AC v R

1. [1]

   BATHURST CJ: I have had the advantage of reading the judgment of Schmidt J. I agree with her Honour’s conclusions and with her reasons.

2. [2]

   SCHMDIT J: The applicant pleaded guilty to an offence of persistent sexual abuse of a 12 year old girl, contrary to s 66EA(1) of the Crimes Act 1900 (NSW). On 6 March 2015, after a 25% discount for his early plea, Sweeney DCJ sentenced him to a term of imprisonment of 10 years, commencing 6 February 2014 and expiring 5 February 2024. His 7 year, 6 month non-parole period expires on 5 August 2021.

3. [3]

   The applicant seeks leave to appeal that sentence on three grounds. For the reasons which follow, I consider that while leave to appeal should be granted, the appeal must be dismissed.

The s 66EA offence

1. [4]

   Section 66EA provides:

2. [5]

   In Langbein v R [2008] NSWCCA 38; (2008) 181 A Crim R 378 it was observed at [115] that “[t]he offence of persistent sexual abuse contrary to s 66EA carries a maximum prison term of 25 years. It is a more serious offence than the offences which comprise the individual acts.” In sentencing an offender for such an offence, the foundational offences must be established beyond reasonable doubt (see ARS v R [2011] NSWCCA 266 at [230]). In this case they were established by the agreed facts.

3. [6]

   The particulars of the offence to which the applicant entered his plea were:

4. [7]

   In sentencing the applicant her Honour had to take into account the purposes of sentencing specified in s 3A of Crimes (Sentencing Procedure) Act 1999 (NSW), namely:

5. [8]

   Her Honour also had to take into account the maximum penalty fixed for the offence; the applicant’s plea of guilty; the objective seriousness of the offence, as revealed by the evidence; the applicant’s moral culpability for his offending; the specified aggravating and mitigating matters provided in s 21A of the Crimes (Sentencing Procedure) Act revealed by the evidence; as well as the applicant’s subjective circumstances. Those matters all had to be taken into account when the sentence was determined by her Honour undertaking the instinctive synthesis discussed in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [37] – [39].

6. [9]

   Her Honour also had to determine the amount of the discount which the applicant should receive for his plea, to a maximum of 25% (see R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1). In arriving at that discount her Honour had to bear in mind that in some cases, even an early plea may not result in a discount, where the offence in question is so serious that no discount should be given (see Thomson at [158]). Her Honour also had to ensure that the sentence finally imposed after discount, was not unreasonably disproportionate to the nature and circumstances of the applicant’s offence (see s 22(1A) of the Crimes (Sentencing Procedure) Act).

7. [10]

   In this case, these considerations necessitated that a heavy sentence be imposed on the applicant for his serious offence.

Grounds of Appeal

1. [11]

   The three grounds on which the applicant sought leave to appeal his sentence were:

The evidence as to the offence

1. [12]

   The agreed statement of facts included extracts from an ERISP which the applicant gave on his arrest, parts of which were also tendered by the Crown. A statement made by the victim, entitled “victim impact statement” was also tendered, as were statements made by Imam Abdelalim and Imam Khamis, who had both advised the applicant. They were not required for cross-examination. In the defence case transcripts of the victim’s interviews by police were tendered, as were two psychologists’ reports and two references from persons who had come to know the applicant at Villawood Detention Centre.

2. [13]

   The applicant did not give evidence, nor was evidence called from the victim’s father, or the Sheikh who performed the ceremony by which the applicant understood that he and the victim had become husband and wife. It was not in issue that the ceremony is not one recognised under Australian law; that the victim was not legally entitled to marry; nor that she could not legally give her consent to the sexual intercourse which the applicant had with her following that ceremony.

3. [14]

   The applicant was 26 years old when he committed this offence and the victim only 12 years. She was 13 years when she made her “victim impact statement”. The applicant was living in Australia on a student visa, having arrived in June 2013 to study at the University of Newcastle. He was living at Chester Hill in Sydney with his brother and travelling back and forth to Newcastle. He told Dr Rastogi that on arrival he had undertaken a course in English and that he had proposed to pursue a tertiary degree in megatronics.

4. [15]

   The victim lived at home with her father and siblings when she met the applicant. They were practising Muslims, attending the Wallsend mosque. Her parents were separated.

5. [16]

   The applicant attended that mosque, where he first saw the victim in November 2013. They did not speak, but he approached Imam Abdelalim and told him that he wanted to marry the victim. On the Imam’s statement, the applicant said that he wanted to have a stable life and family, but was having difficulty finding a match, because he had no work. He asked for the Imam’s help.

6. [17]

   On accounts he has given, the applicant initially thought that the victim was 17 years old, but soon learned that she was only 12. Imam Abdelalim knew the victim, who attended a class which he taught at the mosque. The applicant asked Imam Abdelalim to arrange for him to speak to her. The Imam refused, on his unchallenged statement, telling the applicant that he was not allowed and that they could find him a more suitable wife in the Lebanese community. The Imam was not approached by the victim’s father about the applicant’s proposed marriage to his daughter.

7. [18]

   Imam Khamis also knew both the applicant and the victim’s father. He was aware of the father’s concerns about the victim going to high school. The applicant also approached Imam Khamis about marrying the victim in late 2013. Imam Khamis’ unchallenged statement was that he told the applicant even more directly, “this is not allowed. This is illegal. It is against the law”. After this advice the applicant left the mosque, but spoke to the Imam again by telephone about a week later, when he told the Imam: “I want to marry her.” The Imam told him again: “It is not allowed, it is better to look for one which is fit for you.” The applicant did not speak to the Imam again and the victim’s father also did not approach him about the applicant’s desire to marry the victim.

8. [19]

   In his police interview the applicant confirmed that the Imams had told him the victim’s age; that marrying the victim was illegal here; and that he would get into trouble if he married her.

9. [20]

   Still the applicant had a friend approach the victim’s father to ask if he could marry the victim. They met at a prayer place at Heatherbrae, where the father told him that the victim was not interested in marrying him. At this time the victim did not know the applicant.

10. [21]

    Despite this advice, the applicant then began attending the Wallsend mosque, in order to meet the victim’s father. He then asked to meet the victim. Her father first permitted him to meet the victim at the end of November, in his company. Afterwards the victim told her father that she did not wish to marry the applicant, as he was too old. Despite this, her father gave the applicant her phone number.

11. [22]

    The applicant then pursued contact with the victim. She did not respond to the 26 text messages which he sent her on the evening of 27 November 2013, or to the 25 messages which he sent on 29 November, or the message which he sent her on 8 December.

12. [23]

    Some time later the applicant met the victim’s father at another mosque at Rooty Hill, where he had been invited to a meeting with the applicant. The father again told the applicant that his daughter did not wish to marry him. The applicant insisted that if she got to know him, she would.

13. [24]

    The applicant then sent further text messages to the victim on 28 and 29 December. On the 29th the victim replied. They then exchanged over 200 messages a day until 11 January 2014. On 12 January, with her father’s approval, she invited the applicant to her home and he gave her a $100 as a gift. The applicant and the victim’s father again discussed marriage.

14. [25]

    Her father then telephoned her mother and told her that the victim wished to marry the applicant and that he wanted her to meet him. Understandably, the victim’s mother did not agree with the victim marrying, but her father said that: “it was OK under Muslim law”. Still the victim’s mother disagreed and the call ended. Shortly afterwards she called the victim and told her that she did not agree to the marriage. The victim then said: “If you say I can’t do it then I can’t do it”, but her father took the phone and told her mother: “Next time you see your daughter she is going to be married” and words to the effect that he could not look after the victim forever. After that call concluded, he told the applicant and the victim that they were to be married that day.

15. [26]

    The applicant then made arrangements with a friend to meet Sheikh Tasawar at Mayfield mosque, because he knew that the Imams at the Wallsend mosque which the victim and her family attended, would not assist, they having previously told him that it was illegal for him to marry the victim.

16. [27]

    After meeting the Sheikh for a few minutes, the applicant and his friend returned to the victim’s home. There is no evidence as to what the applicant told the Sheikh about the victim, or her age. It is agreed, however, that at the victim’s home a ceremony took place in Arabic and that the applicant and the victim were then “married under an Islamic ceremony”.

17. [28]

    There is, however, no evidence that this ceremony was one recognised under Sharia law, as it is agreed that the applicant believes. Such a claimed belief alone cannot establish what Sharia law might provide, particularly given the agreed fact that the advice which the applicant had received from the two Imams from whom he had sought advice, who both knew the victim and her age, was that it was illegal for him to marry her.

18. [29]

    It is also relevant that the applicant told police that apart from the two witnesses present at the ceremony, no members of the Islamic community had attended. He later told Dr Rastogi that as the result of his offending, he had been ostracised by his community. That is also not consistent with his professed belief as to the rightness of his conduct under the faith which he shares with that community.

19. [30]

    After the ceremony the victim’s father told the applicant that he would take care of giving the Sheikh money. He also gave the victim $500 as a wedding gift. Later her father told her not to use any birth control pills or condoms and not to let the applicant use any kind of contraception. The applicant then drove the victim to a motel at Newcastle, which was paid for using money the victim’s father had given her.

20. [31]

    The first to fifth acts involved in the applicant’s offence took place that day at the motel. Over the following days the applicant and the victim stayed at a number of different motels in Sydney, having sexual intercourse three to five times a day. On the weekend they stayed with the victim’s father. The sixth and seventh acts of sexual offending took place on the weekend of 17-19 January, at the home of the victim’s father, to his knowledge. The following week the applicant and the victim again stayed at different motels in Sydney, continuing to have sexual intercourse at least twice a day.

21. [32]

    On the weekend of 24 - 26 January they returned to the victim’s father’s home, where he had built a queen sized bed for them to share in her old bedroom. On 28 January they moved to a rented house at Guildford West, where they had sexual intercourse. On 4 February, the eighth act of sexual offending took place.

22. [33]

    On 5 February the applicant attempted to enrol the victim in year 7 at Auburn Girls High School. Consistent with the advice the Imams had given him, he did not disclose the nature of his relationship with her, but told the Vice Principal that her parents were in Newcastle and he was looking after her. He was told that he needed to be registered as her guardian before she could be enrolled, and was directed to Centrelink or Family and Community Services.

23. [34]

    The applicant and the victim then went to Centrelink, where the applicant enquired about guardianship and claiming benefits for the victim. When asked about the nature of their relationship, he said that they were boyfriend/girlfriend and living together. He was advised that because the victim was under 16, he would need to speak to Family and Community Services. That afternoon the victim spoke to a caseworker by phone, explaining that she was living with her 26 year old boyfriend, that she wanted to enrol in an Islamic girls school, how she had met him and that her parents accepted their relationship. An appointment was made for the next day. When they attended police were notified.

24. [35]

    During police interviews, the victim said amongst other things that she understood that under Islamic or Sharia law she could get married at puberty; that her father had allowed her to marry immediately on learning that this was the law; that she knew the Sheikh from the Mayfield mosque because the applicant had gone to get him to marry them; that he had gone there because the Wallsend mosque would not help him; that he had paid the Sheikh for marrying them; and that they had had intercourse repeatedly, at times that she described.

25. [36]

    Police then spoke to the victim’s father, who confirmed his knowledge that she had married the applicant and was living with him. The applicant was then arrested.

26. [37]

    During his interview the applicant made numerous admissions, that is, representations contrary to his interests. They included admissions as to his repeated sexual intercourse with the victim and that he had married her. He also said that “it was the Islamic way” to marry, once a girl was bleeding, if she wanted; that they had married under Islamic law, but not Australian law, under which they were just boyfriend and girlfriend; that he was aware that she was only 12 when he had married her, but that he had not heard of the legal age of consent until that day; that he did not consider his relationship to be criminal, but holy; that it was not a crime; that it was common to give birth at, 10, 12 or 13; that birth was “nothing”; that they had had sex, after the victim had said yes and was his wife; that he did not agree that this was a crime in New South Wales; that there was no problem, because they were happy; that he had the permission of her dad; that there was thus nothing wrong with having sex with the victim, because she was his wife; that he did not agree that it was a crime because he was a Muslim and could marry her once she had her period.

27. [38]

    In June 2014 the applicant told Dr Rastogi that he had been raised in a very strict religious environment, with strong enforced values and practices; that in Islamic law, it was allowed to get married to girls once they attained puberty; he grew up in that environment; his sister had married at 16; that was acceptable in Lebanon; that when he married the 12 year old victim, he perceived that he was doing the right thing; and “I never thought this was wrong, I grew up in such an environment where marrying a minor was normal tradition and common occurrence as per the religion”.

28. [39]

    What he told Dr Rastogi was undoubtedly untrue, given the unchallenged evidence of both Imam Abdelalim and Imam Khamis and the agreed facts.

29. [40]

    The applicant also gave a false account to Ms De Santa Brigida. He told her that the Sheiks who he approached at the mosque that the victim attended were not of assistance, because they did not really know him; they thought he might be seeking marriage only as a means of securing residence in Australia; and that he could not marry because he did not have citizenship in Australia. He did disclose to her that he found out the victim’s age, after he first approached her father and heard her say “he is too big for me”, but, he said, marriage at that age in his faith in Lebanon was a very common practice and that young females are considered to be of marriageable age, once they have reached puberty. He also claimed not to know that what he had done constituted a criminal offence in Australia.

30. [41]

    The applicant also led no evidence on sentence to establish that the law in Lebanon permitted the common practice of 12 year old girls marrying, which he claimed there exists.

Ground 1 – the victim impact statement

1. [42]

   The victim was the “primary victim” of the applicant’s offence, as that term is defined in s 26 of the Crimes (Sentencing Procedure) Act. A “victim impact statement” is there defined to mean:

2. [43]

   The Crown tendered an unsigned and undated document from the victim entitled “victim impact statement”. It did not disclose that she had suffered any harm. There she said that “the law is only tring(sic) to do its best to protect me but what are u protecting me from?” She also said that she was being caused harm, because she was not “protected from the motions that go through my body and I’m not protected from the tears that burn my face and eyes each and every night”. The victim also asked for her husband back so that she could “have the happy life I deserve”. She expressed the opinion that “one happily married couple and their families do not deserve to go through the stress and pain just for an act of crime that didn’t hurt any body in anyway”.

3. [44]

   By its terms it is apparent that this document is not a victim impact statement as defined. It does not identify the personal harm which the victim has, in fact, already suffered as the result of the applicant’s offending. It could not be assumed that there had been no such harm and on the evidence, the harm which had already been caused included an ectopic pregnancy and it must be inferred, a miscarriage.

4. [45]

   In the result, this statement was not one that the sentencing judge was entitled to take into account under s 28 of the Crimes (Sentencing Procedure) Act as a victim impact statement, even if her Honour had considered it appropriate to do so. Section 30(3) provides that a “court may receive and consider a victim impact statement only if it is given in accordance with and complies with the requirements prescribed by or under this Division”.

5. [46]

   Sweeney DCJ took the view that:

6. [47]

   On appeal the applicant accepted that the statement was not “strictly speaking” a victim impact statement under the Act, but argued that given the sentencing judge’s obligation under s 21A of the Crimes (Sentencing Procedure) Act, to take into account the aggravating and mitigating matters there specified, which were revealed by the evidence, that the victim’s statement had to be considered in accordance with s 21A(3)(a), which provides:

7. [48]

   Both at trial and on appeal what the victim had told police in her interviews was relied on for the applicant to support the submission that despite then being aged only 12 years, she did have a level of maturity and that it could not simply be inferred from her age that she was “immature and therefore she cannot be in a position to understand the consequences of her actions”. In the result the statement she had provided for sentence in which she said that she was suffering harm as the result of the applicant’s incarceration could be accepted as relevant and taken into account by way of mitigation.

8. [49]

   It is correct that on sentencing evidence may be called from a victim as to the matters specified in s 21A(1)(3)(a). Whether or not such evidence will be accepted and if it is, what weight it should be given, is a matter for a sentencing judge to determine. In R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 it was observed at [82] - [83]:

9. [50]

   In this case, it must not be overlooked that the statement relied on came from a child who has been the victim of extraordinary abuse.. His actions were unarguably not only contrary to her healthy development during childhood, but they exposed her to considerable risk of both physical and psychological injury. Such physical risks have in fact already materialised.

10. [51]

    The victim’s statement itself sheds light on the psychological consequences which have already resulted for the victim. That statement reveals that she presently considers herself more harmed by the applicant’s arrest and punishment for his admitted serious offending against her, than she does from the offending itself, notwithstanding the ectopic pregnancy and miscarriage which resulted.

11. [52]

    This statement explains why in R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 it was observed at [110] as to children like the victim:

12. [53]

    Here, it was argued, however, in written submissions on appeal, that the victim’s statement “eloquently demonstrates the additional distress, which she is experiencing due to the applicant’s incarceration” and that the sentencing judge erred in failing to take it into account “as mandated, in considering (in the absence of any contrary evidence) the lack of harm” she had been caused.

13. [54]

    This submission cannot be accepted.

14. [55]

    What, in truth, this abused child asks for in her statement is something beyond the law enacted for her protection to grant, namely, a return to the abusive relationship and sexual offending which the applicant knew to be contrary to law when he pursued it and which only came to an end as the result of his arrest.

15. [56]

    The victim’s letter thus cannot sensibly be understood as evidencing either maturity, forgiveness, or an account which supports the conclusion that the injury, emotional harm, loss or damage caused by the applicant’s offence was not substantial. Consistent with her youth and consequent immaturity, it rather reveals a lack of real understanding of the seriousness of the assaults committed against her and the potential ongoing consequences of that abuse for her future development.

16. [57]

    This victim remains at considerable risk of further psychological harm materialising in the years ahead, notwithstanding what she said in this statement and what she earlier told police. From what she said in those interviews it is apparent that the victim was then not entirely honest, given, for example, what she said as to her mother’s consent to the marriage and what was agreed by the parties on sentence, as to her mother’s opposition. That interview also revealed that the victim was unaware of relevant circumstances, including the advice which the applicant had received from the Imams he had approached at the mosque she attended with her family and his knowledge of the illegality of his actions.

17. [58]

    In the face of all of this evidence it is surprising, indeed, that on sentence the Crown did not challenge the applicant’s case that the harm he had caused the victim was not an aggravating factor which ought to be taken into account on sentencing. That submission was contrary to the provisions made in s 21A(2)(g) which required account to be taken of the evidence that “the injury, emotional harm, loss or damage caused by the offence was substantial”.

18. [59]

    On appeal misplaced reliance was also placed on observations such as those in Shaw v R [2008] NSWCCA 58, where it was observed at [45]:

19. [60]

    Here the evidence did not permit any favourable conclusions to be reached as to the applicant’s prospects of rehabilitation, given the false accounts he had given the psychologists who interviewed him, accounts directly inconsistent with the agreed facts.

20. [61]

    It was also submitted that the circumstances were analogous to those considered in R v Roche [1999] 2 Cr App R (S) 105, where family members of the victim were closely related to the offender and R v Hutchinson [1994] 15 Cr App R (S) 134, where an adult rape victim had been in a relationship and by trial the victim had forgiven the offender. In R v Hutchinson it was concluded at 137 that:

21. [62]

    Such considerations cannot be accepted as arising in this case. Here there is not even an appreciation by the victim that she has anything to forgive.

22. [63]

    In Roche, Lord Bingham CJ discussed the need for consistency in sentencing, but observed by reference to R v Nunn [1996] 2 Cr App R (S) 136 at 108 that:

23. [64]

    After referring to commentary by the Criminal Law Review, his Honour concluded (at 109) that it is:

24. [65]

    The applicant was submitted to fall into a similar category, namely, an offender who should become the instrument of the Court’s compassion. That submission cannot be accepted, given the nature and seriousness of the applicant’s offending against this 12 year old child, when considered in light of the purposes of sentencing by which the Court is bound.

25. [66]

    No 12 year old should, as the victim was, be put at risk of disease, pregnancy, child birth, or miscarriage and the physical, hormonal and emotional consequences which they can each have, let alone the risk of motherhood and all of the lifelong responsibilities which that can bring with it.

26. [67]

    Not only was the victim put at risk, she in fact became pregnant and also suffered one of its complications, an ectopic pregnancy. That, even nowadays in Australia, where such victims have access to advanced medical care, can be potentially life threatening. She also suffered a miscarriage. Fortunately there is no evidence that the victim has suffered other long term physical harm, but the possibility of such harm, or indeed further psychological harm materialising in the years to come, as the result of the applicant’s offending, remains real. Despite what the victim said in her statement, compassion for her situation cannot result in a lesser sentence for the applicant.

27. [68]

    In the result, this ground must fail.

Ground 2 – prospects of rehabilitation and likelihood of re-offending

1. [69]

   As discussed in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]:

2. [70]

   The applicant’s case was that although on sentence no submissions were addressed to the questions of re-offending and rehabilitation, the sentencing judge was obliged to assess and take into account by way of mitigation of his sentence, that he had good prospects of rehabilitation and not offending again. That may not be accepted. As discussed in Zreika at [81]:

3. [71]

   Given the evidence earlier discussed, it would seem that there was good forensic reason for not pursuing arguments as to the applicant’s prospects.

4. [72]

   It has repeatedly been observed that histories given to those who assess offenders should be approached with some caution when they choose not to give evidence (see for example R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 and TS v R [2007] NSWCCA 194 at [30]; Butters v R [2010] NSWCCA 1 at [18]). That was an important consideration in this case, given all that the applicant initially told police as to his beliefs, what he told the experts and the facts which were later agreed.

5. [73]

   The applicant did not give evidence. Had he done so he would have been cross-examined not only as to the accounts he had given the experts on whose reports he relied on appeal, but also as to what he had told those who gave character references. What they said made it apparent that the applicant had also not been entirely frank with them.

6. [74]

   The applicant, seemingly an intelligent man with no prior record, pursued serious and deliberate offending, even though warned by two Imams who knew the victim, that what he proposed to do was illegal.

7. [75]

   When he was examined by Dr Rastogi and Ms De Santa Brigida in June 2014 he had not yet entered his plea. In the circumstances that he was undoubtedly then in, his plea reflected a recognition of the inevitability of his conviction. A positive assessment as to his prospects of rehabilitation and the likelihood of further offending, depended, however, not on a recognition of the inevitability of that conviction, but on demonstration of an alteration of the views he had held even when he was examined by the two experts, as to his right to marry the victim and to have sexual intercourse with her, despite his understanding as to her age, and that his conduct involved serious offending under the law.

8. [76]

   That the applicant now accepts that, notwithstanding his prior belief that he was entitled to do what he did, it was in fact criminal to pursue his desires, has not been established by evidence. In his case, given the departures in the histories he had earlier given, from the agreed facts, little weight can be placed on the conclusions reached by the experts as to his prospects of re-offending. .

9. [77]

   In the result, it was not open to conclude that he has good prospects of rehabilitation and not offending further, even if such a case had been advanced on sentence. It was not.

10. [78]

    Accordingly, this ground must be dismissed.

Ground 3 - special circumstances

1. [79]

   It appears that the applicant is at risk of deportation once his sentence is served. This was not a relevant consideration on sentence, even in fixing the applicant’s non-parole period. Deportation is a matter for the Executive Government (see R v Van Hong Pham [2005] NSWCCA 94 referring to Shrestha v The Queen [1991] HCA 26; (1991) 173 CLR 48).

2. [80]

   The ratio between the head sentence and non-parole period imposed on the applicant reflected the statutory ratio provided by s 44 of the Crimes (Sentencing Procedure) Act, which relevantly provides:

3. [81]

   The section imposes a fetter on a sentencing judge’s discretion (see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [61]). A finding of special circumstances permits an adjustment downwards of the non-parole period, but that discretion must be exercised in the light of “the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence” (see R v Simpson at [63]).

4. [82]

   As s 44(2) specifies, departure from the statutory ratio must be explained by reasons given, by reference to the relevant facts on which the finding of special circumstances rests (see Caristo v R [2011] NSWCCA 7 at [28]). Simply because there are circumstances which are capable of constituting special circumstances, however, does not require a sentencing judge to make such a finding (see R v Fidow [2004] NSWCCA 172 at [19]). This Court is unlikely to interfere with the exercise of that discretion, unless the non-parole period is found to be manifestly inadequate or manifestly excessive (R v Simpson at [73]).

5. [83]

   It follows that where, as here, no finding of special circumstances was sought on sentence and, in exercise of the discretion the statutory ratio was adhered to by the sentencing judge, on appeal what must be shown is that the exercise of the discretion has been infected by some error, or has resulted in a non parole period that was manifestly excessive. Adherence to the statutory ratio, of itself, cannot establish such an error.

6. [84]

   On appeal Dr Rastogi’s opinions that the applicant was suffering severe depression and a grief reaction, currently in denial, with a need for ongoing psychological support long term for his multiple losses, which would impact upon his self esteem, were relied on to submit that there should have been a finding of special circumstances, with the result an adjustment downwards of the non-parole period which the applicant is to serve.

7. [85]

   That was not, however, the applicant’s case on sentence. Then there was no submission advanced that there should have been any adjustment to the non-parole period, for this or any other reason.

8. [86]

   On the evidence earlier discussed, that there was any error in her Honour not having departed from the statutory ratio, given both the absence of any submission that there should be a finding of special circumstances and the problems already discussed with the opinions formed by Dr Rastogi, given the history provided by the applicant, is difficult to accept.

9. [87]

   The non-parole period imposed on the applicant was 10 years, after a discount of 25%. Given all that her Honour was obliged to take into account in arriving at the applicant’s sentence, that this non-parole period was manifestly excessive, has not been established. To the contrary, given that the harm which he caused the victim was not taken into account as an aggravating factor, as s 21A(3)(a) contemplated, it is arguable that the sentence was unreasonably disproportionate to the true nature and circumstances of the applicant’s offence. That, however, was not the Crown’s case and so need not be considered further.

10. [88]

    In the result, however, this ground must also be dismissed.

Order

1. [89]

   Accordingly, the orders I would propose are:

   1. (1)

      Leave to appeal be allowed.

   2. (2)

      The appeal be dismissed.

2. [90]

   WILSON J: I agree with Schmidt J.