Fina'i v R

[2006] NSWCCA 134

CITATION:	FINA'I v REGINA [2006] NSWCCA 134
HEARING DATE(S):	3 March 2006
JUDGMENT DATE:	27 April 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Rothman J at 48; Smart AJ at 53
DECISION:	1. Leave to appeal against sentences granted; 2. Dismiss the appeals against the sentences imposed on counts 1, 2, 4, 5, 6 and 7; 3. Appeal against sentence on count 8 allowed in part. Sentence on count 8 quashed; 4. In lieu of the sentence imposed on count 8, the applicant is sentenced to the following terms of imprisonment:; (a) set a non-parole period of 9 months starting on 1 April 2011 and expiring on 31 December 2011 on which day the applicant is eligible for release on parole; (b) impose a balance of term of 2 years 3 months starting on 1 January 2012 and expiring on 31 March 2014.
CATCHWORDS:	CRIMINAL LAW - appeal against severity of sentence - aggravated indecent assault of a child under 10 - sexual intercourse with a child under 10 - guilty plea - objective seriousness - abuse of trust - trauma - commitment to rehabilitation - partial accumulation of sentences - whether error in application of s 54A as having regard to an irrelevant consideration - whether in error in failing to give effect to a finding of special circumstances - deterrence
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Michael Gordon Simpson (1992) 61 A Crim R 58 R v Bolamatu [2002] NSWCCA 454 R v Close (1993) 31 NSWLR 743 R v Heather May Attard [2004] NSWCCA 376 R v Keen [2004] NSWCCA 86 R v LWP [2003] NSWCCA 215 R v Ohar (2004) 59 NSWLR 596 R v Sharrock [1999] NSWCCA 289 R v Street [2005] NSWCCA 139 R v Swan [2005] NSWCCA 252 R v Thornberry [2000] NSWCCA 526
PARTIES:	Manua Fina'i (Appl) The Crown
FILE NUMBER(S):	CCA 2005/2217
COUNSEL:	A Francis (Appl) D M L Woodburne (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0185
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ
LOWER COURT DATE OF DECISION:	04/01/2005

2005/2217

McCLELLAN CJ at CL
ROTHMAN J
SMART AJ

THURSDAY 27 APRIL 2006

FINA’I, Manua v REGINA

Judgment

1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against the sentences imposed on him on 1 April 2005 in respect of seven offences of sexual assault committed on three separate occasions on his step-daughter who was aged nine at the time of the first six counts and twelve at the time of the last count.

2 The applicant pleaded guilty and was sentenced to imprisonment with an overall non-parole period of 7 years and a balance of term of 2 years. The individual counts and sentences were as follows:

Count One
Aggravated indecent assault of a child under 10 contrary to s 61M(2) of the Crimes Act carrying a maximum penalty of 10 years. The applicant was sentenced to a fixed term of nine months, dating from 1 April 2005 and expiring on 31 December 2005.

Count Two
Sexual intercourse with a child under 10 contrary to s 66A of the Crimes Act , which carries a maximum penalty of 25 years. A sentence of a fixed term of four years imprisonment was imposed. The sentence was to commence on 1 April 2005 and expire on 31 March 2009.

Count 3 was an alternative to count 4.

Count Four
Attempted sexual intercourse with a child under 10, contrary to s 66B of the Crimes Act , carrying a maximum penalty of 25 years. A fixed term of three years imprisonment was imposed, commencing on 1 April 2005 and expiring on 31 March 2008.

Count Five
Aggravated indecent assault of a child under 10 contrary to s 61M(2), carrying a maximum penalty of 10 years. Two years imprisonment was imposed, commencing on 1 April 2005 and expiring on 31 March 2007.

Count Six
Aggravated indecent assault of a child under 10 years contrary to s 61M(2) of the Crimes Act, carrying a maximum penalty of 10 years. A fixed term of 2 years to date from 1 April 2007, expiring on 31 March 2009 was imposed.

Count Seven
Sexual intercourse with a child under 10 years for which a sentence of four years was imposed and set to commence on 1 April 2007 and expire on 31 March 2011.

Count Eight
Aggravated indecent assault contrary to s 61M(1) of the Crimes Act carrying a maximum penalty of 7 years. The judge set a non-parole period of one year commencing on 1 April 2011, to expire on 31 March 2012 with a balance of term of 2 years to expire on 31 March 2014.

The applicant is eligible for release on parole on 31 March 2012.

3 Accordingly, the sentence with respect to counts 6 and 7 commenced two years after the sentences for counts 1, 2 and 5.

The sentence with respect to count eight was ordered to commence 4 years after the second series of offences.

The facts

4 The facts are not in dispute and were set out by the sentencing judge in the following terms:

“…, the complainant, was born on 5 July 1990 and in July of 1996 the complainant, her mother and her sisters moved in with the offender. Her mother married the offender in January 1997.
…. The offender was born in Samoa and is now 33 years of age. He came to Australia in 1996 shortly before he first met the complainant’s mother and the marriage which they subsequently entered into has produced three daughters now aged seven, five and four.
On 19 November 1999 the complainant’s mother was taken to hospital by ambulance. She remained there until 24 November 1999. The complainant was nine years of age at the time. One night during that period the offender told the complainant to go to sleep in his bed. She went to the offender’s room and complied with his request and at the time was wearing underwear and pyjamas. The offender came into the room and closed the door. He took off his lava skirt and got into bed and began moving his hands along the complainant’s body. He touched the complainant’s breast with his hand constituting the offence covered by the first count.
He then removed the complainant’s underpants and put his fingers inside her vagina, the act which constituted the offence in the second count. He then moved his body on top of the complainant and tried several times to push his penis into her vagina. The complainant stated that his penis did not fit and that he was hurting her. He then used his hand to try to push his penis into her vagina and moved his body up and down. It is this attempt at penile penetration which has been ultimately accepted as attempted sexual intercourse and is the subject therefore of count number 4.
The complainant tried to move away but the offender held her wrists. The offender then swung his body around so that his feet were near the complainant’s head and he placed her hand on his penis and held it there for about 30 seconds, this being the act coming within count 5. Before leaving the room the offender told the complainant, ‘If you tell anyone I swear I’ll fix you up.’
That ends the account of the matters relevant to counts 1 through to 5 inclusive. I now turn to the event which gave rise to the offences under counts 6 and 7. Some time during the night of 15 April 2000 the offender went into the complainant’s bedroom at their house which was then at Bonnyrigg. He got into her bed and tried to remove her nightgown and underwear. The complainant told the offender, ‘Don’t’ touch me otherwise I’ll tell mum.’ He replied, ‘Don’t worry, I won’t touch you.’ The offender then removed the complainant’s underwear and stroked her breasts over the top of her nightgown constituting the act which is the subject of count 6.
After this the offender pushed his fingers under the complainant’s clothes and into her vagina and moved his hand around for about 30 seconds constituting the act in count 7. The complainant describes his action as follows: ‘It felt like he was smoothing something out.’ She states he used four fingers and, ‘He tried to make space for his own hand to get in like because my legs were pinched in.’ The complainant was at this time still nine years of age. The complainant’s mother, …, went into the bedroom to check on her. The offender rushed past the mother and out of the room. She asked what he was doing and he said, ‘I heard a noise and came to see what it was.’ The mother returned to the complainant’s room later in the night. She lifted the bedcovers and saw that her daughter was not wearing any underwear.
When the complainant woke up the following morning her mother asked her why she was sleeping that way and the complainant said, ‘You better go and ask dad’, that clearly being a reference to the offender. She then told her mother that ‘I told him to stop and he wouldn’t stop. He was touching my private part.’ She also said that this had happened before when her mother was in hospital for a long time. This was a reference to the period in November of 1999 referred to in counts 1 through to 5.
The mother then spoke to the offender and he told her, ‘No I didn’t have sex with her, I only touched her private parts with my fingers, I’m sorry, I’m sorry.’ The mother called the complainant into the room after asking her why she did not tell her mother the first time something happened. The mother asked, ‘What else did he do?’ The offender replied, ‘I touched her private part with my fingers. The complainant said, ‘He only used his fingers to touch my rude part.’ The mother then made the offender apologise to the complainant, which he did.
After the offender left the room the complainant told her mother, ‘He was lying next to me and I felt his fingers inside of my private part.’ The offender left the house and moved into the garage for a couple of weeks. The complainant moved into a bedroom with her three sisters.
About a week later the offender and the mother met with Bishop Nua of their church. I should explain that the family, and in particular the offender, were members of the Mormon Church of which Bishop Nua was a senior member. During this meeting the offender told Bishop Nua, ‘I did something that was wrong. I touched my daughter’s private parts.’ He also said, ‘I only did it one time.’ The mother was also with the offender a few weeks later when he spoke to another member of their church, a President Saikaly. She saw the offender go into a room with President Saikaly. About half an hour later the offender came out and said to the mother: ‘Please tell President Saikaly that I only did it once, not twice.’
I come finally to the circumstances surrounding the offence in count 8 which occurred some three years later. On 5 May 2003 the mother was working a night shift. The offender was due to fly to western Samoa the next day. On this particular night the complainant was asleep on a foam mattress on the floor in a bedroom with her baby sisters. The offender came into the bedroom, moved the sleeping sisters to another bed and lay on the mattress with the complainant. He then touched her breasts on top of her clothes. The complainant was by this time 12 years of age.
After that incident, on 15 July 2003, the mother and her children left the offender’s home and went to live with her mother. On 28 July 2003 the complainant was interviewed by officers at Ashfield joint investigation response team and she told them about the first two incidents. She was further interviewed on 29 August 2003 when she described the third incident.
On 5 September 2003 the complainant was examined by Dr Maria Nittis at Liverpool Hospital. Dr Nittis noted a deep notch that is more than a 50 per cent transection on the interior half of the complainant’s hymeneal wall. In her opinion such an injury could only have resulted from penetration of the hymeneal opening at some time in the past. The offender was arrested on 7 October 2003. He declined at that stage to answer police questions about the allegations and was subsequently charged.

Ground 1 – His Honour erred by having regard to the standard non-parole periods in respect of counts 1 to 7 which were not applicable, the offences being committed before 1 February 2003

5 The sentencing judge sentenced the applicant having regard to his guilty pleas. However, he accepted that only the pleas in relation to count eight and count four were entered at the earliest opportunity. His Honour reduced the sentence in relation to those counts by approximately twenty percent and in relation to the remaining counts reduced the sentence by fifteen percent.

6 The sentencing judge considered the impact of the applicant’s actions upon the victim and analysed and had regard to the matters which he was required to consider pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999.

7 No complaint is made about this analysis.

8 However, it is submitted that his Honour fell into error by assuming that counts one to seven which were committed before 1 February 2003 were subject to s 54A of the Act which provides for the imposition of standard non-parole periods. In this respect the Crown concedes that error has occurred.

9 His Honour said:

“Before I proceed to the sentences themselves there is one other matter which needs to be placed on the record as far as the relevant legal rules which must be taken into account and that is that at least two of the three offences which are the subject of the various counts in this case are subject to s 54A of the Crimes Sentencing Procedure Act. That is, they are, at least on the face of it, offences which require the imposition of a standard non parole period in what is considered to be the mid range of such sentences. I am referring here specifically to the offences in counts 2 and 7, 1, 5 and 6 and also in 8. They involve three different offences which are explicitly referred to in the schedule to s 54D.
There are, however, reasons in this case why that Act does not require any direct application. The first and most important is the plea of guilty. My understanding of the application of s 54A is that it is assumed to apply most appropriately in cases where the matter has gone to trial and where a guilty verdict has ultimately been reached and that the standard non parole periods therefore are only of limited relevance when it comes to a case of this kind where there has been a comprehensive plea of guilty.
It is also subject, and I do not propose to go into this matter in any detail, to the underlying acknowledgement in the relevant authorities which have had an opportunity to consider the range of factors, including those under 21A, that might mitigate against the imposition of a mid range sentence. For all those reasons I am satisfied that at best the standard sentence imposed in the schedule under that section is only of general guidance and certainly does not in any way bind me in a strict sense to the imposition of a sentence of the kind I should nonetheless for the record, by way of summary, indicate the two points of general guidance in this regard, that is, the mid range and maximum sentence to which I must have regard as an indication of the seriousness of the offence. The offence in counts 2 and 7 carries a mid range sentence under s 54A of 15 years and a maximum sentence of 20 years imprisonment under the relevant section of the Crimes Act. In the case of the offence in counts 1, 5 and 6, the relevant periods of imprisonment are five and ten years and under count 8 five and seven years.
While none of those periods of imprisonment are in any way for the reasons I have already indicated, regarded as more than indicative, they are not provisions which I should ignore. They reflect the comparative level of seriousness, apart from anything else, of the various offences.”

10 In fact it was only count eight, which was committed on 5 May 2003, which attracted the operation of the provisions of Division 1A of Part 4 of the Act. With respect to the offence of aggravated and indecent assault contrary to s 61M of the Crimes Act the prescribed standard non-parole period is five years.

11 Although his Honour considered the Act to apply he nevertheless concluded that he should depart from the relevant provision in the circumstances of this case. However, as the decision in R v Ohar (2004) 59 NSWLR 596 makes plain error has occurred and his Honour has had regard to an irrelevant consideration.

12 That is not the end of the matter. In my opinion there are a number of objective factors which point to the need for a significant sentence to have been imposed. The offences which the applicant committed were aggravated by the fact that they involved a gross abuse of trust. The applicant sexually assaulted his own step-daughter who was entitled to expect both care and protection from him.

13 I have already related the agreed facts. Although count 1 was confined to a touching of the breasts, it took place at night, whilst the applicant was in bed with the victim, at a time when the victim’s mother was in hospital. It was an offence committed on a young child, just 9 years old. The penalty imposed was 9 months and I am satisfied that no lesser penalty was warranted.

14 Count 2 was part of the events constituting count 1 and was a serious instance of digital penetration. No lesser penalty than that imposed of 4 years was warranted, and in any event such sentence was made wholly concurrent with the sentences for other offences.

15 After the act constituting count 2 the applicant moved his body on top of the victim and tried several times to push his penis into her vagina. When the victim told him it did not fit and it was hurting her, the applicant persisted by using his hand to try to push his penis into her vagina and by moving his body up and down. When the complainant moved away the applicant held her wrists. For this offence, which was count 4, the applicant was sentenced to imprisonment for 3 years. Bearing in mind that the maximum penalty for the offence of attempted sexual intercourse with a child under 10 is 25 years, 3 years must be regarded as the lowest penalty that could have been imposed in all the circumstances.

16 After the applicant’s unsuccessful attempt at sexual intercourse the applicant continued his assault by swinging his body around, moving his feet near her head and placing the victim’s hand on his penis (count 5). The applicant threatened the complainant, “If you tell anyone I swear I’ll fix you up.” For this offence which carries a maximum penalty of 10 years, a sentence of imprisonment of 2 years was imposed. Having regard to the circumstances in which it was committed no lesser sentence was warranted.

17 Counts 6 and 7 were committed on the night of 15 April 2000 when the applicant went into the victim’s bedroom at their family home at Bonnyrigg. The applicant got into the victim’s bed, and tried to remove her nightgown and underwear. Notwithstanding the victim’s protest, “Don’t touch me otherwise I’ll tell Mum” the applicant falsely reassured her by saying, “Don’t worry I won’t touch you”, and then removed her underwear and stroked her breasts over the top of her nightgown (count 6). The applicant was sentenced to imprisonment for 2 years. Having regard to the fact that the applicant disregarded the 9 year old victim’s protests, and did so in the very room and in the very bed in which she was entitled to feel safe, no lesser sentence was warranted.

18 The applicant then pushed his four fingers into the victim’s vagina, before the victim’s mother made her way into the victim’s bedroom (count 7). For this offence the applicant was sentenced to imprisonment for 4 years. I am satisfied that this sentence was appropriate for this serious assault committed on a 9 year old girl at night time and in her own bed.

19 The final offence was committed on 5 May 2003 when the applicant had the sole care of the family whilst the wife worked a night shift. The victim, who was then 12, was asleep on a foam mattress on the floor in a bedroom with her baby sisters. The applicant moved the sisters to another bed and lay down with the complainant and touched her breasts on top of her clothes. For this offence committed on a 12 year old girl, at night, in her home, when she was deprived of the protection of her mother who was out working, no doubt in order to help support her family, the applicant was sentenced to imprisonment for 3 years with a non-parole period of 1 year. In circumstances where the applicant had been allowed back into the home after the (partial discovery) of his actions in 2000 the applicant had an increased culpability. No lesser sentence was warranted.

20 The offences have had serious consequences for the victim. Her family life has been seriously disrupted, the family unit destroyed, and she has suffered ongoing trauma. Fortunately it would appear that she has been progressing towards resolving her psychological difficulties.

21 Although the applicant pleaded guilty the evidence indicates that it took some considerable time before he was prepared to admit to all of his offending. He has now achieved some insight into the very serious nature of his offences but this was not always the case. In his favour is the fact that he has apparently committed himself to rehabilitation and there is psychiatric opinion that he is unlikely to re-offend.

22 Having regard to all of these matters, notwithstanding the fact that error has occurred, I am satisfied that the sentences which his Honour imposed were appropriate.

Ground Two: His Honour erred by failing to give effect to his finding of special circumstances.

23 In his remarks on sentence his Honour makes clear that although there were a total of eight counts, they could be conveniently viewed as offences committed on three separate occasions. Accordingly, his Honour determined that, although there should be some overlap of the sentences, identifiable punishment in relation to each of the separate occasions would be appropriate. His Honour also determined that in view of the cumulative impact of the sentences and “the effect of the sentences imposed with regard to the later events, and in particular the very last of them, namely that covered in count 8 I see no useful purpose to be achieved in dividing any periods of custody imposed with regard to the earlier offences in distinguishing between a non-parole period and a period on parole. Any appropriate period on parole with regard to those earlier offences would on overall consideration of the matter be overtaken by the later offences [sic] to the extent that they are cumulative in their effects rather than concurrent. I do not propose to artificially distinguish between a period on parole and a non-parole period with every one of the offences.”

24 During his Honour’s discussion of the personal circumstances of the applicant and his prospect of rehabilitation his Honour makes the following observations:

“Returning to what I was saying, the fact is that at this stage he has effectively lost his wife and his children and that has had a devastating effect on the offender. He does feel very sorry for himself. On the other hand I have no doubt that he is genuine in what he says about what he has described on some occasions as, ‘his big mistake’ and that he does now see, although he took a long time for this to apparently penetrate, the seriousness, the inappropriateness and the gross breach of trust which his actions involved. In so far as those matters are relevant and should be taken into account they are matters which are of some substance as far as mitigation is concerned, in particular and I will come back to this in due course, in any relationship between a non-parole period and a period on parole as part of the overall sentence.”

25 Counsel for the applicant submits that this last sentence has significance in determining the approach which his Honour was proposing to take in relation to a finding of “special circumstances” and the appropriate period of parole. It is submitted that when viewed with later remarks it should be accepted that his Honour intended to provide a greater non-parole period in relation to the whole sentence than is provided by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

26 His Honour then passed sentence in relation to each count, one to seven. Consistent with his Honour’s intentions a parole period is not provided and his Honour makes no reference to “special circumstances.” His Honour then and separately from counts one to seven turns to consider the appropriate sentence in relation to count 8. He says as follows:

“I come finally to count number 8. Again, it is necessary to preface the sentence with some remarks about the particular character of this offence and its relationship with the earlier offences. What is particularly serious about this offence is that it was committed some considerable time after the earlier offences, but most importantly, after a period of at least partial remorse and counselling. Despite that experience the offender nonetheless took yet another opportunity to repeat admittedly one of the less serious offences which had been committed earlier. But the very fact that it was done in these circumstances does lend some weight to its seriousness and to the need for the imposition of a sentence which is for that reason cumulative rather than concurrent.
On the other hand it is at this point that proper account has to be taken in order to produce an overall result consistent with the principle of totality which takes due account of the circumstances that bear on the length of a period on parole and which are generally described as special circumstances. In that regard I have already said something about this matter and I do not propose to repeat what I have said already, namely that the matters of particular relevance by way of special circumstances the commitment to and the likelihood of rehabilitation.
Sufficient to say at this stage that while there were reasons for some qualifications to any conclusions that might be drawn in the offender’s favour, I am satisfied on balance that there is a real commitment to rehabilitation, and more to the point, that there is certainly some room for further counselling to which I am confident the offender will be committed and from which he will gain further insights and further assistance in ensuring the absence of any possibility of re-offending. Because the last of the offences was committed after 1 February 2003 the appropriate form of sentence is as follows. That the offender is convicted and sentenced to a non-parole period of one year commencing on 1 April 2011 and expiring on 31 March 2012. I impose a further period of imprisonment of two years to commence on the expiration of the non-parole period and expiring on 31 March 2014 making a total sentence of three years comprising the non-parole period and the balance of sentence.
I find special circumstances which I have already identified and further therefore order that the offender be eligible for release on parole at the expiration of the non-parole period.”

27 His Honour then turns to summarise the effective sentence which he has imposed and says:

“Can I just, in fairness to the offender, summarise the effect of all of those various sentences insofar as concurrency and accumulation is concerned. You are now sentenced to a total period of seven years in custody followed by a period on parole of two years. That is the effect overall of the sentences on each of the seven counts which I have been required to deal with.”

28 A number of matters appear from these remarks. Firstly his Honour made plain that he did not propose to provide a period on parole in relation to the earlier offences. Accordingly, in relation to those offences a finding of special circumstances was irrelevant and I am satisfied that his Honour did not intend to make it. However, his Honour was concerned that in imposing a separate sentence in relation to count 8 a finding of special circumstances was appropriate and was made. Having regard to his Honour’s earlier remarks that he intended to ensure an appropriate relationship between the non-parole period and a period on parole as part of the overall sentence his Honour’s later conclusion that a greater period on parole than the statute provides was appropriate in relation to count 8. It must be understood as a practical working out of that expressed intention that his Honour had in mind that given the multiplicity of offences he would not provide a period on parole except in relation to count 8 and in that respect would ensure an appropriate relationship existed between the overall period in imprisonment and the period on parole “as part of the overall sentence.”

29 Following the original sentencing hearing the matter was again placed before his Honour pursuant to s 43 of the Crimes (Sentencing Procedure) Act. In the course of that hearing his Honour made plain his intention in relation to the original sentences. In particular he repeated the fact that by reason of the multiplicity of earlier offences he had not intended to provide a period on parole. In his Honour’s opinion to do so would have been a meaningless exercise because the applicant would have still been in prison in relation to a later offence when he was hypothetically on parole in relation to an earlier matter. His Honour also makes plain that the sentences which he imposed were those which he intended. In particular as I understand his Honour’s remarks in discussion with counsel he intended to provide a total non-parole period of seven years.

30 Findings by a sentencing judge of special circumstances have given rise to difficulties in some cases where an accumulation of sentences has been necessary. There have been cases where an accumulation has resulted in a non-parole period greater than 75% and the overall result has failed to give effect to a finding of special circumstances. However, the cases to which the court was referred are quite different to the circumstances of the present case.

31 In Michael Gordon Simpson (1992) 61 A Crim R 58 the offender was sentenced at a time when he was already serving a 9 month minimum term. Three cumulative minimum terms were imposed with the effect that the total sentence imposed was a minimum term of 3 years and 9 months with an additional term of 3 months. Because the offender was already in custody in relation to other offences the offender would have spent only 5% of the overall period of the sentence on parole.

32 Of these circumstances the Court said at 60-62:

“… where the minimum term is accumulated upon an existing minimum term, that fact may of itself constitute special circumstances justifying a departure from the one-third rule …
… special circumstances may also exist in the appropriate case where a court is imposing a series of cumulative sentences, so that it can ensure a proper proportion between the total minimum term and the effective additional term – even if it is only to produce an effective additional term equal to, or roughly equivalent to, one-third of the total minimum term which the prisoner is to serve. It obviously would not be appropriate to apply such a principle in every case. However, the present case was such an appropriate case, because of the extraordinary disproportion created simply by adhering to the formula provided by s 5(2) …
The judge did not, however, give any consideration to whether special circumstances were established by the extraordinary disproportion – created by the sentences which he was imposing simply by adhering to the formula provided by s 5(2) – between the total minimum term of four and a half years and the effective additional term of three months. In those circumstances, I am satisfied that the judge made an error in the exercise of his sentencing discretion. In my view, the sentence should be restructured so as to produce the result that the additional term is one-third of the total minimum term, but maintaining the present total sentences of the two courts of four years and nine months.”

33 In R v Close (1993) 31 NSWLR 743 the offender had spent periods in custody before he was sentenced. Although the overall sentence was within the appropriate range the failure to back date the commencement meant that there was not the appropriate proportion between the minimum and additional terms. This Court held that the period of pre-sentence custody was itself sufficient to constitute special circumstances. Because the judge had found that there should be a longer than usual period of supervision on parole this Court re-sentenced the offender.

34 In R v Bolamatu [2002] NSWCCA 454 the offender had served a significant period in pre-sentence custody and the sentencing judge made findings of special circumstances referable to his chronic mental condition and the need for a longer period of supervision. However, the sentencing judge failed to account for the pre-sentence custody with the consequence that although he intended to provide for an extended period of parole the sentence imposed failed to do so.

35 In R v LWP [2003] NSWCCA 215 the sentencing judge structured each sentence so as to reflect a finding of special circumstances and in each case the non-parole period was provided as 66.6% of the head sentence. However, when accumulated the overall sentence was 75% of the head sentence. The sentencing judge had found special circumstances and this Court was satisfied that his Honour had intended to give effect to his finding of special circumstances over the whole sentence. As this had not been achieved the sentence was quashed and this Court re-sentenced.

36 There have been a number of cases where this Court has intervened where a sentencing judge has made a finding of special circumstances but, due to a mathematical error in computation, has failed to give effect to that intention. R v Sharrock [1999] NSWCCA 289 was a case where the judge found special circumstances in an accumulation of sentences and the need for the applicant to be closely supervised for a significant period on release. However, his Honur failed to give effect to that finding in the individual sentences or the overall terms.

37 In R v Thornberry [2000] NSWCCA 526 the sentencing judge found special circumstances having regard to the offender’s youth and need for extended emotional and moral development assistance. However, the actual sentence did not reflect this finding and this Court intervened.

38 In R v Keen [2004] NSWCCA 86 the sentencing judge had found a need for supervision upon release but failed to reflect that finding in the non-parole period that was imposed.

39 R v Street [2005] NSWCCA 139 was another case where there was a finding of special circumstances in a need for a greater period of supervision on parole but this Court found that the finding had not been carried through in the sentence which was actually imposed.

40 In R v Heather May Attard [2004] NSWCCA 376 the sentencing judge sentenced the offender in relation to three offences. His Honour provided a total sentence of 6 years with a non-parole period of 4 years and 9 months. There was no finding of special circumstances, the sentencing judge did not advert to it. However, his Honour had also not indicated any intention to depart from the statutory formula and accordingly this Court intervened and re-sentenced to provide a non-parole period in conformity with the normal statutory proportion of 75%.

41 In the present case I am satisfied that, but for one matter, his Honour has carried into effect his intentions when sentencing the applicant. The mathematical outcome produces a result slightly higher than the statutory ratio between a non-parole period and a period on parole. This is a result of his Honour, quite deliberately, not providing a period on parole in relation to the earlier offences. If his Honour had not taken this approach the head sentence imposed on the applicant would have been greater. His Honour makes this plain in the later hearing.

42 The present matter is quite unlike the cases to which this Court has been referred. This is not a case where his Honour has found special circumstances but failed to reflect it in the sentences which he has imposed. Having imposed the sentences for the earlier offences without a non-parole period his Honour deliberately provides an additional term of one year imprisonment in relation to count 8. Rather than provide for the statutory ratio in relation to this offence his Honour provides an additional term of two years.

43 Although his Honour intended this result he nowhere indicates that he intended the overall sentences should depart from the statutory ratio. He does not advert to the matter. In this respect, only am I satisfied that error has occurred. Applying the statutory formula the total non-parole period would be 6 years and 9 months.

Ground 3 – The overall sentence is manifestly excessive

44 I have set out the objective facts found by the trial judge. It is an account of serious offending over an extended period.

45 The applicant submitted that the sentence was excessive by reason of the fact that “the offence did not involve penile penetration, nor the repeated infliction of such sexual violence.” Although this may be technically correct the applicant attempted to force his penis into the victim’s vagina even when told it did not fit and he was hurting her. I do not accept that the applicant’s offending fell at the lower end of the scale of offences.

46 The offences committed by the applicant were serious indeed involving a gross abuse of trust of a small child in his care. The offences were repeated over a lengthy period of time and I am satisfied that no lesser sentence could have been imposed.

Conclusion

47 To give effect to my conclusion with respect to ground 2 the appeal against sentence in relation to count 8 should be allowed in part. To give effect to the statutory ratio a finding of special circumstances is appropriate and the applicant should be re-sentenced to a non-parole period of 9 months and an overall term of 3 years. The appropriate orders are:

1. Leave to appeal against sentences granted.
2. Dismiss the appeals against the sentences imposed on counts 1, 2, 4, 5, 6 and 7.
3. Appeal against sentence on count 8 allowed in part. Sentence on count 8 quashed.
4. In lieu of the sentence imposed on count 8, the applicant is sentenced to the following terms of imprisonment
(a) set a non-parole period of 9 months starting on 1 April 2011 and expiring on 31 December 2011 on which day the applicant is eligible for release on parole.
(b) impose a balance of term of 2 years 3 months starting on 1 January 2012 and expiring on 31 March 2014.

48 ROTHMAN J: I agree with the orders proposed by McClellan CJ at CL and his reasons therefor.

49 To the extremely helpful digest of cases I would add R v Swan [2005] NSWCCA 252. In that case, the sentences had been imposed with some accumulation but not wholly cumulatively. There was otherwise no finding of special circumstances and the Court held that the mere occurrence of partial accumulation will usually amount to special circumstances in order to preserve the statutory ratio for the overall sentence.

50 While the existence of special circumstances is a matter wholly within the judgment of the sentencing judge, unless the remarks make clear that a departure from the statutory ratio is intended for the overall sentence, it should be presumed that any higher ratio than 3:1 is arithmetic error or oversight.

51 Because of the requirements of s 44(1) of the Crimes (Sentencing Procedure) Act there may be a necessity, where special circumstances do exist, to re-assess the initially determined non-parole period by reducing the non-parole period to take account of the need for a longer period of supervision.

52 Special circumstances should not be used to lengthen the total sentence that would otherwise be imposed.

53 SMART AJ: The background is set out in the judgment of McClellan CJ at CL. I agree with his reasons for rejecting the appeal on Grounds 1 and 3.

54 In Ground 2 the applicant complains that the judge failed to give effect to his finding of special circumstances. Having dealt at length with Counts 1-2 and 4 to 7 and considerations of a general nature the judge came to Count 8, briefly referred to the circumstances of the commission of this offence and concluded that the sentence for that offence had to be cumulative rather than concurrent.

55 The judge took into account the principle of totality “which takes due account of the circumstances that bear on the length of a period on parole and which are generally described as special circumstances.” By that he meant particularly the commitment to and the likelihood of rehabilitation. He had earlier noted that the applicant’s stated commitment to never re-offend had to be measured against his history, which involved being slow to acknowledge comprehensively what had occurred and earlier led to a lapse which resulted in the commission of the offence the subject of Count 8. The judge was satisfied on balance that the applicant had a real commitment to rehabilitation, including further counselling.

56 The judge then imposed a sentence on Count 8 by setting a non-parole period of 1 year commencing on 1 April 2011 and a further term of imprisonment of 2 years expiring on 31 March 2014. The judge said:

“I find special circumstances which I have already identified and further therefore order that the offender be eligible for release on parole at the expiration of the non-parole period.
… You are now sentenced to a total of 7 years in custody followed by a period on parole of 2 years.”

57 There was debate as to the extent of the judge’s finding of special circumstances. Did it apply to all counts or was it limited in its application to Count 8. The judge made it clear in his summary of the effect of the sentences that he intended that the applicant spend 7 years in prison.

58 The judge does not specifically refer to the accumulation of sentences as being a special circumstance, but he may have meant to include this when he referred to and applied the principle of totality. The judge’s approach to special circumstances centred on his findings as to rehabilitation and re-offending. That was relevant to all counts. He may have intended that the adjustment to the sentence on Count 8 cover this. There is a minor conundrum because he intended non-parole periods totalling 7 years.

59 I would treat the accumulation of the sentences as a special circumstance warranting the adjustment of the sentence on Count 8 so that, overall, the non-parole periods when aggregated do not exceed three-quarters of the total sentences or, put another way, the balance of the term of imprisonment should be about one third of the non-parole period. While the need for rehabilitation is capable of being a special circumstance it does not follow that the sentences should be further adjusted to allow for a longer parole period. The judge regarded a parole period of 2 years as sufficient. I agree. I arrive at the same conclusion as the Chief Judge but by a slightly different route.

60 I agree with the orders proposed by the Chief Judge.

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