Franklin v R

1. [1]

   GLEESON JA: I agree with Johnson J.

2. [2]

   JOHNSON J: The Applicant, Brian Franklin, seeks leave to appeal with respect to sentence imposed by his Honour Judge McLennan SC at the Tamworth District Court on 2 May 2018 for a number of serious sex offences. A pseudonym is used to describe the Applicant as publication of his name would serve to identify his sister, the victim of his offences: s.578A Crimes Act 1900. In addition, several of the Applicant’s offences were committed when he was a juvenile offender: s.15A Children (Criminal Proceedings) Act 1987.

The Offences, Sentence Indications and Aggregate Sentence

1. [3]

   The Applicant pleaded guilty to the following offences:

2. [4]

   At the time of sentence, the Applicant asked the District Court to take into account on sentence for Count 3 the following offences on a Form 1:

3. [5]

   On 2 May 2018, the Applicant was sentenced to an aggregate term of imprisonment for 17 years commencing on 29 March 2017 and expiring on 28 March 2034 with a non-parole period of eight years expiring on 28 March 2025.

4. [6]

   The sentencing Judge gave the following indications for the purpose of s.53A(2) Crimes (Sentencing Procedure) Act 1999:

Grounds of Appeal

1. [7]

   By Notice of Application for Leave to Appeal Against Sentence filed on 16 August 2019, the Applicant relies upon the following grounds of appeal:

Facts of Offences

1. [8]

   An Agreed Statement of Facts was tendered at the sentencing hearing from which the following narrative is drawn.

2. [9]

   The Applicant was born in 1950. His offences were committed against his sister who is nine years younger than him. It was an agreed fact that the sexual offending occurred over a period of about 13 years, commencing when the victim was five years of age and continuing until she was 17 years of age. The Applicant was aged between 14 and 26 years during the period of offending.

3. [10]

   The Applicant was sentenced upon the agreed basis that the offences contained in Counts 1-4, and the two offences taken into account on a Form 1, were representative of the Applicant’s offending conduct against the victim. The pattern of offending was such that the victim could not remember every offence committed against her. She stated that the Applicant had sexually assaulted her on many occasions.

4. [11]

   At a time in 1967, when the victim was seven or eight years old and the Applicant was 16 or 17 years old, they were playing in a makeshift cubby house at the rear of the house at which they lived with other members of their family in rural New South Wales.

5. [12]

   The Applicant rubbed his penis against the victim’s legs and took her hand and placed it on his penis.

6. [13]

   Between 14 July 1968 and 13 July 1970, when the victim was nine or 10 years old and the Applicant was 17 or 18 years old, the victim went into the Applicant’s bedroom to get something.

7. [14]

   The Applicant came into the room and pushed the victim onto the bed. He put Brylcreem on his penis and on the inside of her thighs. He simulated sexual intercourse for a number of minutes and ejaculated on her thighs. He did not remove the victim’s underpants on this occasion which was said to be unusual.

8. [15]

   The Applicant got up, laughed and pushed the victim out of the room.

9. [16]

   Count 1 constituted the first occasion on which the Applicant had penile/vaginal intercourse with the victim. At this time, she was aged about 11 years and he was aged 19 or 20 years.

10. [17]

    On the day of this offence, some children of family friends were staying with the family of the Applicant and the victim for Christmas. The Applicant and the victim were together with the other children near a creek behind the family house in rural New South Wales.

11. [18]

    The Applicant approached the victim and said words to the effect “I’m going to have sex with you”. He pushed the victim over a log so that she was on her back. The Applicant grabbed the victim’s shorts and pulled them to her knees and then spat on his hand and rubbed it on his penis. The Applicant penetrated the victim’s vagina with his penis and moved it in and out for a period of time causing her pain.

12. [19]

    The offence in Count 2 occurred when the victim was 14 years old and the Applicant was 22 or 23 years old. The Applicant had moved to the Northern Territory for work, but returned to the family home in rural New South Wales during the wet season.

13. [20]

    On this occasion, the victim was in her bedroom. The Applicant entered the room before leaving for a brief period. When he returned, the Applicant pinned the victim on the bed and removed her shorts and underpants, breaking a button on her shorts. The Applicant spat on his hand and rubbed it on his penis and then dragged the victim closer to him before spitting on his hand and rubbing it on the victim’s vagina. The Applicant inserted his erect penis into the victim’s vagina and had sexual intercourse with her. He removed his penis from her vagina and ejaculated on her stomach and top.

14. [21]

    The offence in Count 3 occurred when the victim was 14 or 15 years old and the Applicant was aged between 22 and 24 years. The Applicant and the victim were staying by themselves at the family home in rural New South Wales.

15. [22]

    On this occasion, the victim was walking in the hallway when the Applicant tried to grab her to drag her down the hallway. However, she struggled against him and ran into the toilet.

16. [23]

    Before the victim could lock herself into the toilet, the Applicant pushed her head through the wall between the toilet and the bathroom, with sufficient force to cause the victim to black out. When the victim recovered consciousness, she was pinned over the toilet bowl by the Applicant and he was penetrating her vagina from behind with his penis. The victim tried to struggle, but could not break free.

17. [24]

    The Applicant had sexual intercourse with her for a period of time and ejaculated on her back before leaving the room laughing.

18. [25]

    The last occasion on which the Applicant had penile/vaginal intercourse with the victim occurred between 20 and 26 June 1977 when the victim was 17 years old and the Applicant was 26 years of age. At that time, the Applicant and the victim were staying at a homestead on a property in rural New South Wales where they were each doing stock work.

19. [26]

    On the evening of the offence, the victim went to bed after dinner. The Applicant entered the room where she was sleeping. The victim struggled against the Applicant and he removed her jeans by force. The Applicant forced open the victim’s legs and pinned her hands above her head. He placed his penis inside her vagina and moved it in and out. After a period of time, the Applicant removed his penis and ejaculated on the victim’s body. The intercourse caused the victim a burning pain in her vagina.

20. [27]

    Following the offence, the Applicant left the room and laughed.

21. [28]

    Immediately following the offence in Count 4, the victim removed a .22 calibre rifle from a cupboard in the room and said to the Applicant “I’ve got a gun here and if you come near me, I’m going to fucking kill you”. The victim left the house and slept in the stables.

22. [29]

    On 8 December 2016, police obtained a warrant under the Surveillance Devices Act 2007 to aid the investigation of the Applicant’s offences.

23. [30]

    In a lawfully recorded conversation between the Applicant and the victim on 10 January 2017, the victim asked the Applicant why he sexually assaulted her when she was “a kid”. He replied “I’ve got no idea mate”. The Applicant referred to having been sexually assaulted himself and said to the victim “Yeah well, I don’t know why they did it to me and I don’t know why I did it to you mate. I really don’t. I’m really sorry I did it. I really am. I really am, aye”.

24. [31]

    In a further lawfully recorded conversation on 31 January 2017, the victim referred to the last time the Applicant had raped her (Count 4) and the Applicant said “Yep”. He agreed with the victim’s observation “I could have shot you that night”. The Applicant apologised and said “I don’t know what the fuck was in my head”.

25. [32]

    On 29 March 2017, the Applicant was arrested in Queensland for the present offences and was remanded in custody to appear before a Court in New South Wales. The Applicant has remained in custody since that date.

The Applicant’s Subjective Circumstances

1. [33]

   As noted earlier, the Applicant was born in 1950 and was 67 years old at the time of sentence.

2. [34]

   The Applicant has a criminal history for summary offences committed between 1972 and 1980 for which he received fines.

3. [35]

   After the commission of the present offences between, the Applicant committed further sexual offences against his stepdaughter for which he was sentenced in 1987.

4. [36]

   On 16 June 1987, the Applicant was sentenced at the Coffs Harbour District Court to an effective head sentence of imprisonment for 12 years with a non-parole period of five years for offences of having sexual intercourse with a girl aged between 10 and 14 years (two counts), indecent assault upon a girl under 16 years (five counts) and indecent assault upon a person under 16 years with the Applicant being in authority over the victim.

5. [37]

   The Applicant was released on parole after imprisonment for three years and four months. With respect to the offences for which he was sentenced in 1987, the Applicant admitted that he had sexual intercourse with his stepdaughter on 100 to 150 occasions over a period of six or seven years.

6. [38]

   Placed before the sentencing Judge was a presentence report dated 12 June 1987 tendered in the Coffs Harbour District Court at those sentencing proceedings. The author of the 1987 presentence report described the Applicant as “an uncomplicated ingenuous country man who is genuinely contrite over what he has done”.

7. [39]

   In addition, the brief of evidence referable to the 1987 sentencing hearing was tendered at the 2018 sentencing hearing.

8. [40]

   A presentence report dated 30 January 2018 was tendered at the sentencing hearing. The author of the report noted that the Applicant had successfully completed a sex offenders program whilst in custody serving his 1987 sentence and that he successfully completed his period on parole from 1990 without incident. Accompanying the presentence report was a case note dated 21 January 2018 by Simon Burns, a psychologist, employed by Corrective Services NSW.

9. [41]

   A report of Dr Sharon Reutens, consultant psychiatrist, dated 22 September 2017 was tendered in the defence case on sentence. Dr Reutens assessed the Applicant as fulfilling the criteria in DSM-5 for paedophilic disorder. Dr Reutens observed that the Applicant’s “risk of re-offending will be lower with increasing age and frailty”.

10. [42]

    The sentencing Judge referred to aspects of Dr Reutens’ report in his sentencing remarks.

Victim Impact Statement

1. [43]

   A victim impact statement from the Applicant’s sister was tendered at the sentencing hearing. The victim outlined the devastating consequences of the Applicant’s offending upon her involving very substantial interference with her development and relationships including fear and anxiety over many years.

2. [44]

   The victim impact statement conveys the profound trauma and harm occasioned to the victim by the criminal actions of her brother during her childhood and teenage years.

Some Findings by the Sentencing Judge

1. [45]

   Having regard to the grounds of appeal, it is appropriate to set out parts of the careful and detailed sentencing remarks delivered on 2 May 2018.

2. [46]

   After noting the offences for which the Applicant was to be sentenced and the Form 1 offences to be taken into account, his Honour stated that an aggregate sentence would be imposed with each sentence indication to be reduced by 25% for the Applicant’s pleas of guilty (ROS1).

3. [47]

   After reciting the facts of the offences (ROS2-8), his Honour expressed the following conclusions with respect to the objective seriousness of the offences contained in Counts 1-4 (ROS8-9) (emphasis added)

4. [48]

   The sentencing Judge then observed (ROS9):

5. [49]

   With respect to a suggested causal link between offences committed against the Applicant and his own offending, his Honour said (ROS11-12):

6. [50]

   His Honour referred to the Applicant’s health as a factor on sentence (ROS12):

7. [51]

   The sentencing Judge then addressed the approach to sentencing for historical sex offences (ROS12-15). His Honour adopted the approach outlined by R A Hulme J (Beazley P and Bellew J agreeing) in Woodward v R [2017] NSWCCA 44 with respect to sentencing for historical matters.

8. [52]

   His Honour identified the approach to be taken as follows (ROS13):

9. [53]

   His Honour had regard to the fact that a number of the offences were committed at a time when the Applicant himself was a juvenile offender. His Honour said (ROS14):

10. [54]

    The sentencing Judge then addressed the need to have regard to past sentencing practices in setting a non-parole period (ROS14-15):

11. [55]

    His Honour had regard to general deterrence and the need to punish the Applicant for his “egregious abuse of his sister” and “to recognise the harm to her and to express the community’s disapproval” of the offending (ROS15-16).

12. [56]

    His Honour made a finding of special circumstances by reference to the need for the Applicant on release to be given an extended period on parole to facilitate his adjustment into the community as an old man (ROS16).

13. [57]

    With respect to the proportion between the non-parole period and the head sentence, the sentencing Judge said (ROS16):

14. [58]

    His Honour then proceeded to impose the aggregate sentence and to give the sentence indications referred to earlier in this judgment.

Ground 1 - Claim of Error in Assessment of Objective Seriousness of Count 3 as being Towards the Top of the Range for Rape

1. [59]

   Mr Brasch, counsel for the Applicant, submitted that the sentencing Judge had fallen into error in his assessment of the objective seriousness of the offence of rape contained in Count 3 (see [47] above). He accepted that assessment of objective seriousness of an offence was a matter for the sentencing Judge and that this Court should be slow to interfere with such an assessment with the necessity for error to be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40: Attorney General for the State of New South Wales v DSF Constructions Pty Limited [2019] NSWCCA 33 at [67].

2. [60]

   Mr Brasch submitted that the assessment of the objective seriousness of an offence of rape must be considered in the context of what conduct was encapsulated by s.63 Crimes Act 1900 at the time of the offending: Woodward v R at [97]. Whilst acknowledging that there were features of the Applicant’s offending in Count 3 which made this a serious offence, counsel submitted that those features did not place the offence into the category of being “towards the top of the range of rape” when regard is had to the wide range of circumstances that could give rise to an offence of rape.

3. [61]

   It was submitted that, for an offence of rape to be assessed as being towards the top of the range, it would require it to have some feature or features justifying that assessment, such as an offence committed by a gang or an offence involving the infliction of extreme physical injury. Whilst acknowledging that the victim in this case was a female child, it was submitted that she was not particularly young at the time of the offence in Count 3.

4. [62]

   It was submitted that the sentencing Judge had overstated the objective seriousness of the offence in Count 3 having regard to it being an offence of rape as opposed to an offence under s.61J Crimes Act 1900, being the current cognate offence.

5. [63]

   The Crown submitted that the assessment of objective seriousness of an offence is classically a matter for the sentencing Judge with this Court being slow to interfere with such an assessment: Mulato v R [2006] NSWCCA 282 at [37], [45]-[46].

6. [64]

   The Crown submitted that the sentencing Judge gave careful and detailed consideration to the nature of the offending conduct contained in Count 3. It was submitted that his Honour carefully reviewed the facts and took into account all relevant factors without taking into account any irrelevant consideration in making the challenged assessment of objective seriousness.

7. [65]

   In response to the Applicant’s submission that the offence in Count 3 did not involve certain features such as a gang offence or one involving infliction of extreme physical injury, the Crown submitted that the absence of such features did not assist the Applicant in challenging the assessment of objective seriousness with respect to Count 3: Morton v R [2018] NSWCCA 84 at [41].

8. [66]

   Further, it was submitted that the absence of a feature such as the infliction of extreme physical injury does not assist the Applicant as the presence of such a factor would give rise to a separate and discrete offence as well as the offence of rape.

9. [67]

   The Crown submitted that the sentencing Judge had proper regard to the spectrum of conduct encompassed by an offence under s.63 Crimes Act 1900 and had regard, as well, to the comments of R A Hulme J in Woodward v R at [97]. The Crown submitted that, having turned his mind to that issue, it was open to the sentencing Judge to find that the conduct involved in Count 3 placed it “towards the top of the range for rape”.

10. [68]

    It was submitted that this finding was open to the sentencing Judge and that no error had been demonstrated as asserted in the first ground of appeal.

11. [69]

    The offence of rape in s.63 Crimes Act 1900, of course, predates the introduction of standard non-parole periods in 2003. The requirement of a sentencing court to make a finding concerning objective gravity of a rape offence arises from general law sentencing principles.

12. [70]

    In Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, with the concurrence of McClellan CJ at CL, I said at 473 [46]:

13. [71]

    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] NSWCCA 247 at [112].

14. [72]

    The assessment of objective seriousness of an offence is quintessentially a matter for the sentencing Judge: Mulato v R 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: Mulato v R at [46]; Attorney General for the State of New South Wales v DSF Constructions Pty Limited at [67].

15. [73]

    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 so that there is some error of principle or fact or a failure to take into account a relevant factor or the taking into account of an irrelevant consideration or a finding that the assessment made by the sentencing Judge was not open in the circumstances of the case.

16. [74]

    The sentencing Judge made a concise finding with respect to the objective seriousness of the rape offence contained in Count 3 (see [47] above). In doing so, his Honour had regard to the observations of R A Hulme J in Woodward v R at [97] concerning the wide circumstances in which a crime of rape may be committed (see [52] above).

17. [75]

    In referring to a range of factors in Woodward v R at [97], R A Hulme J was not purporting to set out an exhaustive list of circumstances which bear upon an assessment of objective seriousness of a crime of rape. The point being made was that there was a wide range of circumstances which may call for consideration in the particular case.

18. [76]

    When regard is had to the factors considered by the sentencing Judge in this case with respect to Count 3, I am satisfied that the finding challenged in this ground of appeal was open. It has certainly not been demonstrated that the finding was erroneous in accordance with the principles in House v The King.

19. [77]

    The offence in Count 3 (see [21]-[24] above) involved a violent sexual assault committed against a girl aged 14 or 15 years in circumstances which constituted a grave and deliberate abuse of the familial relationship between the Applicant and his younger sister. The Applicant, then aged between 22 and 24 years, tried to grab and drag the victim within her own home, with him pushing her head through the wall between the toilet and the bathroom to such an extent that she lost consciousness. The Applicant persisted with the offence after these acts which were calculated to overcome the victim’s resistance and rendered her unconscious. The Applicant positioned the victim over the toilet and had penile/vaginal intercourse with her whilst she attempted to struggle. The Applicant ejaculated on the victim’s back and then left the room laughing.

20. [78]

    It was clearly open to the sentencing Judge to find (see [47] above) that the offence in Count 3 was “characterised by brutality and depravity” and was a “despicable act” on the Applicant’s part which “even if it were an isolated offence would justify a very lengthy sentence”. The circumstances of this offence, and the reasoning of the sentencing Judge, provided an appropriate foundation for a finding that the offence lay “towards the top of the range of rape”.

21. [79]

    I do not accept the Applicant’s submission that the sentencing Judge overstated the position in this assessment having regard to the offence being one of rape as opposed to the contemporary version of that offence. As was made clear in Woodward v R, a sentencing Judge should have regard to any relevant reduction in penalty for the “modern analogue” of the offence of rape. That is what the sentencing Judge did in this case (see [51]-[52] above).

22. [80]

    No error has been demonstrated as asserted in the first ground of appeal.

Ground 2 - Claim of Error in Assessment of Objective Seriousness of Count 4 as being Above the Mid-Range of Seriousness for Rape

1. [81]

   Mr Brasch submitted that the sentencing Judge had erred in his assessment of the objective seriousness of the offence in Count 4 as being above the mid-range of seriousness for rape (see [47] above).

2. [82]

   General submissions with respect to assessment of objective seriousness for rape offences, as made for the Applicant under the first ground of appeal, were repeated in the context of the second ground of appeal.

3. [83]

   It was submitted that the factors referred to by the sentencing Judge did not leave open to him the assessment of objective seriousness made concerning this count.

4. [84]

   Whilst accepting that the offence contained in Count 4 could be described as being in the mid-range of seriousness, it was submitted that it was erroneous to make a finding that the offence lay above the mid-range of seriousness for rape.

5. [85]

   The Crown submitted that the finding with respect to objective seriousness of Count 4 was open to the sentencing Judge. It was submitted that this was the last offence committed by the Applicant against the victim. The offence involved considerable violence on the part of the Applicant who overcame the victim who was struggling against him, removing her jeans by force and forcing her legs apart. It was submitted that there was forceful penile/vaginal intercourse committed whilst the Applicant pinned the victim’s arms above her head with the Applicant ejaculating on the victim with the intercourse itself causing burning pain to the victim.

6. [86]

   The Crown pointed to the fact that, once again, the Applicant laughed as he left the room. It was submitted that the factors referred to by the sentencing Judge provided sufficient foundation for the finding made as to objective seriousness.

7. [87]

   I have regard, once again, to the principles to be applied by this Court in considering a ground of appeal which challenges as erroneous a sentencing Judge’s assessment of the objective seriousness of an offence (see [69]-[73] above).

8. [88]

   The victim was 17 years old at the time of this offence. The Applicant used a significant degree of force to control the resisting victim before inserting his penis in her vagina and having forceful intercourse with her. He withdrew his penis and ejaculated on the victim’s body. Finally and callously, the Applicant laughed and left the room.

9. [89]

   This is a grave offence of rape, aggravated further by the fact that the Applicant had sexually assaulted his own sister.

10. [90]

    In my view, it was well open to the sentencing Judge to make the finding that this offence was “above the mid-range of seriousness”. His Honour identified the features which he took into account for this purpose and had regard, as well, to the principles in Woodward v R. No error has been demonstrated in this respect.

11. [91]

    I would reject the second ground of appeal.

Ground 3 - Claim that the Sentence was Manifestly Excessive

1. [92]

   Counsel for the Applicant submitted that the aggregate sentence imposed was manifestly excessive having regard, in particular, to the favourable findings made by his Honour concerning the Applicant and sentencing practices at the time of the offences. It was submitted that the sentencing Judge had made a number of positive findings in favour of the Applicant including that he was rehabilitated, unlikely to reoffend and genuinely remorseful.

2. [93]

   Whilst acknowledging that the Applicant had later matters on his criminal history, it was emphasised that those offences occurred after the offences for which the Applicant was to be sentenced so that he was, at the time of the commission of present offences, a person with no prior criminal history and a young man.

3. [94]

   Whilst accepting that it was necessary for the Applicant to demonstrate that the aggregate sentence was manifestly excessive, submissions were made by reference to the sentence indications for the offences.

4. [95]

   With respect to Count 3, where the sentence indication was 14 years’ imprisonment, counsel for the Applicant submitted that, before the 25% discount for the plea of guilty, the starting point was imprisonment for 18 years and eight months. It was noted that the modern analogue offence under s.61J Crimes Act 1900 of having sexual intercourse without consent with a person under the age of 16 years carries a maximum penalty of 20 years’ imprisonment. It was submitted that a sentence indication with a notional starting point of 18 years and eight months placed that indication very much towards the upper end of the sentence for the modern analogue offence and that this was not warranted in the circumstances of this offence.

5. [96]

   It was accepted that two Form 1 offences were taken into account in passing sentence for Count 3, but it was noted that these offences had been committed when the Applicant was a juvenile and that it was necessary to have regard to sentencing practices at the time with respect to the sentencing of juvenile offenders: TC v R [2016] NSWCCA 3; R v AA [2017] NSWCCA 84.

6. [97]

   With respect to Count 4, where the sentence indication was 10 years’ imprisonment, it was noted that the notional starting point, before the 25% discount, was imprisonment for 13 years and four months. It was submitted that this is very close to the maximum penalty of 14 years’ imprisonment that applies to the modern analogue offence of having sexual intercourse without consent under s.61I Crimes Act 1900. It was submitted for the Applicant that a starting point of that order suggested error and was a factor which contributed to the imposition of a manifestly excessive aggregate sentence.

7. [98]

   With respect to issues of concurrence, accumulation and totality, reliance was placed upon Magnuson v R [2013] NSWCCA 50 where Button J (McClellan CJ at CL and Bellew J agreeing) said at [143]:

8. [99]

   Counsel for the Applicant submitted that the degree of notional accumulation of the sentence indications undertaken to arrive at the aggregate sentence did not reflect sentencing practices at the time of the offences and, as a consequence, the aggregate sentence was manifestly excessive.

9. [100]

   The Applicant pointed to the sentencing outcome in Magnuson v R as well, where an aggregate sentence of 19 years’ imprisonment for a number of offences committed against young girls (two of who were his stepdaughters) in the mid-1970s through to the early 1980s was reduced on appeal to an aggregate sentence of imprisonment for 16 years with a non-parole period of nine years.

10. [101]

    The Applicant relied as well on the sentencing outcome in Woodward v R where the applicant had committed a number of sexual offences in the early 1970s against his daughter when aged 10-13 years. The sentencing Judge imposed an aggregate sentence of 18 years’ imprisonment with a nine-year non-parole period, a sentence which was not interfered with on appeal.

11. [102]

    The Crown submitted that the Applicant had not demonstrated that the aggregate sentence was manifestly excessive. It was submitted that a number of factors supported this conclusion, including the youth of the victim, the significant age differential between the Applicant and the victim, the significant breach of trust involved in the repeated commission of sexual offences against the Applicant’s own sister, the fact that offences were committed against the victim in her home with the offences for which the Applicant was to be sentenced not being isolated occasions, but being representative of other offending that took place over a 13-year period.

12. [103]

    Whilst the Applicant had demonstrated genuine remorse, the Crown submitted that the entrenched pattern of offending against his own sister over an extended period demonstrated particular callousness.

13. [104]

    The Crown submitted that, even if the Court were to conclude that any of the sentence indications was too high, it did not follow that the aggregate sentence was unreasonable or plainly unjust: Kerr v R [2016] NSWCCA 218 at [114]. The Crown submitted that the sentence indications reflected a very considerable degree of notional concurrency in the exercise of sentencing discretion.

14. [105]

    To the extent that the Applicant sought to rely upon Magnuson v R and Woodward v R as comparative cases, the Crown emphasised the limitations surrounding the use of other sentencing decisions as a measure of the sentence imposed in the case under consideration: Director of Public Prosecutions (Victoria) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [83]-[84]; Vandeventer v R [2013] NSWCCA 33 at [45].

15. [106]

    In any event, the Crown submitted that Magnuson v R and Woodward v R are distinguishable from the present case. The comments made by Button J in Magnuson v R at [143] concerning the proper approach to accumulation should be viewed in light of the fact that the sentencing Judge had structured the sentence so that the effective non-parole period for the series of offences against one victim were wholly cumulative upon the non-parole periods imposed for the offences against another victim, which were in turn wholly cumulative on the non-parole periods imposed for offences against a third victim. It was submitted, as well, that the offender in Magnuson v R was sentenced for a number of offences committed before and after the legislative reforms that came into effect on 14 July 1981 which abolished the offence of rape and specified significantly lower maximum penalties for, amongst other offences, sexual intercourse without consent (s.61D(1) Crimes Act 1900).

16. [107]

    With respect to Woodward v R, the Crown noted the Applicant’s acknowledgement that the conduct involved in that case was markedly less serious than the present case and that the offender in that case had no prior or subsequent convictions. Again, a challenge in that case to the aggregate sentence of imprisonment for 18 years with a non-parole period of nine years was dismissed on appeal.

17. [108]

    The Crown submitted that the aggregate sentence imposed upon the Applicant was not manifestly excessive.

18. [109]

    The principles to be applied by this Court where a ground of appeal asserts manifest excess on sentence are well established.

19. [110]

    In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]:

20. [111]

    Where it is contended that an aggregate sentence is manifestly excessive, the statement of Bathurst CJ (Hoeben CJ at CL and Price J agreeing) in Kerr v R at [114] should be kept in mind:

21. [112]

    It is open to the Applicant to make submissions by reference to sentence indications in support of an argument that the aggregate sentence itself is manifestly excessive. However, for this ground of appeal to be established, it is necessary for the Court to find that the aggregate sentence itself is unreasonable or plainly unjust.

22. [113]

    The sentencing Judge was well aware of sentencing practices which applied to the imposition of sentence for historical sexual offences at the time when sentence was imposed in May 2018. Section 25AA Crimes (Sentencing Procedure) Act 1999 (to which I will return later in this judgment) did not come into effect until 31 August 2018, following the commencement of Schedule 3(6) of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.

23. [114]

    The sentencing Judge had regard to general law principles applicable at the time with respect to sentencing for historical child sex offences.

24. [115]

    The present challenge is directed to the quantum of the sentence indications nominated, and then the quantum of the aggregate sentence actually imposed.

25. [116]

    With respect to Counts 3 and 4, the sentencing Judge had regard to the decision in Woodward v R and the relevance on sentence of maximum sentences for analogue offences. It must be kept in mind that the maximum penalty for rape was imprisonment for life.

26. [117]

    In Magnuson v R, Button J (at [96]-[105]) traced aspects of the history of sentencing for rape offences. Button J (at [121]-[126]) referred to what were described as “modern analogues” for the offence or rape and the changes in maximum penalty for those offences which occurred after the repeal of the offence of rape. After referring to the sentencing patterns in the 1970s and 1980s (at [130]-[132]), Button J expressed the following significant conclusion at [132]:

27. [118]

    In Woodward v R, R A Hulme J undertook a helpful analysis (at [46]-[54]) of what was described accurately (at [51]) as the “progressive confusion of offences substituted for the offence of rape” after its abolition in 1981. R A Hulme J said at [70]-[72]:

28. [119]

    R A Hulme J identified the correct approach to be taken when sentencing for offences of rape at [75]:

29. [120]

    With respect to the claim of manifest excess in Woodward v R, R A Hulme J said at [97]-[104]:

30. [121]

    Making due allowance for the fact that the Applicant committed offences over a 13-year period against his younger sister, these observations of R A Hulme J in Woodward v R are helpful in the determination of manifest excess in the present case.

31. [122]

    I have already rejected grounds which contended that the assessments of objective seriousness with respect to Counts 3 and 4 were erroneous. The findings made by the sentencing Judge with respect to those offences were open in this case. These were very grave offences of rape committed against the Applicant’s own younger sister. As noted earlier, there were particular features of both offences which were especially grave. The Applicant acted in a callous way after each of these offences by laughing at the devastated victim, his own sister, as he departed the scene of each crime.

32. [123]

    Comparison of starting point sentences for Counts 3 and 4 before application of the 25% discounts with the maximum penalty for analogue offences provides limited assistance to the Applicant. What is clear from the findings of the sentencing Judge, and the facts of the offences contained in Counts 3 and 4, is that these were very serious offences of rape with respect to which sentence indications were to be nominated.

33. [124]

    The Applicant’s offences against the victim extended over a period exceeding 10 years. This was a predatory course of conduct directed to the Applicant’s younger sister, who was vulnerable to the Applicant’s sexual offending through her proximity to him in the family home, an opportunity which the Applicant exploited over a number of years. There was a “systematic violation” of the victim by the Applicant over a period of years: R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 at [9] (Spigelman CJ).

34. [125]

    As noted earlier s.25AA Crimes (Sentencing Procedure) Act 1999 was not in force at the time when the Applicant was sentenced. However, the community and the Courts were not blind to the consequences of child sex offences in the 1970s and 1980s. In R v Evans (Court of Criminal Appeal, 24 March 1988), this Court (Street CJ, Roden and Newman JJ agreeing) endorsed the comments of the sentencing Judge in that case (Lee J) that:

35. [126]

    That said, there has been recognition by the Courts that the level of harm to child victims of sexual offences has been more fully understood in recent decades.

36. [127]

    In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, this Court said at [110]:

37. [128]

    In Director of Public Prosecutions (Victoria) v Dalgliesh (a Pseudonym), Kiefel CJ, Bell and Keane JJ referred (at [54]-[56]) to the decision of the Victorian Court of Appeal in R v Kaye (1986) 22 A Crim R 366 concerning sentencing for incest offences, and then said at [57]:

38. [129]

    The victim in this case was sexually exploited by the Applicant over a period of 13 years when she was aged between five to 17 years.

39. [130]

    The Applicant’s offences not only breached the absolute prohibition on sexual activity with a child, but fractured the legal and moral code which prohibits sexual activity between a brother and sister. In this case, of course, the sexual activity involved forceful sexual offending by the Applicant against his young sister. The victim impact statement in this case speaks eloquently of the great harm done to children through sexual offending and, in this case, the very damaging consequences of sexual offending by a brother against his young sister.

40. [131]

    It was necessary for the sentencing outcome in this case to reflect this especially serious state of affairs.

41. [132]

    The following features are pertinent to the contention that the aggregate sentence was manifestly excessive:

42. [133]

    The sentence indications nominated were substantial, in particular with respect to Counts 3 and 4. However, this was warranted in the circumstances of the case and the quantum of those indications does not bespeak error which infected the aggregate sentence.

43. [134]

    Further, the aggregate sentence reflected a very substantial degree of notional concurrency for serious offences committed against the victim on different occasions over a significant period of time. The head sentence of 17 years’ imprisonment was open in the circumstances of the case.

44. [135]

    In fixing a non-parole period of eight years, the sentencing Judge had regard to relevant principles concerning sentencing for historical sexual offences applicable at the time when the offences were committed. The proportion of the head sentence fixed by way of the non-parole period operated significantly in the Applicant’s favour, being 47% of the full term.

45. [136]

    Comparison with the sentencing outcomes in Magnuson v R and Woodward v R does not assist the Applicant. If anything, this comparison indicates that the aggregate sentence and non-parole period were open in all the circumstances of this case.

46. [137]

    The Applicant committed very serious sex offences for which he was sentenced in 1987 after the commission of the present offences. The Applicant was no doubt able to present himself at the time of sentence in 1987 as a person with no prior history of sexual offending. The Applicant was able to submit to the sentencing Judge in 2018 that, at the time of the present offences, he had no prior significant criminal history, and none for sexual offences. That statement was accurate as a matter of history.

47. [138]

    In this way, however, the Applicant received the benefit of being sentenced in 1987 and again in 2018, as if he was a first-time sex offender. It is appropriate to record the fact that the sentencing of the Applicant for these two groups of offences proceeded in this way: WAP v R [2017] NSWCCA 212 at [94], [97].

48. [139]

    That said, the fact that the Applicant had committed serious and subsequent sex offences did not operate to aggravate sentence for these earlier offences. The commission of later offences allows a sentencing Judge to withhold leniency to which an offender may otherwise be entitled: R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [58], [61]. As the sentencing Judge recognised, the commission of later sexual offences assisted a conclusion that the Applicant was an undiagnosed paedophile at the time of both groups of offences, and that the commission of the later set of offences bore upon issues concerning risk of reoffending and his prospects of rehabilitation: Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [131]. Even then, the sentencing Judge made favourable findings with respect to the Applicant’s prospects of rehabilitation.

49. [140]

    The Applicant has failed to demonstrate that the aggregate sentence of imprisonment in this case was unreasonable or plainly unjust so as to warrant a conclusion that it was it manifestly excessive. The aggregate sentence was a substantial one, but reflected the very grave offences committed by the Applicant against his sister over a period of years.

50. [141]

    I would reject the third ground of appeal.

Conclusion

1. [142]

   The Applicant has failed to make good any of his grounds of appeal. Accordingly, no occasion arises for the Court to embark upon the process of resentencing under s.6(3) Criminal Appeal Act 1912 in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

2. [143]

   In these circumstances, it is not necessary for the Court to determine the operation and application of s.25AA Crimes (Sentencing Procedure) Act 1999 when this Court finds error with respect to sentences passed before the commencement of that provision, but then undertakes the s.6(3) resentencing exercise after the commencement of s.25AA.

3. [144]

   The application and operation of s.25AA has been considered by this Court, in other contexts: O’Sullivan v R [2019] NSWCCA 261 at [33]-[37], [46] and R v Cattell [2019] NSWCCA 297 at [103]-[126]. However, the interrelationship between s.6(3) Criminal Appeal Act 1912 and s.25AA is the subject of consideration in other proceedings before this Court where judgment is presently reserved.

4. [145]

   The Applicant’s offending extended over a period when the victim was aged between five and 17 years. Had it been necessary to consider the application of s.25AA in this case, if the provision had been applicable at all in this Court, it would have only applied to a “child sexual offence” (as defined in s.25AA(5)) committed at a time when the victim was under the age of 16 years. That would have meant that general law principles with respect to sentencing for historical sexual offences would have continued to apply to the offence contained in Count 4: cf R v Cattell at [117].

5. [146]

   However, as the Applicant has not demonstrated error so that his appeal is to be dismissed, it is not necessary for the Court to give further consideration to that aspect.

6. [147]

   I propose the following orders:

7. [148]

   CAVANAGH J: I agree with Johnson J.