DG v R

[2017] NSWCCA 139

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	DG v R [2017] NSWCCA 139
Hearing dates:	2 June 2017
Date of orders:	21 June 2017
Decision date:	21 June 2017
Before:	Hoeben CJ at CL at [1 ]; Garling J at [75]; Bellew J at [76]
Decision:	(1)   Leave to appeal against sentence is granted. (2)   The appeal against sentence is allowed. (3)   The aggregate sentence imposed by Buscombe DCJ on 24 March 2016 is quashed. (4)   In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 10 years, commencing 2 April 2015 and expiring 1 April 2025, with a balance of term of 5 years expiring 1 April 2030.
Catchwords:	CRIMINAL LAW – sentence appeal – counts of aggravated indecent assault and aggravated sexual assault with two aggravated sexual intercourse offences on a Form 1 – aggregate sentence of imprisonment for 15 years with a non-parole period of 11 years – whether proper effect given to a finding of special circumstances – whether error in an indicative sentence required a change to the aggregate sentence – offences serious involving offending for 4½ years – failure to adequately reflect finding of special circumstances in sentence – no error in indicative sentences – appeal allowed – need to resentence.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 61J, 61M, 66C Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 32, 33, 44, 53A
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 CM v R [2013] NSWCCA 341 Fayad v R [2017] NSWCCA 81 MD v R [2015] NSWCCA 37 R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 R v DG (District Court (NSW), Buscombe DCJ, 24 March 2016, unrep) R v Nykolyn [2012] NSWCCA 219 Sabongi v R [2015] NSWCCA 25
Category:	Principal judgment
Parties:	DG – Applicant Regina – Respondent Crown
Representation:	Counsel: D Kell SC/M Pulsford – Applicant D Carroll/PD Swaine – Respondent Crown   Solicitors: SJT Lawyers – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2015/98225
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 24 March 2016 Before: Buscombe DCJ File Number(s): 2015/98225

Judgment

1. HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty in the Local Court on 20 November 2015 as follows:

1. Three counts of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act 1900 (NSW) for which the maximum sentence is imprisonment for 7 years with a standard non-parole period of 5 years.

2. One count of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act for which the maximum sentence is imprisonment for 20 years with a standard non-parole period of 10 years.

2. Two further offences were placed on a Form 1 to be taken into account in the assessment of sentence for the offence contrary to s 61J(1) of the Crimes Act. The two matters to be considered on a Form 1 were offences of aggravated sexual intercourse, contrary to ss 66C(2) and 66C(4) of the Crimes Act.

3. The applicant was sentenced by Buscombe DCJ on 24 March 2016 to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). His Honour sentenced the applicant to an aggregate sentence of imprisonment of 15 years, commencing 2 April 2015 and expiring 1 April 2030, with a non-parole period of 11 years, expiring 1 April 2026.

4. His Honour set out the indicative sentences as follows:

• Aggravated indecent assault – imprisonment for 2 years with a non-parole period of 14 months.

• Aggravated indecent assault – imprisonment for 2 years with a non-parole period of 14 months.

• Aggravated indecent assault – imprisonment for 3 years with a non-parole period of 2 years.

• Aggravated sexual assault – imprisonment for 14 years with a non-parole period of 10 years.

5. The applicant seeks the leave of the Court to appeal against the aggregate sentence on the following grounds:

Ground 1 – The learned sentencing judge erred in failing to give full effect to a finding of special circumstances when structuring the totality of the sentences.

Ground 2 – The learned sentencing judge's approach in the indication of sentence on the aggravated sexual assault offence revealed error that infected the aggregate sentence imposed on the applicant.

Factual Background

6. The applicant was the stepfather of the victim, who was born in 1999. At the time of the offending, the applicant was married to the victim’s mother and they lived together with the victim’s younger sister, who was the applicant’s biological daughter.

7. On Friday, 31 December 2010 the victim, who was aged 11, was at home with the applicant, her mother and her sister watching the New Years Eve fireworks on television. After the mother and sister went upstairs to bed, the applicant remained in the lounge-room with the victim. The victim was wearing a pair of short summer pyjamas. The applicant moved over to the lounge, sat next to the victim and moved his right hand to her left leg and started to rub it.

8. After a while the applicant moved his hand up the victim’s leg and started to rub her vagina on the outside of her clothing. The victim said “What are you doing?” and the applicant replied “Just enjoy it”. The applicant moved his left hand under the victim’s pyjama shorts and underwear and continued to touch her vagina. The applicant said “Do you like that?”. The victim did not respond. She got off the lounge and said she was going to bed. She went upstairs to her bedroom and cried herself to sleep. These are the facts which gave rise to the first aggravated indecent assault offence.

9. After the first incident of indecent assault the applicant continued with this behaviour until it became a regular occurrence. The assaulting and abuse of the victim began to escalate. In the Agreed Facts there were references to other conduct which was not the subject of the charges. His Honour treated that conduct as evidence of the fact that the offences were part of a course of conduct.

10. Between 1 September 2012 and 31 October 2012 the victim and the applicant travelled to Sydney to look for a new home. They settled on a property at Glenmore Park. The applicant and the victim stayed in the new premises for a few nights before the mother and sister joined them.

11. On one of those occasions the applicant and the victim were at the local shopping centre to purchase some groceries. The applicant purchased some alcohol as well. They returned to the house but shortly afterwards the applicant left to attend the local TAB. While the applicant was out, the victim decided to try some of the alcohol that the applicant had just purchased. She was unaccustomed to drinking alcohol and soon felt dizzy and sick.

12. Sometime later the applicant returned to the premises with dinner. The family furniture had arrived earlier that day and only a few items had been unpacked. The victim told the applicant that she was feeling ill so he got a mattress and put it on the floor in the lounge-room of the premises. The victim lay on the mattress.

13. The applicant lay down next to her and started touching her vagina on the outside of her clothing. She was wearing a dress. These are the facts which gave rise to the second aggravated indecent assault offence.

14. Immediately following this incident, the applicant took his pants off. The victim said “What are you doing?”, to which the applicant replied “Just enjoy it baby”. The applicant removed the victim’s underwear and lay on top of her. He used both hands to separate her legs and inserted his penis into her vagina. The applicant continued to have penile/vaginal intercourse with the victim for about 15 minutes until he withdrew and ejaculated into his hand. He got off the victim who remained lying on the mattress in a state of shock. These were the facts which gave rise to the first aggravated sexual intercourse offence on the Form 1.

15. After the family moved to Glenmore Park, the applicant would take the victim to a local motel and have sexual intercourse. The applicant would tell the victim’s mother that the victim had medical appointments. Sometime between 1 December 2014 and 31 January 2015, the applicant and the victim attended the motel. When checking into the motel, the applicant informed staff that they had a family member staying at the hospital.

16. The victim attended the motel with the applicant knowing that she was expected to have sexual intercourse with him so that he would allow her to later see her boyfriend. When they got into the room, the victim showered and got into bed. The applicant also had a shower and got into bed with the victim.

17. The applicant touched the victim all over her body. The victim told the applicant that her genital area was sore due to premenstrual pain and the applicant said “You won’t be sore, you’ll be okay.” The victim said “No dad I’m sore”, to which the applicant responded “Don’t call me dad, call me babe”. The victim, who had been lying on her side when the applicant started touching her said “No”. Those facts are relied upon for the third aggravated indecent assault.

18. Immediately following these events, the applicant pushed the victim’s shoulder and moved her onto her back. He lay on top of her and inserted his penis into her vagina. He had penile/vaginal intercourse with the victim for about ten minutes throughout which time she was crying and in pain. These are the facts which give rise to the second aggravated sexual intercourse matter on the Form 1.

19. On 4 March 2015 at about 4.15pm the victim’s mother and sister left the residence in Glenmore Park to attend church. A short time after they had left, the applicant entered the victim’s bedroom knowing that she was lying on her bed. The applicant said to the victim, “Do you want to do it?”. The victim took this to mean that the applicant wanted to have sexual intercourse with her and she said “I don’t want to”. The applicant said “I don’t care”, which resulted in an argument.

20. The victim got off the bed and walked up to the applicant and pushed him away. The applicant said “Touch me again and you’ll regret it, keep going and I’ll knock your head off”. The victim got back onto her bed and tried to open her bedroom window. The applicant grabbed her and pushed her down onto the bed and lay down next to her.

21. The applicant started to touch the victim on her vagina on the outside of her clothing. He removed his clothing and the victim’s underwear. The victim was crying, but this did not deter the applicant from having penile/vaginal intercourse with her. The sexual intercourse did not last long because the victim began to scream and kick her legs around in an attempt to stop him. The entire incident lasted about 25 minutes before the applicant got off her.

22. The victim told the applicant that she was going to ring triple-0. The victim dialled the number but the applicant grabbed her right hand and squeezed it, causing immediate pain. They had another argument which was overheard by the triple-0 operator. A short time later the victim received a call back by a female police officer but said that she did not require the police. These are the facts which gave rise to the aggravated sexual assault with which the applicant was charged.

23. When the victim’s mother returned home, the victim told her that the applicant had physically assaulted her but did not disclose any of the sexual assaults.

24. The following day, the victim attended the Glenmore Park Medical Centre to obtain treatment for the injury to her right hand. The applicant told her to inform staff at the medical centre that she had injured her hand at dancing the night before.

25. After this incident, the victim decided that she had had enough and was going to report it to the police. She attended Penrith Police Station on Friday, 13 March 2015. The applicant, after being served with a provisional apprehended domestic violence order, moved into his parent’s home at Seven Hills. He did not return to Glenmore Park.

26. The victim made an electronically recorded statement on 16 March 2015 and disclosed the offences. At 8.25am on Thursday, 2 April 2015 the applicant was arrested, cautioned and charged. He has been in custody since that date.

27. The victim completed a victim impact statement which was before the court. The statement disclosed that she had been undergoing counselling for the 12 months since she revealed the offending. The victim described initially feeling depressed and suicidal and having difficulty concentrating on her schoolwork. The victim has nightmares about what occurred. The victim felt that the abuse which she suffered at the hands of the applicant impacted greatly upon her relationships with other people, including family members. The victim was still living with fear and the experience has impacted upon her ability to cope with education.

Sentence proceedings

28. His Honour proceeded to assess the objective seriousness of the offending. He noted that all of the offences involved a breach of trust by the applicant, being the victim’s stepfather. This was the matter of aggravation in the offences. The offences were not a one-off incident, but were part of the continuous abuse of the victim which started when she was aged 11 and only ended when she complained about the applicant’s conduct in March 2015 when she had reached the age of 16.

29. His Honour assessed the objective seriousness of the offences as follows:

• First, aggravated indecent assault – a little below midrange.

• Second, aggravated indecent assault – below the midrange of objective seriousness.

• Third, aggravated indecent assault – above midrange. In that regard, his Honour took into account the deception of the mother and the considerable planning which accompanied the offence.

30. His Honour assessed the aggravated sexual assault at above the midrange of objective seriousness. In reaching that conclusion, his Honour took into account the breach of trust and the use of force. His Honour also had regard to the threats which were made to the victim. His Honour took into account that the whole incident lasted 25 minutes and that the victim was crying and trying to prevent the assault.

31. His Honour assessed the two Form 1 aggravated sexual intercourse offences as very serious. In that regard, his Honour found that those offences “must significantly increase the sentence to be imposed in relation to the offence under s 61J”.

32. His Honour noted that the first Form 1 offence occurred when the victim was aged 13 and lasted for 15 minutes. He assessed it at the midrange level of objective seriousness. His Honour assessed the second Form 1 offence also at the midrange level of objective seriousness. His Honour found that this offence also involved the planning and deception to which his Honour previously referred.

33. In relation to subjective factors, his Honour noted that the applicant was aged 49 at the time of sentence. He had a limited criminal history, comprising two convictions for the possession and administration of prohibited drugs, which occurred approximately 20 years before this offending. The applicant pleaded guilty to these offences in the Local Court which entitled him to a discount of 25%.

34. A psychological report, dated 16 March 2016, from Ms Lucas was tendered on his behalf. Because the applicant did not give evidence, this report provided his Honour with information as to the applicant’s subjective case.

35. Ms Lucas reported that the applicant had a happy and settled childhood. He married the victim’s mother in his mid-thirties and had one daughter with her. That daughter was born with cystic fibrosis and had been unwell for the whole of her life. The mother was her fulltime carer.

36. The applicant had been in fulltime employment until he was arrested for these matters. He had a lower back problem as a result of falling down some stairs in 2013. This back problem was exacerbated when he fell while in custody seven months before the sentence proceedings. This back problem causes the applicant difficulty when sitting for long periods. The applicant has had no communication with his wife since entering the pleas of guilty.

37. The applicant said that he was not sexually attracted to young girls and suggested that the victim was sexually interested in him and that the feelings were mutual.

38. Ms Lucas referred to the applicant displaying cognitive distortions and engaging in rationalisations which involved the minimisation of the harm done to the victim. He denied grooming behaviour, although the escalation of the sexual misconduct suggested otherwise. He told the psychologist that he knew that what he had done was wrong. Ms Lucas assessed him as at a low risk of re-offending. She diagnosed a major depressive disorder.

39. By way of commentary, his Honour concluded that the psychological report showed that the applicant had little insight into the seriousness of his offending and that it offered no explanation for why the offending had occurred. His Honour considered that the applicant’s prospects of rehabilitation were no more than reasonable, because the psychological report suggested that he had very limited insight into his offending.

40. In relation to special circumstances, his Honour said:

“… I do find special circumstances based on the following:

The fact that he is essentially otherwise a person of good character with no prior criminal convictions and this will be his first time in custody. His back condition will make his time in custody more arduous than for those prisoners who do not have such a condition, and I have also had regard to his mental health.” (R v DG (District Court (NSW), Buscombe DCJ, 24 March 2016, unrep) Sentencing judgment), 13.8)

41. His Honour considered that general deterrence was an important factor when sentencing for this kind of offending. He noted that a very clear message must be sent to the community that such crimes are abhorrent and that very significant custodial sentences would be imposed for them. In relation to the aggregate and indicative sentences, his Honour said:

“In fixing the aggregate and indicative sentences I have had regard to the subjective matters, and my objective assessment of the criminality which I have referred to earlier in these remarks. There should be some partial accumulation given the separate incidents, although I have not lost sight of the fact that two of the aggravated indecent assault offences lead into the commission of the offences on the Form 1, which would reduce the extent of accumulation. To the extent that I have departed from the standard non-parole periods it is as a consequence of my assessment of the objective seriousness, the plea of guilty, his good character and a finding of special circumstances.” (Sentence judgment, p 14)

42. His Honour then proceeded to sentence the applicant as already indicated.

The Form 1 matters

43. I should at this stage say something about the matters on the Form 1. It is surprising and involves a distortion of ss 32-33 of the Act to have such serious offences placed on a Form 1 when three of the four charges involved much lesser offences, i.e. aggravated indecent assaults. The normal procedure and what is encouraged by the Act to charge the applicant with the three serious offences, and to the extent that the Form 1 procedure was to be used, for the aggravated indecent assaults to be dealt with in that way.

44. The way in which these offences have been placed before the court not only involves a distortion of the intention behind the Form 1 procedure, but made the sentencing task to be performed by his Honour considerably more difficult than it should have been.

THE APPEAL

Ground 1 – The learned sentencing judge erred in failing to give full effect to a finding of special circumstances when structuring the totality of the sentences.

45. The applicant submitted that although his Honour found special circumstances, the ratio of the aggregate non-parole period to the head sentence was 73.3%. The applicant submitted that this indicated error when one had regard to the provisions of s 44 of the Act.

46. The applicant noted that under s 44(2) of the Act, in the absence of special circumstances being found, the prescribed ratio between a non-parole period and a head sentence is 75%. A sentencing court is not to reduce that ratio “unless the court decides there are special circumstances for it being more” (i.e. more than one-third translates to a ratio of less than 75%). The applicant submitted that although his Honour made a finding of special circumstances, that was not reflected anywhere in the judgment and in particular, in the ratio between the non-parole period and the head sentence. The applicant submitted that this amounted to error.

47. In support of that submission, the applicant relied upon CM v R [2013] NSWCCA 341 where R A Hulme J observed:

“40   Where there is no adjustment of the 3:1 ratio of non-parole period to parole period reflected in the overall term, it may either reflect what the sentencing judge specifically intended, or it may be the result of inadvertence or miscalculation.”

48. The applicant also relied upon the observations of Hamill J (with whom Johnson J and I agreed) in Sabongi v R [2015] NSWCCA 25 at [79] where his Honour said:

“79   In the present case, the sentencing Judge did make an adjustment to the “statutory ratio” when he imposed the non-parole period in relation to count 7. There was no occasion to make any adjustment with respect to the other sentences as fixed terms were imposed in relation to them. However, the complaint under ground 1 is that, in spite of the finding of special circumstances and the fact that the matter identified went beyond the circumstance of accumulation of sentences, the total effective sentence was in accordance with the “statutory ratio”. That is to say, the non-parole period (6 years) was precisely 75% of the total effective sentence (8 years).

80   Similar grounds of appeal have been raised in a number of cases: see for example: R v LWP [2003] NSWCCA 215; R v Thornberry [2000] NSWCCA 526; R v Keen [2004] NSWCCA 86; R v Street [2005] NSWCCA 139; R v Heron [2006] NSWCCA 215; CM v R [2013] NSWCCA 341; AB v R [2014] NSWCCA 31; Houri v R [2013] NSWCCA 279; Fina’i v R [2006] NSWCCA 134.

…

82   Where a sentencing Judge makes clear that they are aware that the total sentence is in accordance with the “statutory ratio”, it is rare that this Court would intervene. In Houri v R the court declined to intervene in a case where an adjustment in respect of one sentence resulted in a sentence wherein the non-parole period was marginally greater than 75% of the overall term. R A Hulme J said at [34]:

“I do not believe that there was any inadvertence or miscalculation by the Judge. She imposed individual sentences and partially accumulated them to achieve the precise result that she said she intended. In the first passage quoted above she said that the in the overall total sentence ‘the statutory ratio will not reduce substantially’. In the second passage she noted that ‘the total non-parole period is very close to the statutory ratio when one has regard to the total sentence, and that is what I intend in passing sentence’.”

83   Similarly in AB v R the Court declined to intervene when the sole basis of the finding of special circumstances was “by reason of the accumulation of sentences”.

84   Conversely, in cases where the finding of special circumstances was more broadly based then the accumulation itself and where the sentencing Judge has not clearly indicated their awareness of the fact that the total effective sentence will remain in accordance with (or close to) the “statutory norm” the court has intervened: see R v LWP; R v Thornberry; R v Keen; R v Street; R v Heron v R; M v R.”

49. This would appear to be an example of the converse kind identified by Hamill J. There is no explanation for why his Honour found special circumstances but did not reflect that finding in the ratio between the non-parole period and the head sentence. In the absence of any explanation, there is a strong inference that the failure to adjust the ratio was due to inadvertence, rather than the intention of the judge.

50. The Crown submitted that this was not one of those cases where a sentencing judge made a finding of special circumstances but failed to vary the statutory ratio. The Crown submitted that the statutory ratio had been varied, albeit to a very small extent. The Crown also noted that in relation to the indicative sentences, all of the non-parole periods were significantly less than the statutory ratio, except that for Count 4 which produced a ratio of 71.4% of the head sentence.

51. The Crown submitted that the extent of any variation of the statutory ratio, once a finding of special circumstances has been made, was entirely a matter within the discretion of the sentencing judge. The Crown submitted that properly analysed, the complaint of the applicant was really that his Honour failed to give sufficient weight to a finding of special circumstances which illustrated even more clearly the discretionary nature of the assessment.

52. The Crown submitted that it should not be inferred that his Honour inadvertently failed to give the intended effect to the finding of special circumstances. This was because it was clear from his Honour’s reasoning that he was aware of the effect of the accumulation of sentences on the ratio of the total effective non-parole period to the head sentence.

53. The Crown submitted that the reduction to the aggregate non-parole period of 3 months was more than adequate when one had regard to the reasons given by the sentencing judge for the finding of special circumstances. The Crown submitted that the applicant’s good character and the fact that this would be his first time in custody were relatively weak factors in a finding of special circumstances. The Crown submitted that the second factor that the applicant’s time in custody would be more arduous due to his back condition was also a factor of little weight.

54. The Crown submitted that the third factor taken into account by his Honour, i.e. the applicant’s mental health, as commented on by Ms Lucas, was of little weight given the emphasis placed by his Honour on general deterrence. In summary, the Crown submitted that when one considered the basis for the finding of special circumstances, a modest reduction in the statutory ratio was justified and no error has been disclosed.

Consideration

55. As well as the comprehensive analysis by Hamill J in Sabongi v R, Gleeson JA (with whom Johnson and Hall JJ agreed) summarised relevant considerations in MD v R [2015] NSWCCA 37 at [39]-[43] as follows:

“39   First, the non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender’s subjective circumstances: Power v R [1974] HCA 26; 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34].

40   Secondly, simply because there are circumstances which are capable of constituting special circumstances, does not compel the Court to make such a finding and reduce the non-parole period: R v Fidow [2004] NSWCCA 172 at [22]. The decision to find special circumstances is first, one of fact, to identify the circumstances and secondly, one of judgment, to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson at [73]. The degree or extent of any adjustment of the “statutory ratio” is a matter for the discretion of the sentencing judge: R v Cramp at [31]; Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33].

41   Thirdly, in setting an effective a non-parole period for more than one offence the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term: “the actual periods involved are equally, and probably more, important” (Caristo v R at 42 (R A Hulme J)).

42   Generally speaking where this Court has intervened, it has usually been the case that the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation. Examples can be found in the cases collected by McClellan CJ at CL in Fina’i v R [2006] NSWCCA 134 at [31]-[40].

43   The starting point with appeals asserting such error is to ascertain “what can be gleaned of the judge’s intention from the sentencing remarks”: Maglis v R [2010] NSWCCA 247 at [24] (Howie AJ).”

56. While there is substance in the Crown submissions, I have not been able to determine from the sentencing judge’s reasons why it was that, having made a finding of special circumstances, the adjustment to the non-parole period was so modest and in real terms involved a reduction of 3 months. Such a modest adjustment would not appear to justify a finding of special circumstances.

57. It is true that when one looks at the individual factors which were taken into account by his Honour, they are not matters of particular significance. What needs to be looked at, however, is the total effect of the three matters taken together. Looked at in that way, they are not factors of a kind that can be substantially ignored, which is the effect of the Crown’s submission.

58. The conclusion which I have arrived at is that due to inadvertence, the sentencing judge does not appear to have given proper effect to his finding of special circumstances and that error has been established. It will therefore be necessary to resentence the applicant.

Ground 2 – The learned sentencing judge’s approach in the indication of sentence on the aggravated sexual assault offence revealed error and infected the aggregate sentence imposed on the applicant

59. The applicant submitted that there was an error in his Honour’s calculation of the indicative sentence for the aggravated sexual assault offence (Count 4) in that when one adds to that indicative sentence the 25% discount for an early plea, both the head sentence and non-parole periods are so high as to indicate an objective level of seriousness which would be better characterised as “high”, rather than merely “above midrange”. In that regard, the applicant relied upon the observations in R v Nykolyn [2012] NSWCCA 219 where R A Hulme J stated that the requirement to discount the indicative sentence for a plea of guilty was not a mere legislative formality.

60. There R A Hulme J said:

“58   The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at: see R v Brown at [17] per Grove AJ. Thirdly, it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence. Fourthly, it assists this Court to assess an appropriate new aggregate sentence if one or some of the underlying convictions are quashed on appeal.”

61. The applicant submitted that to arrive at an indicative sentence of 14 years implied a starting point of 18 years and 8 months before applying the 25% discount for the utilitarian value of the guilty plea. The applicant submitted that this was too high to be properly characterised as an offence which was “above the midrange of offences of this kind”. The applicant submitted that while an indicative sentence itself was not amenable to appeal, it could be used to demonstrate that error had otherwise occurred and that the aggregate sentence should be altered.

Consideration

62. This ground of appeal and the arguments put forward in support of it, illustrate clearly the observation which I made earlier to the effect that placing such serious offences as aggravated sexual intercourse on a Form 1 is not a proper use of the Form 1 procedure and distorts the sentencing process.

63. The applicant’s submissions about the starting point of the indicative sentence for Count 4 fail to take into account the two very serious aggravated sexual intercourse offences on the Form 1. Accordingly, when one looks at the nominal starting point for the indicative sentence for this offence, it does not simply reflect the finding of objective seriousness for that particular offence but it also takes into account, as required by ss 32-33 of the Act, the ss 66C(2) and 66C(4) offences.

64. The manner in which a court may take further offences on a Form 1 into account when sentencing for the principal offence is well established. In Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) said:

“42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.”

65. In Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413 at [23] Bathurst CJ said:

“23   … generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account: R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185. …”

66. In Fayad v R [2017] NSWCCA 81 at [48] N Adams J (with whom Simpson JA and Button J agreed) said:

“48   The seriousness of a Form 1 offence is pertinent to the extent to which a sentence would be increased to take the offence into account.”

67. In R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 Wood CJ at CL (with whom Beazley JA and Greg James J agreed) said:

“30    When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: Morgan (1993) 70 A Crim R 368 at 372 per Hunt CJ at CL.”

68. In the present case, and consistent with those statements of principle, the presence of the two serious s 66C offences on the Form 1 would be expected to, and did, lead to an increase in the penalty for Count 4. Each of the two offences on the Form 1 were serious sexual offences in and of themselves involving sexual intercourse with a child contrary to ss 66C(2) and 66C(4) of the Crimes Act.

69. The offence contrary to s 66C(2) if tried separately carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 9 years. The s 66C(4) offence carried a maximum penalty of 12 years and a standard non-parole period of 5 years. The sentencing judge found that the offending, which was the subject of each Form 1, fell within the midrange level of objective seriousness. As the sentencing judge appreciated, the presence of those Form 1 offences meant that they must significantly increase the sentence to be imposed in relation to the offence under s 61J.

70. It follows that when one has regard to the two Form 1 offences and their effect on the sentence to be imposed for Count 4, the notional starting point which was the foundation for the ground of appeal is explained and no error has been disclosed.

71. This ground of appeal has not been made out.

Resentence

72. No challenges have been made to any of his Honour’s factual findings, nor to his Honour’s assessment of the objective seriousness of any of the offences. Accordingly, it is not necessary to further analyse those findings. What the Court now has to do is to independently re-exercise his Honour’s sentencing discretion against the background of those findings.

73. In doing so, I would not interfere with his Honour’s indicative sentences which are, for the reasons set out above, consistent with both the offending and the applicant’s subjective case. I would, however, interfere with the aggregate sentence so as to give effect to the sentencing judge’s finding of special circumstances. The aggregate sentence which I would impose would be imprisonment with a non-parole period of 10 years and a balance of term of 5 years. The sentence is to commence on 2 April 2015 and expire on 1 April 2030. The non-parole period is to expire on 1 April 2025.

74. Accordingly, the orders which I propose are as follows:

1. Leave to appeal against sentence is granted.

2. The appeal against sentence is allowed.

3. The aggregate sentence imposed by Buscombe DCJ on 24 March 2016 is quashed.

4. In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 10 years, commencing 2 April 2015 and expiring 1 April 2025, with a balance of term of 5 years expiring 1 April 2030.

75. GARLING J: I agree with the orders proposed by the Chief Judge, for the reasons which he has given

76. BELLEW J: I agree with Hoeben CJ at CL.

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Decision last updated: 21 June 2017