FRP v R

1. [1]

   HARRISON CJ at CL: I agree with the orders proposed by Garling J.

2. [2]

   GARLING J: On 19 July 2023, the applicant, to whom the Court has given the pseudonym FRP, entered pleas of guilty to four counts of aggravated sexual intercourse with a child, whom this Court will refer to as “Victim 1”, between 10 and 14 years of age, contrary to s 66C(2) of the Crimes Act 1900 (NSW) (“the Crimes Act”). He asked that two offences of intentionally sexually touch a child, contrary to s 66DB(a) of the Crimes Act be taken into account on a Form 1.

3. [3]

   On 14 June 2023, with respect to a second victim, whom the Court will refer to as “Victim 2”, the applicant entered pleas of guilty to two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act, and one count of sexual intercourse with a person between 10 and 16 years of age, contrary to s 66C(1) of the Crimes Act. With respect to these three offences against Victim 2, the applicant asked that four other offences of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act, be taken into account on a Form 1.

4. [4]

   On 20 October 2023, Fitzsimmons SC DCJ (“the Judge”) imposed an aggregate sentence of 13 years imprisonment, with a non-parole period of 8 years and 8 months.

Grounds of Appeal

1. [5]

   The applicant seeks leave to appeal and, if granted leave, relies upon the following grounds:

   1. (1)

      Ground 1: his Honour erred in his assessment of the objective seriousness of the offences against the Victim 1;

   2. (2)

      Ground 2: his Honour erred in finding that personal deterrence was a “significant factor”;

   3. (3)

      Ground 3: his Honour erred in concluding that the applicant’s engagement in rehabilitation must be done in the context of him having some insight into his offending and expressing some remorse; and

   4. (4)

      Ground 4: the aggregate sentence is manifestly excessive.

2. [6]

   For the reasons which follow, I would grant leave to appeal, quash the sentence and impose a lesser sentence.

Description of Offences

1. [7]

   It is convenient to set out the offences to which the applicant pleaded guilty, together with details of the Form 1 offences, and the relevant penalties:

Agreed Facts

1. [8]

   The applicant was sentenced on the basis of the Agreed Statement of Facts, which are referred to below.

2. [9]

   The offences with respect to Victim 2 occurred at various times between July 1992 and July 1997. Sequence 4 (an aggravated indecent assault contrary to s 61M(2) of the Crimes Act) occurred when Victim 2 was between 7 and 9 years of age. The applicant and Victim 2 were in the applicant’s vehicle. The applicant, whilst stopped in a carpark, pulled Victim 2, who was sitting in the front passenger seat, across to sit on his lap. He positioned her to be facing him and then rocked her backwards and forwards on his lap. Victim 2 felt something dig into her pubic area. The applicant then turned Victim 2 around, and she pretended she was driving the motor vehicle.

3. [10]

   With respect to Sequence 4, two offences of aggravated indecent assault were taken into account on a Form 1. The first of those, Sequence 6, happened on an occasion when Victim 2 was aged between 10 and 12 years, and was in the car with the applicant. He kissed her hard on the lips before letting her leave the car. The second Form 1 offence, Sequence 7, occurred whilst in the applicant’s room in their shared home. The applicant kissed Victim 2 hard on the lips for an extended period – during the course of which, as Victim 2 began to pull back, the applicant used his lips to pry open her lips, following which he slipped his tongue into her mouth.

4. [11]

   Sequence 8 (a further aggravated indecent assault, the circumstances of aggravation being that Victim 2 was under the age of 16 years) took place whilst she was in the applicant’s bedroom. She sat on the applicant’s lap with her legs straddled around him, following which the applicant began rocking his body back and forward. Victim 2 felt “something hard poking her groin area” and could see that the applicant had an erection.

5. [12]

   Sequence 10 was an offence of sexual intercourse with a person between 10 and 16 years of age, contrary to s 66C(1) of the Crimes Act. Victim 2, who was aged either 10 or 11 years old, was lying towards the end of the applicant’s bed when the applicant knelt on the floor, he pulled her underwear back and kissed her quickly and swiftly on the top of her vagina, on her mons pubis.

6. [13]

   With respect to this offence, there were two Form 1 offences taken into account, both of which consisted of indecent assaults. The first Form 1 offence (Sequence 9) occurred whilst Victim 2 and the applicant were in his bedroom, with Victim 2 lying on his bed. The applicant peeled back her underwear and kissed her hips and groin around her bikini line making her feel uncomfortable. The second Form 1 offence (Sequence 11) occurred when the applicant had given Victim 2 a lift in his car to a friend’s house. As they arrived at the house, the applicant indicated to Victim 2 that she owed him a kiss on the lips for giving her a lift. Victim 2 kissed the applicant, as he demanded, and got out of the car.

7. [14]

   The offences against Victim 1 occurred in 2021, namely between 27 years and 30 years after the offences against Victim 2. The initial occasion of criminality (Sequence 2) occurred one afternoon, after school, in the applicant’s home, whilst the applicant was alone with Victim 1. He commenced his criminal conduct of intentionally sexually touching a child aged between 10 and 16 years, by kissing her on her lips, neck and breast area, which was taken into account with respect to Sequence 1.

8. [15]

   Sequence 1, an offence of aggravated sexual intercourse with a child between 10 and 14 years, arose consequent upon the applicant’s continuing criminal conduct, when he removed Victim 1’s school uniform and underwear and then proceeded to kiss Victim 1’s vagina several times. He then followed this conduct by inserting his index finger into her vagina. This continued for a short time, before the applicant stopped and then redressed Victim 1. The digital penetration, by the applicant, of Victim 1, constituted the second charge of aggravated sexual assault, namely Sequence 3.

9. [16]

   The next three charges, being two offences of aggravated sexual intercourse with a child and a further Form 1 charge of intentionally sexually touching a child, occurred on a different and subsequent occasion, when Victim 1 was at the applicant’s home and under his authority. During the course of a game of hide and seek, Victim 1 hid between the desk and chair in a computer room. She was found by the applicant, who lifted her onto his bed and removed her school uniform and underwear. He kissed her on the lips, neck, breast and stomach area, which conduct amounted to an offence of intentionally sexually touching a child, Sequence 4, which was taken into account on a Form 1. The applicant then held Victim 1’s knees and kissed the inside of her vagina. This conduct constituted an offence of aggravated sexual intercourse, Sequence 5. The conduct continued for a short period before the applicant inserted his index and second finger inside Victim 1’s vagina. This digital intercourse made Victim 1 feel very uncomfortable and she felt pain. It continued for a short time. This last episode constituted a further charge of aggravated sexual intercourse, being Sequence 6.

Investigation

1. [17]

   Victim 2 first disclosed the applicant’s offending in 2016, when she told her mother what had occurred. She ultimately attended a police station in October 2022.

2. [18]

   Sometime in early December 2021, Victim 1 disclosed to her mother that she had been touched inappropriately by the applicant. A report was made to the police and Victim 1 participated in a number of recorded interviews in mid-December 2021.

3. [19]

   The police, thereafter, obtained a surveillance device warrant. A telephone call was initiated and recorded on 16 December 2021, during which the applicant made some admissions, although they could not be regarded as entirely fulsome.

Remarks on Sentence

1. [20]

   The two victims made Victim Impact Statements, which were put before the Judge at the proceedings on sentence. There was no doubt that the applicant’s conduct had significant adverse effects on both of the victims, which the Judge noted.

2. [21]

   The Judge noted that the applicant had pleaded guilty at an early opportunity and was entitled to a discount of 25% on any sentence which might be imposed upon him.

3. [22]

   In his consideration, the Judge identified salient features of each offence and the general contextual matters, such as the respective ages of the applicant and each victim, and the relationship between them. With respect to Victim 1, the Judge assessed the objective seriousness in this way:

   1. (1)

      Sequence 1: mid-range of objective seriousness;

   2. (2)

      Sequence 3: just above the mid-range of objective seriousness;

   3. (3)

      Sequence 5: just above the mid-range of objective seriousness;

   4. (4)

      Sequence 6: above the mid-range of objective seriousness “… and towards the higher end of the range”.

4. [23]

   In respect of Victim 2, the Judge assessed the objective seriousness in this way:

   1. (1)

      Sequence 4: within the mid-range of objective seriousness;

   2. (2)

      Sequence 8: just below the mid-range of objective seriousness;

   3. (3)

      Sequence 10: just below the mid-range of objective seriousness.

5. [24]

   Insofar as the applicant’s subjective case was concerned, his Honour concluded that personal deterrence was a significant factor in the sentencing of the applicant. He accepted that, whilst the plea of guilty entered early in the proceedings reflected an admission by the applicant in respect of his offending and some element of remorse, his Honour was not persuaded that the applicant showed any real remorse in the course of the pretext telephone call referred to above.

6. [25]

   His Honour noted that, in the expert report of the forensic psychologist, there was a total absence of remorse in the applicant’s engagement with the psychologist, and his Honour found that the applicant had never recognised the harm inflicted upon either victim.

7. [26]

   His Honour noted that the forensic psychologist had assessed the applicant at a very low risk of re-offending or sexual recidivism. However, his Honour found that assessment “difficult to accept”. His Honour drew attention to the significant period of over 20 years between the initial offending and the reoffending, and found that the psychologist’s “suggestion” that the advanced age of the applicant substantially lowered the risk for future sexual reoffending as being:

8. [27]

   However, his Honour did note that, given that the applicant would be sentenced to a lengthy term of imprisonment, the risk of offending would be lessened by reason of his age at the time of his release back into the community. His Honour noted that the applicant had expressed a willingness to engage in appropriate courses to assist with his rehabilitation, but remarked:

9. [28]

   His Honour took into account the applicant’s prior good character, and noted that his clean record was not relevant in terms of assisting him in the commission of the offences.

10. [29]

    His Honour made a finding of special circumstances and determined to impose an aggregate sentence.

11. [30]

    The table which is an Attachment to this judgment substantially reproduced from the Crown’s submissions, sets out various features of the offending, the sentence indicated by the Judge for each of the sequences, and the starting point for those indicative sentences prior to application of the 25% discount for the applicant’s early plea of guilty.

12. [31]

    The aggregate sentence imposed by the Judge was 13 years imprisonment with a non-parole period of 8 years and 8 months.

Ground 1

1. [32]

   Ground 1 challenges the Judge’s assessment of objective seriousness.

2. [33]

   In order to succeed on this ground, given that the assessment of objective seriousness is an evaluative exercise, upon which minds may reasonably differ, it is necessary for the applicant to show that the particular characterisation given by the sentencing Judge to an offence was not reasonably open: see Dawkins v R [2018] NSWCCA 278 at [36]; Mulato v R [2006] NSWCCA 282 at [37], [46]; Lee v R [2016] NSWCCA 66 at [8].

3. [34]

   The approach to the assessment of the evaluation of the objective seriousness of any offence accords with the statement of Simpson J, namely that it “… should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence”: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [13](iii).

4. [35]

   In particular, I note that Spigelman CJ said, at [37], in Mulato, this:

5. [36]

   It is also worth noting the remarks of Simpson J in Mulato, at [46], which are in these terms:

6. [37]

   Her Honour went on to remark that it was necessary for first instance judges to make “clear findings of fact and clear evaluations of such matters as objective seriousness”. She cautioned that absence of clarity in such findings may result in the need for an appellate court to undertake the task itself.

7. [38]

   It is also important to note that, in undertaking the assessment of objective seriousness, the sentencing Judge is doing so with respect to a particular offence, but within the range of seriousness for that particular offence. In Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 452, the Court; Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ, said:

8. [39]

   The applicant submits that each of the assessments of objective seriousness made by the Judge, respectively, for each offence, were not reasonably open to him.

9. [40]

   In approaching the task of considering the applicant’s challenge, it is necessary to bear in mind that describing assessments of objective seriousness involves the use of language which is notoriously inexact.

10. [41]

    As part of the assessment of objective seriousness, a sentencing Judge is obliged to consider the conduct which occurred, other features of the offence and the surrounding circumstances. Areas for enquiry include, but are not limited to, the age of the victim, the age disparity between the victim and the offender, any relationship between the victim and the offender, particularly if there is a family relationship, the period of time over which offences occurred, whether there was any, and if so what degree of, force or coercion, or compulsion, the use of threats or pressure before or after the offence, and what effect the offence had on the victim. The location where the offences occurred is also relevant to an assessment of the objective seriousness of the offending. This is by no means a comprehensive or mandatory list.

11. [42]

    Ground 1 of the proposed appeal challenges the objective seriousness of the offences as assessed by the sentencing Judge of the offences against Victim 1.

12. [43]

    At the sentencing hearing, the applicant submitted that each of Sequences 1, 3, 5 and 6 fell below the mid-range of objective seriousness. The Crown submitted that the Judge would assess the objective seriousness of Sequences 1 and 3 as falling above the mid-range, and the objective seriousness of Sequences 5 and 6 as being “above the mid-range of objective seriousness, towards the higher end of the range”. In each of those last two Sequences, the Crown’s submission made it plain that it was submitting that those Sequences fell towards the higher end of the mid-range of objective seriousness.

13. [44]

    The findings of the Judge placed the level of objective seriousness for Sequences 1, 3 and 5 as somewhere between the assessments contended for by each of the applicant and the Crown. With respect to Sequence 6, the Judge accepted the Crown’s submission in the assessment of the objective seriousness.

14. [45]

    In my view, allowing for the imprecision of language surrounding the way in which objective seriousness may be described, it cannot be said that the assessments of the sentencing Judge of the objective seriousness of the Sequences relating to Victim 1 were not open to him. There were significant features which justified such assessment. Whilst the particular acts themselves may have tended to suggest that the offending conduct fell below the mid-range of objective seriousness, when other features were taken into account, the sentencing Judge’s assessment of objective seriousness was clearly open to him. Those features included the fact that, at the time of offending, the victim was at or around the bottom end of the prescribed age range for the offence. There was a significant difference in age between the applicant who was 74 or 75 years old, and Victim 1 who was aged 10 at the time. As well, the familial relationship of the applicant to the victim, together with the fact that the victim was in the care of the applicant, and, finally, that the offending occurred at the victim’s home, were all relevant matters to be considered in addition to the actual conduct itself. In combination, all of those matters fully justified the assessment of objective seriousness which the sentencing Judge reached.

15. [46]

    I am unpersuaded that the assessments of the sentencing Judge were not open to him and, accordingly, I would not uphold Ground 1.

Grounds 2 and 3

1. [47]

   It is convenient to deal with these grounds together, as the applicant’s submissions did.

2. [48]

   These grounds, it is submitted, are related because the finding that personal deterrence was a significant factor in the sentencing of the applicant is related to the sentencing Judge’s finding about the applicant’s prospects of rehabilitation.

3. [49]

   It is necessary to set out the remarks in [94] of the sentencing judgment. His Honour there said this:

4. [50]

   It is appropriate to note that, in the preceding paragraph in the sentencing Judge’s Remarks, he had declined to accept, as he was entitled to, the finding of the psychologist retained to provide a report on sentencing, that the applicant was at a very low risk of reoffending.

5. [51]

   The applicant submits that [94] of the sentencing remarks reflects erroneous reasoning, in that it suggests that the sentencing Judge concluded that the applicant’s prospects of rehabilitation and risk of reoffending were inextricably linked to the existence of remorse and insight, neither of which the sentencing Judge found the applicant to possess.

6. [52]

   The applicant submits that this reasoning supported that conclusion that significant weight should be given by the sentencing Judge to personal deterrence.

7. [53]

   To the extent that the applicant submits that the reasoning of the sentencing Judge that rehabilitation was conditional upon remorse and/or insight, such a conclusion was in my view contrary to authority.

8. [54]

   As a matter of principle, the existence of remorse is not a prerequisite to a finding that an offender has prospects of rehabilitation. As Giles JA (with whom Hidden and McCallum JJ agreed) said in Alseedi v R [2009] NSWCCA 185 at [65] when dealing with a sentencing Judge who had held that he could not make a finding that an offender had good prospects of rehabilitation because he continued to maintain his innocence, this:

9. [55]

   The position was well summarised by Bellew J (with whom Macfarlan JA and Adamson J agreed) in MLP v R [2014] NSWCCA 183 at [34], where his Honour said:

10. [56]

    In the sentencing Judge’s remarks at [94], his Honour’s remark that the lack of any real remorse “did not bode well” for the applicant’s prospects of rehabilitation is undoubtedly a finding consistent with legal principle, and is unexceptional.

11. [57]

    The real substantive challenge is made to the following sentence, which is in these terms:

12. [58]

    The sentencing Judge was entitled to find, for reasons he set out at [92], that the applicant lacked any real remorse. It seems clear in the sentencing remarks under challenge by the applicant, that the sentencing Judge has accepted that the applicant was willing to engage in appropriate courses.

13. [59]

    Such a finding was properly based upon the expert report tendered on behalf of the applicant, from Kris North, a forensic psychologist. In that report, Ms North recorded this:

14. [60]

    Whilst his Honour observed that the finding of a low risk of reoffending or sexual recidivism, set out in the paragraph to which I have just referred, was “difficult to accept”, he did accept that the risk of reoffending would be diminished by the advancing years of the applicant, particularly whilst serving a sentence of imprisonment.

15. [61]

    Having considered the submissions and, in particular, the Crown’s submissions that the sentencing Judge was entitled to view the applicant’s prospects of rehabilitation as guarded, I cannot accept the Crown’s submissions that the sentencing Judge’s remarks, at [94], ought not be interpreted as a finding that some insight into, or expression of remorse for, the applicant’s offending are preconditions to his engagement in appropriate treatment courses and thereby are relevant to his prospects of rehabilitation.

16. [62]

    The manner in which his Honour expressed these findings was, in my view, erroneous as a matter of principle and was not based on any factual material which was before him in the sentencing proceedings. I am also persuaded that the reasoning in the challenged passage affected the finding of the sentencing Judge that personal deterrence was a “significant factor” in the sentencing of the applicant. Personal deterrence was undoubtedly a relevant factor to be taken into account. However, the erroneous conclusions expressed by the Judge have had the Judge enter error in his consideration of the extent of the need for personal deterrence to be take into account in the sentencing process.

17. [63]

    Accordingly, I would uphold Grounds 2 and 3.

Ground 4

1. [64]

   In light of my conclusion about Grounds 2 and 3, which will result in the need to re-sentence the applicant, it is inappropriate to consider whether the sentence imposed was manifestly excessive.

Resentence

1. [65]

   Resentencing of the applicant proceeds on the basis that the evidence before this Court is the same as the evidence before the sentencing Judge. No additional evidence was led on the hearing of the appeal which was sought to be taken into account in resentence.

2. [66]

   I have earlier set out a summary of the applicant’s offending. I have also expressed the view that the findings of the sentencing Judge as to the objective seriousness of the conduct were open to him. As well, it is noted that, although there was a challenge to the aggregate sentence as being manifestly excessive, it was not submitted, other than by reference to the alleged errors in describing the objective seriousness of the offences, that any one or other indicative sentence was erroneous.

3. [67]

   The applicant is now 79 years old. He will turn 80 in a little under six months’ time. The offences were undoubtedly serious. There was a significant age variation between the applicant and each of the victims at the time of the offences, and, as well, a close familial relationship between the applicant and each of the two victims.

4. [68]

   I accept that the applicant showed little remorse for his offending, but on the other hand, having regard to the unchallenged opinion of Ms North, it is appropriate to accept her finding based upon the reasoning in her report that the applicant has a very low risk of reoffending or sexual recidivism. I find no difficulty in accepting that finding. After all, the applicant did not have a lengthy history of committing criminal offences other than for the offences for which he stood to be sentenced. Those offences occurred 20 years, or more, apart. Particularly, as the sentencing Judge found, the applicant would be quite advanced in age when he is released from custody and having regard to his willingness to undertake appropriate treatment, there is every reason to conclude that he has reasonable prospects of rehabilitation.

5. [69]

   Having regard to these conclusions, I do not accept that the Court should reach a conclusion that no lesser sentence than that imposed on the applicant by the sentencing Judge is warranted.

6. [70]

   In my view, the Court should proceed to fix an aggregate sentence which reflects these more favourable findings.

7. [71]

   Taking into account all of those matters, including the need for some accumulation – particularly between the two distinct sets of offending by the applicant, I would propose that the appeal be upheld and that the sentence imposed in the District Court on 20 October 2023 be quashed and that the applicant be sentenced in the way described below.

8. [72]

   I propose the following orders:

   1. (1)

      Appeal upheld.

   2. (2)

      Quash the sentence imposed by the District Court on 20 October 2023.

   3. (3)

      Impose an aggregate sentence of imprisonment of 10 years and 6 months to commence on 16 December 2021 and expire on 15 June 2032

   4. (4)

      Impose a non-parole period of 7 years to commence from 16 December 2021 and expire on 15 December 2028.

9. [73]

   YEHIA J: I agree with Garling J.