WM v R

1. [1]

   JOHNSON J: I agree with Bellew J.

2. [2]

   ADAMSON J: I agree with Bellew J.

3. [3]

   BELLEW J: WM (the applicant) pleaded guilty in the District Court to the following offences:

   1. (1)

      On 19 April 2015, did have sexual intercourse with [ER], a person less than 10 years of age, namely about 9 months old, in circumstances of aggravation, namely, at the time of the sexual intercourse [ER] was under the authority of WM (Count 1).

   2. (2)

      On 19 April 2015, did have sexual intercourse with [ER] a person less than 10 years of age, namely about 9 months old, in circumstances of aggravation, namely, at the time of the sexual intercourse [ER] was under the authority of WM (Count 2).

4. [4]

   Each count constituted an offence contrary to s 66A(2) of the Crimes Act 1900 (NSW) (the Act), the maximum penalty for which is life imprisonment. A standard non-parole period of 15 years is prescribed.

5. [5]

   The applicant also asked the sentencing judge to take into account a further offence on a Form 1, namely using a child under 14 years to produce child abuse material, contrary to s 91(G)(1)(a) of the Act.

6. [6]

   On 11 May 2018 the sentencing judge imposed an aggregate sentence of 13 years and 8 months’ imprisonment, with a non-parole period of 10 years and 3 months’ imprisonment. His Honour gave the following indicative sentences:

7. [7]

   The applicant now seeks leave to appeal against the sentence imposed on the grounds more fully set out below. It is noted that at the commencement of the hearing, the applicant abandoned the second basis of Ground 1, and also abandoned Ground 2 in its entirety.

THE FACTS OF THE OFFENDING

1. [8]

   The sentencing judge found the facts of the offending to be as follows: [1]

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

1. [9]

   In assessing the objective seriousness of the offending his Honour noted [2] that the offences took place in the home of the victim and were perpetrated by this offender (her biological father) and his partner, when her mother was absent. His Honour also noted that the conduct was photographed, but that there was no evidence that the photographs were disseminated, and that the evidence suggested that the photographs of the offender's offending took place in a space of approximately 10 or 11 minutes.

2. [10]

   His Honour considered the age of the victim in assessing the objective seriousness of the offending, and concluded that she was at the most vulnerable end of the victims contemplated by s 66A(2).

3. [11]

   His Honour concluded that the offending was “at the very serious end of offences of this kind”, [3] and was aggravated by the fact that the applicant and his co-offender were in company and encouraging each other. [4] He also had regard to the circumstance of aggravation pleaded in the charge itself, namely that the victim was under the care of the applicant and his co-offender. [5]

4. [12]

   His Honour accepted that there was no evidence that the applicant was aware of the intentions of his co-offender, or that he was aware of the other offences which his co-offender had committed. [6] He concluded that any planning was more a product of the co-offender’s desires and pursuits, and that the applicant’s offending was not aggravated by any planning or organised activity. [7]

5. [13]

   In reference to the Victim Impact Statement provided by the victim’s mother, his Honour said (inter alia): [8]

6. [14]

   His Honour rejected the submission that because of what counsel then appearing for the applicant had referred to as the “only slight penetration of the external genitalia of the victim" the offending could be compared with an objectively serious indecent assault. He concluded: [9]

THE APPLICANT'S SUBJECTIVE CASE

1. [15]

   A report of Dr Christopher Lennings, psychologist, was before the sentencing judge. Dr Lennings noted that the applicant, who was then 52 years of age, had grown up in Melbourne and had left school after the completion of Year 10 in order to commence an apprenticeship as a butcher, and that he had later trained as a chef. [10] The applicant told Dr Lennings that he had generally worked full-time all his life, other than for an 18 month period when he had not been able to work due to illness. [11] The applicant also told Dr Lennings that he had not previously been diagnosed with depression or anxiety, although he had seen psychologists in the past as a consequence of being diagnosed with HIV. [12] He said that he had been in a relationship with the co-offender for a couple of years and that this was his first same sex relationship. [13]

2. [16]

   In terms of the offending, the applicant told Dr Lennings that what he did was “wrong and stupid", that he was “lost for words to account for his behaviour", that he had “made a fundamental error of judgment", and that he “should have known better”. [14] He reported “deep regret”, partly because of the loss of his relationship with his daughter. [15] However, Dr Lennings also reported: [16]

3. [17]

   The applicant expressed a hope to Dr Lennings that he would have a good relationship with his daughter in the future and acknowledged that because his former partner and his daughter lived in a small town, they would experience stigma because of his actions. He told Dr Lennings that he “felt sorry for them". [17]

4. [18]

   Dr Lennings said that the applicant expressed deep regret for his offence, along with sadness and anger at himself for his behaviour, and for his failure to act protectively towards his child and former partner in regard to the social stigmatising they may experience as a result of the offending. [18] He expressed the view that the applicant did not suffer from a mental illness, a personality disorder, or paraphilia. [19] He described the applicant as presenting “as a somewhat unusual sex offender" and said that his behaviour was inexplicable in terms of his past. [20] Dr Lennings said in particular: [21]

5. [19]

   In terms of the applicant’s risk of re-offending Dr Lennings said: [22]

6. [20]

   Dr Lennings concluded by recommending that the applicant undertake the CORE program in order to provide education around sexual offending, and expressed the view that once in the community he was likely to respond well to supervision, and would be likely to benefit from psychotherapy with an appropriately qualified counsellor.

7. [21]

   Also before the sentencing judge was a pre-sentence report prepared by Chris Baker, Community Corrections Officer. Mr Baker assessed the applicant as being a low risk of reoffending, and said that he fell within a below-average risk range in terms of sexual offending. [23] He concluded that the applicant was unlikely to require, or benefit from, a period of supervision. [24]

8. [22]

   Mr Baker's conclusion that the applicant fell below the average risk range of sexual reoffending was based on a separate assessment conducted on 24 April 2018 by Darren Nicholls from the Campbelltown Community Corrections Office. In his report, Mr Nicholls noted:

9. [23]

   Mr Nicholls said:

10. [24]

    Having set out that assessment, Mr Nicholls also said:

11. [25]

    His Honour noted that the applicant had a modest criminal record which precluded a finding that he was a person of unblemished character, but which had no other impact on sentence. [25] His Honour reviewed the contents of the reports of Mr Baker and Mr Nicholls and found it “difficult to accept" that the applicant was unaware of the co-offender’s paedophilic tendencies. [26]

12. [26]

    His Honour made reference to the Victim Impact Statement provided by the victim's mother. [27] He noted that psychological research indicated that even children of tender years suffer severe, and sometimes traumatic, psychological consequences as a result of being abused in their youth. [28]

13. [27]

    His Honour concluded that some of the statements made by the applicant to Dr Lennings indicated an avoidance of responsibility, and a failure by the applicant to accept his role in the offending. [29] His Honour pointed out that by his plea, the applicant had admitted engaging in the sexual intercourse to which the charge related. He concluded that the applicant had underplayed his “very active role" in assaulting his young daughter, and that there was no evidence of remorse, to the point where the applicant's explanations served “to minimise [his] criminality". [30] His Honour regarded this as “an abdication of [the applicant's] responsibility for the criminal conduct perpetrated on his young daughter. [31] To the extent that the applicant had told Dr Lennings that he had made a fundamental error of judgment, his Honour found that such expression of remorse was not genuine, [32] and described it as a “prime example of shifting blame and not accepting responsibility”. [33]

14. [28]

    Ultimately, his Honour did not accept that any remorse expressed by the applicant was genuine because:

15. [29]

    In assessing the applicant's prospects of rehabilitation, and having referred to the conclusions expressed by Dr Lennings, the sentencing judge said: [35]

16. [30]

    The sentencing judge applied a discount of 25% to reflect the utilitarian value of the applicant's pleas of guilty. [36] His Honour then proceeded to impose the sentence previously set out.

The findings of the sentencing judge

1. [31]

   The sentencing judge noted (and ultimately agreed with) the submission made by counsel then appearing for the applicant that the fact that the victim was in a position of trust vis a vis the applicant, and the fact that the victim was under the applicant’s care, were “co-extensive”, to the point that to regard the abuse of trust as an aggravating factor would be to engage in double counting. [37] Having noted other aspects of this submission, and having referred to various authorities, his Honour concluded: [38]

Submissions of the applicant

1. [32]

   Counsel for the applicant submitted that although the sentencing judge had acknowledged that there was a degree of overlap between the fact that the victim was under the applicant’s authority, and the fact that the offending involved a breach of trust, he had failed to explain how that overlap impacted upon the weight to be attributed to such matters in assessing the objective seriousness of the offending. It was submitted, in particular, that the sentencing judge's observation that he did not treat the breach of trust as a separate aggravating factor, but rather as part of the “mix of circumstances", failed to address that issue, and amounted to error.

2. [33]

   Specifically, counsel for the applicant submitted that:

Submissions of the Crown

1. [34]

   The Crown submitted that the sentencing judge had properly identified the applicant’s breach of trust as having been brought about as a consequence of the specific familial relationship between himself and the victim. It was submitted that as a consequence of that breach of trust, the applicant had been able to bring about a situation whereby he and the co-offender were left alone with the victim so that the offences could be committed. The Crown submitted that the sentencing judge had correctly identified that this was a different concept to the victim being under the applicant’s care, supervision or authority.

2. [35]

   The Crown submitted that the sentencing judge had obviously been cognisant of this distinction, and that there was nothing in his remarks that suggested that undue weight was given to the applicant's breach of trust. It was further submitted that the sentencing judge was obviously mindful of the risk of double-counting, and had gone to some lengths to ensure that he did not give any factor undue weight in the sentencing process.

3. [36]

   The Crown further submitted that matters of weight were necessarily matters for the sentencing judge, to the point where, had his Honour engaged in the process suggested by counsel for the applicant, he would have acted contrary to the process of instinctive synthesis. The Crown submitted that the approach taken by the sentencing judge was entirely appropriate and, importantly, was one which avoided any double counting.

CONSIDERATION

1. [37]

   The fundamental proposition advanced by the applicant in support of this ground was that the sentencing judge erred in failing to articulate the weight that he gave to a particular factor or factors. That being so, the difficulty faced by the applicant is that this Court has reiterated on a number of occasions that the weight to be ascribed to particular factors is a matter for the sentencing judge at first instance, and that the occasions on which this Court will intervene to address a “weighting error” will be rare. [39] In my view, for a number of reasons, this case is not one which it is appropriate for this Court to intervene.

2. [38]

   The sentencing judge was required to approach his task by way of a process of instinctive synthesis, taking into account all relevant factors. The concept of instinctive synthesis requires a sentencing judge to reach a sentence which balances many features. [40] That is precisely what the sentencing judge did in the present case and his approach was entirely correct. The suggestion that his Honour was required to specify the precise weight he had attributed to the applicant’s breach of trust on the one hand, and the fact that the victim was under the authority of the applicant on the other, is at odds with such approach.

3. [39]

   It is also evident that the sentencing judge addressed this issue with considerable care. He properly recognised that the breach of trust was separate and distinct from the abuse of authority, even though both matters arose from the one set of facts and necessarily overlapped. It is evident from his remarks that he was acutely aware of the risk of double counting.

4. [40]

   Moreover in my view, it remained open to the sentencing judge to take the applicant’s breach of trust into account as an aggravating factor. [41] His determination that it should be taken into account as part of the overall mix of circumstances was an approach which was particularly generous to the applicant.

5. [41]

   Finally, there is nothing whatsoever to suggest that the sentencing judge gave undue weight to the applicant’s breach of trust. He regarded it as “significant”. That was an apt description, in circumstances where that breach, in one sense, facilitated the offending.

6. [42]

   For all of these reasons, this ground is not made out.

The sentences imposed upon the co-offender

1. [43]

   The co-offender pleaded guilty to three offences contrary to s 66A(2) of the Act in circumstances where:

2. [44]

   The co-offender also asked the sentencing judge to take into account a further offence on a Form 1, namely an offence contrary to s 91G(1)(a) of the Act of using a child under 14 years to produce child-abuse material.

3. [45]

   Acting Judge O'Connor QC, who sentenced the co-offender, found that the circumstances of his offending were disturbing and involved serious objective criminality, [42] to the point where each offence fell “at least at the upper end of the mid-range” of objective criminality. [43]

4. [46]

   In terms of the co-offender’s subjective case, and drawing upon material contained in a psychological report and a pre-sentence report, his Honour noted that the co-offender had been diagnosed with symptoms of anxiety and depression in 2012, but had significantly improved since that time to the point where his mood was relatively stable. In these circumstances his Honour attached little weight to the co-offender's depressive state when determining the sentence to be imposed. [44]

5. [47]

   His Honour found that the co-offender did not have any record of previous convictions and was of prior good character. [45] However, he concluded that in circumstances where offending of this nature is often committed by persons of otherwise good character, this factor was deserving of limited weight. [46] He concluded that the co-offender was a medium to average risk of reoffending, and thought it was significant that he lacked empathy for the victim, and did not accept responsibility for his offending. [47]

6. [48]

   In terms of the co-offender's prospects of rehabilitation, his Honour took the view that much would depend upon his successful participation in courses which would be offered to him in custody. However, his Honour did note that the co-offender had demonstrated an ability to seek assistance in other respects and concluded that if he were to demonstrate the same enthusiasm in custody, there was “some prospect" of rehabilitation. [48]

7. [49]

   His Honour concluded that leaving aside the pleas of guilty, the co-offender had not shown any remorse, and had not accepted responsibility for his offending. He accepted that the pleas were entered at the first available opportunity and applied a discount of 25% to reflect their utilitarian value. [49]

8. [50]

   His Honour declined to make a finding of special circumstances and concluded that the non-parole period which would eventuate by application of the statutory ratio would be adequate to address any issues of the co-offender’s rehabilitation and reintegration into the community. [50] He also concluded that general deterrence, as well as specific deterrence, were important factors in sentencing the co-offender. [51]

9. [51]

   Ultimately, his Honour found that there was “little in the co-offender's subjective case” which mitigated his sentence. [52] He sentenced the co-offender to an aggregate sentence of 15 years’ imprisonment, with a non-parole period of 11 years and 3 months’ imprisonment.

The findings of the sentencing judge

1. [52]

   In sentencing the applicant, the sentencing judge specifically addressed the issue of parity in the following terms: [53]

2. [53]

   His Honour later returned to the issue, saying: [54]

Submissions of the applicant

1. [54]

   Counsel for the applicant submitted that the distinguishing features between the two cases included that the co-offender had:

2. [55]

   It was submitted that a more significant demarcation was warranted in terms of the respective sentences which were imposed. It was submitted that in all of the circumstances, the applicant had a legitimate sense of grievance which this Court should intervene to correct.

Submissions of the Crown

1. [56]

   The Crown submitted that it was evident that the sentencing judge had specifically turned his mind to the question of parity, and had concluded that the applicant's breach of trust was significantly more serious than that of the co-offender. This, it was submitted, was a correct finding, and one which stemmed from the fact that absent the applicant's direct relationship with the victim and her mother through which the applicant was able to facilitate the co-offender’s access to the victim, the offences would not have been able to be committed.

2. [57]

   The Crown further submitted that the significance of the applicant's breach of trust was illustrated by the Victim Impact Statement prepared by the victim's mother. It was submitted that in all of these circumstances, it was at least open to the sentencing judge to conclude that the distinction between the two offenders in terms of the offending was not significant.

3. [58]

   The Crown further submitted that the sentences imposed appropriately reflected the relevant differences between the two offenders, and that no greater demarcation was warranted. It was submitted that the applicant had not demonstrated that he had an objectively justifiable sense of grievance by reason of the disparity between sentences.

Consideration

1. [59]

   The principles which apply to this ground may be conveniently summarised as follows.

2. [60]

   Equal justice requires, so far as the law permits, that like cases be treated alike. It also requires the differential treatment of persons according to differences between them. Consistency in the punishment of offences against criminal law is a reflection of the notion of equal justice and finds its expression in the parity principle, which requires that like offenders should be treated in a like manner. The parity principle also allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability, and/or different circumstances. [55]

3. [61]

   The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. It is not simply a question of the imposition of different sentences for the same offence, but a question of due proportion being structured between those sentences. That is a matter which is to be determined having regard to the different circumstances of the co-offenders, and the different degrees of criminality. [56]

4. [62]

   When these principles are applied to the present case, I am not satisfied that there is any undue disparity between the sentence imposed on the co-offender, and that imposed on the applicant.

5. [63]

   To begin with, it is evident from his remarks that the sentencing judge was aware of the necessity to have regard to the issue of parity. It is also evident that in considering this issue, his Honour had close regard to the conclusions of Acting Judge O’Connor when sentencing the co-offender.

6. [64]

   True it is that the co-offender faced two more serious charges than the applicant. However, the sentencing judge found that the applicant’s breach of trust towards the victim was, in all the circumstances, greater than that of the co-offender and that overall, any distinction in the respective offending was not great. These were obviously significant findings in terms of sentence generally. Neither was challenged by counsel for the applicant before this Court. It is evident from his Honour’s remarks that the first of those findings, in particular, weighed heavily in his determination of an appropriate sentence, and properly so. It was a factor which had little role to play in the sentence of the co-offender.

7. [65]

   Further, although his Honour found that the differences in the offending were not great, he expressly recognised the sentence imposed upon the applicant would necessarily be less having regard to the matters to which he had referred. That conclusion is reflected in the sentences which were imposed.

8. [66]

   For all of these reasons, the applicant can have no justifiable sense of grievance. All of these matters pointed to by counsel for the applicant [57] go to explaining why the co-offender’s sentence was greater than that imposed on the applicant. In an overall sense, the respective sentences imposed properly recognise both the similarities and the differences in the two cases.

9. [67]

   This ground is not made out.

Submissions of the applicant

1. [68]

   In the course of his submissions, counsel for the applicant specifically acknowledged that:

2. [69]

   Having cited such principles, counsel then referred the Court to a series of sentences imposed in other cases of offending contrary to s 66A(2). Counsel submitted that reference to these cases gave this Court “a sense of the sentencing regime” for offending of this nature. It was submitted that even accepting the seriousness of the applicant’s offending, the sentences imposed on the applicant were manifestly excessive in all of the circumstances when one had regard to the sentences imposed in those other cases.

3. [70]

   Whilst counsel acknowledged the objective seriousness of the applicant’s offending he pointed out that the offences were committed close in time. Counsel further submitted that the victim’s age was such that she would have no memory of the offending. Accepting that the victim may be told about the offending at some stage when she was older, counsel submitted that there was a “degree of speculation as to what impact that would have on the child at a later point”.

4. [71]

   Counsel also pointed to the fact that the applicant had pleaded guilty at an early stage, and had a criminal history which, although not unblemished, did not disclose a record of similar offending in the past.

Submissions of the Crown

1. [72]

   The Crown submitted that the applicant's offending was a serious example of aggravated sexual intercourse with a child under 10 years of age. The Crown pointed out that the offence carried a penalty of life imprisonment, and attracted a standard non-parole period of 15 years’ imprisonment. The Crown also emphasised that the finding of the sentencing judge that the applicant's offending fell at or towards the mid-range of objective seriousness had not been challenged before this Court. The Crown also pointed out that the offending was committed in company, and in the home of the victim in circumstances where both the offender and the co-offender were visitors.

2. [73]

   The Crown further submitted that the age of the victim was such that she fell at the most vulnerable end of the age range contemplated by s 66A(2). The Crown also relied upon the various other findings of the sentencing judge which were not impugned, including those in relation to the applicant's subjective case.

3. [74]

   The Crown submitted that in all these circumstances, the aggregate sentence imposed was within the range available to the sentencing judge.

Consideration

1. [75]

   The general principles which apply when considering a ground of manifest excess were summarised by R A Hulme J in Obeid v R in the following terms: [58]

2. [76]

   The applicant’s reliance on sentences imposed in other cases gives rise to the necessity to reiterate the limitations which are placed on material of that kind. In Goodbun v R [59] I said the following:

3. [77]

   Whilst I have had regard to the cases to which counsel for the applicant referred the Court, it is not necessary to undertake an individual analysis of each and every one of them. There are, as one might expect, similarities and differences between those cases themselves, and between those cases and the present case. It is sufficient for me to say that none of the sentences imposed in those cases support the conclusion that the sentence imposed on the applicant was manifestly excessive.

4. [78]

   As I have noted, in order to succeed on this ground the applicant must establish that the sentence imposed was unreasonable or plainly unjust. [64] I am not satisfied that this is so, for a number of reasons.

5. [79]

   Firstly, the maximum penalty of life imprisonment and the standard non-parole period of 15 years’ imprisonment not only reflected the serious view taken by the Parliament of this offending, but provided important yardsticks for the sentencing judge.

6. [80]

   Secondly, any observations about the objective seriousness of the offending would be superfluous. Leaving aside the matters raised in the context of Ground 1, no issue was taken with the findings of the sentencing judge in that regard.

7. [81]

   Thirdly, whilst the age of the victim was such that she will have no independent memory of the offending, the sentencing judge was correct to point out that there would, as he put it, be a “day of reckoning” on which the victim would be informed of the offending. Whilst there might be in one sense (to use the phrase adopted by counsel for the applicant) a “degree of speculation” about what effect that will have, it is reasonable to assume that whatever the effect, it will not be positive.

8. [82]

   Fourthly, as the sentencing judge correctly pointed out, the applicant’s conduct was aggravated by the fact that it involved not only a breach of trust which facilitated the offending, but that it occurred at a time when the victim was under the applicant’s authority, and in the victim’s home.

9. [83]

   Finally, there was little substance in the applicant’s subjective case. The sentencing judge took into account the pleas of guilty. None of his other findings as to the various aspects of the applicant’s subjective case were challenged before this Court.

10. [84]

    For obvious reasons, this offending was serious and it is evident from the passage of his Honour’s sentencing remarks that I have set out that his Honour carefully took into account all relevant considerations. In all of these circumstances I am not persuaded that the sentence imposed was unreasonable or plainly unjust.

ORDERS

1. [85]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.