Bland v R
[2014] NSWCCA 82
•15 May 2014
This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Criminal Appeal
New South Wales
Case Title: Bland v R Medium Neutral Citation: [2014] NSWCCA 82 Hearing Date(s): 14 February 2014 Decision Date: 15 May 2014 Before: Ward JA at [1];
Johnson J at [2];
RS Hulme AJ at [170]Decision: 1. Leave to appeal against sentence granted.
2. Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - Applicant pleaded guilty to aggravated indecent assault of person under 16 contrary to Crimes Act 1900, s.61M and attempt to choke with intent to commit an indictable offence contrary to Crimes Act 1900, s.37 - further offences taken into account by way of Form 1 - Applicant (20 years old) broke into sleeping 15-year-old victim's home, placed bag over his head and tied him to bed - total effective sentence of 10 years' imprisonment with non-parole period of six years - early guilty plea - Applicant suffering possible sadomasochistic paraphilia disorder - whether failure to give proper weight to Applicant's subjective circumstances - whether error in application of totality principle - whether error in failing to take account of Applicant's presentence bail conditions - whether error in assessment of objective seriousness of offences or in failing to give reasons in relation to s.61M(2) offence - whether sentences otherwise manifestly excessive - no error demonstrated
EVIDENCE - fresh evidence - Applicant had tendered psychiatric and psychological reports at sentencing hearing - Applicant sought to tender on appeal psychiatrist's report from a different psychiatrist who examined him after sentence - circumstances in which the Court may receive additional evidence absent error - evidence rejectedLegislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912Cases Cited: Achurch v The Queen [2014] HCA 10; 88 ALJR 490
Attorney General's Application Under s37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Charbaji v R [2011] NSWCCA 181
Currie v R [2013] NSWCCA 267
Dinsdale v The Queen [2000] HCA 54; 202 CLR 231
DF v R [2012] NSWCCA 171
Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
Elias v The Queen [2013] HCA 31; 248 CLR 483
Grant v R [2014] NSWCCA 67
Ibbs v The Queen [1987] HCA 46; 163 CLR 447
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
McKechnie v R [2006] NSWCCA 13
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Munn v R [2009] NSWCCA 218
Norrie v R [2008] NSWCCA 185
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Baker [2000] NSWCCA 85
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Cage [2006] NSWCCA 304
R v Cutrale [2011] NSWCCA 214
R v Dodd (1991) 57 A Crim R 349
R v Fordham (1997) 98 A Crim R 359
R v Gavel [2014] NSWCCA 56
R v Goodwin (1990) 51 A Crim R 328
R v HQ [2003] NSWCCA 336
R v Murray [2003] NSWCCA 209
R v MW [2007] NSWCCA 291
R v O'Connor [2014] NSWCCA 53
R v Perry [2000] NSWCCA 375
R v Speechley [2012] NSWCCA 130; 221 A Crim R 175
Renshaw v R [2012] NSWCCA 91
Suman v R [2013] NSWCCA 3
Tran v R [2014] NSWCCA 32
Yang v R [2012] NSWCCA 49
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460Texts Cited: --- Category: Principal judgment Parties: Robert Joseph Bland (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
Ms A Francis (Applicant)
Ms J Baly SC (Respondent)- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)File Number(s): 2011/53344 Decision Under Appeal - Court / Tribunal: District Court - Before: Judge Black QC - Date of Decision: 08 June 2012 - Citation: --- - Court File Number(s): 2011/53344 Publication Restriction: ---
JUDGMENT
WARD JA: I agree with Johnson J.
JOHNSON J: The Applicant, Robert Joseph Bland, seeks leave to appeal against sentences imposed by his Honour Judge Black QC at the Lismore District Court on 8 June 2012.
The Offences and Sentences
The Applicant pleaded guilty to:
(a) an offence of aggravated indecent assault on a person under the age of 16 years, contrary to s.61M(2) Crimes Act 1900, punishable by a maximum penalty of 10 years' imprisonment with a specified standard non-parole period of eight years;
(b) an offence of attempt to choke a person with intent to commit an indictable offence, namely detaining a person for advantage without consent, contrary to s.37 Crimes Act 1900, punishable by a maximum penalty of 25 years' imprisonment.
At the request of the Applicant, the sentencing Judge took into account, in passing sentence for the offence under s.37 Crimes Act 1900, the following offences by way of a Form 1:
(a) aggravated enter dwelling with intent to indecently assault, an offence under s.111(2) Crimes Act 1900 which, if prosecuted separately, is punishable by a maximum penalty of 14 years' imprisonment;
(b) an offence of aggravated detain for advantage involving the infliction of actual bodily harm contrary to s.86(2)(b) Crimes Act 1900 which, if prosecuted separately, is punishable by a maximum penalty of 20 years' imprisonment.
With respect to the s.61M(2) offence, the Applicant was sentenced to imprisonment comprising a non-parole period of three years and nine months commencing on 7 June 2012 and expiring on 6 March 2016 with a balance of term of one year and three months commencing on 7 March 2016 and expiring on 6 June 2017.
With respect to the s.37 offence, and taking into account the two offences on the Form 1, the Applicant was sentenced to imprisonment comprising a non-parole period of four years commencing on 7 June 2014 and expiring on 6 June 2018, with a balance of term of four years commencing on 7 June 2018 and expiring on 6 June 2022.
The total effective sentence comprised a non-parole period of six years expiring on 6 June 2018, with a balance of term of four years expiring on 6 June 2022.
Grounds of Appeal
The Applicant relies upon the following grounds of appeal:
(a) Ground 1 - The sentencing Judge erred in failing to apply the principles enunciated in Pearce v The Queen to properly determine an appropriate sentence for each offence before addressing the accumulation of sentences.
(b) Ground 2 - The sentencing Judge erred in failing to have proper regard to the totality principle in his accumulation of sentences.
(c) Ground 3 - The sentencing Judge erred in failing to give appropriate weight to the subjective case of the Applicant.
(d) Ground 4 - The sentencing Judge erred in failing to take into account the time served on bail by the Applicant, given the restrictive nature of the bail conditions.
(e) Ground 5 - The sentence is manifestly excessive.
(f) Ground 6 - The sentencing Judge erred by failing to assess the objective seriousness of each of the offences.
(g) Ground 7 - The sentencing Judge erred in the application of s.54B(4) Crimes (Sentencing Procedure) Act 1999 in respect of Count 1, by failing to give a full statement of reasons for the specification of a non-parole period lower than the standard non-parole period.
(h) Ground 8 - Abandoned.
(i) Ground 9 - Fresh evidence establishes that the sentencing proceedings have given rise to a miscarriage of justice.
Before moving to the grounds of appeal, it is appropriate to refer to the facts of the offences.
Facts of the Offences
A Statement of Agreed Facts was tendered at the sentencing hearing. What follows is drawn from that statement.
The Applicant was a friend of the victim's older brother and had visited the victim's home, including staying there overnight on occasions. At the time of the offences, the Applicant was 20 years of age and the victim was 15 years of age.
The victim resided with his father in a street-level townhouse in a town in northern New South Wales.
Offence 1 Form 1 - Aggravated Enter Dwelling House with Intent to Indecently Assault
On the morning of 7 February 2011, the victim was asleep in his bedroom. His father had left home at 5.20 am to go to work. There was no one else at home apart from the victim.
About an hour after the victim's father had left for work, the Applicant entered the residence, probably through an unlocked sliding door leading into the main bedroom. The Applicant went to the bedroom of the sleeping victim.
The Applicant placed a cloth bag over the victim's head, tying it at the front. The victim awoke and, unable to see clearly through the bag, observed a shadowy figure leaning over him. The Applicant then straddled the victim, who was lying facing the ceiling. The Applicant pinned the victim's arms to the bed and, in doing so, bruised the victim's right arm. The victim stated that he thought he was dreaming at this point.
The victim's hands were tied separately to the bed with a business tie and a leather belt. The victim asked, "What are you doing?" but the Applicant did not reply. The victim started to struggle.
Count 1 - Aggravated Indecent Assault
The Applicant then removed the victim's boxer shorts and put his hands on the victim's penis and masturbated him for approximately 10 seconds. The victim said to the Applicant, "Get off me". Again, there was no reply.
The victim managed to free his right hand of the leather belt and attempted to use his free hand to defend himself. The Applicant said, "Stop defending yourself".
The Applicant then slapped the victim around the face and head, causing bruising to his right cheek and swelling to three areas near the top of his head. The victim did not hit the Applicant as he was disorientated and feared that this would provoke his assailant further.
Count 2 - Attempt to Choke with Intent to Commit an Indictable Offence; Offence 2 Form 1 - Aggravated Detain for Advantage with Infliction of Actual Bodily Harm
The Applicant then placed one hand over the victim's mouth and used the other to block his nose. The victim could not breathe and struggled, moving his head to free his mouth and nose from the Applicant's hands.
The Applicant then placed both hands around the victim's neck and pressed on to his throat. The victim was unable to breathe and almost passed out. At some point, the Applicant loosened his grip on the victim's throat, and the victim was able to push the Applicant's hands away from his neck.
The victim called out for help and the Applicant leaned forward and closed the windows to the victim's bedroom.
The Applicant then grabbed the victim's right hand and attempted to tie it back to the bed rail with the belt. The victim managed to free his hand of the Applicant's grip and rolled over so that he was facing the mattress.
The Applicant then put his arm around the victim's neck, placing pressure on the victim's throat. The victim feared that the Applicant was attempting to strangle him.
As he did this, the Applicant continued to slap and punch the victim to the top of his head a number of times. The victim bit the Applicant's hand. The Applicant quickly took his arm from around the victim's neck, causing one of the victim's teeth to become loose.
The victim heard the sound of a zip being opened. Fearing sexual assault by way of penile/anal intercourse, the victim moved his body quickly around the bed, causing the Applicant to fall off. The victim's left hand was still tied to the bed railing by the tie.
The Victim Calls for Assistance and the Police Arrive
The Applicant then told the victim to stay where he was or he would be harmed. The victim heard the Applicant leave and immediately removed the bag from his head and dialled "000". The call was recorded at 6.27 am.
After making the "000" call, the victim freed his left hand from the bed railing. Arming himself with a metal bar, he left his bedroom and locked the front door of the premises whilst waiting for the police to arrive.
At 6.40 am, the police attended the premises and spoke with the victim. Ambulance officers attended the address and the victim was taken to a nearby hospital where he was medically examined.
At 1.31 pm on that day, the victim attended the police station and participated in a recorded interview. He told police that his assailant had "put on a deep voice", which he considered to be "deep and fake". The victim indicated to police that the voice reminded him of the Applicant's voice.
Police Investigation and Arrest of Applicant
At 4.30 pm that day, police attended the Applicant's home and spoke to him. The Applicant made no admission concerning the offences.
The Applicant told police that he once owned a white belt similar to the one used to tie the victim, but that he had left the belt at an "op shop" some six months earlier. The Applicant also stated that he owned similar business ties to the one used to tie the victim to the bed, but that he was not missing any. The Applicant also told police that he owned part of a tan female stocking which he used to cover his hair when he was wearing female wigs, and that he may have left a similar stocking at the victim's home in early 2010.
The Applicant told police that his mother had dropped him in town between 5.30 am and 6.00 am that morning and that he had walked past the victim's home and noticed a light on.
The Applicant provided a voluntary buccal swab to police.
A number of items located at the crime scene at the victim's home, including the white leather belt, blue business tie and tan stocking, were sent to the Division of Analytical Laboratories for examination. A DNA profile consistent with the Applicant's DNA profile was located on the belt and stocking. DNA profiles consistent with the Applicant and the victim were found on the tie.
CCTV footage obtained clearly showed the Applicant walking past a shop approximately 50 metres from the victim's home at 6.28 am on 7 February 2011, with the Applicant wearing blue jeans and a blue-striped hooded jumper and carrying a black backpack. Located at the Applicant's home on the afternoon of 7 February 2011 was a black backpack which contained some clothing items together with a yellow rope, two long-sleeved gloves and numerous sealed condoms and lubricant.
The Applicant was arrested and charged on 17 February 2011. He was granted conditional bail on 18 February 2011 and remained on bail until sentence was passed on 8 June 2012.
The Applicant's Subjective Circumstances
The Applicant was 20 years of age at the time of the offences and 21 years of age at the time of sentence.
He has no prior criminal history.
Tendered at the sentencing hearing were reports of Dr Stephen Allnutt, psychiatrist, dated 4 June 2012 and Dr Lynette Arnoldus-Lewis, psychologist, dated 25 May 2012. In addition, several character references were tendered in the defence case.
A short report of Renia Gryc, the Northern Rivers Counselling Co-Ordinator with ACON, dated 30 May 2012, was also tendered in the defence case.
A short affidavit of the Applicant affirmed 8 June 2012 was also relied upon in the District Court. In that affidavit, the Applicant indicated his agreement with the Statement of Agreed Facts and expressed regret for the offences. He said that he had consulted with Dr Arnoldus-Lewis on five occasions. He said that he had read the reports of Dr Allnutt and Dr Arnoldus-Lewis and that the histories provided to those practitioners by him were accurate. He stated that he had participated in counselling with Ms Gryc. He indicated his willingness to participate in any program recommended by the psychologist and psychiatrist, the Department of Corrective Services and the Probation and Parole Service.
The documentary material before the District Court indicated that the Applicant and his older brother resided at the time of these offences with their parents, who had provided the Applicant with a stable and supportive family environment. The Applicant had completed Year 12 at high school and was reported as being an average student. He had no learning problems and no difficulties with teachers.
At the time of these offences, the Applicant was employed as a bank relief staffer at a bank in Lismore. At the time of sentence, he was unemployed.
The Applicant informed his psychologist of his intensive use of an online virtual reality game. The Applicant reported recreational drug and alcohol use, but was not using any substances on a regular basis at the time of the offences.
The Applicant informed Dr Arnoldus-Lewis of persistent bullying at school, from the age of eight or nine until he finished high school. The bullying was said to have included references to his homosexuality. Dr Allnutt noted that the Applicant reported bullying at school between Years 4 and 10. The Applicant also reported witnessing an incident when a former boyfriend of his was "thrown through a plate glass window because he was gay". In the assessment of Dr Arnoldus-Lewis, this incident compounded the Applicant's chronic "post-traumatic stress disorder from years of unrelenting abuse".
The psychiatric assessment of Dr Allnutt was that the Applicant did not manifest active symptoms of any major psychiatric condition, but had sexual fantasies of a sadomasochistic nature. The Applicant stated that the offences involved "the enactment of a fantasy he had had for the prior 2 years".
Dr Allnutt said "his sexual behaviour would be regarded as sexually deviant and raises concern that the underlying drive was a possible underlying paraphilia disorder, namely a sadomasochistic paraphilia, the victim was around 15 years of age thus the behaviour was hebephilic" (Allnutt report, 4 June 2012, page 7).
Dr Allnutt undertook a detailed risk assessment by reference to SVR20 and STATIC-99 (pages 8-9). Having regard to both actuarial and clinical assessments, Dr Allnutt considered that the Applicant lay "in the moderate risk range of future sexual recidivism as compared to other sex offenders".
Dr Allnutt considered that the Applicant presented "as an individual with reasonable prospects for rehabilitation should he pursue a sex offender rehabilitation program and complete it", with consideration to be given to the prescription of sex-drive suppressant medication after completing such a program and with the benefit of further psychiatric evaluation.
Impact of the Offences Upon the Victim
A victim impact statement, dated 14 May 2012, was tendered at the sentencing hearing and read to the Court by the victim's father.
In that statement, the victim said that before the offences, he was a "happy, easygoing kid", but that everything changed after the Applicant, whom he regarded as "a trusted friend" of his brother, broke into his home and assaulted him.
After the assault, the victim could not go back to the house and his father had organised a new place for them to live. The victim had been experiencing nightmares and flashbacks about the offences, involving a bag being placed over his head. The relationship between the victim and his father had changed.
The victim stayed away from school for weeks after the offences. It had been difficult for the victim to concentrate on his schoolwork thereafter.
He said that his life was "completely different" and that his approach to life had been affected by what he described as a betrayal of trust.
Remarks on Sentence
The sentencing hearing proceeded on 8 June 2012, with the tender of the various documents identified so far in this judgment and the making of submissions on the question of sentence. There was no oral evidence.
His Honour proceeded to sentence the Applicant that day by way of ex tempore remarks on sentence.
The remarks on sentence were succinct. Given the challenges made by the Applicant before this Court, it is appropriate to refer to aspects of his Honour's remarks.
His Honour recited the offences and applicable penalties and the Form 1 matters before summarising the facts of the offences (ROS1-2). His Honour observed that the Form 1 matters, which were "obviously aspects of the matters in the indictment", were "on their own ... serious matters" (ROS2).
The sentencing Judge referred to the victim's "terrifying experience" and adverted to the victim impact statement (ROS3):
"I do not mean any disrespect to what is in it, it is a very clear and cogent statement, but what I think it is necessary to point out is that it contains exactly the results, fears and terrors that one would expect to arise from an attack of this nature and it is to be hoped that with the passage of time the young man will get better at dealing with it but nobody can suggest he will ever forget it. There was one aspect again which is quite understandable is that the family out of sympathy with the young man had to move home and I can well understand that."
The sentencing Judge described the offences as "very serious".
His Honour then turned to the Applicant's subjective circumstances (ROS3-4):
"First and foremost he has pleaded guilty, he is entitled to full credit for that. It has in particular in a case of this nature saved the young person from having to go through unpleasant details and reliving the experience and also I take it, despite what has been said on other heads, that it is acknowledgement by the offender of having committed these offences and recognising the gravity of them. Now the offender now is aged twenty-one, he was twenty at the time of this. He has no previous convictions so not surprisingly people were concerned to investigate how this sort of behaviour could have come about. In the result there is a report from a Dr Lynette Arnoldus-Lewis dated 25 May 2012, part of exhibit 1. There is a report from Dr Allnutt dated 4 June 2012, also part of exhibit 1. There are in addition some references from people who have known the offender. They speak highly of him and to summarise what they say I think they would be horrified at what has happened because in their experience of him it was totally out of character and I can well understand that."
The sentencing Judge approached the psychiatric and psychological evidence in the following way (ROS4):
"The effect of the medical reports in my view is that there is no specific medical reason by way of mental disability identified. It is acknowledged in the reports that for particular reasons to which I will come he needs extensive counselling and rehabilitation. The background appears to be that because he has entered into by means of the Internet a world sometimes called of parallel reality he was therefore dissociated first of all from real life and, secondly, was living in a form of fantasy world which certainly on one reading of the reports he was not clear whether he had actually fantasised what the facts were in this case or had actually carried them out. Now Dr Arnoldus-Lewis takes that situation, if I can put it in the vernacular, more onboard than does Dr Allnutt and she, that is Dr Arnoldus-Lewis, takes the view that it amounts, coupled with other matters such as bullying in the past and an incident involving a partner, I will call him, of the offender, as amounting to post traumatic stress disorder. Dr Allnutt does not go that far and I give more effect to Dr Allnutt who was aware of Dr Arnoldus-Lewis' conclusions. He records them but he does not adopt them. Their common ground is, as I have said, that significant counselling and rehabilitation is required here and there is no situation here bringing into play in my view the substantial line of authority that where there is a mental issue of significance then the deterrence issue on a personal level takes far less significant place although equally the deterrence issue on a public level might be more accentuated because of the particular attitude of the offender. That really is, as I understood it, what the Crown was saying, they say well you cannot be sure what the future holds here and the protection of the public is an important issue.''
His Honour then turned to a range of matters which had been addressed in oral submissions (ROS4-5):
"There are two essentially competing issues that compete here, that is the gravity of the offence and therefore the protection of the public and the youth of the offender. I can summarise the particular matters of relevance on the subjective level. They were put forward as Dr Arnoldus-Lewis' report, the bullying in the past, his vulnerability in a custodial situation, that goes together with his youth, and the overall need for rehabilitation. Mention was made of his bail restrictions but it is to be borne in mind that he was on bail to enable him to seek appropriate medical assistance to be put forward as part of his mitigation for these offences. They are all relevant matters and they do in their varying ways in my view amount to special circumstances which I will be finding and I identify in particular the matters giving rise to those. The main ones are the lack of previous record, first custodial sentence, his youth and his vulnerability in a custodial setting."
Issues of concurrency, accumulation and totality were then considered (ROS5):
"We then have to come back to looking at the two counts and bearing in mind the Form 1 and looking at an overall sentence and then making allowance for the plea. Now I am not going to descend into mathematics but in looking at a sentence overall in the region of some fourteen years. That means that I will discount the overall sentence to one of ten years and that will be made up in the following way."
The sentencing Judge then imposed the sentences on the two counts, noting that a finding of special circumstances had been made. The remarks on sentence concluded in the following way (ROS5-6):
"So that gives an overall sentence, and I have borne in mind the principles of Pearce of ten years and a non parole period of six years which in my view is the absolute minimum I can impose for matters such as this. Those are the sentences I pass. I have taken into account the matters on the Form 1 in respect of count 2."
Ground 9 - The Fresh Evidence Ground
It is appropriate to commence with Ground 9, the Applicant's fresh evidence ground.
In support of this ground, Ms Francis, counsel for the Applicant, sought to read the affidavit of John Pearson, solicitor, affirmed 26 September 2013 to which was annexed a report dated 9 August 2013 of Dr John Kasinathan, psychiatrist.
Ms Francis contends that the Court should admit this report as fresh evidence on the leave application.
The Crown objects to this Court receiving the report of Dr Kasinathan upon the basis that it was brought into existence after the Applicant was sentenced, and does not otherwise satisfy the requirements for receipt of post-sentence evidence on an application for leave to appeal against sentence.
To resolve this controversy, it is appropriate to refer to the report of Dr Kasinathan and how it is said to be admissible in this Court. Dr Kasinathan interviewed the Applicant by audio-visual link for one hour on 9 August 2013 for the purpose of preparation of the report. Dr Kasinathan expressed the opinion that the Applicant fell within the psychiatric diagnoses, in accordance with DSM-V, consistent with mild autism spectrum disorder and sexual sadism disorder (in remission, in a controlled environment).
Dr Kasinathan observed that the Applicant's mild autism spectrum "may have contributed to Mr Bland's sense of isolation, rigid thinking and poor judgment at the material time", being the time of the offences (page 7). Whilst agreeing with Dr Allnutt's assessment that the Applicant fell into a moderate-high risk category for future sexual offending from an actuarial viewpoint, Dr Kasinathan opined that the Applicant's risk of future sexual offending was significantly lower when dynamic and treatment variables are taken into account. Dr Kasinathan considered that the Applicant fell into a low-risk category for future sexual offending.
Dr Kasinathan noted that the psychological report of Dr Arnoldus-Lewis was comprehensive, but stated that her diagnostic impressions of borderline personality disorder and post-traumatic stress disorder were inaccurate (page 9).
With respect to Dr Allnutt's report, Dr Kasinathan stated (page 10):
"The psychiatric report by Dr Stephen Allnutt dated 4 June 2012 was accurate in that no diagnosis of personality disorder was made, as there was none present. The diagnosis of autism spectrum disorder was not considered, probably due to the mild nature of its presence in Mr Bland. A possible diagnosis of sexual sadism was considered, which the writer agreed with. Actuarial risk factors were evaluated accurately, however dynamic risk factors were not considered to a great depth. The presence of autism spectrum represented a modifiable psychiatric condition (as illustrated above)."
Decision on Admissibility of Report
A number of reports were tendered in the Applicant's case at the sentencing hearing in the District Court. These reports included a report from Dr Allnutt, a most experienced forensic psychiatrist. In addition, a report from Dr Arnoldus-Lewis was tendered against the background of several treatment sessions had by that practitioner with the Applicant.
The Applicant was sentenced on 8 June 2012 and lodged a Notice of Application for Leave to Appeal to this Court on 14 February 2013. Some six months later, the Applicant was assessed by Dr Kasinathan. A report was provided that day which is now sought to be deployed on the application before this Court.
From time to time, this Court has considered applications to admit what is said to be fresh evidence on an application for leave to appeal against sentence.
In Khoury v R [2011] NSWCCA 118; 209 A Crim R 509, Simpson J (Davies J and Grove AJ agreeing) said at 528 [104]:
"The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals."
However, Simpson J observed at 528 [105] that the "rule is far from absolute". Her Honour adverted to a number of authorities, and then returned to the statutory context governing a sentence appeal. Simpson J said at 529 [109]-[110]:
"109 ... However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912. The powers of the Court are spelled out in s 6(3) which is in the following terms:
'6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.'
110 A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed . In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177."
These statements by her Honour should be understood as relating to a case where fresh evidence is relied upon as the basis for appellate intervention under ss.5(1)(c) and 6(3) Criminal Appeal Act 1912, in circumstances where no other error is established. It is clear that evidence of post-sentence events may be received if error has been established and the Court is considering the question of resentencing under s.6(3): Baxter v R [2007] NSWCCA 237; 173 A Crim R 284.
Simpson J referred (at 529-530 [111]-[114]) to the category of cases concerning assistance to the authorities.
Her Honour then turned to a further "increasingly common" category of cases concerning medical evidence, including R v Goodwin (1990) 51 A Crim R 328, R v Fordham (1997) 98 A Crim R 359 and Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1. (There have been further recent examples, including Tran v R [2014] NSWCCA 32 and Grant v R [2014] NSWCCA 67, where similar applications were also rejected).
As Simpson J made clear, at 530-531 [117]-[121], this Court has emphasised that caution must be exercised in the admission of evidence of this type. It is proper for the Court to examine the circumstances, and any explanation for non-production of evidence at first instance, together with the potential significance of the evidence to have affected the outcome at first instance.
In the circumstances in Khoury v R, the psychiatric and psychological reports were admitted. There had been no psychiatric or psychological evidence tendered at all at first instance. Further, an affidavit had been sworn by counsel who appeared at first instance bearing upon the question why no such evidence had been tendered.
Those circumstances are far removed from the present case.
In R v Fordham, Howie AJ (Hunt CJ at CL and Smart AJ agreeing) stated at 377-378 that, even if the evidence is fresh, it ought not be received by the Court unless it affects the outcome of the case. Generally, it must be shown that the sentencing of the offender, in the absence of the fresh evidence, resulted in a miscarriage of justice. The miscarriage of justice principle in R v Fordham was applied in Norrie v R [2008] NSWCCA 185 at [22].
Ground 9 is framed in terms which seek to engage the principle in R v Fordham, contending that a miscarriage of justice has occurred.
The High Court has emphasised recently the importance of the principle of finality in the area of sentencing: Achurch v The Queen [2014] HCA 10; 88 ALJR 490 at 496-497 [14]-[16]. This Court has also stressed that a sentence leave application involves a challenge to a discretionary determination and is not a rehearing of a plea in mitigation or the occasion for the revision or reformulation of the case presented below: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 477-479 [79]-[81]. At the same time, it was recognised that criminal appellate courts should be able to correct a miscarriage of justice or serious injustice in the clear and rare cases where the relevant matter has not been relied upon at first instance: Zreika v R at 478 [82].
This is not a case, like Khoury v R (at 527 [102]), where there was no psychiatric or psychological evidence adduced on sentence at first instance. Indeed, the psychiatric evidence adduced here was from an eminent forensic psychiatrist, Dr Allnutt, and a treating psychologist, Dr Arnoldus-Lewis. There was an affidavit of the Applicant which confirmed the matters contained in those reports. A thorough and considered approach was taken by the Applicant's then legal representatives on this topic.
It may be inferred that the legal representatives for the Applicant before this Court have caused a further psychiatric examination to be undertaken by a different psychiatrist with a further report resulting. There is no suggestion that Dr Kasinathan's report has been provided to Dr Allnutt for comment, let alone that Dr Allnutt has revised his opinion in the light of that report. A scenario such as that (if it existed) might bring the case closer to one where the interests of justice warranted the admission of additional evidence before this Court. However, that would be because the psychiatrist relied upon at first instance had altered his or her opinion in a significant respect.
It would be contrary to the principle of finality, and inconsistent with the function of this Court on an application for leave to appeal against sentence, to adopt an approach which encouraged a sentenced person to seek out medical and psychiatric opinion after sentence, and before appeal, on matters which were the subject of reports tendered at first instance.
The observations of RS Hulme J in Einfeld v R at 45-46 [193] are pertinent:
"One cannot but be conscious of the frequency, and it may be ease, with which psychiatrists disagree with diagnoses of other psychiatrists. I am by no means persuaded that this Court is obliged to receive as evidence in an appeal any and every fresh diagnosis made since a sentence was imposed upon the ground that the fresh diagnosis reflects a condition not fully known or appreciated at the time of a sentence under appeal. However, in light of the previous order of the Court in this appeal and the attitude of the Crown during the hearing before us, I need say no more on this topic."
The practical consequences of what the Applicant seeks to do were the subject of discussion at the hearing in this Court. If the report of Dr Kasinathan was admitted as additional evidence, how was this Court to proceed in resolving what appeared to be a difference of opinion between the two psychiatrists? And where would the process end? It was submitted for the Applicant that remittal to the District Court may be appropriate to allow the areas of dispute to be explored further in that Court.
In my view, the report of Dr Kasinathan is not admissible as fresh evidence on this application.
It should be observed, in any event, that the effect of the report of Dr Kasinathan is itself not substantial. Dr Kasinathan raises the prospect of autism spectrum disorder of such a mild nature that its presence may not have been detected by Dr Allnutt. The faintness of the suggested condition indicates that, even if the report had been before the sentencing Judge, it would have had no real bearing on the exercise of sentencing discretion. Further, Dr Kasinathan confirms the diagnosis of sexual sadism disorder, a conclusion effectively reached by Dr Allnutt and presented to the sentencing Judge.
If Dr Kasinathan's report had been admitted, I am not persuaded that it would have any material bearing on issues including the Applicant's prospects of rehabilitation, his level of moral culpability or the application of the principles of general deterrence and personal deterrence.
The Applicant has not demonstrated a miscarriage of justice as contended for in Ground 9.
I would decline to admit the report of Dr Kasinathan and, as a consequence, would reject Ground 9.
Grounds 1 and 2 - The Pearce v The Queen and Totality Grounds
It is convenient to consider Grounds 1 and 2 together.
Submissions of the Parties
Ms Francis submits that the sentencing Judge did not comply with the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610 and did not fix an appropriate sentence for each offence before moving to issues of accumulation, concurrency and totality. In particular, it was submitted that his Honour's approach failed to have regard to the fact that the offences formed part of the one incident. The Applicant submitted that error had been demonstrated in these respects.
The Crown submitted that the sentencing Judge applied the relevant principles and indeed said that that was what he had done. Likewise, his Honour adverted to totality and considered discretionary matters relevant to issues of accumulation, concurrency and totality.
Decision
The sentencing Judge adverted expressly to the principles in Pearce v The Queen, noting that he had borne them in mind (see [65]-[66] above). It is not necessary for a sentencing Judge to recite in detail the relevant principles for the purpose of applying them.
The Applicant's complaint is similar to that made (and rejected) in R v Murray [2003] NSWCCA 209, where Howie J (Tobias JA and James J agreeing) said at [16]:
"I do not believe that the criticism is justified. I do not understand why her Honour should not be taken at her word; being that she determined the appropriate sentence for each offence and then determined the total sentence to be imposed having regard to the principle of totality. The fact that she announced what the total sentence would be before indicating how the individual sentences should be structured is not in conflict with the way that her Honour said she had determined the sentences. Pearce contains no prohibition on indicating what the total sentence should be before indicating how the individual sentences are to be structured. There is no reason not to assume that before her Honour embarked upon her sentencing remarks she would have determined what the sentence was to be both as to its individual parts and as to its total length."
As McCallum J (Simpson and Bellew JJ agreeing) observed in Suman v R [2013] NSWCCA 3 at [24]:
"The remarks on sentence should not be construed as if his Honour came on to the bench not knowing what sentences he would pass, exposing the sequence of his deliberations with each further remark."
The sentencing Judge in this case was clearly conscious that sentences were to be imposed for two offences (and Form 1 matters) arising from a sequence of offences committed against the same victim. Oral submissions had been made immediately before sentence was passed, in which issues of accumulation, concurrency, totality and special circumstances where addressed.
His Honour's remarks on sentence do not reveal error. No elaborate verbal formula was required. What was necessary was for the sentencing Judge to have regard to the principles in Pearce v The Queen and issues of accumulation, concurrency and totality. It has not been demonstrated that his Honour erred in this respect.
I would reject Grounds 1 and 2.
Ground 3 - Claim of Error in Failing to Give Appropriate Weight to Applicant's Subjective Circumstances
Submissions of the Parties
Counsel for the Applicant acknowledged that the sentencing Judge had referred to the Applicant's subjective circumstances in the passages from the remarks on sentence extracted at [62]-[64] above. Whilst recognising the discretion vested in the sentencing Judge, it was submitted that the sentences ultimately imposed did not adequately reflect what were said to be significant subjective features of the Applicant's case.
Reference was made in submissions to the Applicant's apology to the victim and what was said to be his significant chance of successful rehabilitation given his young age. It was submitted that the sentencing Judge had made no mention of the apology nor was any finding made as to remorse or the Applicant's prospects of rehabilitation.
The Crown submitted that the sentencing Judge did have regard to the Applicant's subjective circumstances, including the need for extensive counselling and rehabilitation. A finding of special circumstances was made.
It was submitted that the Applicant had been afforded a discount for remorse over and above the discount afforded for the utilitarian value of his pleas of guilty, given the 28.5% discount which reduced the head sentence from 14 years to 10 years.
Decision
The failure of a sentencing Judge to attribute sufficient weight to an issue at sentence will not generally be a material error. Questions of weight in the exercise of a discretion are matters for the first-instance Judge, and the circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined: R v Baker [2000] NSWCCA 85 at [11]; Yang v R [2012] NSWCCA 49 at [25].
A ground of appeal asserting that a Judge attributed insufficient weight to an issue has the inherent problem of implicitly acknowledging that some weight has been placed on the issue: DF v R [2012] NSWCCA 171 at [77].
The Applicant contends that the absence of reference to remorse and the Applicant's prospects of rehabilitation in the remarks on sentence indicates a failure to have regard to these matters. It is necessary to keep in mind that his Honour's remarks on sentence were delivered ex tempore immediately after the sentencing hearing. In Currie v R [2013] NSWCCA 267, with the agreement of Hoeben CJ at CL and Bellew J, I said at [50]-[51]:
"50 As Spigelman CJ observed in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 577 [48], the conditions under which District Court Judges give such reasons 'are not such as to permit their remarks to be parsed and analysed'. In R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at 180-181 [34], with the concurrence of McClellan CJ at CL and Hammerschlag J, I observed:
'... it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be 'as robustly structured as they might otherwise have been' (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may 'lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing' (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]).'
51 It is important to keep these statements in mind, in particular, when considering submissions that his Honour did not refer in the remarks to certain matters which had been the subject of evidence and submissions at the sentencing hearing."
These observations are apt in the present case.
With respect to remorse, it should be kept in mind that the sentencing Judge applied a discount of 28.5% to reduce a head sentence of 14 years to one of 10 years. An allowance of this magnitude exceeded the 25% utilitarian discount to which the Applicant was entitled for his pleas of guilty. His Honour referred to the Applicant's acknowledgement of guilt and the saving of the victim from giving evidence (see [62] above). These are features going beyond the utilitarian discount to encompass remorse: R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 10-11 [32]. It is difficult to see how it can be contended reasonably that the sentencing Judge has not made some allowance for remorse.
With respect to the Applicant's prospects of rehabilitation, given the nature of his offences and the psychiatric and psychological evidence before the sentencing Judge, it is difficult to see that any foundation had been laid for a finding that his prospects of rehabilitation were good so as to warrant any material amelioration of penalty. Dr Allnutt expressed himself conditionally in observing that the Applicant had reasonable prospects of rehabilitation, if he pursued and completed a sex offender rehabilitation program (see [50] above).
The sentencing Judge had regard to the Applicant's "overall need for rehabilitation" as part of a range of factors leading to a finding of special circumstances and the setting of an overall non-parole period which was 60% of the full term.
The Applicant has not demonstrated error on the part of the sentencing Judge with respect to the approach taken by his Honour to the weight to be accorded to the Applicant's subjective circumstances. It has not been demonstrated that the matters relied upon were not taken into account in the exercise of the instinctive synthesis undertaken by his Honour.
I would reject Ground 3.
Ground 4 - Claim of Error in Failing to Take Into Account the Restrictive Nature of the Applicant's Presentence Bail Conditions
Submissions of the Parties
Ms Francis submitted that the Applicant had been subject to very restrictive bail conditions from the time of his arrest on 18 February 2011 until he entered custody on 8 June 2012. The conditions included restrictions upon his ability to leave his residence other than in the presence of nominated persons. It was submitted for the Applicant that his Honour's approach to the bail restriction issue was to confine it because it allowed him an opportunity to seek medical assistance to be put forward as part of his plea in mitigation (see [64] above).
Ms Francis submitted that greater weight ought to have been given to this factor in the circumstances of the case.
The Crown submitted that the Applicant's bail position was not analogous to a situation where a person is required to reside in a rehabilitation facility so that a form of quasi-custody may arise. The Crown submitted that the Applicant was not entitled to any additional weight being accorded to this factor in the circumstances of the case.
Decision
The aspect of the Applicant's bail conditions to which attention is drawn under this ground is the residential condition which operated between 18 February 2011 and 8 June 2012. This condition permitted the Applicant to leave his residence in the company of one of several nominated family members. It is understandable that such a condition was put in place given the need, amongst other things, to ensure there was no direct or indirect contact between the Applicant and the victim or any member of the victim's family.
There was no curfew condition in place. The Applicant was able to leave his residence at any time and for any purpose, as long as he was in the company of one of a nominated list of persons.
The bail conditions placed some restrictions upon the Applicant. That is the nature of bail conditions, especially where the person is charged with serious offences as in this case.
The Applicant was not required to reside in a treatment facility. That scenario, which takes a person away from his or her home into an institutional setting as a condition of bail, is recognised as being capable (depending upon the circumstances) of being a form of quasi-custody: Renshaw v R [2012] NSWCCA 91 at [28]-[32].
It is difficult to see that a requirement to live at home with one's family, and to be accompanied by one or other of a number of nominated relatives when not at home, operated in a way so as to mitigate penalty in this case. Restrictive accommodation requirements do not necessarily amount to quasi-custody: R v Perry [2000] NSWCCA 375 at [33].
The sentencing Judge was not required, as a matter of principle, to take the Applicant's bail conditions into account in his favour on sentence in the manner complained of in this ground. No error has been demonstrated.
I would reject this ground of appeal.
Grounds 6 and 7 - Claim of Error in Assessment of Objective Seriousness and in Failure to Give Reasons Concerning the s.61M(2) Crimes Act 1900 Offence
The parties linked these grounds for the purpose of submissions and it is appropriate that the same course be adopted in addressing their merit.
Submissions of the Parties
Ms Francis submitted that the sentencing Judge's characterisation of the offences as being "very serious" (see [61] above) gave rise to error in this case. It was noted that the s.61M(2) offence carried a standard non-parole period, with an additional requirement to give reasons specified by statute. Although there was no standard non-parole period for the s.37 offence, it was submitted that it remained necessary for the sentencing Judge to assess the objective seriousness of that offence and to provide reasons for the conclusion reached as part of the sentencing process. Reliance was placed upon several authorities and, in particular, R v Cage [2006] NSWCCA 304.
With respect to the s.37 offence, it was submitted that a wide range of conduct may give rise to that offence so that an appropriate assessment of objective seriousness is required in order to comply with statements of the High Court in Ibbs v The Queen [1987] HCA 46; 163 CLR 447.
In relation to the s.61M(2) offence, it was submitted that an erroneous approach had been adopted with an absence of reasons as required by law.
The Crown submitted that the approach adopted by the sentencing Judge did not reveal error. To the extent that the Applicant sought to rely upon R v Cage, the Crown submitted that the sentencing Judge in this case went beyond a bare recitation of the facts in expressing the conclusion that the offences were very serious.
In relation to the s.37 offence, the Crown submitted that there being no standard non-parole period applicable, it was not necessary to assess the offending by reference to a range of objective seriousness.
With respect to Ground 7, the Crown submitted that the sentencing Judge did provide sufficient reasons to comply with s.54B(4) Crimes (Sentencing Procedure) Act 1999.
Decision
Ground 7 ought be considered first. Since the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, a less prescriptive approach is required in sentencing for standard non-parole period offences. The requirement to give reasons for the purpose of s.54B(4) may be satisfied by reference to the remarks on sentence viewed as a whole.
In the present case, the sentencing Judge adverted to the maximum penalty and the standard non-parole period and determined that the s.61M(2) offence was very serious. Regard was had to a variety of other factors bearing upon sentencing for this offence.
The sentence ultimately imposed for this offence sheds some light upon his Honour's assessment of the objective seriousness of this offence. The sentence comprised a non-parole period of three years and nine months with a balance of term of one year and three months. The maximum penalty was 10 years' imprisonment with a standard non-parole period of eight years.
I am not persuaded that his Honour failed to give reasons, for the purpose of s.54B(4) Crimes (Sentencing Procedure) Act 1999, in the manner asserted in Ground 7.
This conclusion applies, as well, to the complaint in Ground 6 insofar as that extends to the offence under s.61M(2) Crimes Act 1900. Error is not demonstrated in that respect.
It is the case that s.37 Crimes Act 1900 is capable of applying to a range of circumstances. Some assessment of objective gravity is appropriate as part of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R at 523 [71]. That said, this does not give rise to an obligation to provide elaborate reasoning in the circumstances of a particular case. It is not necessary to make a finding as to where precisely the offence lay in a spectrum of offending: Khoury v R at 523 [74]; Charbaji v R [2011] NSWCCA 181 at [15].
The sentencing Judge here did not rely upon a bare recitation of the facts as in R v Cage. The s.37 offence was assessed, correctly, as being "very serious". An examination of the present case confirms that this was a serious example of a crime of this type. Indeed, the plea in mitigation was made by counsel for the Applicant at first instance upon the basis that these were serious offences. No submission was made for the Applicant that a more precise finding should be made concerning the objective gravity of the offences.
The Applicant's s.37 offence involved an attempt to choke the 15-year-old victim with an intent to commit an indictable offence, namely to detain him for advantage without consent. The concept of "advantage" in s.86(1)(b) Crimes Act 1900 has been interpreted broadly, extending (amongst other things) to psychological gratification or satisfaction: R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at 185 [50].
The circumstances of the present case reveal the Applicant attempting to choke the 15-year-old victim in the context of a non-consensual sexual event, with sadomasochistic overtones. The sexual context is entirely clear from the s.61M(2) offence, accompanied by highly disturbing features such as the placing of a bag over the victim's head and the securing of his hands by tying with a belt and tie. To introduce into this multifaceted event an attempt to choke the victim constitutes a most serious example of an offence under s.37 Crimes Act 1900. The victim was unable to breathe and almost passed out.
In my view, the law required the sentencing Judge to do no more than was done in this case by way of the characterisation of the Applicant's s.37 offence as being "very serious". This assessment is to be viewed in the light of a fair reading of his Honour's remarks on sentence in their entirety.
No error has been demonstrated by the Applicant in the approach taken by the sentencing Judge.
I would reject Grounds 6 and 7.
Ground 5 - Claim of Manifest Excess
Submissions of the Parties
The Applicant submitted that the individual sentences, and the total effective sentence, were manifestly excessive when full account is had to the objective and subjective circumstances of the case.
Ms Francis emphasised the Applicant's youth and prior good character in support of this ground and the psychiatric and psychological evidence before the sentencing Judge.
The Crown submitted that the individual sentences and the overall effective sentence were not manifestly excessive. The Crown emphasised the gravity of the offending conduct and the need to have regard to the Form 1 matters in the imposition of sentence.
Decision
To make good this ground, the Applicant must demonstrate that the sentences imposed were unreasonable or plainly unjust. It is necessary for the Applicant to establish that the total effective sentence was manifestly too long: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6].
The Applicant's offences involved the illegal entry of the victim's home at an early hour, at a time when it may be inferred he knew that the victim would be alone. The offences involved a significant level of planning. The Applicant came equipped with items to restrain the victim and, by use of the bag, to reduce the prospects of identification.
The 15-year-old victim was asleep in his own bed when he was accosted by the Applicant, who placed the bag over his head and bound his hands. The terrifying nature of these acts is self-evident.
What happened thereafter involved the commission of the aggravated indecent assault offence, demonstrating the sexual motivation of the attack. Any resistance by the victim was controlled by the Applicant. The Applicant struck the victim several times. The attempt to choke the victim constituted a serious escalation in the criminal acts being committed against the victim. The Applicant was acting out a sexual fantasy he had entertained for some two years (see [47] above). The Applicant's crimes included sadomasochistic features, involving bondage with a clear sexual context.
It may be inferred that it took some measure of determined resistance on the part of the victim, in the form of biting the Applicant, to bring the criminal attack to its end.
As was to be expected, the adolescent victim has suffered significantly from these offences. Psychological damage has been suffered with erosion in his confidence impacting upon his education and family life. It was necessary for the sentences to recognise the psychological harm done to the young victim: s.3A(g) Crimes (Sentencing Procedure) Act 1999; R v Gavel [2014] NSWCCA 56 at [110].
This case should be regarded as a serious example of offending of this type. An examination of other s.37 cases, and the principles emerging from them, does not assist the Applicant in this case: R v HQ [2003] NSWCCA 336; McKechnie v R [2006] NSWCCA 13; R v MW [2007] NSWCCA 291; Munn v R [2009] NSWCCA 218; R v Cutrale [2011] NSWCCA 214 and R v O'Connor [2014] NSWCCA 53.
Although there was overlap between the offences on the indictment and the Form 1 offences, it was necessary for the sentencing Judge to have proper regard to the Form 1 matters on sentence for the s.37 offence, in accordance with the principles in Attorney General's Application Under s37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146.
These were highly disturbing offences committed by a 20-year-old offender.
In my view, the sentencing Judge gave appropriate weight to the Applicant's youth and prior good character, together with his subjective circumstances as revealed in the evidence placed before the District Court. These factors served to ameliorate the sentences which might otherwise have been passed for serious sexual and violent offending of this type.
In Elias v The Queen [2013] HCA 31; 248 CLR 483, the High Court said at 494-495 [27] (footnotes omitted):
"As this Court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion."
The sentencing Judge in the present case discharged this duty, as part of a process of instinctive synthesis, in a manner which is not indicative of error.
The question to be answered is whether the Applicant has demonstrated that the sentences imposed for the offences and, in particular, the total effective sentence and non-parole period were, in the circumstances of this case, unreasonable or plainly unjust.
In my view, a total effective non-parole period of six years with a balance of term of four years, cannot be regarded as manifestly excessive when regard is had to all the circumstances and, in particular, to the objective gravity of the Applicant's crimes: R v Dodd at 354.
I would reject Ground 5.
Conclusion
The Applicant has failed to make good any of the grounds of appeal relied upon in this Court.
The orders I propose are that leave to appeal against sentence be granted, but that the appeal be dismissed.
RS HULME AJ: I agree with Johnson J.
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