Hildebrand v R

[2021] NSWCCA 9

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hildebrand v R [2021] NSWCCA 9

Hearing dates:

7 October 2020

Date of orders:

15 February 2021

Decision date:

15 February 2021

Before:

Payne JA at [1]
Davies J at [36]
Garling J at [273]

Decision:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentences imposed by Judge Tupman in the District Court on 27 September 2019.

4. Remit the proceedings to the District Court for sentence.

Catchwords:

SENTENCING - sentencing procedure - where sentencing judge took into account federal offences on Form 1s that were attached to State principal offences - whether State Form 1 provisions inconsistent with federal sentencing law - where a federal offence is required to attract a sentence that is stated and imposed pursuant to s 16A of Crimes Act (Cth) - where court not authorised to fix a single non parole period in respect to both federal and state sentences pursuant to s 19AJ of the Crimes Act (Cth) - where inconsistency - sentence quashed and remitted for resentencing

SENTENCING - appeal against sentence – where applicant pleaded guilty to charges under both Commonwealth and State laws – where offending related to sexual acts occasioned by manipulation of multiple victims by threats, harassment and communications using various carriage services – where sentencing judge imposed a number of stand-alone and aggregate sentences – whether the sentencing judge erred in failing to take into account accumulation of sentences as “special circumstances” – where sentencing judge expressly referred to effective sentence being close to statutory norm and determined that nothing less would be sufficient – whether sentencing judge erred with respect to her assessment of the objective criminality and the indicative sentences – where both indicative and aggregate sentences were within the sentencing judge’s discretion – where sentences imposed neither unjust nor unreasonable ­­- where sentence remitted because of an error of law

Legislation Cited:

Commonwealth Constitution, s 80

Commonwealth Prisoners Act 1967 (Cth)

Crimes Act 1900 (NSW), ss 61I, 192J, 447B

Crimes Act 1914 (Cth), ss 16A, 16BA, 19AJ, 474.17, 474.19, Pt IB,

Crimes (Amendment) Act 1955 (NSW), s 4(e)

Crimes Amendment Act 1982 (Cth)

Criminal Code (Cth), ss 474.17(1), 474.19(1)

Crimes Legislation Amendment Act (No. 2) 1989 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 33

Crimes (Sentencing Procedure) Amendment (Forms) Regulation 2004 (NSW)

Crimes (Sentencing Procedure) Regulation 2000 (NSW)

Crimes (Sentencing Procedure) Regulation 2017 (NSW) cl 4

Criminal Procedure Act 1986 (NSW)

Firearms Act 1996 (NSW) s 65

Judiciary Act 1903 (Cth), ss 68, 79

Sentencing Act 1995 (WA) ss 32, 33

Weapons Prohibition Act 1998 (NSW) s 7

Cases Cited:

Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370

Hughes v R [2018] NSWCCA 2

Hutchen v R [2015] NSWCCA 101

Ilic v R [2020] NSWCCA 300

Kabir v R [2020] NSWCCA 139

Kerr v R [2016] NSWCCA 218

Leeth v Commonwealth (1992) 174 CLR 455; [1992] HCA 29

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8

R v Cramp [2004] NSWCCA 264

R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; [1974] HCA 36

R v Murphy (1985) 158 CLR 596; [1985] HCA 50

R v Oti (1990) 19 NSWLR 561

R v Yates (1991) 102 ALR 673; (1991) 56 A Crim R 29

Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47

Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3234

Category:

Principal judgment

Parties:

Vaughan Mark Hildebrand (Applicant)
Crown (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
B Baker & M Kumar (Respondent)

Solicitors:
R Hill (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/164080

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

27 September 2019

Before:

Tupman DCJ

File Number(s):

2017/164080

Judgment

1. PAYNE JA:   I have read the judgment of Davies J in draft. I agree with his Honour’s proposed orders and with the reasons for dismissing grounds 1-2 and 4-6 of the appeal.

2. In relation to ground 3, I agree with his Honour that the decision of this Court in Ilic v R [2020] NSWCCA 300 came to the correct result. As this case, like Ilic, proceeded by way of concession by the NSW Office of the DPP (albeit in consultation with the Commonwealth DPP), I would prefer to express my own reasons for concluding that a federal offence, here under ss 474.17(1) and 474.19(1) of the Criminal Code (Cth), cannot be taken into account using the “Form 1” NSW procedure but, rather, must be considered separately or taken into account in relation to another federal offence using the procedure provided by s 16BA of the Crimes Act 1914 (Cth).

3. Ground 3, as amended orally and subsequently in writing after the hearing, provided:

“The sentencing judge erred in taking into account Commonwealth offences on Form 1s that were attached to State principal offences, namely:

(i)   By taking into account sequence 25 (a Commonwealth offence) in sentencing the applicant for sequence 27 (a State offence) on Form 1E;

(ii)   By taking into account sequence 52 (a Commonwealth offence) in sentencing the applicant for sequence 55 (a State offence) on Form 1A; and

(iii)   By taking into account sequence 36 (a Commonwealth offence) in sentencing the applicant for sequence 37 (a State offence) on Form 1B.”

4. The existence of federal and state criminal offence provisions covering the same or related conduct is a constitutional reality of our federal system. The growing catalogue of federal offences has meant, over time, a greater potential for overlap. There have been, since the 1980s, separate federal and NSW Offices of the Director of Public Prosecutions. The Acts under which each office is created give the respective Director power to present indictments and to delegate the power to sign indictments. It was common ground that the potentially overlapping nature of federal and NSW offences has meant that within the NSW Office of the DPP there are officers with a delegation from the Commonwealth DPP to sign indictments alleging the commission of a federal crime (and I infer the same is true in the Commonwealth Director’s office).

5. It is not unusual for federal and state counts to be joined in the one indictment, whether prosecuted by the state or federal DPP: see, for example, R v Yates (1991) 102 ALR 673; (1991) 56 A Crim R 29 where the Commonwealth Director prosecuted state offences.

6. A court sentencing an offender convicted of at least one federal and NSW offence arising from one indictment must apply two separate sentencing regimes. Those separate regimes, however, are designed in our constitutional and legislative structure to work together. Sections 68 and 79 of the Judiciary Act 1903 (Cth) play a central role in reconciling the intertwining operation of federal and state sentencing provisions.

7. The exercise of reconciling federal and state sentencing regimes has not always been comfortable. For example, the introduction of the Sentencing Act 1989 (NSW), and its relationship with the Commonwealth Prisoners Act1967 (Cth), caused particular controversy: see R v Oti (1990) 19 NSWLR 561.

8. Originally, procedural matters and all sentencing issues were dealt with in federal crime by adopting the procedure, including the sentencing procedure, of the state where the offence was prosecuted. Section 80 of the Constitution ensured that federal crime was prosecuted in the state with the closest connection to the alleged criminal conduct.

9. Over time, the structure of a separate Commonwealth sentencing regime has grown. The most significant growth in that separate structure in comparatively recent times was the introduction of Part IB of the Crimes Act. While effecting a significant change in the approach for federal sentencing, Part IB did not cover the field of sentencing: see, for example, Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370, cited with approval in Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 by Gleeson CJ at [20]-[23]. At the same time, sentencing procedures in NSW have grown more complex: see Crimes (Sentencing Procedure) Act1999 (NSW) and, for example, Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and the numerous subsequent cases addressing “Muldrock error”.

10. Despite federal and NSW sentencing procedures becoming more complex it is clear that s 68 of the Judiciary Act should be given a construction to allow people charged with federal and state crime to be dealt with as far as possible harmoniously with state offenders in the state where they are prosecuted, as s 80 of the Constitution requires.

11. In Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, McHugh J made the following pertinent observations at [59]:

“[59]   In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd I said:

‘courts exercising federal jurisdiction should operate on the hypothesis that s 79 will apply the substance of any relevant State law in so far as it can be applied. The efficacy of federal jurisdiction would be seriously impaired if State statutes were held to be inapplicable in federal jurisdiction by reason of their literal terms or verbal distinctions and without reference to their substance. In Railway Co v Whitton’s Administrator, decided thirty years before our Constitution was enacted, the Supreme Court of the United States declared: “Whenever a general rule as to property or personal rights, or injuries to either, is established by State legislation, its enforcement by a Federal court in a case between proper parties is a matter of course, and the jurisdiction of the court, in such case, is not subject to State limitation.” Subject to the proviso that the nature of some State and Territory statutes may make them inapplicable to proceedings in federal jurisdiction, that statement of the Supreme Court is a sound guide as to the effect of s 79 of the Judiciary Act’.” (Citations omitted)

12. In Putlandv The Queen (2004) 218 CLR 174; [2004] HCA 8, Gleeson CJ held at [4] that:

“[4] Section 68 of the Judiciary Act provides, so far as presently relevant, that the laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for their trial and conviction on indictment, shall apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by the section. The operation of related provisions of s 68 concerning appeals was recently considered by this Court in R v Gee. The background to the section is the obvious circumstance that State and Territory laws concerning the matters to which the section relates may differ. The necessary consequence is that, in certain respects, those differences will apply as between federal offenders, depending upon where they are tried. In the present case, the sentencing judge was exercising jurisdiction conferred by s 68(2). Northern Territory laws respecting the procedure for trial and conviction on indictment were at least potentially picked up and applied as federal law by s 68(1). Sentencing laws come within that description. In Leeth v The Commonwealth, Mason CJ, Dawson and McHugh JJ referred to an observation by Dixon J that s 68 disclosed a policy ‘to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State’ and that it was ‘no objection to the validity of such a provision that the State law adopted varies in the different States’. They continued:

‘Thus the administration of the criminal law of the Commonwealth is organised upon a State by State basis and there may be significant differences in the procedures applying to the trial of a person charged with an offence against a Commonwealth law according to the State in which he is tried. And if a person is convicted of a federal offence and sentenced to a term of imprisonment, he will ordinarily serve that term in a State prison in the State in which he is convicted. Prison systems differ significantly from State to State, but that is something which, in relation to federal offenders, is contemplated by s 120 of the Constitution’”. (Citations omitted)

13. There is a concept of inconsistency which underlies and qualifies the extent to which state sentencing provisions are picked up and applied as surrogate federal laws by s 68 of the Judiciary Act. In Putland, Gleeson CJ explained at [7] that:

“[7] The laws of a State or Territory to which s 68(1) refers apply ‘so far as they are applicable’. Although there is not in s 68, as there is in s 79 of the Judiciary Act, an express qualification to the operation of the provision by the use of the words ‘except as otherwise provided by the Constitution or the laws of the Commonwealth’, in the context of a problem such as the present there is little, if any, functional difference between the two forms of qualification. The meaning of ‘otherwise provided’ was considered in Northern Territory v GPAO. Relevantly for present purposes, s 52 of the Sentencing Act would not be picked up and applied by s 68 if a Commonwealth law expressly or by implication made contrary provision, or if there were a Commonwealth legislative scheme relating to the sentencing of the appellant which was ‘complete upon its face’ and can ‘be seen to have left no room’ for the operation of s 52 … .” (Citations omitted)

14. Thus, inconsistency for the purposes of s 68 of the Judiciary Act is not limited to direct textual inconsistency.

15. The issue in the present case arises in the context of separate federal and NSW regimes for taking other offences into account. Section 16BA of the Crimes Act provides, relevantly:

16BA Taking other offences into account

(1)   Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that:

(a)   there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section;(b) the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, which the person convicted is believed to have committed;

(c)   the document has been signed:

(i)   by the Director of Public Prosecutions;

(ii)   for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or

(iii) by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;

and by the person convicted;

(d)   a copy of the document has been given to the person; and

(e)   in all the circumstances it is proper to do so;

the court may, with the consent of the prosecutor and before passing sentence on the person, ask him or her whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted.

(2)   Subject to subsection (3), if the person admits his or her guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted, the court may, if it thinks fit, in passing sentence on him or her for the offence or offences of which he or she has been convicted, take into account all or any of the offences in respect of which the person has admitted his or her guilt.

…

16. Section 16BA (formerly numbered as s 21AA) was introduced in 1982: see the Crimes Amendment Act 1982 (Cth). The provision was renumbered to s 16BA in 1990: see the Crimes Legislation Amendment Act (No. 2) 1989 (Cth).

17. The NSW “Form 1” procedure is established by Part 3 Div 3 (ss 31-35A) of the Crimes (Sentencing Procedure) Act. Section 32(1) provides:

32 Prosecutor may file list of additional charges

(1)   In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.

18. Section 33 provides:

33   Outstanding charges may be taken into account

(1)   When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.

(2)   The court may take a further offence into account in dealing with the offender for the principal offence—

(a)   if the offender -

(i)   admits guilt to the further offence, and

(ii)   indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and

(b)   if, in all of the circumstances, the court considers it appropriate to do so.

(3)   If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.

(4)   A court may not take a further offence into account -

(a)   if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or

(b)   if the offence is an indictable offence that is punishable with imprisonment for life.

(5)   For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.

(6)   Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.

19. This procedure for taking additional charges into account when sentencing has had a statutory basis in NSW since 1955. It was originally set out in former s 447B of the Crimes Act 1900 (NSW), which was introduced by s 4(e) of the Crimes (Amendment) Act 1955 (NSW). The procedure was derived from the non-statutory practice of the English courts: see Second Reading Speech to the Crimes (Amendment) Bill 1955 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3234); Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 per Spigelman CJ at [1].

20. The statutory provisions governing the authority and procedure for taking additional offences into account were later set out in former s 21, and then s 161, of the Criminal Procedure Act 1986 (NSW). They are now contained in Part 3 Div 3 (ss 31-35A) of the Crimes (Sentencing Procedure) Act which I have set out above.

21. Form 1 was formerly contained in Sch 1 to the Crimes (Sentencing Procedure) Regulation 2000 (NSW). The prescribed “Form 1” was repealed by the Crimes (Sentencing Procedure) Amendment (Forms) Regulation 2004 (NSW) which, in the case of certain forms, replaced the requirement to use the “prescribed form” with a requirement to use the “approved form”. “Approved form” was defined to mean a form approved by the Minister.

19. Clause 4 of the Crimes (Sentencing Procedure) Regulation 2017 (NSW) now provides that a list of additional charges under s 32 of the Act is to be in the “approved form”. As no form has been approved for the purpose of that section, the position is governed by the transitional provisions in Part 14, cl 54 of Sch 2 to the Crimes (Sentencing Procedure) Act, the effect of which is to provide, relevantly, that a form “to the effect of” Form 1 may be used for the purpose of s 32 until such time as regulations are made under s 103(2) of the Act (which authorises the making of regulations requiring any document required by the Act to be in a form approved by the Minister). As McCallum JA explained in Ilic at [14], technically, the present requirement is to file the list of additional charges on a form “to the effect of” the now repealed Form 1.

20. Having sketched these provisions I conclude that there is no necessary inconsistency between federal and state provisions under which all outstanding charges against an offender are dealt with in one hearing by one judicial officer. So much is established by Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351.

21. In Adams, the relationship between the Sentencing Act1995 (WA) and the federal sentencing provisions was under consideration. The Court of Appeal of Western Australia held that provisions of the Western Australian Sentencing Act allowing all outstanding offences to be dealt with in one sitting were able to be picked up and applied by s 68 of the Judiciary Act to permit a federal offence to be dealt with under that Act. Sections 32 and 33 of the Sentencing Act relevantly provided:

32. Pending charges, offender may request court to deal with

(1)   An offender who is to be sentenced by a superior court for an offence (in this Division referred to as the original offence) may request the court to also deal with any pending charges against him or her.

…

33. Pending charges, court may deal with

(1)   When a list of pending charges has been prepared and served, the superior court must ask the offender —

(a)   to plead to any of the pending charges listed which the offender has not previously been convicted of; and

(b)   to say if he or she wants the superior court to also pass sentence for each of those pending charges that he or she is convicted of.

(2)   If the State consents and the superior court considers that it is just to do so, it may, in addition to sentencing the offender for the original offence, also sentence the offender for each of the pending charges the offender is convicted of and wants dealt with.

(3)   A sentence imposed by a superior court on a person for a pending charge is to be taken, for the purposes of an appeal against sentence, as being a sentence imposed following conviction on indictment.

(4)   A pending charge that was not dealt with by the superior court may be dealt with by the court before which it was pending.

(5)   If an offender pleaded guilty before the superior court to a pending charge but it was not dealt with by that court, the plea is not admissible in any proceedings for that charge.

25. The critical difference between the Western Australian provisions considered in Adams and the “take into account” provisions in NSW, however, is that the Western Australian Sentencing Act required the court to convict and sentence the offender for the federal offence involved. At [44], Buss JA, with whom Newnes JA relevantly agreed, said:

“[44]   As to s 31, s 32 and s 33 [of the Sentencing Act (WA)]:

(a)   s 31, s 32 and s 33 do not create a mechanism by which an offence or offences may be ‘taken into account’ by a court when imposing a sentence for another offence or offences of which a person has been convicted;

(b)   rather, s 31, s 32 and s 33 create a mechanism for enabling an offender to be convicted and sentenced, by one judge of a superior court and at one sitting, for all outstanding charges against the offender;

(c)   s 31, s 32 and s 33 require the existence of a ‘pending charge’; that is, a charge, in a court of summary jurisdiction, of an offence (whether indictable or simple) for which no sentence has been imposed; and

(d)   the judge must enter or record a conviction and, subject to s 39(2)(a) and s 46 of the Sentencing Act (which are not presently relevant), impose a discrete sentence for each offence.”

26. That is, the relevant provisions of the Western Australian Sentencing Act provided that a discrete sentence was required to be imposed for each federal offence. That is a critical distinction from the NSW procedure where a federal offence is “taken into account” in sentencing for a state crime.

27. Turning to this case, s 68 of the Judiciary Act is a provision of broad application which must be applied in circumstances where, historically and, although to a lesser extent, still today, the administration of federal criminal law is organised on a state by state basis. Subject to inconsistency with federal provisions of the kind identified by Gleeson CJ in Putland, each state administers federal criminal law upon the same footing as state criminal law: Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19, 560 (Dixon J); R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; [1974] HCA 36, 345 (Mason J); R v Murphy (1985) 158 CLR 596; [1985] HCA 50, 617 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); Leeth v Commonwealth (1992) 174 CLR 455; [1992] HCA 29 , 467 (Mason CJ, Dawson and McHugh JJ).

28. Despite the breadth of s 68 of the Judiciary Act, I have concluded that the Director’s concession that there is a relevant inconsistency here was correctly made. This is because of the operation of ss 16A and 19AJ of the Crimes Act.

29. Section 16A of the Crimes Act relevantly provides:

16A Matters to which court to have regard when passing sentence etc. - federal offences

(1)   In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

Note: Minimum penalties apply for certain offences—see sections 16AAA, 16AAB and 16AAC.

(2)   In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a)   the nature and circumstances of the offence;

(b)   other offences (if any) that are required or permitted to be taken into account;

(c)   if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;

(d)   the personal circumstances of any victim of the offence;

(e)   any injury, loss or damage resulting from the offence;

(ea)   if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim;

(f)   the degree to which the person has shown contrition for the offence:

(i)   by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii)   in any other manner;

(fa)   the extent to which the person has failed to comply with:

(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or

(ii)   any obligation under a law of the Commonwealth; or

(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g)   if the person has pleaded guilty to the charge in respect of the offence:

(i)   that fact; and

(ii)   the timing of the plea; and

(iii)   the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;

(h)   the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;

(j)   the deterrent effect that any sentence or order under consideration may have on the person;

(ja)   the deterrent effect that any sentence or order under consideration may have on other persons;

(k)   the need to ensure that the person is adequately punished for the offence;

(m)   the character, antecedents, age, means and physical or mental condition of the person;

(ma)   if the person’s standing in the community was used by the person to aid in the commission of the offence—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;

(n)   the prospect of rehabilitation of the person;

(p)   the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

30. Section 19AJ of the Crimes Act provides:

19AJ Court may only fix non‑parole periods or make recognizance release orders for federal sentences of imprisonment

This Division does not authorise a court to fix a single non‑parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment.

31. Fundamentally, s 16A requires, subject to the permission to take a federal offence into account as provided by s 16BA(1), a federal crime to attract a sentence that is stated and imposed. The matters which must be taken into account in addressing the correct sentence (albeit that they are not a code) are identified in s 16A(2). These matters overlap but are not identical to the matters required to be taken into account by Div 1 of Part 3 of the Crimes (Sentencing Procedure) Act.

32. In the NSW “Form 1” procedure there is no sentence which is imposed. In Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, the process of “taking into account” crimes in sentencing for other crimes was explained by Spigelman CJ as follows:

“[66]   The effect of inclusion on a Form 1 is to give the offences so included a significantly lower salience in the sentencing process. There will be an obvious advantage, and hence a greater incentive to admit guilt, where the Form 1 procedure is employed. In my opinion, the issues that arise are broadly equivalent to those involved in the Crown deciding not to prosecute for the full range of offences open to it or to accept a plea to a lesser charge, albeit in the context of multiple, and often divergent, criminal offences.”

33. The text of s 16A, together with its evident purpose, discloses an intent that for federal sentences the court has to impose a sentence or make an order that is of appropriate severity in all of the circumstances of that offence, unless “taken into account” in the way provided by Part IB of the Crimes Act, s 16BA. Taking into account a federal offence in assessing the salience of a conviction for a state offence is inconsistent with the requirement of s 16A and the structure of Part IB which permits (in s 16BA) federal offences to be taken into account, but only in relation to a conviction for a federal offence. In “taking into account” a federal offence in assessing the salience of a NSW offence, there is an inconsistency between the matters which must be taken into account for the federal offence (s 16A(2)) and the matters which must be taken into account in fixing the State sentence (Div 1 of Part 3 of the Crimes (Sentencing Procedure) Act).

34. My additional reason for accepting the concession made by the Crown is that s 19AJ of the Crimes Act provides that the court is not authorised to fix a single non parole period or to make a single good behaviour bond in respect to both federal sentences of imprisonment and state or territory sentences of imprisonment. The purpose of s 19AJ of the Crimes Act is that offenders should receive separate non‑parole periods for federal offences and state offences. In this case, each of the offences referred to in ground 3 involved a state offence for which a head sentence and a non‑parole period was imposed. At least in a practical sense, the non‑parole period in each case encompassed a federal offence that was included on the Form 1. That also gives rise to inconsistency of the kind identified by Gleeson CJ in Putland.

35. Accordingly, I agree with the orders proposed by Davies J. I note that in the course of argument, counsel for the applicant submitted that in the peculiar circumstances of this case, where there can be no criticism of the sentencing judge for sentencing the offender as both parties urged her to do, “all matters should be remitted and there would be no application for bail”.

36. DAVIES J: On 7 June 2018 the applicant pleaded guilty to 26 charges under both Commonwealth and State law, and asked for 18 additional offences to be taken into account on ten separate additional offence documents under s 33 of the Crimes (Sentencing Procedure) Act (NSW) and s 16BA of the Crimes Act (Cth).

37. The applicant was committed for sentence to the District Court. On 27 September 2019 he was sentenced by her Honour Judge Tupman for these offences. The offending took place over almost a ten year period from 2007 to 2016 when the applicant was aged from 19 to 28 years.

38. The offences are as follows:

1. Ten charges of using a carriage service to menace or harass a person contrary to s 474.17(1) of the Criminal Code (Cth) (sequences 3, 11, 12, 23, 24, 30, 31, 32, 33 and 34). The maximum penalty for this offence is three years’ imprisonment. Each of the offences relates to a separate victim;

2. One count of using a carriage service to solicit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (sequence 18). The maximum penalty for this offence is 15 years’ imprisonment;

3. Eleven charges of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) (sequences 27, 37, 39, 41, 42, 55, 57, 60, 62, 65 and 67). The maximum penalty for these offences is 14 years’ imprisonment and there is a standard non-parole period of seven years. These offences relate to four individual victims;

4. Wilful misconduct in public office (sequence 1). This is a common law offence and the penalty is at large;

5. Two charges of dealing with identity information with the intention of committing an indictable offence contrary to s 192J of the Crimes Act 1900 (sequences 20 and 21). The maximum penalty for this offence is 10 years’ imprisonment;

6. Possessing a prohibited weapon without authority contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) (sequence 15). The maximum penalty for this offence is 14 years’ imprisonment and there is a standard non-parole period of five years.

   39. The offences taken into account under State or Commonwealth legislation are as follows:

7. Using a carriage service to menace, harass or offend (sequences 4, 5, 6, 25 and 52) contrary to s 474.17(1) of the Criminal Code;

8. Using a carriage service to solicit child pornography (sequences 19 and 36) contrary to s 474.19(1) of the Criminal Code;

9. Sexual intercourse without consent (sequences 68, 58, 59, 61, 63, 64 and 66) contrary to s 61I of the Crimes Act.

10. Possessing ammunition without holding a licence, permit or authority (sequences 13, 14 and 17) contrary to s 65(3) of the Firearms Act 1996 (NSW);

11. Possess or use a prohibited weapon without permit (sequences 15 and 16) contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW);

    40. The sentencing judge imposed a number of stand-alone and aggregate sentences, having grouped the sentences generally in relation to particular victims. In due course, when summarising the facts, I will identify the sentences imposed as well as the indicative sentences where aggregate sentences were imposed. The overall effective sentence was a sentence constituting a non-parole period of 15 years commencing 31 May 2017 and expiring 30 May 2032 with a balance of term of five years expiring 30 May 2037.

    41. The applicant filed a notice of appeal relying on the following grounds:

1. The sentencing Judge failed to apply the procedure mandated by s 16BA(1) of the Crimes Act (Cth).

2. The sentencing judge failed to consider s 16A and s 16B of the Crimes Act (Cth) with respect to the sentences relevant to s 474.17(1) and s 474.19(1).

3. The sentencing judge erred by sentencing an overall aggregate sentence for Commonwealth and State offences.

4. The sentencing judge erred in failing to take into account accumulation of sentence as a “special circumstance”.

5. The sentencing Judge erred with respect to her assessment of the objective criminality and the indicative sentences applied post the application of the 25% discount.

6. Her Honour imposed a sentence that was manifestly excessive, and a lesser sentence is warranted at law.

   42. At the hearing of the appeal, counsel for the applicant accepted that, contrary to what was asserted in ground 3, the sentencing judge had not imposed an overall aggregate sentence. Counsel sought, and was given, leave to amend ground 3. Ground 3 was amended to read:

   3.   The sentencing judge erred in taking into account Commonwealth offences on Form 1s that were attached to State principal offences, namely:

   (i)   By taking into account sequence 25 (a Commonwealth offence) in sentencing the applicant for sequence 27 (a State offence) on Form 1E;

   (ii)   By taking into account sequence 52 (a Commonwealth offence) in sentencing the applicant for sequence 55 (a State offence) on Form 1A;

   (iii)   By taking into account sequence 36 (a Commonwealth offence) in sentencing the applicant for sequence 37 (a State offence) on Form 1B;

The facts

43. The sentencing judge had before her a document called “Statement of Agreed Facts”. It extended to 48 pages and 211 paragraphs. Her Honour quite correctly said that it was not a statement of facts at all but was, in large part, a summary of evidence that would be relied on to prove each of the offences. Her Honour said that it ought to have been simplified. I agree. Her Honour carried out a most difficult sentencing exercise by very competently summarising the offending, largely by grouping the offences in relation to each of the victims. The summary that follows hereafter is taken from her Honour’s Remarks on Sentence.

44. The first offences which occurred in 2007, involved the victim BB. At that time the applicant was aged 18 years. There were ten charges in relation to which BB was the victim. Some of these were substantive offences and some were taken into account. Those offences spanned more than a nine year period.

45. BB was born in July 1989. She lived with her parents in Sydney, and in 2006 she was aged 17. She was in year 11 at high school. She completed high school in 2007.

46. She met the applicant in August or September 2006 through mutual friends, and commenced some contact through social media, including MSN Messenger. They began what is described in the facts as an on-again, off-again relationship. Between 2007 and 2017 the applicant demanded that BB forward to him nude images of herself, and threatened that he would forward these images to her friends and family if she did not engage in sexual acts with him.

47. In early January 2007, she was with him in his car, driving around the Arncliffe area. They went to a golf course. They were outside the car and the applicant pulled down his pants and exposed his erect penis. BB turned away, and as she did so the applicant pushed her using both his hands. She fell onto a rock and grazed her knee. When she turned around and saw him standing close by, his erect penis was millimetres from her face. She attempted to push him away but could not move him. She told him to stop but he did not move. He began masturbating with one hand. He put his other hand behind her head and pulled her head towards him. He forced his penis into her mouth. That caused her to choke and gag, and she started crying. She tried to push him away but could not break free because he was holding her head with both his hands. He ejaculated into her mouth and then did up his pants. They then returned to the car and he drove her back home. That offence constituted sequence 57 of sexual intercourse without consent.

43. The first offence being taken account on a Form 1 (sequence 58 of sexual intercourse without consent) occurred in a similar period in the yard of the house where the applicant lived in Bardwell Valley. The applicant took BB by the hand and led her to the side of the house. He took her under the house where there was a door and led her inside where it was dark. He pulled down his pants and began to masturbate until his penis was erect. BB said that she did not want to do that and started to cry.

44. The applicant took hold of her shoulders and forced her to her knees. He then placed his hand on the back of her head, pulling her towards his crotch. He thrust his penis into her mouth. She choked and gagged. He held her head with both hands and continued thrusting, whilst at the same time pulling her head back and forth. He ejaculated into her mouth. He then pulled his pants up and went back into the house, leaving her under the house.

45. The other offence being taken into account on a Form 1 in respect of sequence 57 was sequence 59 (sexual intercourse without consent). It occurred in these circumstances. In July 2007, BB received some compensation following a knee injury. She spoke to the applicant about it. As a joke, she told him that she would buy him a motorcycle. She later made clear that it was joke and that she had no intention of doing so. He became angry and accused her of dishonesty. BB was 17 or 18 at the time and the applicant was about a year older.

46. The applicant claimed that BB was indebted to him because of what he described as her deception. He told her that she had to give him oral sex, which he then and thereafter described as “head jobs”, to make up for it. He said to her, "You owe me times two", and from that time BB started to receive messages from the applicant with the characters "x2" meaning, times two. The sentencing judge noted that that was the beginning of a long period of the use of carriage services to threaten and blackmail young women either into sending him sexually explicit photos or performing sexual acts with and on him.

47. In August 2007 BB received a text from the applicant, telling her to come to his house in Bardwell Valley. It was night time. BB saw him in the living room with the TV on but no other lights. BB sat on the far end of the lounge away from him. The applicant ignored her until about an hour later when he said, "Well, what are you going to do? Why did you come all this way for?".

48. The applicant undid his pants and began to masturbate until his penis was erect. At this stage, BB was closer to him. He placed his hand on the back of her head and forced her head down towards his crotch. She resisted, but he continued to force her head down. Ultimately he managed to force his penis inside her mouth. He then took hold of her head with both hands and pulled her head up and down on his penis. After a few minutes he ejaculated into her mouth. He did up his pants and returned to watching TV. She left a short time later.

49. Her Honour was of the opinion that the substantive offence (sequence 57) was slightly below the mid-range. Her Honour found that the two offences on the Form 1 were equally serious and separate instances of the offence, and that the sentence to be imposed must be longer for that reason. Her Honour considered that the proper sentence was one of five years’ imprisonment with a three year non-parole period. That sentence contained a discount of 25% for an early plea.

50. The facts constituting sequence 60 (sexual intercourse without consent) were these. During the first half of 2010, BB's brother was arrested by police. BB asked the applicant for help because she knew that he had studied criminology at university. She went to his house at Bardwell Valley one evening in the first half of 2010. They were sitting outside near a fire pit. She explained the situation with her brother, and the applicant said that he could help her. He said he had a lawyer friend to whom he would speak. He led her into his bedroom and put her on his bed. He undid his pants. He exposed his penis and masturbated himself until he was erect.

51. He told BB that she needed him, and said that without his help her brother may go to gaol. BB sat on the edge of the bed with her back to him. The applicant grabbed her elbow and pulled her around, but she resisted and refused to turn around. That happened several times and each time she refused to turn around and face him. At one point he grabbed the back of her head and forced his penis into her mouth, holding her head until he ejaculated into her mouth. She left soon afterwards.

52. The facts in relation to sequence 61 (sexual intercourse without consent), which was included on a Form 1, were as follows. In March 2012, BB's brother was again arrested by police. By this time the applicant was a serving New South Wales police officer, about which BB was aware. She again approached the applicant for advice. The applicant told her that he knew a lawyer and that he could get some advice from him. He said that it would not cost her anything “if you know what I mean".

53. In July 2012, BB’s mother died, and she turned to the applicant again for guidance and support, including in relation to her brother's pending court matter.

54. In August 2012 BB went to the applicant's house in Bardwell Valley. They were in the rear yard of the house. The applicant asked her questions about her brother. He asked if she had spoken to the police. The applicant offered to make calls for her. BB ignored him, and he said to her:

Do you really want a dead mother, and a brother in gaol? I've got a friend at the DPP that can help out.

60. BB thought that the applicant had the ability to jeopardise her brother's court proceedings if she did not comply with his request. He put his arm around her, unbuttoned his pants, unzipped his fly and pulled out his erect penis. He put her hand on his penis, but she pulled it away. He took hold of her hand and held it down on his penis. He said:

Do you want to lose your brother too? It's up to you, you can fix this. You just need to do this, and I'll sort it out.

61. The applicant moved his hand to the back of her head and pushed her head towards his crotch. She resisted, and he said:

I can fuck this up, all it would take is a call from me and he'll be put away.

62. BB, knowing that he was a police officer, thought that he had the power he was suggesting. Accordingly, she performed oral sex on him for a few minutes before he ejaculated into her mouth. She did this only because of the threats that he made and not because she consented.

63. Her Honour found that the substantive offence was a little below the mid-range, but her Honour said that the sentence must be longer than it might otherwise be to take into account in a meaningful way the criminality involved in the additional offence. Her Honour said that the facts for the Form 1 offence were more serious than those comprising the substantive offence. Her Honour said that an appropriate sentence was five years’ imprisonment with a three year non-parole period.

64. The facts concerning sequence 62 (sexual intercourse without consent) were these. In June and July 2014 BB received a text from the applicant saying "x2", with further threats that he would forward the collection of nude photographs he had of her to her boyfriend. As a result of feeling threatened by this, she went to his house in Campbelltown one evening. He had two large dogs in the house. She was afraid of them because they were large and acted aggressively.

65. When she arrived at the house, she saw the applicant sitting on the lounge with a glass of wine. He was playing with a knife, and appeared to be acting erratically, and was on edge. He told her that he had guns in the house. He also told her that he was working undercover infiltrating a motorcycle gang.

66. They sat on the lounge for a few hours and then she left. As she drove away, she received texts from him simply saying, "x2". She understood that was a demand or request for oral sex, and she felt under a degree of compulsion because of what he just told her and also because of his erratic behaviour. She returned to the house.

67. When she arrived, she found him in the lounge room masturbating. She walked over and sat on the lounge. He leaned over and grabbed her by the wrist and dragged her across to him. He placed his hand on the back of her head and forced her down towards his crotch. She resisted, but he continued and forced his penis into her mouth. She performed oral sex on him for a few minutes before he ejaculated into her mouth. When he had finished, he continued to watch television, and she left.

68. The offence in sequence 63 (sexual intercourse without consent) occurred in December 2014. It was placed on a Form 1 attached to sequence 62. One evening the applicant sent BB many text messages. She ignored them, but then received a text message which again said "x2". The applicant also threatened to disseminate the nude photos of her if she did not comply.

69. BB went to his house in Campbelltown. She saw him seated on the lounge and he appeared to be drunk. She saw a number of knives on the coffee table in front of him. The two dogs were present. The applicant picked up one of the knives and started playing with it. He opened and closed it a number of times. The blade was about 20cm long. He started to tell her how he hunted and killed pigs. He waved and gestured with the knife in the air. While he did this he reminded her that he had guns and knives in the room. He started to watch television and did not speak for a few hours.

70. After midnight, BB decided to leave. The applicant said to her:

Are you going to do this or what? You know what the consequences would be.

71. She sat down next to him. He undid his pants and took out his erect penis and placed his hand on the back of her head. He pushed it down towards his crotch. She tried to resist but he forced her to give him oral sex for a few minutes before he ejaculated into her mouth. She left shortly afterwards.

72. The offence in sequence 64 occurred in April 2015. It was also placed on a Form 1 attached to sequence 62. BB agreed to have dinner with the applicant at his house in Campbelltown. During dinner, he left the table and did not return. She did not know why he had left the table, so she left and commenced to drive home. She then received some text messages from him in which he referred to her boyfriend, implied a threat to tell her boyfriend that she was there with him, and threatened to send her boyfriend the nude photos that he had of her. He instructed her to come back to the house and sent a text saying “x2”. BB drove back to the house.

73. When she arrived the dogs barked at her and harassed her. The applicant pushed them away. He then stopped in front of her and undid his pants. He pulled out his erect penis, pulled her head towards him and forced his penis into her mouth. He held the back of her head and manipulated her head so that she engaged in oral sex with him. She choked and gagged when he did that, and she had difficulty breathing. She tried to pull away, but he would not allow her to do so, and continued to thrust into her mouth. She tried to push him away, but could not do so because he was too strong. After a few minutes he ejaculated into her mouth. She left shortly afterwards.

74. Her Honour determined that the offence in sequence 62 was objectively serious, as were the other two offences. Her Honour said that they had to be taken into account in a meaningful way. Her Honour said that the appropriate sentence was six years imprisonment with a four year non-parole period.

75. The offence in sequence 65 (sexual intercourse without consent) also involved BB. On 2 September 2015 BB agreed to have dinner with the applicant in Campbelltown. After dinner, she dropped him at his house and then started driving home. He then started to send her text messages directing her to return, and again wrote "x2".

76. BB pulled over to the side of the road and called the applicant. During the conversation he said to her:

Come back, you know what you have to do.

She refused but he said:

Remember what I have got, the collection of you. What would your boss think of it?

77. In those circumstances, BB drove back to his house. The applicant was sitting on the lounge. BB sat on the far end of the lounge and remained frozen. After about 20 minutes, he said to her:

What's it going to be? It's up to you how this all plays out, it's up to you.

78. BB refused and they had an argument. The applicant then said,

Come on, times two.

79. The applicant undid his pants and took out his erect penis. He put her hand on his penis but she pulled away. He did it again but she looked away from him. He put his hand on the back of her head and pushed it towards his crotch. He forced his penis into her mouth and forced her to engage in oral sex with him for about ten minutes, after which he ejaculated. She left shortly afterwards.

80. Sequence 66 (sexual intercourse without consent) on the Form 1 occurred in February 2017. Prior to that time in October 2015, BB had moved overseas with her boyfriend. The applicant continued to demand nude images from her, and threatened to forward the photos to her brother and her workplace if she did not do so. Because of these threats, she forwarded him several images whilst she was overseas. On 26 February 2017, BB came back to Sydney to renew her work visa for the UK.

81. On 27 February 2017 BB agreed to visit the applicant at his home in Campbelltown. She slept on the lounge. The following morning there was an argument between them. He asked why she had visited him if she was going to ignore him. He again used the term “times two”. He also said:

You don't want to fuck up your visa. You don't want to have to give up London. If you don't times two, I can fuck this up for you.

At the time the applicant was still a serving police officer, and BB believed that he had some power to compromise her ability to renew her work visa for the UK.

82. The applicant undid his pants and took out his erect penis. He put his hand on the back of her head and pulled her down towards his crotch. She resisted and pushed backwards. He continued to push, and applied more pressure to the back of her head, overpowering her and forcing his penis into her mouth. She performed oral sex on him for a few minutes until he ejaculated into her mouth. She left a short time later, and returned to the UK a week later.

83. On 13 March 2018 BB made a formal statement to the police, outlining the full range of offences committed against her by the applicant.

84. In relation to the sequence 65 offence, her Honour said that all the same findings applied as earlier, in terms of the objective criminality, including the threats and the fact that he was a serving police officer. Her Honour said that an appropriate sentence was five years’ imprisonment with a three year non- parole period.

85. Sequence 34 (using a carriage service to menace) involved the victim AB. The applicant had been a close friend of AB's brother and her family since 2002, and was a frequent visitor to her home. He started corresponding with AB via social media in 2003. AB turned 17 in May 2007.

86. In September 2007 she was befriended by someone on MSN messenger with a username that contained the initials DJ. She thought that the request had come about because it was someone who shared her interest in under-18 dance functions. In fact the person communicating with her was the applicant using an assumed identity. He did not identify himself to her, but provided some information to her about her personal circumstances.

87. In February 2008, the applicant, using the assumed identity, told AB that he had photos and videos of her getting dressed and naked. He threatened that unless she sent him a photograph of herself, he would send the other photographs of her to her friends, family and work. The demands escalated over time, with him insisting that she send photographs of herself naked including pictures of her breasts. AB blocked his identity from her account, but she was subsequently befriended by a new MSN user with a different account name. This was also the applicant using a different identity. He continued to make demands of her, threatening that he would ruin her life if she did not do what he asked.

88. In April 2008 AB and her boyfriend reported the matter to Kogarah Police. There was no evidence of what happened as a result of that report.

89. Her Honour said that this brief summary of the offence did not adequately deal with the fear and trauma suffered by AB as a result of the ongoing threats and menacing. Her Honour held that it was a serious instance of using a carriage service to menace. Her Honour said that after a discount for the guilty plea, the appropriate sentence was a fixed term of nine months’ imprisonment.

90. Sequences 24 and 30 (using a carriage service to menace) involved victims CD and EF. In 2008 EF commenced a relationship with the applicant. CD was one of EF’s close friends from high school, and was also studying at the university. All three would often socialise together.

91. At some stage the applicant told EF that he had seen some sexually explicit photos of her friend CD and her boyfriend on the boyfriend's phone. This was not true. At some time in 2010, in general conversation with him, CD told the applicant that she wanted to travel to Germany to study in October 2010. On 17 July 2010 CD received a Facebook friend request from a person named Adam Wolfgang. She did not know him, but because of his name and her interest in travelling to Germany, she accepted his friend request. Adam Wolfgang was in fact the applicant.

92. Shortly afterwards, CD and the applicant started to communicate via Skype messenger. The applicant then began to communicate in a sexualised manner. CD told her friend EF about these messages. EF told the applicant. The applicant then contacted CD, in his own persona, and said that he had a friend who might be able to help her. He asked CD to alert him when she was next on Skype with the person Adam Wolfgang, and the applicant said he would then arrange for this friend to find out the identity of Adam Wolfgang.

93. One night in late July 2010, CD let the applicant know that she was on Skype with Adam Wolfgang. The applicant posing as Adam Wolfgang, told CD to turn on the camera in her computer. CD told the applicant about that request. He instructed her to comply so as to make it easier for his friend to identify Mr Wolfgang. Adam Wolfgang then asked CD to expose her breasts. He said that he knew she would do so, because he knew that her boyfriend had a photograph of her on his phone which was sexual in nature.

94. Although CD and her boyfriend had begun to suspect that Adam Wolfgang was in fact the applicant, her friend EF said that she did not believe this, and she told her to do what Adam Wolfgang was instructing her. CD tried to ring the applicant a number of times but he did not answer. She then shut her computer down. When this happened, the applicant began to send CD SMS messages to the effect that his connection with Adam Wolfgang had been lost. He told her that his friend had a connection with the Hells Angels Outlaw Motorcycle Gang, and had taken a great risk in attempting to help her. He said that she had not shown any respect or gratitude. He told her that the Hells Angels were furious with her and wanted to burn down her house, but that he was protecting her from them.

95. At that point, EF started to receive messages from Adam Wolfgang asking her to try to convince CD to go back online or he would release the photos which he said that he had of her and her boyfriend, and that would prevent her from going overseas.

96. CD reported this matter to the police on 15 August 2010. The police contacted the applicant, but he told them that he had no knowledge of the incident. There was no evidence about whether there was any further investigation of the complaint.

82. On 12 August 2008, in an attempt to get CD to re-establish contact with Adam Wolfgang, the applicant communicated with EF using another false Facebook identity, Fred Piercson. Fred Piercson threatened that the applicant, who he named as Vaughan, was a dead man and said that that was all CD’s fault for ceasing contact. Fred Piercson threatened that physical harm would come to the applicant and also to EF. He demanded that EF add him as a Facebook friend. He said that he had done some research on her, and threatened to involve her family in some way if she did not do so.

83. The sentencing judge described this as complicated and very disturbing behaviour. Her Honour described the nature of these types of offences as escalating. She said an appropriate sentence was 12 months’ imprisonment for each offence.

84. The next group of offences involved the victim GH. Four offences were involved. Three of these were sexual intercourse without consent (sequences 55, 67 and 68) and one was using a carriage service to menace (sequence 52).

85. GH commenced to live with her father and his partner in Penshurst from June 2006 when she was 14. The family joined the Elouera Surf Life Saving Club, where the applicant was also a member. The applicant communicated with GH’s sister from late 2006 to early 2008. He started to communicate with GH from early 2008 via MSN Messenger and mobile phone. At the time, GH was 16 years old.

86. GH had found the applicant to be charming and complimentary. She confided personal information to him, including her family circumstances and her limited access to money.

87. During these exchanges on MSN Messenger, the applicant encouraged her, by playing the game of Truth or Dare, to reveal her body to him.

88. By early 2008, GH had, at the applicant’s request, exposed her naked body to him. He exposed himself to her including while masturbating, and sent her a picture of his erect penis. The victim believed that the ongoing communication was live transmission and could not be recorded.

89. The applicant told her he would give her money if she agreed to do things for him or other people. He suggested he could provide her with a fake ID which she would need to have to work as a sex worker. He said he could provide her with protection including a firearm or pepper spray.

90. He later assumed another identity online, Kieran and, as himself, he introduced Kieran to GH as a person who worked on the wharves in Sydney, and who could access stolen or illegal goods, including firearms.

91. GH started to communicate with Kieran via Messenger. He told the victim that he knew she only had limited money, and he said he could help her out if she agreed to do things for the applicant. He said that the applicant would accept the things that she was to do for him in repayment of the debt she would owe to Kieran. He told her that he would provide her with money if she agreed to appear topless or naked for the applicant over webcam chat sessions.

92. GH felt intimidated by Kieran, and started to avoid appearing online on MSN Messenger to avoid him. She blocked him from her contact list. She then started to receive messages from a new MSN contact who again purported to be Kieran. He made it clear he was angry with her for trying to block him.

93. The applicant then started to send GH text messages and to call her. He told her that she was upsetting Kieran.

94. Kieran then started to send her messages via MSN Messenger demanding that she come back online. By May 2008, because she was scared of Kieran and concerned about being blackmailed, she again blocked him. On 7 May 2008 she was contacted by a person who called themselves Damien, who made it clear that he was the same person as Kieran. He said that he had a video recording of her, and sent a file via MSN Messenger. GH recognised it as a recording of an earlier webcam session she had had with the applicant, in which she was depicted topless. Damien told GH that he would give the video to her father, sister, members of the lifesaving club and her school friends unless she agreed to do things for the applicant. The applicant, using his real identity, also told GH that Damien would disseminate the video unless she agreed to do as Damien asked. He said that he was now being threatened by Damien.

95. As a result of all of these threats (which together constituted sequence 52 of using a carriage service to menace) GH participated in three instances of sexual intercourse with the applicant. Sequence 52 was placed on a Form 1 attached to one of those offences, being sequence 55. This was one of the problematic uses of the Form 1 procedure, to which I will come when dealing with ground 3.

96. At some time in 2008 whilst GH was 16, the applicant posing as Kieran sent a message saying that he would give her money if she agreed to perform oral sex on the applicant. GH met the applicant in Penshurst who drove her to a park in South Hurstville. He parked the car and led her along a boardwalk path through a mangrove forest. They reached the landing and he pulled down his pants and underpants and exposed his erect penis. GH was concerned that people might walk past but the applicant insisted that the sex take place at that point.

97. GH knelt down and placed her mouth over his penis. He put his hands on either side of her head and pushed her head backwards and forwards. She began to struggle to breathe, and she felt pain in the back of her mouth. She started to cry. After several minutes, the applicant ejaculated into her mouth. GH did not consent to this sexual intercourse. She only participated because of the threats made to her by Kieran to disseminate the images of her. The applicant took her back to the car and drove her home. She did not tell anyone about what had happened. That offence constituted sequence 67.

98. Her Honour found that the offence was objectively serious but below the mid-range in terms of objective seriousness. Taking into account the 25% discount for the utilitarian value of the plea of guilty, her Honour said that the starting point for the offence would be four years. In those circumstances she imposed a sentence of three years’ imprisonment with a non-parole period of two years.

99. A little later in 2008, while GH was still 16, the applicant, posing as Kieran, told her that he would give her money if she agreed to perform oral sex on the applicant. GH feared that he would send the video she knew that he had of her to her family and friends if she did not agree.

100. She met with the applicant at the same park where the previous offence took place. On this occasion she refused to carry out the act in a public place. The applicant told her that Kieran had specified that the act needed to be performed in public. GH continued to refuse to do so. Ultimately the applicant agreed that it could happen in the car. He stayed in the driver's seat with the victim in the front passenger seat. He removed his pants and underpants and exposed his erect penis. GH leant across the centre of the car and placed her mouth on his penis. He took hold of her hair with both hands and began to move her head up and down against his penis. She felt pain because he was pulling her hair. She began to struggle to breathe and felt pain at the back of her throat. She also felt pain in her chest because it was bumping against the gearstick between the seats. After about ten minutes, the applicant ejaculated.

101. When the act was over GH asked the applicant about the money that she had been promised. The applicant told her he did not have the money and that he would go to meet Kieran to obtain it for her and give it to her later.

102. This offence constituted sequence 68, but it was not charged as a separate substantive charge. Rather, it was placed on a Form 1 in relation to sequence 55, which was the third offence of sexual intercourse without consent concerning GH. Her Honour said that the placing of this offence on a Form 1 did not bear logical scrutiny. I agree with her Honour in that regard. This Court has said on more than one occasion that it is ordinarily inappropriate to charge offences of equal seriousness on a Form 1.

103. The offence constituting sequence 55 occurred a few weeks after the earlier two offences, and just before GH’s 17^th birthday. The applicant, posing as Kieran, messaged GH, telling her that she had to go with the applicant to his house and have anal sex with him. He said that this was going to be recorded on video by the applicant. The video would then be distributed to Kieran via a friend, as proof that the act as demanded had occurred. He sent a message making a threat that if she did not do so he would distribute the earlier video. He also said, "It's not even that bad, and you can walk away with $500".

104. GH met the applicant at 11pm one night in Penshurst. They went to Bardwell Valley Golf Course, and walked around for about half an hour and then got back into his car. The applicant then drove her to his home in Bardwell Valley, arriving at about midnight.

105. The applicant led her to a room at the front of the house where there was a computer. He instructed her to bend over, and she did. He began to push his erect penis against her anus, which caused immediate pain. He continued to push his penis against her anus until it entered her anus. She felt pain and began to bleed. He laughed, and said, “At least we can use the blood for lube”. He continued to penetrate her anus for about ten minutes before ejaculating onto her buttocks.

106. GH cleaned herself with a cloth and then demanded to see the video recording that she had been told would be made. The applicant said, "Actually, I was so into it, I forgot to film it, so we will have to do it again". He said he would try to talk to Kieran, but that ultimately Kieran would demand proof that the event had occurred. He then drove GH home.

107. The sentencing judge said that this was a serious offence of sexual intercourse without consent. Her Honour said the offence was planned and calculated, and its hallmarks were bizarre and manipulative. Her Honour said that GH was obviously vulnerable and naive. Her Honour found that it was about the middle of the range for offences charged under that section. As noted earlier, there were two offences on a Form 1 attached to sequence 55. The first was sequence 68 ([114]-[116] above) and the second was sequence 52 ([106]-[110] above) being the use of a carriage service to menace. That offence was constituted by the use of a carriage service to arrange the sexual offending.

108. The next victim was IJ. The offending in relation to her took place in the period from June to August 2010.

109. IJ was a vulnerable young woman who had been raised by her grandmother from the age of one. At the time of the offending, IJ was unemployed and had little access to funds. In 2009 she commenced a relationship with a young man who was the younger brother of the victim AB. The applicant was a close friend of her boyfriend's family, and had been in a relationship with EF since 2008. IJ met the applicant and EF during social functions during 2009. In early 2010 she started corresponding with the applicant on social media. She turned 16 in April 2010 and was in year 11.

110. On 1 June 2010, just after IJ turned 16, the applicant communicated with her and asked whether she would like to obtain a fake ID. She agreed. He gave her an MSN Messenger username for a person called Simon for this purpose. Simon was in fact the applicant using a fake MSN profile. The applicant continued to communicate with IJ both in his own capacity and posing as Simon. Simon said the fake ID would cost her $250, or it could be free if she showed him her boobs. She refused, saying that she had a boyfriend, and that she was concerned he would screenshot the photo and use it in the future.

111. IJ told Simon that she would show him her bra. She removed her singlet and exposed her bra to Simon via the webcam chat feed. Simon said that that was not good enough. She sought further assurance from him that he would not take a screenshot of her. She then removed her singlet top and bra and exposed her breasts to Simon. He immediately replied that he had taken a screenshot of her breasts and saved that shot. He told her that the applicant owed him a debt, and that if she did not do what he asked, he was going to send the picture to her boyfriend, her school friends and her school.

112. This offence, sequence 36, was the use of a carriage service to solicit child pornography. It was placed on a Form 1 attached to an offence of sexual intercourse that subsequently took place between IJ and the applicant (sequence 37). This Form 1 also forms a basis for ground 3.

113. Simon told IJ that the applicant owed him a lot of favours, and that IJ needed to go for a drive with the applicant to help him clear his debt with Simon. He said she needed to go on a drive with the applicant and engage in oral sex with him. He said that the sex act was to be filmed, and Simon wanted to see it that night. IJ decided to comply with those instructions because she was scared that the images of her breasts would be circulated at her school. She believed that if she complied, the problem would go away.

114. At about 11pm that night she left her home and met the applicant in Banksia. He drove her to his home in Bardwell Valley and took her into his room. He picked up a digital camera and began to film her. He spoke to her in a way that suggested he was being controlled by Simon. He started to kiss her and then removed his jeans and underwear. IJ knelt in front of him and performed oral sex on him. He filmed this by holding the digital camera above her head and pointing it down. He ejaculated into her mouth. She then stopped and replaced her clothing. The applicant then drove her back to her home and said he would deliver the video to Simon. Later that night in a further act of manipulation, he sent a text message to IJ saying that he was sickened by what had happened, and that he intended to get revenge on Simon.

115. That offence constituted sequence 37. Her Honour found that it was below the middle range for those types of offences. Sequence 36 was placed on a Form 1 in relation to sequence 37. Her Honour considered that the starting point would be four years’ imprisonment but with the discount for the early plea the sentence would be three years’ imprisonment with a non-parole period of two years.

116. About two weeks after that offence, the applicant contacted IJ and said he wanted to talk about what had happened with Simon. IJ went to an address in Penshurst with the applicant. He told her that he had done away with Simon. When she asked what that meant, he said that the National Park was a very big place and that he would never be found. IJ believed that the applicant had killed Simon. By this stage he had told her that he was involved in criminal activities with outlaw motorcycle gangs. He said that he trafficked cocaine on behalf of those gangs and their affiliates. He claimed to have access to firearms and knowledge of them. Because the video of IJ having oral sex with the applicant had not surfaced in any way, IJ thought that the applicant had been manipulated by Simon, and that the applicant had a genuine interest in her welfare.

117. Not long after that occasion, the applicant asked IJ to go to his house and she agreed. He supplied a bottle of gin, and she started to drink. She told the applicant that what had occurred earlier with him should not have happened. She said she had spoken to her counsellor about it, and that it had been reported to the police. The applicant then asked her that she not do anything further about it, because it would stop him from getting into the police force. She was aware that he wanted to join the New South Wales Police Force, and so she agreed not to pursue the matter.

118. The applicant then started to badger her to allow him to perform oral sex on her. She did not want this to happen and said no. He persisted and said that he was not taking her home until she did so.

119. He took her to his bedroom and she lay on the bed. He removed her jeans and her underwear. He performed oral sex on her by licking her genital area, and he inserted his finger into her vagina for about 15 minutes. She then got up, got dressed and he drove her home. That offence constituted sequence 39 of sexual intercourse without consent.

120. By late June or early July, the applicant began to threaten IJ that if she did not comply with his continued requests for sex, he would tell her boyfriend David and his family what she had been doing. She was very close to David’s family because she had had a difficult relationship with her own family.

121. The applicant started to threaten to disseminate sexually explicit images of her that he had unless she agreed to his demands. The phone contact increased in frequency. His phone records demonstrate that he contacted IJ on his phone on no less than 3,900 occasions in late June to early July 2010, mostly by text messages.

122. In late June or August 2010 the applicant contacted her by phone late one evening and told her that he was coming to pick her up from home. She said that she did not want to see him. He said that he was on his way and that if she did not go with him he would tell the family of AB. He picked her up and they went to his house. She was crying and she said that she did not want to see him that night. He gave her a bottle of gin, part of which she drank. He then had penile vaginal intercourse with her on the bed in his room for a number of minutes before ejaculating. She did not give voluntary consent to this sexual intercourse. She only participated because of the threats he made to disseminate photos and videos of her to friends, school or the family of AB. He drove her home on the following morning. That offence constituted sequence 41.

123. Her Honour found that sequence 39 was below the mid-range and that sequence 41 was somewhat below the mid-range. In relation to sequence 39 her Honour imposed a three year sentence with a two year non-parole period and for sequence 41 she imposed a four year sentence with a three year non-parole period.

124. The last charge involving IJ occurred between June and August 2010. IJ had arranged to meet her boyfriend David after school. The applicant contacted her and told her to catch a bus and come to Hurstville. She said she had already made plans to meet David. He said to her, "If you don't fucking get on that bus and get over here right now, I'm going straight over to the family of AB to tell them everything." As a result of that threat she caught the bus to the car park outside Dan Murphy's in Hurstville where she met the applicant.

125. The applicant then drove IJ to his home and took her to his bedroom. He told her that he wanted to have sex with her while she was wearing her school uniform. He pulled her stockings and underwear down. He had penile vaginal sex with her and ejaculated. He then drove her to her boyfriend's home. That offence constituted sequence 42. Her Honour found it had much the same objective seriousness as the other offences, and that the appropriate sentence was one of four years with a non-parole period of three years.

126. On 16 December 2011, the applicant joined the New South Wales Police Force, initially with the rank of probationary constable. All of the offences that occurred after that date were committed by him when he was a serving New South Wales police officer.

127. The next victim was KL. The offences occurred in September 2012 when KL was 16. She worked at a video game store in Marrickville and became friends with another young woman who worked there.

128. In 2012 KL told her friend that she wanted to obtain a fake ID. Her friend said that her boyfriend, who she named as Vaughan and who she said was a police officer, would be able to get one for her. She gave KL Vaughan's Facebook username, being Vaughan Bailey, and he and KL became Facebook friends. Vaughan Bailey was in fact the applicant.

Submissions

240. The issue raised by this amended ground was identified by the Crown in its submissions when responding to the earlier form of ground 3 (set out at [41] above). Counsel for the applicant adopted the Crown’s submissions. The Crown’s submissions amounted to a concession that the sentencing judge had erred when sentencing for sequences 27, 37 and 55, albeit at the joint request of the parties pursuant to the Form 1 procedure.

241. The Crown indicated that it relied on its submissions in another appeal that resulted in this Court’s judgment in Ilic, referred to in Payne JA’s judgment at [2] above. The same issue arose in that case where a Commonwealth offence was placed on a Form 1 attached to a State offence. The Crown conceded that for various reasons that joinder was not permitted.

Determination

242. Since the hearing of the present appeal this Court determined in Ilic, as Payne JA has noted earlier, that it was not permissible for a Form 1 to include a Commonwealth offence. I agree with Payne JA’s reasons in that regard. The Court further determined that the only appropriate order in the circumstances was for the matter to be remitted to the District Court for the applicant to be resentenced according to law.

243. The same error was made in the present case by the inclusion by the Crown of the Commonwealth offences in sequences 25, 36 and 52 on Form 1 documents attached to sequences 27, 37 and 55. The result must be that the applicant has not been sentenced according to law in relation to the offences constituted by those sequences.

244. Although it will be necessary for sequences 25, 36 and 52 to be attached to Commonwealth offences at any re-sentencing, it is not likely that the overall sentencing of the applicant will be significantly affected. For that reason, it is appropriate for this Court to consider the remaining grounds of appeal, to minimise the risk of any further appeal once the resentence exercise is complete.

Ground 4:   The sentencing judge erred in failing to take into account accumulation of sentence as a “special circumstance”.

Submissions

245. The applicant submitted that, because the sentencing judge found special circumstances partly on the basis of a partial accumulation of all of the sentences, the overall sentence should have resulted in a moderation of the statutory non-parole period ratio. The applicant submitted that, because other factors were also identified, the statutory ratio should have been modified. The applicant submitted that, in the absence of express reasons for imposing an overall non-parole period that negated or substantially negated a finding of special circumstances, it should be inferred that the sentencing judge overlooked the effect of partial accumulation or at best erroneously allowed it to affect the aggregate sentence.

Determination

246. In Hutchen v R [2015] NSWCCA 101 the applicant pleaded guilty to three offences. The sentencing judge in that case provided a separate sentence for each of the offences. For each of the offences the ratio between the non-parole period to the whole term was between 60 and 66 percent. However, the combined effect of the sentences produced a ratio of 73.3 percent. It was contended that the result was contrary to the sentencing judge’s express intention of varying the statutory ratio to give the need for a longer period of rehabilitation on parole.

247. Justice Hoeben (with whom Adams and McCallum JJ agreed) said:

[28]   There is no general rule that just because an overall sentence does not reflect a finding of special circumstances, a sentencing judge must, having found special circumstances in respect of individual counts, make a further adjustment to the ratio in respect of the total accumulated sentence. Each case depends upon its own particular facts.

[29]   In a case such as this, where the express purpose for the finding of special circumstances was to satisfy the need for a long period of rehabilitation including residential rehabilitation, it is not only the ratio of the non-parole period to the head sentence which is important, but the actual periods involved are equally, if not more important (R A Hulme J in Caristo v R [2011] NSWCCA 7 at [41]). Here, the parole period of 1 year and 4 months is not particularly long in the context of the need for long term rehabilitation, including a residential component.

[30]   This issue was comprehensively examined by Hamill J (with whom Johnson J and I agreed) in Sabongi v R [2015] NSWCCA 25. That was a case where the finding of special circumstances was based on a need for extended rehabilitation and on the fact that there was an accumulation of sentences. Hamill J referred to the observation of R A Hulme J in CM v R [2013] NSWCCA 341 at [40] where his Honour said:

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

[31]   By way of elaboration of that principle, Hamill J said:

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

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

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

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

[32]   On my reading of his Honour’s reasons in this case, there is no indication of his Honour’s awareness that the total effective sentence would remain close to the “statutory norm”. In those circumstances, I am satisfied that error has occurred in the sense that the combined effect of the total sentence has not given effect to his Honour’s intention when making his finding of special circumstances. This ground of appeal has been made out.

248. The sentencing judge said in her Remarks:

To the extent that is necessary for me to indicate reasons for doing so, I accept that there are limited special circumstances here. One is that there will be a degree of partial accumulation of all of the sentences; the second is that this is his first time in custody; and the third is that his non parole period, at least to some extent, will be served in slightly more onerous circumstances than it might be for others, but to a very limited extent.

249. This principle in Hutchen is relevant here because the challenge is to the ratio of the overall effective sentence in the light of what her Honour there said. However, it is clear that her Honour was mindful of the matter because, having identified all of the aggregate sentences her Honour said this:

If each of these was then accumulated on the other, it would, on my calculation, be a little more than 31 years, which also is excessive to represent the total criminality. The total criminality represented by all of these offences should give rise to an overall sentence of 20 years, with an overall non parole period of 15 years.

Whilst I am conscious that this equates to the statutory ratio of 75% for a non parole period, where many of the indicative or other sentences imposed have indicated a lower non parole period; and whilst I have indicated some special circumstances, in my view, nothing less than a non parole period of 15 years would be sufficient to deal with the objective criminality and the period on parole of 5 years is more than sufficient to deal with the supervision and needs of the offender, once he is released.

250. By contrast with what was found in Hutchen, where there was no indication of his Honour’s awareness in that case that the total effective sentence would remain close to the statutory norm (see at [32]), the sentencing judge in the present case expressly referred to the matter and determined that nothing less than a non-parole period of 15 years would be sufficient. That determination is a justification for not reducing the statutory ratio: R v Cramp [2004] NSWCCA 264 at [34].

251. In my view, this ground should be rejected.

Ground 5:   The sentencing Judge erred with respect to her assessment of the objective criminality and the indicative sentences applied post the application of the 25% discount.

Submissions

252. The applicant submitted that, considering the intercourse involved was mostly fellatio, there was an absence of physical force or violence, and that most of the offences were found to lie below the mid-range, the notional starting points of the indicative sentences were excessive in all the circumstances.

253. The applicant provided a table (which I have adapted to include Form 1 offences) of the relevant indicative sentences to identify what were said to be the excessive starting points as follows:

Sequence	Victim	Form 1/S 16BA	Max Sen	Assessment of obj crim ref	Indicative sentence	Starting point
15	4	14y/snpp 5y	3y npp 2y	4 years
27	OP	1	14y snpp 7	Rel serious	3y npp 2y	4 years
37	IJ	1	14y snpp 7	Below mid	3y npp 2y	4 years
39	IJ	-	14y snpp 7	Below mid	3y npp 2y	4 years
41	IJ	-	14y snpp 7	Below mid	4y npp 3y	5 years 4m
42	IJ	-	14y snpp 7	Below mid	4y npp 3y	5 years 4m
55	GH	2	14y snpp 7	Mid-range	5y npp 3y 6 y npp 4	6 years 8m
57	BB	2	14y snpp 7	Below mid	5y npp 3y	6 years 8m
60	BB	1	14y snpp 7	Below mid	5y npp 3y	6 years 8m
62	BB	2	14y snpp 7	Objectively serious	6y npp 4	8 years
65	BB	1	14y snpp 7	5y npp 3y	6 years 8m
67	GH	-	14y snpp 7	Below mid	3y npp 2y	4 yrs

254. The applicant accepted that any leave to appeal is in relation to the aggregate sentences and not the indicative sentences. However, it was submitted that the indicative sentences can reveal error in relation to the aggregate sentences.

Determination

255. In relation to all of the sequences on the table the starting point is that the maximum penalty for each offence was 14 years’ imprisonment and in relation to all but sequence 15, there was a standard non-parole period of seven years. Only in respect of sequence 62 was there an indicative sentence that equalled or exceeded the standard non-parole period. In every case the indicative non-parole period lay below the standard non-parole period. Sequence 62 had two further counts of sexual intercourse without consent on a Form 1. The offending was determined to be objectively serious.

256. The starting points for all of the indicative sentences were entirely consistent with the assessment of objective seriousness, although some might be considered to be lenient. The majority of the sequences in the table had Form 1 documents attached, with one or more additional offences taken into account. In relation to sequences 57, 60, 62 and 65, the Form 1 offences were all further instances of sexual intercourse without consent. Sequences 41 and 42 involved penile vaginal intercourse to ejaculation. Sequence 55 involved anal intercourse to ejaculation. All acts of oral intercourse resulted in the applicant ejaculating into the mouths of the victims. Some of the acts of intercourse involved force being applied to the victims.

257. The applicant coerced and deceived the victims, sometimes threatening them, sometimes overbearing their wills and vitiating their consent. In most cases there was planning and repetition of behaviour for the sexual pleasure of the applicant.

258. It cannot be said that any of the indicative sentence starting points were not open to her Honour when regard is had to all of these matters. Indeed, counsel for the applicant accepted at the hearing of the appeal that she could not submit that the indicative sentences were not within the sentencing judge’s discretion, nor could she submit that the indicative sentences were outside the appropriate range. Those starting points do not indicate any error in relation to the aggregate sentences imposed for the various groups of offences.

259. I would reject this ground.

Ground 6:   Her Honour imposed a sentence that was manifestly excessive, and a lesser sentence is warranted at law.

Submissions

260. The applicant submitted that the overall effective sentence and the partial accumulation of the sentences was disproportionate to the offending and is a crushing sentence that will leave him with a sense of hopelessness and will destroy any expectation of a useful life after release. The applicant submitted that he was young man, and will be ineligible for release until he is aged approximately 43. He submitted that in that way the sentence is unreasonable or plainly unjust.

Determination

261. The principles relevant to the finding of manifest excess are well known and do not need to be restated. They have recently been set out in a number of cases including Hughes v R [2018] NSWCCA 2 at [86] and Kerr v R [2016] NSWCCA 218 at [113]-[114].

262. The offending took place over a period of almost ten years. There were 14 different victims. From December 2011 the applicant was a serving police officer. The planning for many of the offences was extensive. The applicant deceived his victims and overbore their wills. His behaviour was coercive and predatory. It was all done for his sexual pleasure. Blackmail was involved in most of the offences.

263. The maximum penalties for the offences and the standard non-parole periods were required to be considered. The total of the indicative sentences was almost 70 years’ imprisonment. It is apparent from the way her Honour structured the sentences that there was a very substantial degree of concurrence of the individual sentences and the indicative sentences.

264. Her Honour specifically adverted to the applicant’s relatively young age, and to the need to avoid a crushing sentence. She said:

The offender is now aged 30 almost 31, and as I have said has been in custody on remand since 31 May 2017. He is still young, therefore, and as general principle is open to be rehabilitated. The sentence imposed on him should not be so crushing that it prevents him from taking advantage of whatever might be available in the prison system while he serves the balance of his non-parole period, so that he emerges in a rehabilitated state.

265. Her Honour also considered at length the fact that the applicant’s time in custody would likely be spent on some form of limited association or protection, and she considered that would be more onerous for him.

266. Nothing in the applicant’s subjective features excused or even explained his offending in an exculpatory way, or in any way which modified or reduced his moral culpability. Her Honour accurately summarised the position concerning his offending in her Remarks when she said:

He abused his position as a police officer. He abused the trust of his friends. He abused the trust of his partners. He abused the trust of the friends of his partners. He used multiple identities. He created multiple identities. He did all of this for no other reason than to engage in sexual behaviour. The sentences must send a very strong message of general deterrence. He also needs a sentence which reflects a degree of specific deterrence. He must be punished for this appalling behaviour over a period of ten years, and be denounced. The denunciation is even more important in relation to those offences committed by him when he was a serving police officer. There is a saying that "..from those to whom much is given, much is expected." That applies to those in positions of authority, like police officers. Much is expected of those to whom much is given. He failed, miserably, in that regard and he failed as a human being in the way he treated, abused, manipulated and callously dealt with all of the victims of these offences.

267. When regard is had to all of these matters, it cannot be said that the overall effective sentence, or any of the sentences, individual or aggregate, are plainly unjust or unreasonable.

268. I would reject this ground.

Conclusion

269. Strictly speaking, error has only been demonstrated in relation to the sentences for sequences 27, 37 and 55, being the sequences which had Commonwealth offences taken into account on a Form 1 document. However, it will be necessary for the Crown to consider how those Form 1 offences, being sequences 25, 36 and 52 should now be dealt with. They will need to be attached to one of the sequences where a Commonwealth offence was the principal offence. That in turn will impact on the sentence or sentences in respect of those sequences. In the circumstances, the better course is to allow the appeal and to quash all the sentences generally to give the sentencing judge the maximum flexibility in the resentencing exercise.

270. Although the sentences in relation to sequences 1, 20 and 21 have expired, it is appropriate that the judge who re-sentences the applicant has maximum flexibility to do so. It is also appropriate that the sentences for all the offences should be imposed at the one time.

271. It would obviously be desirable for the matter to be remitted to Judge Tupman, who was entirely conversant with the detail of the material. However, it will be for the District Court to determine arrangements for the re-sentencing exercise.

272. Accordingly, I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentences imposed by Judge Tupman in the District Court on 27 September 2019.

4. Remit the proceedings to the District Court for sentence.

   273. GARLING J:      I agree with the orders proposed by Davies J and with his reasons for those orders. The following remarks are in addition to the reasons of Davies J.

   274. This application for leave to appeal, seeks an order that this Court quashes the sentences imposed on the applicant by Tupman DCJ, and then to remit the matter to the District Court so that the applicant can be sentenced again.

   275. In the complex and most difficult sentencing judgment with which Tupman DCJ was confronted, as the judgment of Davies J clearly shows, the applicant has no, and could not have any, grounds for any successful complaint about the sentences which were actually imposed. That is except for the error of law dealing with whether three Commonwealth offences could be taken into account by the sentencing Judge using the NSW Form 1 procedure when imposing sentences for NSW offences.

   276. Two of the three Commonwealth offences taken into account were for conduct contrary to s 474.17(1) of the Criminal Code 1995 (Cth) namely, using a carriage service to menace harass or offend. These offences carry a maximum penalty of three years imprisonment. The third offence was for conduct contrary to s 474.19(1) of the Criminal Code namely, using a carriage service to solicit child pornography which carries a maximum penalty of 15 years.

   277. The principal offences to which these three offences were (wrongly) attached were for conduct contrary to s 61I of the Crimes Act 1900 (NSW). That offence carries a maximum term of 14 years imprisonment with a standard non-parole period of 7 years.

   278. On the basis of the agreed facts which were tendered to the sentencing judge, the three Commonwealth offences were of much less seriousness than the principal offences to which they were attached.

   279. Having regard to the complexity of the sentences which were imposed, the way in which the sentencing judge aggregated some but not all of the sentences, and the way in which Her Honour assessed concurrency and, in particular, the totality of the applicant's criminality, I very much doubt whether the overall effective sentence which the applicant is obliged to serve - 20 years with a non-parole period of 15 years, will be in any way altered when he comes to be re-sentenced. The result of this is that the practical utility of this appeal is entirely elusive.

   280. In those circumstances, it is, to say the least, most regrettable that this Court is required now to quash three of the ten separate sentences which were imposed because the applicant asked the sentencing Judge, no doubt on the advice of his counsel, and with the active agreement of the prosecution, to take into account three Commonwealth offences of significantly less criminality than the principal offences to which they were attached. Particularly is this so when two of the ten sentences which were imposed by the sentencing judge were for other Commonwealth offences to which these three offences could have been attached by following the procedure fixed under s16BA of the Crimes Act (Cth).

   281. I accept that there is no course open for this Court but to make the orders proposed by Davies J. I also agree with Davies J when he notes the desirability of the re-sentence being undertaken by Tupman DCJ.

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Decision last updated: 15 February 2021