Harris v The Queen

[2017] NSWCCA 254

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Harris v R [2017] NSWCCA 254
Hearing dates:	20 October 2017
Date of orders:	01 November 2017
Decision date:	01 November 2017
Before:	Hoeben CJ at CL at [1]; Beech-Jones J at [55]; N Adams J at [56]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – offences of aggravated break enter and commit a serious indictable offence and aggravated sexual assault – 16 years delay between offending and arrest of applicant – delay in sentencing due to failure by applicant to come forward – whether delay properly taken into account by sentencing judge – appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – ss s 61J(1), 112(2), 344A Criminal Appeal Act 1912 (NSW) – s 6(1)
Cases Cited:	Elchiekh v R [2016] NSWCCA 225 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Mill v R [1988] HCA 70; 166 CLR 59 R v EGC [2005] NSWCCA 392 R v Kay [2004] NSWCCA 130 R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Phillip Scott Harris – Applicant Regina – Respondent Crown
Representation:	Counsel: S Healy – Applicant F Veltro – Respondent Crown   Solicitors: P Ryan – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2014/245533
Publication restriction:	Non-publication order re: identity of complainant
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 21 June 2016 Before: English DCJ File Number(s): 2014/245533

Judgment

1. HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty in the Local Court on 9 March 2016 to the following offences:

Count 1 (sequence 8 of the Court Attendance Notice) – Aggravated break, enter and commit serious indictable offence, viz. aggravated robbery, contrary to the Crimes Act 1900 (NSW) s 112(2) for which the maximum penalty applicable at the time was imprisonment for 20 years. There was no standard non-parole period then applicable. The circumstance of aggravation particularised in the charge was that the applicant used corporal violence on the victim.

Count 2 (sequence 1) – Aggravated sexual assault, contrary to the Crimes Act s 61J(1) for which the maximum penalty was imprisonment for 20 years. The circumstance of aggravation was that the applicant occasioned actual bodily harm to the victim.

Form 1 (taken into account on Count 2):

1. Assault with an act of indecency (sequence 4) contrary to the Crimes Act s 61L for which the maximum penalty was imprisonment for 5 years. This was the first of the sexual offences in time, being pulling down the victim’s pyjama pants, rubbing his hands over her back, buttocks and clothing and saying “You're beautiful. Close your eyes”.

2. Sexual intercourse without consent (sequence 10) contrary to the Crimes Act s 61I, s 344A, for which the maximum penalty was imprisonment for 14 years. After the attempted sexual intercourse without consent below, and while the victim was on the bed, the applicant pulled her head towards his penis and again forced fellatio on her, for about two or three minutes.

3. Attempted sexual intercourse without consent (sequence 9) contrary to s 61I of the Crimes Act for which the maximum penalty was imprisonment for 14 years. After the forced fellatio in sequence 1, he told the victim to stand up and turn around. He was about to penetrate her anus with his penis and after she objected he then attempted to penetrate her vagina.

2. The sentence proceedings were heard by her Honour Judge English, sitting in the Wagga Wagga District on 17 June 2016. The applicant was sentenced by her Honour on 21 June 2016.

3. On Count 1 the applicant was sentenced to imprisonment with a non-parole period of 4 years and 6 months, to date from 14 May 2015 and to expire on 13 November 2019, with a head sentence of 6 years to expire on 13 May 2021.

4. On Count 2, taking into account the three matters on the Form 1, the applicant was sentenced to imprisonment with a non-parole period of 8 years, 5 months and 7 days commencing on 14 May 2015 and expiring on 20 October 2023, with a head sentence of 11 years and 3 months expiring on 13 August 2026. The sentence imposed for Count 1 was wholly concurrent with that imposed for Count 2.

5. The applicant seeks leave to appeal against that sentence on the following ground of appeal.

The learned sentencing judge erred in declining to take into account the delay in the offence coming before the Court for sentence.

Factual background

6. At about 8.45pm on 11 July 1999 the victim, BC, had retired to bed when she heard what she believed to be the sound of a key sliding into the door-lock of her apartment. She was aged 22 at the time. When she got out of bed, she saw a male figure in the doorway. This was the applicant, who was unknown to the victim, and was wearing a balaclava. He said “Don’t scream bitch or I’ll bash you”. The applicant then put his left palm over the victim’s face. The victim saw that he was wearing gloves. When the victim commenced to scream, he said “Don’t scream or I’ll hit you”.

7. The applicant grabbed the victim’s shirt and spun her around so that she was looking towards her bedroom and he was behind her. He pulled her downwards, causing her to fall to the floor. The right side of her cheek struck either the corner of the lounge or the heater. The applicant ordered her to “lie down”.

8. The applicant sat on the victim’s back and straddled her with a leg either side of her body. He said “Righto B, where’s your money?” She asked “Do you know me?” and he replied “Yes, I know you BC”. The applicant then forced the victim into the kitchen where she gave him $70 from her wallet saying “Just take it”.

9. The applicant forced the victim back into the bedroom and pushed her onto the floor so that she lay on her stomach. He said “Have you got any belts?” to which she replied that they were in a cupboard. The applicant said “Stay there. Aren’t you having any visitors tonight?” to which the victim replied “No”. The applicant then asked “Isn’t C coming?” (C was the victim’s boyfriend). The victim replied “No”.

10. The applicant ordered the victim to put her hands behind her back, after which he tied them together using the belts and an article of clothing. He pushed the back of the victim’s head causing her to fall forward and land face down on the bed. The applicant got into bed next to her and lay only centimetres away from her, facing her. The victim said “I don’t want you to hurt me” to which the applicant responded “I’m not going to hurt you”. The applicant started rubbing both his hands over the victim’s back and buttocks and over her clothing. While doing so he was saying “You’re beautiful. Close your eyes”.

11. The applicant turned the victim over so that she was lying on her back and continued to touch her, putting his hands under her singlet top and around her stomach area. He circled her breasts with his hand for about five minutes. The victim was terrified about what might happen next.

12. The applicant said: “If C doesn’t want you, I’ll have you. Don’t you remember a couple of weeks ago you knocked me back?” to which the victim replied “No”. The applicant said “Open your mouth”. The victim complied and the applicant placed his penis entirely inside her mouth. She could feel that his penis was fully erect. The applicant ordered her to suck it and she complied with that demand. The applicant kept pushing his penis into her mouth about five or six times, causing the victim to choke as he pushed his penis further and further into her mouth.

13. The applicant then grabbed the victim’s left arm and pulled her upwards. He sat her up and manoeuvred her so that her legs were dangling over the side of the bed. He ordered her to “keep your eyes shut”. The victim complied. The applicant put his right hand on the back of her head and pulled her head towards his penis and pushed his penis into her mouth again. He forced her to perform fellatio on him for two or three minutes.

14. The applicant suddenly took his penis out of her mouth and ordered the victim to “stand up”. He forced her to kneel on the floor and lie with her chest on the bed. The applicant put both of his hands on either side of the victim’s underpants and pulled them down and ordered her to “lift your knees”. He rubbed his erect penis against her buttocks and said “You feel good”. He did that for a couple of minutes and then got up and left the bedroom.

15. The applicant returned to the bedroom, knelt behind the victim and pressed his erect penis against her vagina. He thrust his penis forward so that the victim felt that it was about to penetrate her anus. She said “Don’t do that”. The applicant responded “Sorry I didn’t mean to hurt you”. He then repositioned his penis and attempted to insert it into her vagina. He thrust his penis forward a number of times but he was unable to penetrate her vagina.

16. The victim heard the applicant rummaging through her cupboards and drawers. She heard the front door open and the sound of running footsteps. The victim lay still for a period of about 10 to 15 minutes and then ran down the side of the residence to gain the attention of her landlord, Mrs K. She kicked at Mrs K’s door screaming “Let me in”. Mrs K was unable to undo the bindings which held the victim’s arms. Mrs K rang the policy and held the phone close to the victim while the victim spoke with police. Eventually the victim’s boyfriend, C, arrived and undid the belts which were restraining her. Shortly afterwards the police and an ambulance arrived.

17. The victim was transported to the Wagga Wagga Base Hospital and a Sexual Assault Kit (SAK) was completed. Swabs were taken from the vulval and vaginal areas and her underpants were retained. As a result of the assault, the victim suffered redness around both wrists from being tied up, a reddened area on her right cheek bone about 6cms by 4cms, swelling to her right cheek, six small red marks on the right side of her abdomen, non-specific red marks on her back, bruises to her right shin, a bruise just above her right knee and soreness to her neck, chest, upper arms and lower back.

18. The SAK was taken to the NSW Police Division of Analytical Laboratories where it was examined. Semen was detected on her underpants. At the time no DNA suspect profiles were identified. On 26 May 2014 a DNA sample was obtained from the applicant while he was in custody in the Australian Capital Territory (ACT) for other matters. The DNA sample was analysed and returned a match to the semen profile located on the victim’s underpants.

19. The victim told police that she had never had any prior interaction with the applicant, nor did she have any knowledge of him. On 14 May 2015 a magistrate in the Canberra Magistrates’ Court granted an extradition order, just as the applicant finished serving a sentence of imprisonment in the ACT. The applicant was taken into custody in New South Wales on that day and has remained in custody ever since.

Sentence judgment

20. At the time the applicant came before her Honour, he was aged 49. He had a poor criminal record in the Children’s Court, which included convictions for stealing, forgery, malicious injury, resist arrest, serious alarm and affront on enclosed land, drive in a manner dangerous, seven counts of stealing motor vehicles and one count of break, enter and steal.

21. As an adult the applicant had a similarly poor record including the following convictions in NSW: five counts of break, enter and steal, two counts of stealing a motor vehicle, disqualified driver, larceny of a motor vehicle, driving while unregistered and uninsured, offensive behaviour, sexual assault, indecent assault, possessing cannabis, twenty counts of receiving, four counts of goods in custody, possessing housebreaking implements, possessing equipment for administering a prohibited drug, common assault, speeding offences, contravening a prohibition in an apprehended domestic violence order; stalk or intimidate and entering enclosed lands.

22. The applicant had convictions in the ACT for failing to appear, common assault, theft, possessing a prohibited substance, negligent driving (x 2), damaging property, being an unaccompanied learner, destroying Australian Government property, sexual intercourse without consent and sexual intercourse in the third degree.

23. In 1986 the applicant was sentenced to a term of imprisonment for 7 years for sexual assault offences, among other matters. He was released to parole in 1996. Her Honour noted that despite that long period of imprisonment, the applicant continued to re-offend.

24. Her Honour took into account a report from Ms Allen, a psychologist, dated 30 May 2016. The report was prepared following a consultation of 3¼ hours. Ms Allen found that the applicant was not suffering from any psychiatric illness at the time of the offending. The most that could be said of him was that his intellectual functioning was below the average range. Her Honour rejected the psychologist’s finding that the offending was “seemingly opportunistic” and unplanned. On that issue, her Honour took into account that the applicant knew the identity of the victim, had met her on a previous occasion, had a key to her apartment and was wearing a balaclava and gloves. Her Honour found, therefore, that there was a degree of planning associated with the offending.

25. Her Honour reviewed the applicant’s previous sexual offending and noted a common theme, i.e. anger on the part of the applicant which seemed to be associated with each episode of offending. The applicant’s sexual offending began while he was in a relationship with a woman from New Zealand, who was returning home, and this angered him. He knew the victim of the first sexual assault who was a gymnastics teacher. The applicant came upon her as she was walking down the street and decided to sexually assault her.

26. Following his release from custody for that offence he was living in Canberra and once again in a relationship with a woman. He was angry that he was not permitted to return to the Tumut area as a result of his earlier offending. He went to meet a friend that evening who did not turn up. This time the victim was a complete stranger. The applicant saw her walking to her vehicle, got into it and sexually assaulted her. On this occasion the applicant again reported that he was angry.

27. The background to the present offending was that he was unemployed, was short of money and his partner had suffered two miscarriages. He said that he decided to break into the victim’s home for financial reasons, that he did not think anyone was at home and that the assault “just happened”. He tied the victim up so she “wouldn’t run away as he searched the place”.

28. Her Honour rejected that explanation as being nothing more than an attempt on the part of the applicant to minimise his moral culpability. On the basis of the matters already referred to, her Honour concluded that the assault on the victim was deliberate. He had been rebuffed by the victim on an earlier occasion and he was angry. Her Honour regarded that as the only reasonable inference which could be drawn when one had regard to his past sexual offending.

29. In relation to objective seriousness and moral culpability, her Honour characterised the offending as follows:

“To use old fashioned terminology in the terms of the sexual assaults upon this young woman, they were most reprehensible and disgusting rapes of a young woman who was home alone. What makes it even more heinous is that he had just served a lengthy sentence of imprisonment for an offence of a similar kind.” (Sentence judgment, 11.5)

…

“It was a prolonged series of assaults upon her involving repeated acts of fellatio, attempted penile and anal intercourse. She had been threatened, she was tied up to prevent her escape and indeed even defending herself in any way had that been at all possible.” (Sentence judgment, 13.9)

…

“It is certainly a matter falling at the upper end of the scale constructed for like offences. Had the matter proceeded to trial I would have imposed a head sentence in the order of 15 years imprisonment.

It is always possible to imagine a worst case scenario but it is difficult to imagine a case which would be more culpable than this. The torment, as I have referred to it, I find elevates the seriousness of the offence.” (Sentence judgment, 14.3)

30. Her Honour noted that the applicant had not only engaged in a series of serious sexual offences but had also committed an aggravated break enter and commit serious indictable offence, namely robbery. By reference to the guideline judgment in R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 her Honour concluded that this was a serious example of such offending. The applicant was not young nor did he have little by way of criminal antecedents. There was planning and acts of violence against a young woman at home alone. These were residential premises which were broken into at a time when persons could be expected to be at home. Her Honour considered that both specific deterrence and general deterrence had important roles to play in sentencing for these offences.

31. Her Honour was of the opinion that everyone should be able to feel safe and secure in the sanctity of their home and that no-one had the right to break into another person’s home, rob her, sexually assault her and leave her traumatised for the rest of her life.

32. Her Honour gave particular attention to the issue of whether the applicant was likely to re-offend. Given the ground of appeal and the submissions put in its support, it is necessary to set out her Honour’s observations on this subject in greater detail than would otherwise be necessary.

“As to whether he is truly remorseful and contrite it is difficult to say. He demonstrates a total of lack of insight, despite years and years of being in gaol. He raped not only this young woman, but two others. He holds some very misguided belief that in some way “maybe it’s their fantasy to be sexually assaulted”. That is simply extraordinary. It shows his absolute lack of insight. Despite being aware whilst he was raping his victims that they were shaking through fear that did not dampen his arousal.

…

He says after he committed these offences that he felt dirty and he felt anxious, “you shut yourself away from the world for a week or two, you never do get over it, it stays with you always there at the back of your mind”.

Clearly what stays with him in the back of his mind is the risk of being caught, which has occurred over and over again.

It is difficult in those circumstances to sever any remorse from self-interest. Yet despite being caught and spending lengthy periods of time in custody he has continued to reoffend as I said.

What is of great concern is that in the opinion of the psychologist he is at high risk of reoffending. As I have already said specific deterrence looms large in any penalty to be imposed, retribution, deterrence, and more importantly protection of society warrant the imposition of a more serious penalty.

This offender’s continuing reoffending in this most serious of ways demonstrates a continuing disobedience of the law and a total disregard for the rights of others. What is also obvious is that he needs to attend a sex offender’s programme to help him gain insight into the impact of his offending behaviour towards women and to learn just how incorrect his thinking is.

He says he wants to attend such a programme so “he can get on with his life”. It would instil more confidence in his victims and the community if his intention was to assist him to refrain from behaving in this way again and develop the insight into the reason why he sexually assaulted these women.

…

I find his prospects for rehabilitation are extremely guarded and I find unless he commits to attending and fully participating in a sex offenders’ programme he is highly likely to reoffend. Only sentences of full time custody will suffice.” (Sentence judgment, 16.9 – 18.3)

33. In relation to “special circumstances” her Honour said:

“I am asked to make a finding of special circumstances. I decline to do so. The sentences to be imposed will be significant and hence there will be lengthy periods of parole sufficient to ensure that he is supervised to such an extent that hopefully he will be deterred from reoffending in this manner again.

…

The delay in the matter coming before the Court for sentence is raised on his behalf as a factor of mitigation. The DNA sample was not taken until May 2014, extradition was applied for and the offender returned to New South Wales upon completion of the sentence he was serving in the Australian Capital Territory at the time.

It was always open to him of course to come forward and to admit his guilt and to hand himself in in light of his knowing in the back of his mind that he always ran the risk of being detected, arrested and imprisoned. It is not a matter I have taken into account.” (Sentence judgment, 18.6 – 19.2)

The appeal

34. The applicant submitted that the relevance of delay to sentencing could arise at a number of levels. He submitted that in this case it was relevant to the progress of his rehabilitation during the period of delay and was relevant to whether a finding of special circumstances should be made. The applicant submitted that it was not sufficient for her Honour to simply say that delay “is not something I have taken into account”.

35. The applicant submitted that her Honour erred by improperly curtailing the exercise of her sentencing discretion in two ways:

1. By not taking into account the fact that the applicant had not sexually re-offended since 1999 when forming a view about his likelihood of re-offending and;

2. By not taking into account the delay as a factor relevant to whether “special circumstances” exist so as to justify a variation in the statutory ratio between the non-parole period (NPP) and the full term of the sentence.

36. The applicant submitted that it was relevant to an assessment of the likelihood of re-offending in a similar manner, whether a person has in fact re-offended in that way during the passage of many years between the offence and the date of sentence. The applicant submitted that when considering the likelihood of re-offending for an offender whose offences were committed many years ago, it was fact rather than prediction and speculation which was to be preferred when assessing the offender’s progress towards rehabilitation.

37. The applicant submitted that great emphasis was placed by her Honour (properly) upon his multiple convictions for sexual assaults of women in the past and the fact that the present offence occurred after he was released from custody in relation to those earlier offences. He submitted that where her Honour erred was in not mentioning at all the lapse of time from 1999 to the date of sentence and taking that into account when considering whether he was likely to re-offend.

38. In relation to special circumstances, the applicant accepted that her Honour was not obliged to find special circumstances by virtue of the delay of over 16 years between the commission of the offence and the imposition of sentence. He accepted that this was a matter for the sentencing judge’s discretion. The applicant’s complaint, however, was that he was entitled to have the discretion properly exercised at law. The applicant submitted that he was entitled to know why in the light of the decision in R v EGC [2005] NSWCCA 392, her Honour had not taken delay into account as a special circumstance entitling him to a variation in the statutory ratio between the head sentence and the non-parole period.

Consideration

39. The law in relation to delay and what use can be made of it was succinctly stated in Elchiekh v R [2016] NSWCCA 225 by Price J (with whom Button and Fagan JJ agreed) where his Honour said:

“56   Delay may be taken into account in favour of an offender: firstly, when it relates to the uncertain suspense in which a person may be left; secondly, when there is demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, because sentencing for a stale crime calls for a measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517 (“Todd”); R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16]. Where delay is relied upon as a mitigating factor, the onus is upon the offender on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47].

…

58   It is well settled that the Todd principle does not apply to a state of suspense or uncertainty experienced by an offender who remains silent and hopes that his offending will remain undetected: R v Hathaway [2005] NSWCCA 368 at [43]; R v Shorten [2005] NSWCCA 106 at [19]; R v Spiers [2008] NSWCCA 107 at [37]-[38]. It makes little sense that an offender who could bring to an end any anxiety by contacting police but chooses to say or do nothing can benefit from inaction by a reduction in sentence. In R v Kay [2004] NSWCCA 130, McColl JA (with whom Levine and Hidden JJ agreed) said at [33]:

“Rather, the applicant was content to remain silent, hoping, presumably, that his association with the October 2001 offence would not be detected. Having remained silent, he now argues that he ought, in effect, be rewarded for his successful concealment of his commission of the offence by a substantially reduced or even deferred sentence. The authorities make plain that the significance of the delay will turn on the circumstances of each case. In my view the circumstances of this case do not attract the Todd principle.””

40. It is clear why her Honour made no reference to the absence of any sexual offending between 1999 and May 2015 as a factor which could be taken into account when considering the applicant’s rehabilitation and prospects of re-offending. It was because a submission to that effect was not put to her Honour in the sentence proceedings. As this Court has said on many occasions, sentence proceedings are not to be regarded as a trial run for a subsequent appeal. Submissions, if they are to be relied upon on appeal, should be put at the sentence proceedings. It is fundamentally unfair to assert that a sentencing judge has erred in failing to take into account a factor when that factor was never put to the judge in the sentence proceedings.

41. In Zreika v R [2012] NSWCCA 44 Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said on this issue:

“79   This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. If material error is demonstrated, before the Court would proceed to resentence the Applicant, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 720-721 [79]. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15].

80   There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. It might be thought that defence counsel would have ample opportunity to consider whether an argument concerning possible summary disposal should be made in the District Court, given that the acceptance of a plea of guilty to a lesser charge usually follows charge negotiations, as occurred in this case. The fact that a less serious charge is to proceed (and its consequences) would be at the forefront of counsel's thinking.

81   The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29].

82   In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance.”

42. It also needs to be kept in mind that the offending which was being considered by her Honour was not restricted only to sexual misconduct. The aggravated break and enter was also under consideration. It is clear from the applicant’s offending in the ACT since 1999 that he continued to have anger issues. His convictions include offences of assault, contravening an ADVO, stalking and threatening to kill.

43. In oral submissions it was submitted on behalf of the applicant that the absence of sexual offending between 1999 and May 2015 was so obvious that there was no need for counsel to specifically refer to that matter in the sentence proceedings. I do not agree. The issue relied upon by the applicant involved a discrete aspect of delay and it should have been put to her Honour in that context in the sentence proceedings.

44. Moreover, it is clear from her Honour’s detailed analysis of the evidence which was before her and addressed by counsel in the sentence proceedings, that she had reached a conclusion as to rehabilitation and prospects of re-offending which was adverse to the applicant. The addition of the factor now relied upon, while relevant to such a consideration, does not answer any of the particular matters identified by her Honour.

45. This was the applicant’s third episode and fourth conviction for sexual assault. They were all offences of a most reprehensible and disgusting type. The applicant’s thinking concerning this kind of offending was clearly disordered as of the date of sentencing as was set out by Ms Allen in her report:

“29   With regard to his sexual offences in general he said “What I don’t understand is they orgasmed”. He considered that “maybe it’s their fantasy, to be sexually assaulted but not hurt”. However, he denied that this belief was linked to his decision to assault them and acknowledged that this was driven by his own desire to do so. Within this discussion he noted the general tendency to consider whether he would like to have sex with women he came across. He described physical attributes of women he was attracted to and those he was not.”

46. Ms Allen set out the results of the tests which she had carried out to assess the risk of sexual re-offending in the applicant. Her conclusion was that the results “places him in the high risk category relative to other male sexual offenders”.

47. Her Honour in her analysis of the psychological report identified the lack of insight demonstrated by the applicant and in particular his focus on himself, rather than on his victims and the inevitable effect his conduct would have had upon them. The apparent lack of sexual offending between 1999 and May 2015 did not answer any of those findings by her Honour.

48. Moreover, the factor relied upon by the applicant in this appeal was specifically considered and answered by Ms Allen in her report.

“53   Mr Harris’ Static-99R assessment placed him in the high risk group for re-offending. This tool does not account for changes over time. Mr Harris reported that he has recognised the impact of his offending on the victims since the birth of his daughter which may serve to ameliorate his risk. I believe he has not been arrested for a sexual offence since her birth. However his report of his more recent sexual behaviour suggests an ongoing proclivity to sexualise women and engage in impersonal sexual relations. This, and his recent violence indicating difficulties interacting with others and managing his behaviour, suggests an ongoing risk of further sexual offending broadly consistent with the Static-99R.”

It follows that although her Honour did not specifically refer to this factor, it was effectively dealt with and its importance nullified in the report of Ms Allen which was relied upon by the applicant and which her Honour, except for one issue, accepted. The absence of sexual offending during the delay period was therefore not a matter of significance.

49. If I am wrong in approaching the matter in that way and there was error in her Honour failing to take into account the lack of sexual offending since 1999, it would not cause me to reduce the sentence imposed by her Honour. There has been no other challenge to any factual finding by her Honour. Accordingly, taking those findings into account in my independent assessment, pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) and applying the principles set out in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35], [42]-[43] I have concluded that no lesser sentence is warranted in law. This is particularly so when regard is had to the applicant’s disordered mode of thinking, his lack of insight and the high risk of re-offending established by Ms Allen’s psychological testing.

50. In oral submissions on resentence, it was submitted that on the issue of totality the Court should have regard to the applicant’s period of custody in the ACT for the offences previously referred to. The applicant submitted that the application of Mill v R [1988] HCA 70; 166 CLR 59 required that the applicant’s total effective period in custody should be taken into account when imposing a sentence for the offences presently under consideration.

51. There are two difficulties with that submission. The first is that in the sentence proceedings, the applicant’s counsel requested that the commencement date for the present sentences be backdated to 14 May 2015. In accordance with that request, her Honour fixed that as the starting date for the sentence. The second difficulty is that making the offence of break, enter and commit robbery wholly concurrent with the aggravated sexual assault offence involved considerable leniency given the different criminality involved in those offences. Accordingly, the totality principle was adequately given effect to.

52. In relation to special circumstances, it is not correct to say that her Honour failed to take into account the extent of delay. Her Honour clearly took it into account or she would not have referred to it. What her Honour was, in effect, saying was that she declined to give that factor any weight by way of mitigation in this case. Her Honour did not err in doing so.

53. It is not correct to characterise these offences as “stale”. For the reasons already referred to, and as set out in her Honour’s judgment, this was not a case where rehabilitation had occurred and the community was not at risk. As can be seen from the victim impact statement of BC, the effects of the applicant’s offending continue to adversely influence her life. It was the applicant’s failure to come forward which was the sole cause of delay. In those circumstances, it was well open to her Honour in accordance with what was said in R v Kay [2004] NSWCCA 130 to refuse to make a finding of special circumstances in favour of the applicant. Her Honour gave clear and compelling reasons for why she had reached that conclusion. The sentence which she was going to impose was a substantial one so that in accordance with the statutory ratio, there was going to be ample time for supervision for the applicant on parole. There was simply no basis for altering the statutory ratio so as to reduce the non-parole period applicable to the applicant.

Conclusion

54. The orders which I propose are that leave to appeal be granted but that the appeal be dismissed.

55. BEECH-JONES J: I agree with Hoeben CJ at CL.

56. N ADAMS J: I agree that leave to appeal should be granted but the appeal dismissed for the reasons given by Hoeben CJ at CL.

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Decision last updated: 06 April 2018