better”, that he was sexually attracted to the victim, that he took advantage of her by encouraging her to have sex, that he got “mixed up between feelings of caring and fatherliness and loving”, and that he had “crossed the line”. [24]

7. [122]

   Her Honour referred to the Pre-sentence Report which had recorded that the applicant minimised the potential impact of his actions and that he lacked insight into the seriousness of his offending. Her Honour noted that the applicant had acknowledged in the pretext calls that the offending was wrong and that he should have “had more sense” at the time. [25]

8. [123]

   Given the applicant’s age and the fact that he had not committed any subsequent offences, her Honour was satisfied that he was unlikely to reoffend and that he has good prospects of rehabilitation. She accepted that he had expressed remorse for his actions and that he appeared to accept responsibility.

9. [124]

   On the question of “moral culpability”, her Honour concluded that the applicant:

10. [125]

    Her Honour rejected an argument that there should be a discount under s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the basis that the applicant came forward and disclosed an offence (sequence 6) and confessed his guilt to it. Her Honour concluded that the applicant did not make a voluntary disclosure, as he was unaware he was being recorded and so the discount ought not to apply.

11. [126]

    Her Honour noted however that there was a degree of remorse and contrition evidenced in the pretext telephone call and that was taken into account.

12. [127]

    Her Honour then dealt with the requirement to sentence the offender in accordance with the laws and sentencing practices applicable at the time the offences were committed:

13. [128]

    After making a finding that having considered all possible alternatives, no penalty other than imprisonment is appropriate, and noting there “will have to be a degree of accumulation for these offences to reflect the separate nature of the offences and the overall criminality”, her Honour made a finding of special circumstances “due to the historical sentencing requirements”. [28]

14. [129]

    In providing an indicative sentence for each offence, her Honour stated:

15. [130]

    Her Honour then passed a sentence of 7 years imprisonment with a non-parole period of 4 years and 4 months, identifying the date for eligibility for release on parole as 11 August 2022.

Historical sentencing patterns

1. [131]

   Before proceeding to deal with the individual grounds of appeal, some mention should be made as to the common law context prevailing at the time the applicant was sentenced.

2. [132]

   In R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129, Spigelman CJ (with whom Grove and Sully JJ, and Newman AJ agreed), held at [31] that it was appropriate for a court to take into account:

3. [133]

   There have been some observations made in this Court as to the difficulties associated with the application of this approach: see Garling J in MPB v R (2013) 234 A Crim R 576; [2013] NSWCCA 213 at [81]-[93] and Hamill J in MC v R (2017) 271 A Crim R 83; [2017] NSWCCA 316 at [5]-[6] and [22]-[52].

4. [134]

   In R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534, Howie J outlined an approach to the task which has been cited with approval in this Court on many occasions:

5. [135]

   In relation to the historical approach to setting non-parole periods, Garling J said this in MPB at [93]:

6. [136]

   There is a statement to similar effect by Buddin J in GRD v R [2009] NSWCCA 149 at [20]:

7. [137]

   This Court has since emphasised that although that is the usual position regarding the proportionality of the non-parole period to the head sentence, it is by no means mandatory.

8. [138]

   In Woodward v R [2017] NSWCCA 44, R A Hulme J (with whom the other members of the Court agreed) provided this analysis:

9. [139]

   In Denham v R [2016] NSWCCA 309 at [109], in dealing with this question upon re-sentencing, the Court, comprising Payne JA, Fagan and N Adams JJ, said:

Ground 1: Failure to assess the objective seriousness of the offending

1. [140]

   The applicant contended that her Honour failed to give consideration to the objective seriousness of the offending. Parallels were sought to be drawn with R v Van Ryn [2016] NSWCCA 1 at [133]-[135], where R A Hulme J (with whom Leeming JA and Johnson J agreed) set out a multitude of reasons why the approach of the sentencing judge in that case was inadequate. That case involved a plethora of different types of offending including 17 charges over an 11 year period against 9 victims. As R A Hulme J observed at [137]-[141], an assessment of the objective seriousness of the offending is not achieved by mere recitation of the facts. It requires some statement of the reasoning and conclusions as a result of such assessment.

2. [141]

   The applicant argued that despite detailed submissions addressing the issue of objective seriousness being provided to the sentencing judge, her Honour’s assessments were absent and/or inadequate. Complaint is made that her Honour did not specifically address aggravating factors, save for mentioning that sequences 4, 5 and 7 were committed in the home of the victim. The “global comment” (reproduced at [102] of this judgment) addressing “moral culpability” was insufficient to address the absence of formal findings regarding objective seriousness.

3. [142]

   Her Honour’s individual characterisations of each of the offences were said to be insufficient:

4. [143]

   The Crown argued that the sentencing judge had adequately carried out this task and no error was demonstrated. The requirement to assess the objective seriousness of an offence does not place an obligation upon a sentencing judge to classify the objective seriousness of a particular offence by reference to some scale: Sharma v R [2017] NSWCCA 85 at [63]. What is required is that the sentencing judge “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39 at [29].

5. [144]

   The sentencing judge may adequately carry out this task in an appropriate case by making it clear from his or her findings that the judge regards the offending conduct as serious, without ranking that conduct on a scale: Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [143]; Hurst v R [2017] NSWCCA 114 at [105]; Simpson v R [2014] NSWCCA 23 at [27].

6. [145]

   As emphasised by the Crown, the offences to which the applicant pleaded guilty were regarded as representative charges against a background of ongoing sexual offending by the applicant towards the victim over the relevant period. Whilst the applicant was not to be sentenced for uncharged acts, the totality of his criminality fell to be assessed against that background.

7. [146]

   Factors such as the age difference between the applicant, a man in his 30’s, and the victim, a child aged 12-13 years, underscores the manipulation and power imbalance. The conduct ceased only when it was interrupted by other matters. The moral culpability of the grooming behaviour provides important and relevant context to the assessments of conduct the subject of each count.

8. [147]

   There was evidence of aggressive conduct with respect to sequence 4, as was there evidence of restraint - locking the door and holding his hand over the victim’s nose and mouth when she tried to call out - with respect to sequence 2. The reality was, as found by her Honour, the intercourse and sexual assaults occurred in the context of long-standing grooming of the child, with the sexual attacks escalating in seriousness. In this context, restraint or violence was not necessary, because both manipulation and emotional coercion were embedded features of the offending. The fact that there are some other features that would, if they were present, make the offending more serious, does not mean that they are not serious offences: Morton v R [2018] NSWCCA 84 at [49].

9. [148]

   The applicant’s argument that sequence 6 is lacking in the necessary detail to allow the sentencing judge to make the necessary findings, is deeply flawed. This count arose from the applicant’s unwitting admission during a covertly recorded telephone conversation with the victim in 2016. The elements of criminality are clear: sexual intercourse in a car between a man 20 years older than a 12 or 13 year old child, against a background of grooming and other sexual offending. The application of two condoms does nothing to reduce the seriousness of this offending.

10. [149]

    It is undoubtedly correct that the offender’s moral culpability fell to be assessed as part of the overall course of criminal conduct and that course of conduct is capable of impacting upon each offence committed, against the background in which all of the offending took place. As stated in PB v R [2016] NSWCCA 258 at [16], a significant aspect of the seriousness relating to child sexual assault offences depends upon the degree to which an offender has, or is seen to have, exploited the youth of the victim.

11. [150]

    Her Honour described each incident in detail and made a formal finding that the offending was objectively serious, and the offending in sequence 4 in the “highest range of objective seriousness”. No parallels can be drawn to the situation this Court dealt with in Van Ryn, where no assessment of seriousness was made at all, objective or otherwise.

12. [151]

    There is no substance in this ground. No error has been demonstrated and this ground of appeal is dismissed.

Ground 2: Error in determining the starting point for sequences 6 and 7

1. [152]

   The applicant argued that her Honour’s assessment of the objective seriousness of the offences in sequences 6 and 7 must have been erroneously high, demonstrated by comparing her “starting point”, with the applicable maximum penalty of 10 years imprisonment.

2. [153]

   Complaint is made that having characterised the offences as “objectively serious”, the indicative sentence for sequence 7, before taking into account the 25% discount for the guilty plea, must have been a starting point of 7 years. Given the maximum penalty of 10 years, this starting point is indicative of error. Although her Honour was taking into account the offence on the Form 1, (and that, of necessity, results in a higher sentence), it is unclear what role the Form 1 offence played, because of the absence of a clear statement as to the objective seriousness of that offending.

3. [154]

   In respect of sequence 6, complaint is made that taking into account the 25% discount means that her Honour’s starting point was 6 years. “Objectively serious” does not correlate to such a high starting point without something more. There was also a failure to reflect in the starting point, her Honour’s “finding in the applicant’s favour” that he had used two condoms in an effort to prevent pregnancy.

4. [155]

   The Crown submitted that all of these arguments should be rejected. Sequence 7 involved, in the victim’s own home, the applicant locking the bedroom door and having sexual intercourse with her. The victim had never had sexual intercourse before and it hurt her. He could not fully penetrate her and then went on to digitally penetrate her and masturbate to ejaculation. Contrary to the submissions by the applicant, there was significant coercion, both in the previous grooming and sexual activity and then physically trapping the victim in her own home.

5. [156]

   The Form 1 offence was itself a serious indecent assault and was the first in time. The applicant locked the bedroom door to the child’s bedroom. He covered her nose and mouth when she tried to call out to her siblings. He told her to be quiet. He laid on top of her and placed himself between her legs while she tried to keep her legs closed. He was rough. This was a serious instance of sexual offending against a child in her own home.

6. [157]

   Given all those circumstances, the indicative sentence of 5 years and 3 months for sequence 7 – after the 25% discount – and with the Form 1 offence taken into account, does not demonstrate error.

7. [158]

   In respect of sequence 6, the absence of violence, threats or physical force are not features which mitigate the offence. The seriousness lies in the overall circumstances and the ongoing nature of the applicant’s conduct towards the victim. This offence was penile-vaginal intercourse with a 12 or 13 year old child. The wearing of two condoms was directed, no doubt, at self interest and to prevent pregnancy but it does nothing to reduce the criminality of that offence.

8. [159]

   As noted by the Crown focus needs to be applied to the aggregate sentence, as it is against that aggregate sentence that this appeal is brought. The aggregate sentence has to properly reflect the totality of the criminality involved in all of the offending conduct: Connell v R [2019] NSWCCA 70 at [48].

9. [160]

   Given the obvious concurrence between the indicative sentences for the five separate offences, even if the indicative sentences for sequences 6 or 7 were too high, such an “error”, if truly it be one, did not affect the appropriateness of the aggregate sentence.

10. [161]

    The Crown’s submissions are persuasive. No error has been demonstrated and this ground should be dismissed.

Ground 3: Failure to give full effect to the historical sentencing practices as her Honour’s remarks suggest she intended

1. [162]

   The applicant argued that the effect of her Honour’s remarks was a declared intention to sentence the applicant in a way that secured an outcome where the non-parole period would not exceed 50% of the head sentence. Her Honour’s statement that “sentencing outcomes for offences committed during this period would often produce non-parole periods of between 35% and 50% of the head sentence” was evidence of that intention, combined with her allocation of notional non-parole periods of 50% for each offence. The applicant argued that such an approach would have been in conformity with the approach of this Court in DF v R (2012) 222 A Crim R 178; [2012] NSWCCA 171 at [55]-[56], but the sentence imposed reflected a non-parole period of 62% of the overall sentence so her Honour must have failed to make an appropriate adjustment when she fixed the aggregate sentence.

2. [163]

   The Crown argued that her Honour’s reference to MJR and MPB demonstrated her understanding of the law regarding historical sentencing practices and the requirement to apply them in this case.

3. [164]

   It was open to her Honour to adjust the ratio to 62%. The approach of this Court in both Woodward and Denham (as set out in [138] and [139] of this judgment) supports that the setting of the non-parole period was discretionary, not mandatory.

4. [165]

   The Crown’s submissions are persuasive, particularly when considered in light of the way her Honour dealt with this issue in her Remarks. Her Honour noted the importance of general deterrence with this type of offending. She stated that there “must be a necessary degree of accumulation to reflect the separate nature of the offences and the overall criminality”. The offences were representative and part of a course of conduct that involved the deliberate corruption of a 12 year old girl by a man in his 30’s.

5. [166]

   The statements of Hoeben CJ at CL in DF v R relied upon by the applicant were made in a different context. There the Court was dealing with a case where the sentencing judge failed to make a finding of special circumstances and the penalties imposed revealed that he could not possibly have applied the sentencing practices in place at the time the offences occurred as was required. The Crown had conceded error. That is not the case here.

6. [167]

   As stated by Garling J in MPB, there was no automatic or mandatory requirement that the non-parole period be no more than 50% of the head sentence; it is a matter for the discretion of the sentencing judge.

7. [168]

   The fact that the non-parole period here corresponds to 62% of the head sentence is nothing to which exception should be taken. As observed by this Court in Denham, “it remains critical that the non-parole period fixed by the Court represents the minimum period of imprisonment required to be served by an offender having regard to all the purposes of justice”.

8. [169]

   Her Honour clearly explained the basis of her approach to the aggregate sentence that she imposed. There is no error and this ground of appeal should be dismissed.

Application of s 25AA Crimes (Sentencing Procedure) Act 1999 (NSW)

1. [170]

   I agree with and endorse the comments of Johnson J in [65]-[100] of this judgment regarding the application of s 25AA to the resentencing exercise, should this Court have determined it necessary to proceed to resentence the applicant.

2. [171]

   In Radenkovic v The Queen [1990] HCA 54; 170 CLR 623 at 632, Mason CJ and McHugh J stated:

3. [172]

   As amply demonstrated in the analysis of Johnson J, s 25AA comprises a very clear indication of statutory intention that the former “entitlement”, in respect of sexual offending against children of the type engaged in by the applicant, is displaced.

The applicant seeks leave to file a notice of motion after the hearing in the Court of Criminal Appeal

1. [173]

   Following the hearing of this matter in the Court on 14 August 2019, the Registrar of the Court of Criminal Appeal received a notice of motion sent to the court directly by the applicant, not by his legal representatives.

2. [174]

   The applicant’s legal representatives told the Registrar that they were not instructed in respect of the proposed notice of motion, nor did they intend to file any submissions in support of that notice of motion.

3. [175]

   The Crown opposed any reopening of the proceedings.

4. [176]

   The Court determined not to receive the material and the parties were informed accordingly.

5. [177]

   As noted by the Crown, the applicant was represented at the hearing of his application for leave to appeal against sentence by a barrister and a solicitor experienced in criminal law. Written submissions were filed on behalf of the applicant, including submissions in reply after receipt of the Crown’s written submissions, and the applicants counsel made detailed oral submissions on his behalf at the hearing of the appeal.

6. [178]

   The situation that has arisen is similar to that which the Court dealt with in Roach v R [2019] NSWCCA 160 at [186] to [194].

7. [179]

   This Court has considered, and agrees with and adopts the approach of the Court in Roach and the authorities referred to in [191] and [192]:

8. [180]

   As observed by the Court in Roach, it is a very high hurdle standing in the way of any such application made after completion of the hearing. This is particularly so when the applicant continues to be represented by counsel and a solicitor who were not prepared to apply to the court to pursue the proposed notice of motion formally and were not prepared to support it by any submissions.

   1. (1)

      Leave to appeal is granted.

   2. (2)

      Appeal dismissed.