Haines v R

[2012] NSWCCA 238

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Silas Gordon Haines v R [2012] NSWCCA 238

Hearing dates:

26 October 2012

Decision date:

21 November 2012

Before:

McClellan CJ at CL at [1]
Bellew J at [2]
Barr AJ at [66]

Decision:

1. Leave to appeal granted;

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - forced entry into residential premises followed by multiple offences of robbery and aggravated sexual assault - one episode of offending - offences committed whilst applicant on parole for previous offence of sexual assault - whether overall sentence of imprisonment for 25 years with a non-parole period of 18 years was unreasonable or plainly unjust - whether sentence accumulated to an excessive degree - whether period of imprisonment amounted to a crushing sentence - need for protection of the community

Cases Cited:

R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326
R v Haines [2004] NSWCCA 294
R v Hayes [1984] 1 NSWLR 740
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

Category:

Principal judgment

Parties:

Silas Gordon Haines - Applicant
Crown - Respondent

Representation:

T Gartelmann - Applicant
T Smith - Crown
Legal Aid New South Wales - Applicant
S Kavanagh,Solicitor for Public Prosecutions (NSW) - Crown

File Number(s):

2009/11348

 Decision under appeal 

Date of Decision:

2010-05-14 00:00:00

Before:

Charteris DCJ

Judgment

1. McCLELLAN CJ at CL: I agree with Bellew J.

1. BELLEW J: On 31 March 2010 the applicant pleaded guilty in the District Court to a total of 16 separate offences arising out of an incident which occurred in the early hours of 2 November 2008. Those offences, and the sentences imposed at first instance in respect of each of them, were as follows:

Count	Offence	Term / non-parole period
Count 9	Aggravated enter dwelling - house with intent	5 years 6 months / 3 years 6 months
Count 10	Specially aggravated detain for advantage	7 years / 4 years 6 months
Count 16	Robbery in company	6 years / 4 years
Count 11	Robbery in company	6 years / 4 years
Count 12	Robbery in company	6 years / 4 years
Count 13	Robbery in company	6 years / 4 years
Count 1	Aggravated sexual assault	8 years / 5 years 4 months
Count 7	Indecent assault	1 year 6 months (fixed term)
Count 8	Indecent assault	1 year 6 months (fixed term)
Count 2	Aggravated sexual assault	10 years / 6 years 6 months
Count 3	Aggravated sexual assault	10 years/ 6 years 6 months
Count 5	Aggravated sexual assault in company	12 years / 8 years
Count 6	Aggravated sexual assault in company	12 years / 8 years
Count 14	Aggravated sexual assault	8 years / 5 years 4 months
Count 15	Aggravated sexual assault	10 years/ 6 years 6 months
Count 4	Aggravated sexual assault in company	15 years / 8 years

1. In addition to these matters, the sentencing judge was also asked to take into account, in respect of count 4, two offences of specially aggravated detaining for advantage and two offences of aggravated detaining for advantage which were contained in a Form 1.

1. The overall sentence imposed was a term of imprisonment of 25 years commencing on 3 January 2009, with an effective non-parole period of 18 years expiring on 2 January 2027, with an additional term of 7 years expiring on 3 January 2034.

THE FACTS

1. There was no statement of facts before the sentencing judge. However, the crown tendered a number of statements of witnesses, along with some associated material, on the basis of which his Honour was asked to determine the facts.

1. It is important to note that counsel for the applicant took no issue with any aspect of his Honour's findings of fact. Similarly, he conceded that his Honour's conclusions as to the role played by the applicant in the offending, were open on the evidence. The facts as found by his Honour were as follows.

1. In the early hours of 2 November 2008 five students were at their residence in Arthur Street, Coffs Harbour. All were from overseas and had been granted visas to study in Australia at the Coffs Harbour Campus of the Southern Cross University.

1. The residence in which the students lived was a double storey townhouse, on the upper level of which were three bedrooms. Entry to the premises was gained from the ground floor, either through the front door or alternatively through a glass sliding door at the rear of the premises which led from the lounge room to the rear yard. The rear yard was intended to be securely separated from an adjoining parkland by a wooden boundary fence. However at the time of the commission of the offences, the fence was damaged, thus allowing access to be gained to the backyard of the premises from the parkland.

1. At or about midnight on 2 November 2008, one of the occupants of the residence, a 26 year old male ("victim one") was seated in the downstairs lounge room watching television. He saw the applicant approaching the glass sliding door from the backyard. He mistakenly believed that the applicant was a neighbour and, under that belief, partially opened the sliding door to a distance of about 10cm. The applicant then forcibly pushed the door open and entered the premises. In doing so, he pushed victim one to the chest and forced him onto the lounge.

1. The applicant's two co-offenders, Graham Quinlan ("Quinlan") and Nathan Dungay ("Dungay"), then entered the premises behind the applicant. All three persons then stood around victim one and demanded money. Victim one replied that he did not have any, whereupon the applicant punched him in the face.

1. Victim one was then directed to go upstairs and hand over money. He walked to the top of the stairs, where he saw his roommate, a male aged 19 ("victim two"). The applicant then demanded that both victims one and two hand over their wallets.

1. At that point, the co-offender Dungay produced a knife some 35cm long, and held the knife at the chest of victim one, demanding money and threatening victim one that if he did not hand over money he would be killed. Dungay also threatened to kill victim one in the event that victim one took any steps to inform the police of what had occurred. At that time, either the applicant or Quinlan held up a beer bottle and threatened victim one with it. Thereafter, the applicant punched victim one causing him to fall to the floor, where upon Dungay kicked him. Victim one was also struck on the head with the beer bottle. The applicant then punched victim two in the face on more than one occasion, causing him to fall to the floor and suffer a bleeding nose.

1. Quinlan and victim one then went into the bedroom on the first floor of the premises which was occupied by victims one and two. The applicant and victim two entered the bedroom. Dungay entered an adjoining bedroom which was occupied by another victim ("victim three") who was a male aged 25, and his girlfriend, a female aged 22 ("victim four"). Dungay demanded money from each of victims three and four and a sum of $105.00 was handed to him. Dungay then ordered that victims three and four join victims one and two in the other bedroom, whereupon all four persons were ordered to sit on the bed.

1. The remaining occupant of the premises was a 21-year-old female student ("victim five"). At the time of the entry of the applicant and his co-offenders into the premises, victim five had been alone in the third bedroom studying. She had actually seen Dungay in the upstairs area shortly after the three offenders had forced their way into the premises when Dungay had asked her for directions to the toilet. She thought at that time that Dungay may have been a friend of one of her housemates.

1. When victim five heard noises coming from other areas of the premises, including demands for money, she became obviously and justifiably concerned for her own safety. Although she shut the door of her bedroom, the door was not lockable, and so she stood behind it. She heard victims one and two come upstairs and thereafter heard exchanges, and what she believed to be fighting or some form of violence. She heard one of the offenders demand money, at which time she became even more scared. She then heard one of the offenders ask, somewhat ominously:

"Where is the girl?"

1. A short time later the applicant started to open the door of victim five's bedroom. Victim five pushed against it in an effort to prevent entry, but her efforts were to no avail. The applicant forced his way into her bedroom and demanded money. In response to that demand, victim five handed over her wallet from which the applicant removed an amount of $70.00. The applicant then shut the bedroom door, as a result of which he and victim five were alone.

1. The applicant ordered victim five to remain silent. He then directed her to drop to the floor. She did so, whereupon he ordered that she perform oral sex upon him. Victim five complied with that demand out of extreme fear. In the course of doing so, the applicant placed his hand on victim five's head, thrusting her head backwards and forwards. That activity lasted a couple of minutes. The applicant did not ejaculate.

1. The applicant then kissed victim five on the mouth before grabbing her by the shoulders and turning her around so that she faced away from him. He then demanded that she bend over, a demand with which victim five again complied out of extreme fear. The applicant then placed his right hand on victim five's back. Acutely aware of what was about to occur, victim five asked the applicant whether he was going to use a condom. The applicant responded, dismissively:

"I don't use them".

1. The applicant then pulled the victim's pyjamas and underwear down, and forced his penis into her vagina from behind. At the time victim five was a virgin. The applicant's forceful penetration of her vagina caused her significant pain. The applicant continued to have forceful vaginal intercourse with victim five for a period of 2 or 3 minutes.

1. The applicant then brutally forced his penis into the anus of victim five, again causing her significant pain. He continued forceful anal intercourse for some two minutes before stopping, adjusting his clothing, pointing to the bed and reminding the victim that she was to remain silent. Having just been the victim of a degrading, violent and vicious sexual assault perpetrated by the applicant, and in obvious fear, victim five obeyed the applicant. At that point, she could feel blood running down her left leg. That was a consequence of an injury caused to her vagina during the earlier penetration, although there was little doubt that the extent of that injury was related, at least in part, to her previous virginity.

1. The applicant then pushed victim five onto the bed, pushed her legs apart and forced her feet on to the edge of the bed so that her knees were bent. The applicant then had vaginal intercourse with the victim, during which he said to her:

"You are international, I can give you Australian".

1. Whilst the applicant was having vaginal intercourse in this way, Dungay entered the room. When he did so, the applicant said to him:

"Go out, you're next".

1. Dungay then left the room, and shut the door but returned a short time later. When he did so, he again produced the knife which was in his possession and placed it on the bed. Having done so, and whilst victim five was still being subjected to non-consensual vaginal intercourse by the applicant, Dungay grabbed victim five's face, pushed his penis into her mouth, and had oral intercourse with her.

1. The applicant continued to force vaginal intercourse upon victim five before ceasing and then leaving the room. Victim five, due (amongst other things) to her sexual inexperience, was not able to determine whether or not the applicant ejaculated.

1. When the applicant ceased having vaginal intercourse with the victim and left the room, Dungay removed his penis from the mouth of the victim, only to proceed to force further vaginal intercourse upon her. When Dungay ceased, he adjusted his clothing, placed the knife back in the top of his pants and left the room.

1. At about this point, the co-offender Quinlan entered the room. He apologised to the victim for the actions of the applicant and Dungay, and expressed his disapproval of their actions, before leaving.

1. The applicant then returned to the bedroom where victim five had remained. At that point, he said to her:

"Before you can leave, you must do it again".

1. The applicant then pushed victim five into the corner of the room and kissed her on the mouth. He then pushed her to the floor and said:

"I really love you, can you go with me now?"

1. The applicant then forced victim five to perform oral sex on him for approximately one minute. He then ordered her:

"Do it like a dog".

1. The applicant then forced his penis into victim five's vagina from behind. When that final act of vaginal intercourse ended, the applicant said to the victim:

"Don't say anything, can you leave with me now?"

1. The applicant also asked victim five whether he could return to the premises in the future. Victim five, in a state of complete devastation, remained in her bedroom until all three offenders left the premises.

THE SENTENCE PROCEEDINGS

1. The applicant gave evidence before the sentencing judge and asserted that a long standing addiction to alcohol and drugs had played "a very big part" in his commission of the offences. He also said that at the time of the offending he was still suffering the after effects of the ingestion of drugs some weeks before.

1. The applicant's lengthy criminal history was tendered before his Honour. It included convictions for a range of offences including break enter and steal, wilful destruction of property and assault occasioning actual bodily harm. However, by far the most disturbing aspect of such history was the fact that in 2003 the applicant had been sentenced to 6 years imprisonment, with a non-parole period of 4 years, for an offence of aggravated sexual assault ("the 2003 offence"). An appeal by the applicant against the sentence imposed in respect of the 2003 offence was dismissed by this Court on 30 August 2004 (see R v Haines [2004] NSWCCA 294).

1. The statement of facts in respect of the 2003 offence was tendered before the sentencing judge in the present matters. That statement of facts established that the applicant had been staying at the home of the victim and was walking with her back to her premises one evening. In the course of doing so, the applicant made sexual advances to that victim, which she sought to deflect by consenting (reluctantly) to kiss the applicant.

1. As they walked a little further, the applicant grabbed the victim and pulled her into a side alley. She attempted to resist him by kicking and hitting him, at which time the applicant pushed her onto the bonnet of a parked car. The victim's screams drew the attention of a nearby resident who saw her struggling with the applicant. The neighbour turned away briefly and heard a "slap". Upon turning back again, the neighbour saw the victim on the ground, apparently unconscious, with the applicant standing over her. At that point the applicant, at a time when the victim remained unconscious in the alley, removed her clothing and engaged in sexual intercourse with her.

1. At the time of commission of the present offences, the applicant had been on parole in respect of the 2003 offence for less than 3 months. In the course of the sentence proceedings, his Honour took the applicant to the circumstances in which the 2003 offence had been committed:

"Q The matter you got the 6 years for, were you affected by alcohol or drugs in that offence?

A Same. Same.

Q You were. What alcohol, what drugs?

A I was drinking all day and I was on valiums and rohies and that.

Q Valium and what?

A Rohypnol."

1. Also tendered to his Honour was a report of Catherine Jones (Occupational Therapist) and Dr Satish Dayalin (Psychiatrist) dated 22 September 2008 following an assessment of the applicant shortly before he was released on parole. That report included the following observations:

"He was happy for this assessment as he could see changes within himself since completing the CUBIT program. He was due to finish the CUBIT program in early July. He was referred to the Connections Program for drug and alcohol programs and linking in with the community. He was going to be accommodated in a Koori hostel in Granville and carry out parenting classes and TAFE classes".

1. Amongst the recommendations arising out of this report were the following:

"Mr Haines might benefit from continued drug and alcohol rehabilitation offered in the community. He might benefit from attending a twelve step program such as Alcoholics or Narcotics Anonymous.

Mr Haines would benefit from continued support to assist in achieving his educational and vocational goals."

1. The sentencing judge also took the applicant to the issue of his participation in the CUBIT Program:

"Q The CUBIT Program, did you gain any benefit from that?

A I gained some benefits, I took some of it on board, some of it I didn't. It was a good program for me. I learnt a bit about myself and things like that there, and like they teach all these skills that I never knew. Things, you know, like how to communicate with other people and you know to talk about your feelings and how you felt about the crime you committed, and write the victim a few letters and that, things like that. That's basically what it was about.

Q You could understand that others in the community would look and say, well Mr Haines got that 6 year sentence for a sex offence, serious sexual offence, had the CUBIT Program, got out, 3 months later he's committed these serious sexual offences, that Mr Haines is a danger to the community because of his sexual offending. Could you understand that some in the community would look at your history like that?

A Yeah, I can understand your point of view and where your coming from.

Q But you don't look at it like that?

A I don't - like I can see what your saying and that, yeah. To me like its not like I go around you know like stalking women and things like that there. You know, like I don't go around doing that type of behaviour."

1. The evidence before his Honour also included a report of Dr Adam Martin, Forensic Psychiatrist, who, having diagnosed the applicant as suffering from polysubstance dependence, said:

"In terms of the future, he requires assertive management of his drug and alcohol problems at some stage and in time he might benefit from referral to a residential drug and alcohol service. I do not believe he requires psychiatric hospitalisation, and I do not believe he is currently psychotic or suffering a major mood disorder.

His prognosis is poor in view of his past history, although he did appear to acknowledge that he does have a drug and alcohol and problem. However, his history suggests that he has not made a assertive attempts to manage this, and this suggests to me that his insight is limited."

1. His Honour did not make any finding regarding the applicant's prospects of rehabilitation. Dr Martin's opinion certainly did not support any optimistic view being formed in relation to that issue.

1. Having set out the facts in the terms outlined above, his Honour reached a number of conclusions concerning the applicant's offending. It is appropriate that I set out those conclusions in full:

"The conduct of this offender as regards the sexual offending was of the most depraved nature. It is difficult to understand that Mr Haines could treat victim five in such an inhuman and disrespectful fashion. She was, after all, at her home. It was around midnight, and she was studying in her bedroom. Like all citizens she was entitled to feel safe in her own residence, but her safety or sense of safety was violated by the entry of this offender and his two accomplices, one of whom was armed. There followed physical assaults upon the house mates and robberies upon them. Victim five was then subjected to the most appalling, degrading and inhuman conduct by this offender and the co-offender Dungay. Neither this offender nor Dungay had any regard for the rights of this young woman. She was merely a sexual plaything for each of them. Continuing a vaginal rape of the victim, when Dungay entered the room and engaged in oral intercourse without consent, almost beggars belief.

One only needs to state the facts in relation to the sexual matters to conclude that the criminality of the sexual offences is in the upper-range of the middle-range. In R v Way it was stated that the middle range of seriousness is a broad range. I accept (the submissions on behalf of the applicant) that there were no other acts of violence, by striking or demeaning the victim. But the sexual penetration that she was subjected to, orally, vaginally and anally, was absolutely unacceptable. This offender arrogantly ordered the victim to adopt certain positions, merely so he could achieve some sexual gratification. He had no regard for her rights to protective sex, even taking into account that she was not consenting. He permitted, apparently, Dungay's entry into sexual activity upon the bed. I find that (the applicant) must have known at that time that the victim was absolutely terrified by his behaviour. She had the gross indignity of having her body violated, and her virginity taken in those appalling circumstances. She was a visitor to our country, far from her own land and her family.

I find on the facts that the offender Mr Haines was the ringleader in respect to the home invasion. I also find that he was the ringleader, and the major participant in, the sexual offences. The behaviour of Dungay was gross but the behaviour of (the applicant) was more prolonged and worse."

1. No issue is taken on behalf of the applicant with any of these conclusions. In my view, they were completely justified.

1. In circumstances where the applicant's pleas of guilty were entered in the District Court after committal for trial, a discount of 15 percent was applied so as to reflect their utilitarian value. His Honour also took into account, as aggravating factors, the fact that the applicant had recently been released on parole in respect of a serious sexual assault, as well as the fact that all of the offences occurred in the home of the victims.

1. His Honour observed that the medical evidence established that in circumstances where the applicant had been a participant in a sexual offender's program when previously in custody, he had committed the present offence within a short time of his release on parole. This, he said, was an indication that whatever programs had been undertaken, they had not been successful in addressing the applicant's issues.

1. His Honour generally accepted the applicant's evidence and concluded that in his opinion, the applicant was, seeking to be frank with the court. He was clearly impressed with the applicant's presentation before him, observing that it was "difficult to reconcile his presentation and behaviour with the facts alleged against him".

1. Having addressed all of the relevant matters, his Honour imposed the individual sentences set out above. In doing so, he said:

"I next address the issues of totality. This was very serious criminal behaviour. There must be a message sent not only to this offender but to any like-minded individuals that any home invasion is viewed most seriously by the courts. Even more so, is any home invasion which then involves sexual assault upon the unfortunate victim. Having allowed the offender the discount for his plea of guilty, and including an allowance that he is regretful in his sober state for his behaviour, I consider the offender should receive an effective sentence of 25 years imprisonment. I intend to impose an effective minimum period of 18 years imprisonment."

THE GROUND OF APPEAL

The overall sentence is unreasonable and/or plainly unjust.

1. In support of this single ground of appeal counsel for the applicant advanced three broad propositions, namely:

(i)   the extent to which a number of the offences shared common features indicated that a greater degree of concurrency of the sentences would have been appropriate in order to properly reflect the totality of the criminality involved;

(ii)   in assessing the totality of the criminality involved, it was relevant that the offences were committed as part of the one course of conduct, albeit comprising several distinct episodes;

(iii)   the overall sentence was of such a magnitude as to have a crushing effect upon the applicant's hopes of rehabilitation, and his prospects of reform.

1. In developing the first of these submissions, counsel pointed out the following:

(i) in respect of the offences of aggravated sexual assault (counts 1, 2, 3, 14 and 15), aggravated sexual assault in company (counts 4, 5 and 6) and specially aggravated detain for advantage (count 10) the circumstance of aggravation was the same, namely, the infliction of actual bodily harm;

(ii) in respect of each of counts 1, 5 and 15, the harm which was relied upon was that caused to victim one before those particular offences were committed;

(iii) in respect of counts 2, 3, 4, 6, 10 and 15, the harm relied upon was that caused to the victim five, being harm that was:

(a) caused during the act constituting count 2;

(b) caused immediately before the act constituting count 3;

(c) caused during the act constituting count 10; and

(d) aggravated during the acts constituting counts 4, 6 and 15.

1. There were undoubtedly some common features arising from these circumstances. At the same, it must be recognised that the actions of the applicant, although in one sense committed in the one episode of conduct, manifested themselves in quite separate and distinct instances of offending. What is also particularly significant in terms of the applicant's sexual offending against victim five, is that having perpetrated a number of violent sexual acts upon her, the applicant left the bedroom, only to return and commit a further three quite separate and distinct offences upon that same victim.

1. Moreover, and even accepting the proposition that the offences were committed in the one course of conduct, each offence necessarily contributed to the total criminality involved. His Honour was required to take care so as to ensure that the overall effective sentence was appropriate having regard to the numerous offences which were committed in that course of conduct (see R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 at 340; [57] per Sperling J). In my view, it is clear from his Honour's reasons that such an approach was taken. Matters of accumulation are necessarily matters within the discretion of the sentencing judge. In my view, there is no indication that his Honour's sentencing discretion miscarried in any way.

1. Counsel went to some lengths to emphasise that the applicant's offending occurred over a period of approximately one hour. He submitted that this was a circumstance which supported the conclusion that the sentence imposed was unreasonable and/or plainly unjust. In my view, that submission should be rejected. In assessing the circumstances of the applicant's offending, and its objective seriousness, the primary focus must necessarily be upon what the applicant did in terms of offending, rather than upon the period of time over which that offending occurred. His offending involved the commission of sixteen separate offences. It exhibited a high degree of criminality, for which a significant penalty was warranted. In my view, the seriousness of such offending is not in any way moderated by the time over which it occurred. The fact of the matter is that it was a period of time which was sufficient to allow the applicant to commit multiple offences.

1. In one sense, and for good reason, his Honour's reasons centred upon the offences of indecent assault, aggravated sexual assault and aggravated sexual assault in company which were perpetrated upon victim five. However, it is relevant to bear in mind that the applicant's commission of those offences had been immediately preceded by the commission of a number of other serious offences. The totality of the applicant's offending covered a wide range criminal conduct for which the legislature has seen fit to impose significant penalties and, in some cases, lengthy standard non-parole periods. In particular:

(i) each of counts 4, 5 and 6 (being offences of aggravated sexual assault in company pursuant to s. 61JA of the Crimes Act) carried a maximum penalty of life imprisonment, with a standard non-parole period of 15 years imprisonment;

(ii) each of counts 1, 2, 3, 14 and 15 (being offences of aggravated sexual assault pursuant to s. 61J of the Crimes Act) carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years imprisonment;

(iii) count 10 (being an offence of specially aggravated detaining for advantage carried a maximum penalty of 25 years imprisonment;

(v) each of counts 11, 12, 13 and 16 (being offences of robbery in company pursuant to s. 97(1) of the Crimes Act) carried a maximum penalty of 20 years imprisonment; and

(iv) count 9 (being an offence of aggravated entry of a dwelling house with intent to commit a serious indictable offence pursuant to s. 111(2) of the Crimes Act) carried a maximum penalty of 14 years imprisonment.

1. In each of those instances of offending where a standard non-parole period was prescribed (being a period of 15 years imprisonment in three instances and a period of 10 years imprisonment in five others) his Honour was at liberty to use that standard non-parole period as a guide post in the sentencing process (see generally Muldrock v R (2011 244 CLR 120). His Honour found that the applicant's offending was in the upper range of the mid range of seriousness, and no issue has been taken by the applicant with that finding. The commission of multiple offences for which significant standard non-parole periods applied, is a factor which, in the circumstances of this case, tends against the proposition that the overall sentence imposed by his Honour was one which was unreasonable and/or plainly unjust.

1. In support of the submission that the sentence amounted to a "crushing" one, counsel for the applicant relied upon the judgement of this court in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 where it was observed (at 164; [17]):

" ... an extremely long total sentence may be "crushing" upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there maybe of rehabilitation and reform."

1. It is important to bear in mind that such a statement was accompanied by the following observation:

"Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint."

1. Any assessment of whether or not a sentence is properly described as "crushing" must have regard to a number of circumstances. Those circumstances include the maximum penalties, any standard non-parole periods, the objective and subjective factors, and the application of principles of accumulation, concurrency and totality (see Paxton v R [2011] NSWCCA 242 esp. at [215] per Johnson J with whom Tobias AJA and Hall J agreed).

1. As I have pointed out, 8 of the 16 offences committed by the applicant carried a standard non-parole period. Even in respect of the remaining 8 offences for which no standard non-parole period was prescribed, the maximum penalties set by the legislature were nevertheless significant. Those offences were committed by the applicant, in the capacity of what his Honour described as "the ring leader", only a matter of months following the applicant's release on parole in respect of a previous offence of aggravated sexual assault. The objective seriousness of his offending towards the five victims was assessed by the sentencing judge, appropriately in my view, as falling at the upper end of the mid range. Despite the favourable impression formed by the sentencing judge following the offender's evidence, the medical evidence expressed a poor prognosis and provided no support for a favourable finding in terms of the applicant's prospects of rehabilitation.

1. Taking all of these factors into consideration, I do not regard the overall sentence imposed as one which is appropriately described as "crushing", in the sense in which that term has previously been used by this Court. The various circumstances to which I have referred disentitled the applicant to the benefit of any element of mercy of the kind to which the court referred in MAK.

1. Further, in determining an appropriate sentence for the applicant's offending, there was a clear requirement on the part of the sentencing judge to give appropriate weight to the need to protect the community. One of the aggravating factors to which his Honour justifiably had regard was that the offences were committed in the home of the victims. In R v Hayes [1984] 1 NSWLR 740 Street CJ, in the context of observations regarding the increase in the commission of the offence of break, enter and steal observed (at 742):

"The invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the criminal courts".

1. In the same case, Lee J said (at 744):

"The police and the criminal courts are all that a citizen has to look to protect him against the activities of criminals, and the courts have a duty to make clear that they recognise that, so far as our society is concerned, their prime responsibility is the protection of the community. (The sentencing judge's) remarks on sentence make quite clear that his Honour was not in doubt as to the court's responsibility. The community has the right to expect that the courts will use against crime the weapons which it has at its disposal, and that it will take stern measures in the face of repeated defiant criminal conduct involving breaking and entering."

1. Notwithstanding the period which has elapsed since those observations were made, and even though they were made in the context of a particular type of offending which was seen at the time to be increasing, they nevertheless remain apposite, particularly in the circumstances of the present case. The actions of the appellant and his co-offenders in forcibly entering the premises amounted to an invasion of the home, and an invasion of the privacy, of the victims. That invasion was followed by what can only be described as serious criminal conduct.

1. The sentencing judge properly pointed out that members of the community are entitled to assume that they will be safe in the confines of their own home. Persons whose criminal offending interferes with those justifiable assumptions of safety must expect the imposition of condign punishment. That is particularly so in circumstances such as the present, where the initial invasion of the premises by the applicant, who had only recently been released on parole, was followed by the commission of multiple offences of violence perpetrated against five victims, and where the commission of some of those offences involved conduct of the most depraved, immoral and degrading nature imaginable.

1. For all of these reasons, the ground of appeal has not been made out.

ORDERS

1. I propose the following orders:

(i) grant leave to appeal;

(ii) dismiss the appeal.

1. BARR AJ: I agree with Bellew J.

**********

Decision last updated: 21 November 2012