Baxter (a pseudonym) v The King - [2024] SASCA 64

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BAXTER (A PSEUDONYM) v THE KING
[2024] SASCA 64
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Stein)
23 May 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS
This is an appeal against sentence.
The appellant pleaded guilty to two counts of unlawful sexual intercourse with a person under 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) which carries a maximum penalty of life imprisonment, and one count of aggravated indecent assault contrary to s 56 of the CLCA, which carries a maximum penalty of 10 years’ imprisonment.
The appellant is the biological father of the victim. The offending occurred in South Australia between 29 September 2009 and January 2013, when the victim was between seven and 10 years of age. The appellant entered the bedroom where the victim was sleeping and digitally penetrated her on two separate occasions. He also touched her on the breasts, on top of her clothes, on another occasion. The offending occurred against a background of other similar uncharged acts of indecent touching of the victim's breasts.
The appellant also committed two other sexual offences against the same victim in New South Wales between 30 September 2008 and 30 December 2009, for which the appellant was convicted in 2018. In the District Court of New South Wales, the appellant was sentenced to five years and six months’ imprisonment with a non-parole period of three years and six months. The appellant served four years, two months and 10 days of the New South Wales sentence (three years and six months were spent in custody and eight months and 10 days on parole) before being extradited to South Australia on 12 October 2022
For the South Australian offences, the sentencing Judge adopted a starting point of nine years’ imprisonment reduced on account of the appellant’s guilty pleas to seven years, seven months and 24 days. The appellant fell to be sentenced as a serious repeat offender. Accordingly, a non-parole period of six years and two months was fixed, that being four-fifths of the head sentence. The sentence was ordered to commence on 12 October 2022.
The issue on appeal was whether an inadequate application of the principle of totality as explained in Mill v The Queen (1988) 166 CLR 59 (‘Mill’) rendered the sentence imposed in South Australia manifestly excessive.
Held, per the Court, granting permission to appeal, allowing the appeal and resentencing the appellant:
1.The offending in both States constituted a course of conduct of sexual offending against the one victim over a period of about five years. In accordance with Mill, the sentencing Judge was required to consider what head sentence should be imposed if the appellant had committed all five offences in one jurisdiction and had been sentenced at one time.
2.After having regard to the sentence already served in New South Wales, the sentence imposed in South Australia was manifestly excessive.
3.Pursuant to s 26 of the Sentencing Act 2017 (SA) ('the Sentencing Act'), and after adopting a starting point of six years and six months' imprisonment reduced by 15 per cent on account of his guilty pleas, the appellant is re-sentenced to five years, six months and 10 days’ imprisonment. The appellant is a serious repeat offender. A non-parole period of four years and six months is fixed.

4. The sentence is ordered to commence on 12 October 2022.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 56; Sentencing Act 2017 (SA) ss 26, 26(2a), 54(1)(b), referred to.
Mill v The Queen (1988) 166 CLR 59; R v Bui [2018] SASCFC 19; R v D (1997) 69 SASR 413; C v Western Australia [2006] WASCA 261; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Warner v The King [2022] SASCA 142; Turnbull (a pseudonym) v The King [2023] SASCA 121; Musgrave v Western Australia (2021) 289 A Crim R 17, discussed.
Kentwell v The Queen (2014) 252 CLR 604; Hili v The Queen (2010) 242 CLR 520; Markarian v The Queen (2005) 228 CLR 357; Johnson v The Queen (2004) 78 ALJR 616; J, AD v The Queen [2020] SASCFC 73; R v Copeland (No. 2) (2010) 108 SASR 398; R v Lian [2023] SASCA 122, considered.

BAXTER (A PSEUDONYM) v THE KING
[2024] SASCA 64
Court of Appeal – Criminal: Livesey P, David JA and Stein AJA

THE COURT: This is an appeal against sentence. The appellant pleaded guilty to two counts of unlawful sexual intercourse with a person under 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) which carries a maximum penalty of life imprisonment, and one count of aggravated indecent assault contrary to s 56 of the CLCA, which carries a maximum penalty of 10 years’ imprisonment.
The appellant is the biological father of the victim. The offending occurred in South Australia between 29 September 2009 and January 2013 when the victim was between seven and 10 years of age.
The appellant also committed two other sexual offences against the same victim in New South Wales between 30 September 2008 and 30 December 2009, for which the appellant was convicted and sentenced in 2018. In the District Court of New South Wales, the appellant was sentenced to five years and six months’ imprisonment with a non-parole period of three years and six months.
For the South Australian offences, the sentencing Judge adopted a starting point of nine years’ imprisonment reduced on account of the appellant’s guilty pleas to seven years, seven months and 24 days. The appellant fell to be sentenced as a serious repeat offender. Accordingly, a non-parole period of six years and two months was fixed, that being four-fifths of the head sentence. The sentence was ordered to commence on 12 October 2022, when the appellant was taken into custody, having been extradited from New South Wales.
The issue on appeal was whether an inadequate application of the principle of totality as explained in Mill v The Queen[1] (‘Mill’) rendered the sentence manifestly excessive.
[1] Mill v The Queen (1988) 166 CLR 59.
For the reasons which follow, we grant permission to appeal and allow the appeal.
Factual circumstances of the offending
The appellant lived in New South Wales with his family, including the victim, from about 2002.
In 2009, the family moved to Adelaide. In about 2014, the appellant and his wife (the victim’s mother) divorced. The appellant returned to live in New South Wales.
On 17 May 2016, the victim disclosed to a family friend that the appellant had sexually abused her.
On 27 February 2017, the victim was interviewed by police in South Australia. She reported that she had been sexually abused by the appellant in both States. As a result, the appellant was arrested in New South Wales on 9 March 2017. He was charged with, and ultimately pleaded guilty to, the New South Wales offences of one count of unlawful sexual intercourse with a child under 10 years, and one count of aggravated indecent assault with a child under 10 years. Those offences involved the appellant digitally penetrating the victim’s vagina, and on a separate occasion, rubbing the outside of the victim’s vagina. The offending occurred between 30 September 2008 and 30 December 2009, when the victim was six years of age.
As outlined earlier, the appellant was sentenced in New South Wales to a head sentence of five years and six months with a non-parole period of three years and six months commencing on 3 August 2018.
On 2 February 2022, the appellant was released on parole in New South Wales.
On 12 October 2022, the appellant was extradited to South Australia in relation to alleged offending disclosed by the victim in her interview with police in 2017. He has remained in custody since that date.
In South Australia, the appellant was charged with, and convicted of, three sexual offences: two counts of unlawful sexual intercourse with a person under the age of 14; and one count of aggravated indecent assault.
The first count of unlawful sexual intercourse was alleged to have occurred between 29 September 2009 and 1 January 2013. The appellant allegedly entered the victim’s bedroom in the early hours of the morning, removed her blankets, turned the victim over from the position she was sleeping in, and placed her legs on his shoulders. The victim woke and heard the appellant unzip his pants before taking off her underwear and placing something inside her vagina. The victim did not know if the appellant placed his penis or finger(s) in her vagina but said that it went in and hurt a lot. The appellant eventually stopped and used a towel to clean the victim’s vagina, before putting her underwear back on.
The second count of unlawful sexual intercourse occurred on a separate occasion between 29 September 2009 and 1 January 2013 when the victim was sleeping in her mother’s room. The appellant came into the room, removed the blankets before pulling the victim’s underwear off and pulling her to the edge of the bed. The victim was face down on the bed with the appellant leaning on top of her when he spread her legs apart and put something inside her vagina. She said that on this occasion it felt more like his penis than his fingers because it hurt more, and it went in further than before. However, she could not say with certainty whether it was in fact his penis. She said that the appellant placed either his finger or penis in and out of her vagina seven or eight times, before stopping and cleaning her vagina with what she believed was a towel. He then put her underwear back on and returned her to her original sleeping position.
The prosecution did not allege that the two acts of unlawful sexual intercourse occurred against a background of other similar uncharged penetrative acts in South Australia. On that basis, the charged offences were treated as isolated acts.
The offence of aggravated indecent assault was alleged to have occurred between 29 September 2009 and 1 January 2012. The appellant touched the victim’s breasts on top of her clothes. On that occasion, the victim was seated on a lounge in the living room when the appellant pulled her onto his lap and moved his hands up and down her waist, touching her breasts over her clothes. During this incident, the victim’s sister was sitting on the floor in front of the couch. The victim believed that the appellant stopped when her sister turned around and came to sit on the lounge.
The appellant’s guilty plea to the offence of aggravated indecent assault was entered on the basis that it was not isolated but occurred against a background of other similar uncharged acts.
As is to be expected, the appellant’s sexual offending upon his daughter has had a terrible impact upon her. Since the offending, she has not been able to enjoy being in the company of other people. She has little confidence and has had difficulty trusting others. She does not feel safe around other people.
Personal circumstances
At the time of sentencing in South Australia, the appellant was 53 years of age. He was born in a rural community, as one of six siblings, in Battambang Province, Cambodia. His family was displaced during the Khmer Rouge regime. He and his family experienced deprivation, trauma and personal loss during the civil war and fled to the border with Thailand, living in refugee camps. There, he received limited education.
In 1987, after numerous unsuccessful attempts, the appellant’s family emigrated to Australia and lived in Sydney. He obtained work at a car manufacturing facility in Parramatta, before moving to Melbourne to work with other migrants picking fruit and market gardening.
The appellant first married in 1989 and had three children before divorcing his wife in the late 1990s. At about this time, the appellant developed a drug abuse problem. He has prior convictions for drug-trafficking offences dating from 1998 to 2014. The appellant was also convicted of the offences of recklessly causing injury and unlawful assault in 1991.
In 2001, the appellant met his second wife in Cambodia, and had two children: the victim, born in 2002 and her sister, born in 2005. The appellant and his wife lived in Sydney. They both worked on a flower farm. He became involved in the expatriate Cambodian community and was involved in supporting the political party opposing the ruling regime in Cambodia.
After the appellant’s release from custody in New South Wales in February 2022, he worked in the demolition industry and financially supported his mother, and a son from his first marriage. Since being taken into custody in October 2022 for the South Australian offences, the appellant has reconnected with his Buddhist faith. While in custody, he has also completed education modules in numeracy, communication and literacy, and worked within the prison system.
Sentencing remarks
The sentencing Judge considered that the appellant’s offences were serious examples of offences of their kind. His Honour noted that the appellant was in a position of trust as the victim’s parent and had a responsibility to protect and care for his child. His Honour emphasised that the appellant’s parental bond with his daughter was breached to satisfy his prurient sexual needs, and this caused his daughter, who was very young when the offending commenced, much pain and damage.
The sentencing Judge said, with respect correctly, that in cases of sexual offences against children, the court must give significant weight to the need for both personal and general deterrence.
The sentencing Judge indicated that he would notionally impose a sentence of seven years’ imprisonment for each of the two offences of unlawful sexual intercourse, and a sentence of 18 months’ imprisonment for the offence of aggravated indecent assault. This would have resulted in a total head sentence of 15 years and six months’ imprisonment.
As to the applicability of the principle of totality, the sentencing Judge indicated that:
·He was bound to consider the total head sentence that would be appropriate if all offences against the victim, in both States, were before the same sentencing court.
·The total period of imprisonment should be that which was appropriate considering the overall criminality of the conduct across State boundaries.
·He was imposing a sentence having regard to the sentence of imprisonment imposed in New South Wales and that the offences in South Australia commenced at or around the same time.
·In arriving at the sentence he had reviewed the overall sentence for offences committed against the victim in both New South Wales and this State.
·While the appellant was not to be punished again or re-sentenced for the earlier offences, the New South Wales offending was relevant insofar as it informed the court about his personal circumstances and was relevant to his prospects of rehabilitation and the leniency which could be extended to him.
After taking into account the sentence of imprisonment imposed by the District Court in New South Wales, his Honour utilised s 26 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) and adopted a starting point of nine years’ imprisonment for all three offences which was reduced on account of the guilty pleas by 15 per cent to seven years, seven months and 24 days.
As outlined earlier, the appellant was a serious repeat offender by reason of his guilty pleas to ‘serious sexual offences’. As a result, and in accordance with s 54(1)(b) of the Sentencing Act, a non-parole period of six years and two months was fixed, that being four-fifths of the head sentence. The sentence was backdated to commence on 12 October 2022, when the appellant was last taken into custody.
The practical operation of the sentence imposed was as follows:
·The combined, nominal head sentence for all offences was 16 years and four months (that being, the New South Wales nominal starting point of seven years and four months’ imprisonment before a reduction of 25 per cent on account of the appellant’s guilty pleas, added to the starting point in South Australia of nine years’ imprisonment).
·After a reduction on account of the appellant’s guilty pleas, the combined head sentence was 13 years, one month and 24 days (that being, the New South Wales head sentence of five years and six months, added to the South Australian head sentence of seven years, seven months and 24 days).
·The sentence imposed in South Australia was ordered to commence on 12 October 2022, so the portion of the New South Wales head sentence actually served by the appellant was four years, two months and 10 days (with three years and six months served in custody and eight months and 10 days served on parole before the appellant was extradited).
·After the nominal sentences in both States were reduced on account of the appellant’s guilty pleas, the effective combined sentence was 11 years, 10 months and three days (that being, the completed New South Wales sentence of four years, two months and 10 days combined with the South Australian head sentence of seven years, seven months and 24 days).
·The effective non-parole period was nine years, six months and two days, that being the time the appellant spent in custody of three years and six months (before his arrest on 12 October 2022), combined with the South Australian non‑parole period of six years and two days. The effective parole period is two years, four months and one day. The balance of the New South Wales parole period (which expired on 2 February 2024) was subsumed by the South Australian sentence when it was backdated to 12 October 2022.
Manifest excess
The principles governing a complaint of manifest excess are well settled. The appellant must establish that the sentencing Judge imposed a sentence that was unreasonable or plainly unjust; that is, the sentence was outside the permissible range of sentences for the offender and the offending.[2]
[2] Kentwell v The Queen (2014) 252 CLR 604 at [35] per French CJ, Hayne, Bell and Keane JJ.
In assessing whether a sentence is manifestly excessive, it is necessary to consider all matters relevant to the determination of a sentence, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. Ultimately, however, manifest excess or inadequacy is a conclusion and may not permit of ‘lengthy exposition.’[3]
[3] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Of course, it needs to be borne in mind that there is no single correct sentence, and sentencing judges must be allowed ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.’[4]
[4] Markarian v The Queen (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ citing Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [5] per Gleeson CJ, [26] per Gummow, Callinan and Heydon JJ.

The appellant, in advancing the contention that the sentence was manifestly excessive, referred to the fact that the offending committed in South Australia involved two discrete and relatively brief occasions of digital penetration, and one count of aggravated indecent assault (albeit, committed against a background of similar uncharged acts of indecent touching). It was submitted that the penetrative conduct the subject of the offences of unlawful sexual intercourse was not the most serious of its kind and was not committed against a background of any other uncharged acts of unlawful sexual intercourse. In addition, the appellant emphasised that the principle of totality, as explained in Mill, was relevant and applicable. It was submitted that when regard is had to the totality of the sentences imposed in South Australia and New South Wales for what was, in effect, a course of conduct of sexual offending committed by the appellant against the one victim (his daughter), the sentence imposed in South Australia was unreasonable or plainly unjust.
In Mill, the High Court considered the application of the totality principle in circumstances where an offender had committed several offences of a similar nature, at about the same time, in more than one State. In particular, the High Court outlined the proper approach of a sentencing court where, due to a sentence of imprisonment having been served in one State, the criminal process has been deferred in another. The High Court explained:
In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other state, it is not correct for the sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced … The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raises considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a state boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.[5]
[5] Mill v The Queen (1988) 166 CLR 59 at 66 per the Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
The principle in Mill was considered by Kourakis CJ in R v Bui:
I take the principle identified in Mill v The Queen to be that when sentences are imposed sequentially by courts in several States, subsequent sentencing courts must apply the principle of totality as if the previous sentence or sentences had been imposed in the same State.[6]
[6] R v Bui [2018] SASCFC 19 at [7] per Kourakis CJ.
The case of Mill involved appellate scrutiny of an exercise in sentencing where the offender had remained in custody after serving an interstate sentence, such that the fresh sentence imposed continued on as additional time in custody (albeit, in a different jurisdiction).
In the present case, the appellant’s total time in custody was punctuated by an approximately eight month period on parole in New South Wales, before he was taken into custody and extradited to South Australia. This period on parole ameliorated to some extent the effect that would otherwise have arisen had he been extradited immediately upon the expiration of this non-parole period in New South Wales.[7] Furthermore, the fact that the sentence imposed in South Australia was backdated to commence on 12 October 2022, meant that part of the New South Wales sentence (a portion of the parole period) was subsumed within the new sentence.
[7] In J, AD v The Queen [2020] SASCFC 73 this court considered the sentence imposed on an offender who fell to be sentenced for offending in South Australia for sexual offences against a child, having been extradited after serving a period of imprisonment in Western Australia for unrelated offending. Having been extradited, he subsequently spent approximately 11 months on home detention bail before being sentenced in South Australia. In relation to totality and delay the court observed that the impact of the length of imprisonment served and to be served was not as harsh as it would have been had the appellant not spent nearly a year on home detention and did not consider the South Australian sentence to be crushing in the sense discussed in R v Copeland (No. 2) (2010) 108 SASR 398.
That said, the respondent acknowledged, correctly, that the principle in Mill remained relevant as the offending in both jurisdictions was committed against the same victim over consecutive periods of time which, to a small extent, overlapped. It involved one multi-faceted course of conduct against the same victim.
The question remains whether the sentence imposed in South Australia was outside the permissible range for the offending and this offender having regard to the previous sentence imposed in New South Wales and applying the principle of totality as explained in Mill.
The offending committed in South Australia was undoubtedly serious. It was of the kind contemplated by the R v D,[8] namely, a course of conduct of sexual offending against a child by an adult in a position of trust.[9] The sentencing guidelines in R v D were directly applicable.[10] There were also several egregious features to the offending, including:
·The very young age of the victim.
·That she was the biological daughter of the appellant.
·The offences of unlawful sexual intercourse occurred in the family home, and commenced while she was sleeping.
·The offending involved a degree of force to the victim in that the penetrative acts hurt her.
·The offending occurred over a period spanning several years.
·The offending caused serious and significant harm to the victim.
[8] R v D (1997) 69 SASR 413.
[9] R v D (1997) 69 SASR 413; and see: R v Lian [2023] SASCA 122 at [102] per Kourakis CJ (Lovell and Doyle JJA agreeing).
[10] R v D (1997) 69 SASR 413 at 424 per Doyle CJ.
It is to be accepted that the offences of unlawful sexual intercourse were isolated, to the extent that they were not committed against other uncharged similar acts of penetration. It is also true that the offending involved digital penetration rather than penile penetration, and in some circumstances, conduct which involves digital penetration may constitute a less serious example of the offence than penile penetration. As was explained in C v Western Australia:[11]
This is because, when regard is had to either the actual or the potential harm to be caused by the conduct, the risks associated with penile penetration including pregnancy, a sexually transmitted diseases, and in the case of children often pain or even physical damage. Penile penetration will also often be perceived by the victim as a more serious affront to personal dignity and bodily integrity. In addition, many cases of penile penetration tend to be associated with a greater degree of force or violence than in cases of digital penetration.
[11] C v State of Western Australia [2006] WASCA 261 at [32] per Wheeler JA.
However, as this Court has explained recently in Edmonds (a pseudonym) v The Queen,[12] Warner v The King[13] and Turnbull (a pseudonym) v The King,[14] after referring to Musgrave v Western Australia,[15] it is important not to engage in generalisations. A case involving digital penetration is not necessarily less serious than one involving penile penetration, irrespective of any other features of the sexual offending.[16] There is no hierarchy of sexual penetration, and the seriousness of every offence must be determined according to its own individual circumstances.
[12] Edmonds (a pseudonym) v The Queen [2022] SASCA 11.
[13] Warner v The King [2022] SASCA 142.
[14] Turnbull (a pseudonym) v The King [2023] SASCA 121.
[15] Musgrave v Western Australia (2021) 289 A Crim R 17.
[16] Musgrave v Western Australia (2021) 289 A Crim R 17 at [4]-[8] per Quinlan CJ, [127] per Buss P, and [283], [292] per Pritchard JA.
In this case, the unlawful sexual acts of digital penetration were particularly serious for the reasons identified above. More particularly, in relation to one of the counts of unlawful sexual intercourse committed in South Australia, the victim believed the appellant was engaging in penile/vaginal penetration with her.
The offending conduct fell squarely within the sentencing standards articulated in R v D.
In accordance with Mill, the sentencing Judge was required to consider what would be the likely head sentence imposed if the appellant had committed all five offences in one jurisdiction and had been sentenced at one time. This is because the sexual offences were all committed by the appellant against the one victim (his biological daughter), and the New South Wales offences were committed at a time which overlapped with the particularised period during which the South Australian offences were committed.
The offending in both States constituted an overall course of conduct by the appellant against his biological daughter over a period of about five years. It involved three acts of digital penetration, and two acts of indecent touching (once on the vagina and once on the chest) on the outside of the clothes. The charged offending was not isolated but was committed against a background of uncharged acts of indecent touching of the victim’s chest over her clothes.
If the sentencing Judge was imposing one sentence for all five offences, it would have been appropriate to adopt a starting point of about 12 years’ imprisonment.
The sentencing Judge adopted a starting point of nine years’ imprisonment which was reduced on account of the appellant’s guilty pleas to seven years, seven months and 24 days. A non-parole period of six years and two months was fixed. By virtue of the New South Wales sentence, the appellant had already served an effective head sentence of four years and two months and 10 days with a non‑parole period of three years and six months. The practical effect of this sentence was that for all offences committed in South Australia and New South Wales the appellant received an aggregated head sentence of 11 years, 10 months and three days (after reductions on account of his guilty pleas) with a non-parole period of nine years and eight months. After having regard to the relevant reduction in each State on account of the appellant’s guilty pleas, the effective starting point for all offences was about 14 years and seven months.
Given that an appropriate starting point for all offences was about 12 years’ imprisonment, we are of the view the sentence imposed in South Australia was manifestly excessive. While the sentencing Judge correctly and thoroughly articulated the relevant principles of totality as explained in Mill, the ultimate sentence imposed did not properly give effect to those principles.
There is no doubt that the offending was objectively serious, and that a severe and denunciatory sentence was required to properly punish the appellant and to meet the sentencing demands of general and personal deterrence, as well as the protection of the safety of the community. However, after having regard to the sentencing standards for offending of this kind enunciated in R v D, the sentence imposed was outside the permissible range for this offence and offender. For those reasons, we grant permission to appeal and allow the appeal.
On resentencing the appellant, we will proceed pursuant to s 26 of the Sentencing Act and impose one sentence for all offences. After taking into account the sentence already served in New South Wales, we adopt a starting point of six years and six months’ imprisonment. After reducing the sentence by 15 per cent on account of the appellant’s guilty pleas, we impose a head sentence of five years, six months and 10 days.
As the offences were committed on different occasions, it is necessary pursuant to s 26(2a) of the Sentencing Act, to indicate the sentence we would have imposed in respect of each offence had s 26 not been utilised. We would have adopted a starting point of four years’ imprisonment for each of Counts 1 and 2, and 18 months for count 3, and ordered that the sentences be served only partially cumulatively to reflect the principles of totality as explained in Mill.
The appellant is a serious repeat offender. Accordingly, a non-parole period of four years and six months is fixed, that being approximately four-fifths of the head sentence.
Orders
1.Permission to appeal against sentence is granted.
2.The appeal is allowed.
3.The appellant is re-sentenced to five years, six months and 10 days’ imprisonment with a non-parole period fixed at four years and six months.
4.The sentence is ordered to commence on 12 October 2022.