Waterstone v R

1. [1]

   JOHNSON J: I have had the advantage of considering in draft the judgment of N Adams J. I agree with the orders proposed by her Honour and, subject to what follows, with her Honour’s reasons.

2. [2]

   Her Honour has considered a number of decisions in which the meaning of a fixed term of imprisonment under New South Wales legislation has been considered, with differing views being expressed. I agree with her Honour that it is not necessary to make any finding concerning this aspect for the purpose of determining the present appeal. I do not join with her Honour’s analysis on this aspect for a number of reasons.

3. [3]

   Firstly, the Court was not invited to undertake this analysis for the purpose of determination of the appeal. The Crown written submissions noted a number of these decisions which expressed different views concerning the New South Wales legislation. However, counsel for the Applicant did not submit that the Court should embark upon a consideration of those cases, let alone that the outcome of the appeal turned upon such an examination.

4. [4]

   Secondly, if the issue was to be considered, it would be necessary to have regard to s.45 Crimes (Sentencing Procedure) Act 1999 in its present form. That section has been amended since the various cases referred to were decided.

5. [5]

   N Adams J refers at [78] to paragraphs 6.69 and 6.70 of Report No. 139 of the NSW Law Reform Commission issued in 2013. The proposition contained in paragraph 6.69 is drawn from R v Dunn [2004] NSWCCA 346 at [161]. Immediately following paragraph 6.70 was Recommendation 6.3 which stated:

6. [6]

   Section 45 was amended by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 with the insertion of s.45(1A) and (1B) so that s.45 now provides:

7. [7]

   In the second reading speech concerning the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016, the Minister said with respect to s.45(1A):

8. [8]

   Although the 2016 amendments to s.45 were confined to offences which carry a standard non-parole period (so that they do not apply to the present New South Wales offences), the proper construction of s.45 requires attention to be given to the whole provision.

9. [9]

   Consideration of the meaning of a fixed term of imprisonment under the New South Wales legislation should await a case where the Court is assisted by submissions from the parties and where it is necessary to determine the question. The present appeal is not such a case.

10. [10]

    I accept that there is utility in her Honour’s reference to authorities and publications which have touched upon the proper construction of ss.19AB(3) and 19AC(4) Crimes Act 1914 (Cth), the former provision concerning non-parole periods and the latter recognizance release orders.

11. [11]

    The provisions in the Crimes Act 1914 (Cth) concerning the fixing of non-parole periods and recognizance release orders do not expressly engage any State or Territory law so that attention is directed to the terms of the Crimes Act 1914 (Cth) in sentencing federal offenders: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [52].

12. [12]

    In Hili v The Queen; Jones v The Queen, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ addressed the approach to setting a recognizance release order under the Crimes Act 1914 (Cth). Their Honours said at [39]-[41] (footnotes omitted):

13. [13]

    The determination under s.19AC(4) that it is not appropriate to make a recognizance release order requires attention to be given to all factors bearing on sentence in s.16A Crimes Act 1914 (Cth) and the particular factors referred to expressly in s.19AC(4)(a). The articulated reasons for declining to make a recognizance release order should address particular factors in the case and not merely recite the general statutory formula in s.19AC(4).

14. [14]

    It has been said that the matters specified in s.19AC(4) are the very matters generally relevant to the sentencing exercise: R v Suarez-Mejia (2002) 131 A Crim R 577; [2002] WASCA 187 at [17]; Hancock v R [2012] NSWCCA 200 at [46]-[47], [51].

15. [15]

    The reasons given by the sentencing Judge for the purpose of s.19AC(4) (set out at [45] of N Adams J’s judgment) failed to articulate reasons for the exceptional step taken in this case.

16. [16]

    Subject to these observations, I agree with the orders proposed by N Adams J and her Honour’s reasons.

17. [17]

    N ADAMS J: The applicant seeks leave to appeal against the sentences imposed on him on 5 July 2019 for sexual offences committed in relation to his stepdaughter; he has been given a pseudonym to protect her identity. The applicant stood for sentence on both State and Commonwealth offences following his convictions at trial. The State offences (counts 1 and 2) were two counts of acts of aggravated indecency towards a person under the age of 16 years, namely 12 or 13 years of age contrary to s 61O(1) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 5 years imprisonment. The Commonwealth offences (counts 3-6) were four counts of using a carriage service to offend contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). This offence carries a maximum penalty of 3 years imprisonment.

18. [18]

    The applicant was sentenced by Judge Baly SC to an effective fixed term of imprisonment of 3 years and 1 month to commence from 13 October 2018 and expire on 12 November 2021. That effective sentence comprised the following individual sentences:

    1. (1)

       Count 1: A term of imprisonment of 2 years commencing on 13 October 2018 and expiring on 12 October 2020;

    2. (2)

       Count 2: A term of imprisonment of 2 years commencing on 13 April 2019 and expiring on 12 April 2021;

    3. (3)

       Count 3: A term of imprisonment of 18 months commencing on 13 August 2019 and expiring on 12 February 2021;

    4. (4)

       Count 4: A term of imprisonment of 18 months commencing on 13 November 2019 and expiring on 12 May 2021;

    5. (5)

       Count 5: A term of imprisonment of 18 months commencing on 13 February 2019 and expiring on 12 August 2021; and

    6. (6)

       Count 6: A term of imprisonment of 18 months commencing on 13 May 2020 and expiring on 12 November 2021.

19. [19]

    The applicant relies upon the following four grounds of appeal:

    1. (1)

       Ground 1: Her Honour erred:

    2. (2)

       (a) in declining to set non-parole periods or an aggregate non-parole period for counts 1 and 2 contrary to s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW); and/or

    3. (3)

       (b) in declining to set a single recognizance release order for counts 3-6 contrary to s 19AC of the Crimes Act 1914 (Cth).

    4. (4)

       Ground 2: With respect to counts 1 and 2 her Honour erred in finding that both offences were aggravated by “an abuse of trust” in circumstances where the offences where aggravated charges because each occurred whilst the complainant was “under the authority” of the applicant.

    5. (5)

       Ground 3: Her Honour erred in her assessment of the objective seriousness of each count.

    6. (6)

       Ground 4: The sentences imposed were otherwise manifestly excessive.

Facts

1. [20]

   The applicant was convicted following a trial. Her Honour was satisfied of the following facts for the purpose of sentencing the applicant.

2. [21]

   The applicant was the victim’s stepfather at the time of the offences. He began a relationship with the victim’s mother towards the end of 2005. At the beginning of 2007, the victim’s mother and her three children, including the victim, moved in with the applicant and his three children. The victim was born in 1996. Following a brief separation in 2009, the applicant and the victim’s mother married in 2010. The victim’s mother worked as a nurse and her work included nightshifts.

3. [22]

   In 2013, the victim disclosed to a good friend that the applicant was sending her sexually explicit messages. In 2014, she made a disclosure to her mother, the applicant’s sister (her aunt) and another person who she called “aunty” that the applicant was sending her indecent messages and pictures of his penis. Each of them saw the messages on the victim’s phone. The victim made her first statement to police on 14 March 2014.

4. [23]

   Count 1 occurred between 14 September 2008 and 1 September 2010. It involved the applicant taking a photograph of the victim on his mobile phone through a partially open window while she was having a shower in the family bathroom. The victim heard the clicking of the camera a number of times, saw the applicant and told him to go away. When she confronted him outside he denied taking photographs. The victim was 12 or 13 years old at a time.

5. [24]

   Count 2 occurred between 1 January 2010 and 31 December 2010. It involved the applicant sending a text message to the victim after she received her first mobile phone, which was when she was about 13 years of age. The message read, “[c]ome home. I wanna lick your pussy”. The applicant sent numerous text messages to the victim with a similar content.

6. [25]

   Counts 3-6 occurred on 12 January 2014, 15 January 2014, 25 January 2014, and 5 February 2014, respectively. They each involved the applicant sending the victim images of a penis. The image the basis for count 3 was of a flaccid penis, whereas the other three images were of an erect penis. The Crown case at trial was that the images were of the applicant’s own penis, but her Honour was not able to make this finding beyond reasonable doubt for the purpose of sentencing the applicant.

Proceedings on sentence

1. [26]

   The proceedings on sentence were heard on 17 June, 21 June and 5 July 2019 and the applicant was sentenced on 5 July 2019.

2. [27]

   The Crown tendered a victim impact statement (Exhibit A), a Sentencing Assessment Report (“SAR”) (Exhibit B) and a Crown sentence summary (Exhibit C).

3. [28]

   The applicant tendered a reference of Paul Knight dated 14 June 2019 (Exhibit 1), a psychological report by Bradley Jones dated 3 July 2019 (Exhibit 2) and Progress Clinical Notes dated 30 June and 3 July 2017 provided by Justice Health (Exhibit 3). The applicant’s father also gave evidence on sentence and was cross-examined.

4. [29]

   Both the Crown and the defence provided written submissions on sentence.

5. [30]

   A focus of the oral submissions was how to structure the sentence given that counts 1 and 2 were State offences and counts 3-6 were Commonwealth offences; this precluded the imposition of one aggregate sentence. The following exchanges with the applicant’s then counsel took place during the proceedings on sentence:

6. [31]

   Later during the Crown oral submissions the following exchange took place:

7. [32]

   Her Honour recounted the facts as she found them. Given that her Honour presided over the trial which led to the applicant’s convictions, she was aware of other material that was not before the court on sentence. On this issue her Honour noted:

8. [33]

   Her Honour then read the statement of the victim who has been impacted by the applicant’s actions by loss of appetite, anxiety, depression, nightmares and emotional breakdowns. Her Honour noted that the applicant had shown no remorse and found that the harm suffered by the victim was significant but that the aggravating feature was not applicable. On this issue her Honour then stated:

9. [34]

   Her Honour went on to assess the objective seriousness of each count. In doing so, she observed that counts 1 and 2 fit into the lower range of sexual offences against children by reference to the available maximum penalty. Her Honour noted that the defence had submitted that all of the offences fell below the “putative midrange” in that count 1 was the only count where the offender was physically present.

10. [35]

    Her Honour found that the objective seriousness of both counts 1 and 2 fell “into the midrange”. Her reasons for this finding on count 1 were as follows:

11. [36]

    Her Honour’s basis for finding that the objective seriousness of count 2 fell within the mid-range was as follows:

12. [37]

    Her Honour found the aggravating features of the offending to be as follows:

13. [38]

    Her Honour then summarised the applicant’s subjective case noting that he was at that time 52 years of age and came before the court with no prior convictions. Her Honour noted the evidence of good character. She also referred to the evidence of the applicant’s father that the applicant was “a little slow” at school and that when he left school he worked and later married. The applicant’s father also gave evidence that the applicant had been assaulted several times when incarcerated at Grafton, which included having boiling water poured over his feet. The applicant told his father that he would prefer suicide rather than further incarceration.

14. [39]

    Her Honour then referred to the SAR and noted that the applicant was born in Victoria and raised in regional New South Wales. He had a supportive upbringing. He has three adult children. He had worked in brick manufacturing until 2008 and joined the New South Wales Fire Brigade thereafter. Prior to his arrest he had been installing and servicing fire suppression systems.

15. [40]

    Her Honour noted that in the SAR the applicant was described as a “categorical denier of the offending”. Her Honour then stated the following:

16. [41]

    As for the applicant’s good character her Honour noted:

17. [42]

    Her Honour then referred to the report of Mr Jones, psychologist, and stated:

18. [43]

    Her Honour outlined more background material in relation to the applicant obtained from Mr Jones’ report. She noted that he had two sisters, one of whom gave evidence against him at the trial. His relationship with them both is now “strained”. Her Honour repeated that the applicant had a good childhood, is close to his father, had no problems in school and has had a strong employment history. She observed that he has been placed on protection due to an assault and is experiencing “clinically mild levels of anxiety and depression”. Her Honour then referred to various risk assessments including STATIC-99 and LSI. The latter indicated that the applicant poses a low level of risk for committing general offences and a moderate to low risk of engaging in sexual offending behaviour.

19. [44]

    Her Honour went on to accept that there had been a degree of extra curial punishment in the form of the assaults in custody and that she proposed to give that factor some weight in mitigation. Her Honour noted that she was unable to make “meaningful findings” about the applicant’s prospects of rehabilitation and then stated the following:

20. [45]

    Her Honour referred to the principle of totality and was satisfied, as submitted by both parties, that there must be some partial accumulation but that the level of accumulation between counts 3 to 6 would not be “great”. It was noted that counts 1 and 2 were committed in separate time periods and that the degree of accumulation between them would be greater. Her Honour referred to the decision in DPP (Vic) & DPP (Cth) v Swingler [2017] VSCA 305 on the question of sentencing for both State and Commonwealth offences and then stated the following:

21. [46]

    Her Honour then went on to impose the sentences I have already set out above.

Ground 1: Error in imposing fixed sentences

1. [47]

   It was acknowledged that the applicant accepted the approach suggested by her Honour during the proceedings on sentence, insofar as fixed sentences were concerned. However, it was submitted that the approach ultimately taken by her Honour was contrary to principle. It was submitted that, given that both sentences for the State offence were greater than 6 months, her Honour was required to set non-parole periods or an aggregate non-parole period for such offence, unless s 45(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) was applied. Further, given that the sentences imposed for the Commonwealth offences were all also greater than 6 months but less than 3 years in aggregate, her Honour was required to set a single recognizance release order, unless the court is satisfied that such an order is not appropriate for the reasons stated in 19AC(4) of the Crimes Act 1914.

2. [48]

   Given this background of statutory requirements, it was submitted that her Honour’s reasons did not permit her to decline to impose non-parole periods and/or a recognizance release order. This was an error that deprived the applicant of serving some of his sentence on conditional release.

3. [49]

   The Crown did not concede that it was an error to impose an effective fixed sentence of 3 years and 1 month with no period of parole/recognizance. It was contended that s 45(4) of the Sentencing Act and s 19AH of the Crimes Act 1914 provide that sentences are not invalidated by errors in fixing a non-parole period or recognizance and that the applicant puts his case on the basis that her Honour‘s reasons did not permit that outcome.

4. [50]

   It was submitted that the applicant’s counsel at the proceedings on sentence agreed that it was open to her Honour to impose fixed sentences for both the State and the Commonwealth offences and that her Honour gave her reasons for doing so.

5. [51]

   During the hearing of this appeal, counsel for the Crown conceded that he had never seen an effective sentence this long. Nor could he conceive of any forensic reason why an offender would not wish to have a portion of his or her sentence served in the community if a fixed sentence of over 3 years was to be imposed.

6. [52]

   The sentencing judge was faced with a difficult sentencing exercise in this matter. Two of the six offences were State offences and four of them were Commonwealth offences. In addition, the former carried a maximum penalty of 5 years imprisonment whereas the latter carried a maximum penalty of only 3 years imprisonment. These relatively low maximum penalties precluded the option of imposing one long sentence with a shorter non-parole period to allow partial accumulation and still end up with the applicant serving some of his sentence on conditional release.

7. [53]

   The applicant does not dispute that her Honour had the power to impose an effective fixed sentence of this length; the complaint is that none of the statutory or other reasons for doing so warranted such a long fixed term in this matter.

8. [54]

   Section s 45(1) of the Sentencing Act is in these terms:

9. [55]

   Section 45(2) provides that a record of reasons for failing to fix a non-parole period must be noted and subs (4) provides that a failure to comply with subs (2) “does not invalidate the sentence”.

10. [56]

    The term “fixed sentence” does not appear in the Sentencing Act. It did, however, appear in the predecessor to that Act, the Sentencing Act 1989 (NSW) (“Sentencing Act 1989”). Section 6(1) of the Sentencing Act 1989 was in these terms:

11. [57]

    Although the use of the word “fixed” to describe a sentence where no non-parole period is set did not carry over to s 45 of the current Act, the same descriptor has continued to be used to refer to a sentence imposed without a non-parole period being set under s 45 of that Act.

12. [58]

    The same statutory regime is provided in the Crimes Act 1914. Section 19AC(1) provides that when a court imposes a sentence for a federal offence or offences that does not exceed 3 years, the court must “make a single recognizance release order in respect of that sentence or those sentences and must not fix a non-parole period”. Section 19AC(4)(a) provides that a court may decline to make a recognizance release order if the court is satisfied that such an order is not appropriate, having regard to:

13. [59]

    Section 19AC(5) provides that reasons must be stated for declining to make a recognizance order and s 19AH(1)(a) provides that a failure to comply with subs (2) “does not invalidate the sentence”.

14. [60]

    Thus, both sentencing regimes require a non-parole period/recognizance order to be imposed on any sentence greater that 6 months imprisonment, unless there is a reason not to do so. Any such reason must be clearly stated by the sentencing judge. R v Parsons [2002] NSWCCA 296 and Collier v R [2012] NSWCCA 213 are examples of cases where the sentencing judge erred by not fixing a non-parole period and not giving reasons as to why he declined to do so. It is not suggested that her Honour failed to comply with these obligations; her Honour stated that she was satisfied it was not “appropriate” to fix a non-parole period/recognizance for three reasons: the length of the sentences, the sentence structure and the fact that the applicant would be serving state and federal sentences. The question is whether these reasons were a proper basis in the circumstances of this case.

15. [61]

    A common example of when fixed terms are imposed is when an offender is being sentenced on multiple counts and the parole terms of some of the individual sentences would be subsumed in the non-parole period of a longer sentence if fixed sentences are not imposed. Another reason for declining to fix a non-parole period is when the sentencing judge determines that an offender would not benefit from parole supervision as occurred in R v Burgess; R v Saunders (2005) 152 A Crim R 100; [2005] NSWCCA 52 at [45]. Neither of those situations was applicable in this matter. On the contrary, the applicant was a sex offender with a low to medium risk of re-offending. Such an offender is more likely than not to need time on parole for supervision in the community.

16. [62]

    As stated above, her Honour imposed sentences of 2 years imprisonment to be served partially accumulated for the 61O offences, which carried a 5 year maximum imprisonment. Her Honour then imposed terms of 18 months imprisonment, partially accumulated for the s 474.17(1) offences which carried a maximum penalty of 3 years imprisonment. Although her Honour did not expressly state so, given the other findings made by her Honour, these sentences would appear to equate with the appropriate head sentences. Although, for reasons I will return to below, there is much force in this being the correct approach to take, there is conflicting authority as to whether in fact it is.

17. [63]

    In R v Dunn [2004] NSWCCA 346, the court (Handley JA, James and Howie JJ) observed the following at [161]:

18. [64]

    This passage in R v Dunn has since stood as authority for the proposition that when a court does not set a non-parole period for a sentence of more than 6 months’ imprisonment under s 45 of the Sentencing Act, the sentence imposed should be set to equate with the non-parole period rather than the head sentence. This principle derived from R v Dunn has been followed in a number of decisions of this court. One of them was Collier v R in which it was followed by McClellan CJ at CL, Schmidt J agreeing. The third member of that bench was R A Hulme J, who observed the following at [56] in relation to this “principle”:

19. [65]

    At [57], his Honour referred to R v Dunn and extracted the passage from that judgment I have extracted above at [63]. His Honour then went on to state at [58]:

20. [66]

    His Honour concluded at [62]:

21. [67]

    The fact that there have been differences of approach on this question was acknowledged by Hidden J in Lipchin v R [2013] NSWCCA 77 where his Honour observed at [16]:

22. [68]

    His Honour went on to consider the observations of R A Hulme J in Collier v R before concluding at [19] that the issue did not need to be resolved in Lipchin v R either.

23. [69]

    Shortly after this decision, Basten JA observed the following in Tuvunivono v R [2013] NSWCCA 176 at [10] (his Honour was the dissenting judge as to the result; Price and Campbell JJ did not address this question):

24. [70]

    In Convery v R [2014] NSWCCA 93, McCallum J (as her Honour then was), with whom Simpson J (as her Honour then was) and Adams J agreed, observed the following at [23] (it should be noted that the reference to “aggregate” sentence at [23] is to the effective sentence of the two separate sentences imposed in that matter and not to an aggregate sentence imposed under s 53A):

25. [71]

    The doubts raised by R A Hulme J in Collier v R were noted again in RJB v R [2015] NSWCCA 93 by Hidden J (with whom Meagher JA and RA Hulme J agreed) when his Honour observed the following:

26. [72]

    Justice Basten revisited this issue in McIntosh v R [2015] NSWCCA 184 at [166]-[168]. That case was concerned with an aggregate sentence imposed under s 53A of the Sentencing Act. An issue arose as to whether indicative sentences represented the head sentence or a non-parole period. At [166] Basten JA referred to the decision in R v Dunn and noted the comments by R A Hulme J in Collier v R. His Honour then observed this at [167] regarding the terms of s 45 of the Sentencing Act (footnotes omitted):

27. [73]

    Although both Hidden and Wilson JJ agreed with the result in McIntosh v R, Hidden J observed the following in a separate judgment at [174]-[175]:

28. [74]

    These cases all concern s 45 of the Sentencing Act. The Western Australian Court of Appeal considered s 19AE of the Crimes Act (Cth) in Spreitzer v R (1991) 58 A Crim R 114 and noted the following:

29. [75]

    This statement reflects the approach that a sentence imposed without a recognizance order equates to the head sentence. The publication of the Commonwealth Director of Public Prosecutions (“CDPP”) titled Sentencing of Federal Offenders in Australia: A Guide for Practitioners (2nd edition, 2020) at 5.10.8 (paras 675-684), accepts that this is the correct approach (citing the Crimes Legislation Amendment Bill (No 2) 1989 (Cth)), Explanatory Memorandum (House of Representatives) at 17 (regarding proposed new section 19AE) as follows:

30. [76]

    The CDPP publication goes on to state that:

31. [77]

    The decisions of R v Currey [1975] VR 647 at 655; R v Zamagias [2002] NSWCCA 17 at [26]-[29]; De Hollander v R [2012] WASCA 127 at [86].are cited in support of this proposition. Those cases confirm that, when imposing a term of imprisonment, the court first fixes the head sentence and then decides the “minimum term”. In R v Currey, Dunn J referred to the statement in R v Governor of Her Majesty's Gaol at Pentridge; in Ex parte Cusmano, [1966] VR 583 at 587 that: "[t]hat language requires the court to impose a term of imprisonment appropriate to the offence charged in the same way as if it were imposing a fixed sentence and then, and only then, to proceed to the fixation of a minimum term” (referring to a predecessor of the Social Welfare Act 1970).

32. [78]

    On the other hand, the NSW Law Reform Commission, Report No 139: Sentencing (July 2013) noted the following at 6.69 - 6.70:

33. [79]

    This recommendation has never been adopted.

34. [80]

    It is ultimately not necessary for me to make any finding as to whether Judge Baly SC intended to impose head sentences or non-parole periods when imposing the fixed terms. I am satisfied that error has been established either way because her Honour did not explain why she considered an effective fixed sentence of 3 years and 1 month without release on parole and/or a recognizance was warranted in this matter. With respect to her Honour, justifying such a course on the basis of the length of the individual sentences and the fact that the offences were both State and Commonwealth offences did not explain why such a long sentence without parole for a sex offender assessed as having a medium to low risk of re-offending was warranted.

35. [81]

    Although it was not necessary to make any finding on this issue in order to determine this ground, for my part, I too share the doubts expressed in the decisions I have referred to above as to whether a fixed term should be equated with some notional non-parole period rather than the head sentence. These doubts arise for the following reasons.

36. [82]

    First, as R A Hulme J observed in Collier v R at [58], the discretion in s 45(1) of the Sentencing Act, in its terms, is to decline to set a non-parole period when fixing a sentence. There is nothing in the statutory language of s 45 to suggest that an additional discretion is conferred to permit the reduction of what would otherwise be the appropriate sentence when declining to fix a non-parole period.

37. [83]

    Secondly, I have had regard to the following observation by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [70] where his Honour observed:

38. [84]

    His Honour made these comments in the context of consideration of the scope of “special circumstances” for the purposes of (now) s 44(2) of the Sentencing Act. The italicised portion in this passage is consistent with the imposition of a fixed term being a step along the continuum from imposing a shorter non-parole period pursuant to s 44(2) of the Sentencing Act, to imposing the statutory ratio, to imposing a longer non-parole period, to imposing none at all. That is, the decision not to impose a non-parole period is an extreme version of a decision to impose a non-parole period higher than the statutory ratio in s 44(2). This observation by Spigelman CJ is inconsistent with a fixed term being reduced to equate to a notional non-parole period.

39. [85]

    Thirdly, a question arises as to how a notional non-parole period for the sentence is arrived at when a court declines to “set” a non-parole period. If that sentence then equates to some notional non-parole period does that mean that the statutory ratio in s 44(2) is applied in all cases? For example if the sentence to be imposed is 2 years imprisonment and a decision is made not to set a non-parole period does that mean that the term has to be reduced to 18 months to reflect the statutory ratio or can it be reduced lower? Would special circumstances need to be found in order to impose a fixed term the length of a non-parole period that is less than three quarters of the notional head sentence? Section 44(2) only applies to sentences when a non-parole period is fixed. Does that mean that a court can reduce a non-parole period to a term lower than the statutory ratio in s 44(2) without having to find “special circumstances”?

40. [86]

    Fourthly, the statutory language of s 45 of the Sentencing Act differs in a significant respect to the language of s 6 of the Sentencing Act 1989. Whereas s 45 provides that “a court may decline to set a non-parole period for the offence or offences”, s 6 of the Sentencing Act 1989 provided that “a court may decline to set minimum and additional terms for the offence and may set instead a fixed term of imprisonment that the person must serve for the offence.”

41. [87]

    In Power v R (1974) 131 CLR 623; [1974] HCA 26 at 628–629, the High Court rejected the proposition that considerations of punishment and deterrence were primarily relevant to fixing the head sentence rather than the non-parole period. Rather, the court held that a non-parole period reflects the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 the High Court confirmed that this was so, observing that the non-parole period is imposed because justice requires that the offender serve that period in custody: at [57]. Based on these principles, I can see some textual basis in s 6 of the Sentencing Act 1989 for concluding that a fixed term might be said to equate with the non-parole period but the same cannot be said for s 45 of the Sentencing Act.

42. [88]

    Fifthly, s 46(1) of the Sentencing Act provides that a court “may not” set a non-parole period for a sentence of imprisonment if the term of the sentence is 6 months or less. This means that all sentences of imprisonment of 6 months or less must equate with the head sentence. It is difficult to see why a fixed term of imprisonment under 6 months equates with a head sentence but a fixed term over 6 months does not.

43. [89]

    Finally, I have had regard to the observations of Basten JA in McIntosh v R at [167] concerning s 44 of the Sentencing Act. Although his Honour was satisfied that a “sentence” is made up of non-parole period and the balance of term, his Honour went on to observe that when a court declines to set a non-parole period under s 45, the “sentence” cannot comprise the non-parole period and the balance of term as no non-parole period is imposed. With respect to his Honour, that fact does not necessarily lead to a conclusion that a fixed term imposed under s 45 must equate with the non-parole period.

44. [90]

    For these reasons, I too have some doubt as to whether a fixed term should be set as equating to the non-parole period rather than the head sentence.

45. [91]

    Returning to the determination of this ground, the applicant conceded that the transcript of the proceedings on sentence records that counsel before the sentencing judge appeared to acquiesce to the approach taken by her Honour. Despite this, I am satisfied that had the applicant’s counsel properly understood that a sentence of over 3 years was going to be imposed, without any portion of that sentence to be on conditional release, such acquiescence would not have been forthcoming. When her Honour indicated that she would impose fixed sentences due to their length, it may well have been anticipated that an effective sentence of much less than 3 years was to be imposed. I do not consider the position of the applicant’s counsel before the sentencing judge to preclude the intervention of this court, error having been established.

46. [92]

    I would uphold Ground 1.

Ground 2: Error in finding NSW offences were aggravated by “an abuse of trust”

1. [93]

   It was submitted that in expressly finding that counts 1 and 2 were “aggravated by the egregious and gross abuse of trust”, her Honour made an error of law. That is, her Honour double counted the aggravating factor of abuse of trust. It was contended that, where it is already an element of the offence that the offender was in a position of authority, it may be open to the court to also take into account a breach of trust but that it would arise only in circumstances where the facts giving rise to the two separate aggravating factors are different.

2. [94]

   The applicant relied upon the decision in Franklin v R [2016] NSWCCA 319. It was further submitted that her Honour drew no distinction between the two distinct concepts and that, as both relied upon the “same relationship” and “same core-facts” (see Franklin at [72]) or the breach of trust was “as a matter of substance …an element of the offence” (Beavis v R [2018] NSWCCA 248 at [255]), her finding that breach of trust further aggravated counts 2 and 3 amounted to double-counting and was error of law.

3. [95]

   It was accepted that counsel for the applicant in his written submissions before the sentencing judge accepted that a breach of trust was a statutory aggravating factor under s 21A(2) of the Sentencing Act and that the Crown submitted that the abuse of trust went beyond “the already present element that the victim was under the authority of the offender”.

4. [96]

   The Crown relied upon the decisions in Beavis v R and MRW v R [2011] NSWCCA 260 in support of its position that there had been no double-counting.

Consideration

1. [97]

   Counts 1 and 2 charged aggravated acts of indecency on a person under the age of 13 years: s 61O of the Crimes Act (NSW). The relevant circumstance of aggravation under s 61O(3)(b) was that the victim was “generally or at the time of the commission of the offence under the authority of” the applicant.

2. [98]

   Section 21A(2)(k) of the Sentencing Act provides that an aggravating factor which may be taken into account on sentence is where “the offender abused a position of trust or authority in relation to the victim”. The sentencing judge observed the following on this issue:

3. [99]

   The question is whether there was double-counting by her Honour when she described counts 1 and 2 as being aggravated by the “egregious and gross abuse of trust” that the offences entailed.

4. [100]

   This same issue arose in MRW v R, which was a case involving a father who was convicted of having sexual intercourse with his 10-year-old daughter. The sentencing judge had observed (as extracted at [68]):

5. [101]

   Chief Justice Bathurst, with whom James and Johnson JJ agreed, considered the complaint of double-counting and observed this at [77]-[79]:

6. [102]

   In Franklin v R [2016] NSWCCA 319, a similar complaint was made and the ground upheld. After citing MRW v R with approval, R A Hulme J, with whom Macfarlan JA and Bellew J agreed, stated the following (at [72]):

7. [103]

   More recently in Beavis v R [2018] NSWCCA 248, this court (Ward JA, Bellew and Beech-Jones JJ) considered a similar complaint. Reliance was placed on the decision in Franklin v R. The court confirmed at [247] that the relevant error in Franklin v R was a failure by the sentencing judge “to advert to the distinction between a breach of trust and the holding of a position of authority”. That is, he did not indicate that he was aware of that distinction (at [72]).

8. [104]

   The court went on cite the paragraphs from MRW v R set out above and then observed the following at [252]:

9. [105]

   In Beavis v R, the court ultimately upheld this ground. After referring to the sentencing reasons and evidence in the matter the following was held at [255]:

10. [106]

    I have considered these authorities and had regard to her Honour’s sentencing reasons. I am satisfied that her Honour was aware of the distinction between a breach of trust and being under authority. Her Honour drew a distinction between counts 1 and 2, which had the element of aggravation of being under the applicant’s authority, and counts 3-6, which did not. Her Honour separately identified the factors relevant to the breach of trust and the fact that the victim felt powerless and did not wish to break up the family.

11. [107]

    I have also had regard to the fact that in written submissions filed on behalf of the applicant before the sentencing judge the following was submitted:

12. [108]

    The applicant’s counsel before the sentencing judge accepted that a breach of trust was an aggravating factor for counts 1 and 2. Her Honour delivered her reasons ex tempore. The fact that this was an issue on which the parties were in agreement is another relevant factor when examining the adequacy of her Honour’s reasons on this issue.

13. [109]

    I would dismiss this ground.

Ground 3: Her Honour erred in her assessment of the objective seriousness of each count.

1. [110]

   It was submitted that her Honour erred in finding that, in terms of objective seriousness, counts 1 and 2 fell in the mid-range of offences and that each of counts 3-6 was “above midrange” because they were “very serious examples” of their kind.

2. [111]

   It was also submitted that each count was momentary in time with count 1 occurring when the applicant was nearby but not in the immediate presence of the complainant, and counts 2-6 not involving the complainant’s physical presence; count 2 being a short text and counts 3-6 comprising pictures depicting a penis and without determination as to whose penis it was.

3. [112]

   With respect to Ground 3, it was submitted that the characterisation of the degree of objective seriousness for each offence was open to her Honour and that the features of the case identified by the applicant in his submissions did not mitigate the seriousness of offending.

4. [113]

   The question of whether a sentencing judge has erred in a finding regarding objective seriousness is a question of whether the finding was open: Mulato v R [2006] NSWCCA 282 at [37], [46]-[47]. As Spigelman CJ observed in that frequently cited decision:

5. [114]

   More recently, Gleeson JA (with whom Button and R A Hulme JJ agreed) observed the following in Magro v R [2020] NSWCCA 25 at [29]:

6. [115]

   Her Honour was sentencing the applicant after a trial. This meant that she was able to assess the evidence of the Crown witnesses at trial. Count 1 was committed in the victim’s home while she was 12 or 13 years old. She was naked and alone in the shower. The criminality of the offence was not only the taking of the photographs, but the fact that the victim must have believed that the images remained on the applicant’s phone to be viewed when he pleased. There was no evidence of what happened to the photographs but the victim’s belief is still relevant. Her belief was that they remained on his phone for him to look at as he pleased. This offence occurred in the home and involved a breach of trust for the reasons set out under Ground 2.

7. [116]

   As for count 2, the applicant sent a text to his stepdaughter when she was about 13 years of age which read, “[c]ome home. I wanna lick your pussy”. The applicant sent numerous text messages to the victim with a similar content. That did not aggravate the objective seriousness of the offence but it meant that the offence could not be viewed as an act in isolation. This offence also involved a breach of trust for the reasons set out under Ground 2.

8. [117]

   In relation to the four Commonwealth offences it is important to have regard to the broad nature of conduct caught by the relevant offence provision, which carries a maximum penalty of 3 years imprisonment. Section 474.17 of the Criminal Code (Cth) is in these terms:

9. [118]

   It is not an element of the offence that the victim is a child nor that the conduct is of a sexual nature. This makes the applicant’s conduct of sending offensive texts of his penis to his stepdaughter a serious example of an offence under this section. As her Honour observed, the Crimes Act 1914 required her to take into account “the nature and circumstances of the offences”. Her Honour was satisfied that this conduct in counts 3-6 was “highly offensive” and in her Honour’s view, very serious examples of offences of their kind. I can find no error in her Honour’s finding that such conduct was highly offensive.

10. [119]

    Although her Honour was ultimately not able to make any finding that it was the applicant’s penis that was depicted in the images, the fact remains that he was regularly sending close ups of a penis mostly in an erect state to his teenage stepdaughter.

11. [120]

    I am satisfied that it was open to her Honour to make the findings of objective seriousness that she did.

12. [121]

    I would dismiss Ground 3.

Ground 4: manifest excess

1. [122]

   I am satisfied that Ground 1 has been established but not Grounds 2 and 3. I do not propose to consider Ground 4 (allegation of manifest excess) because, error having been established, it is necessary for this court to exercise its own independent sentencing discretion in any event for the purpose of determining whether a lesser sentence should be imposed under s 6(3) of the Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

Re-sentencing

1. [123]

   In undertaking the sentencing discretion afresh the court is required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]. The maximum penalties are guideposts to which I must have regard. I have also had regard to the respective legislative schemes in the Sentencing Act and the Crimes Act 1914.

2. [124]

   I have set out the applicant’s subjective circumstances and the findings of the sentencing judge above at [41]-[44]. I adopt the same findings as the sentencing judge. I have had regard to the fact that the applicant was convicted after a trial and received no discount for a plea of guilty. Nor has he shown any remorse. I adopt the statement by her Honour that he demonstrated an “audacious and arrogant attitude towards the victim”; the offending was not isolated and spanned over a number of years and the victim impact statement showed the profound impact of the offending on the victim. Her Honour was unable to find that the applicant had good prospects of rehabilitation and was unlikely to offend. Although the applicant was of previous good character, as her Honour pointed out, his pattern of repeat offending took place over a period of time. I too would mitigate the sentence on account of the two significant assaults in custody which constitute a degree of extra-curial punishment.

3. [125]

   I propose to adopt the same course as her Honour and impose the sentences on counts 1 and 2 first and then on counts 3-6. I propose to impose one aggregate sentence under s 53A of the Sentencing Act for counts 1-2 and a further aggregate sentence under s 53A of the Sentencing Act for counts 3-6.

4. [126]

   As Johnson J recently observed in Kannis v R [2020] NSWCCA 79 at [10], in Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146], this court determined that aggregate sentencing under s 53A of the Sentencing Act is available where a court is to impose sentences for several Commonwealth offences: In Director of Public Prosecutions (Cth) v Beattie, Price J, with whom Basten JA and Walton J agreed, observed this at [145]-[146]:

5. [127]

   Exercising my sentencing discretion afresh, and in particular having regard to the application of the totality principle, I have arrived at aggregate sentences which together are slightly less than the length of the effective fixed term imposed by her Honour. Despite this, the indicative sentences I would have imposed are the same. I do not propose any significant accumulation in relation to the Commonwealth offences. I propose to vary the statutory ratio for counts 1-2 in order to achieve a 3:1 ratio in the total sentence. I propose to fix an early release on recognizance in relation to the second aggregate sentence for the same reason.

ORDERS

1. [128]

   I would propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentences imposed on the applicant in the District Court on 5 July 2019 are quashed. In lieu thereof the following aggregate sentences are imposed under s 53A of the Sentencing Act:

2. [129]

   IERACE J: I agree with the orders proposed by N Adams J and with her Honour’s reasons.

3. [130]

   As her Honour has stated, it is unnecessary to determine whether the fixed terms that were imposed by her Honour Judge Baly SC were intended to reflect a notional non-parole period or head sentence. Accordingly, I also decline to express a conclusive view on the issue.

4. [131]

   I am appreciative of N Adams J’s comprehensive review of cases and material concerning the issue of how the length of sentence should be determined when it is imposed pursuant to s 45(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) or s 19AC(4) of the Crimes Act 1914 (Cth), although I do not share her Honour’s concerns with the proposition derived from R v Dunn [2004] NSWCCA 346 that a fixed term sentence is the equivalent of the non-parole period of the sentence. In that regard, I find Basten JA’s observation in Tuvunivono v R [2013] NSWCCA 176 at [10], quoted by N Adams J at [69] of her Honour’s judgment, persuasive, as to at least one of the adverse implications of a fixed term not reflecting only the equivalent of a non-parole period, being the minimum period that an offender should be detained in custody as punishment.