Kanengele-Yondjo v Regina

[2006] NSWCCA 354

CITATION:	Kanengele-Yondjo v Regina [2006] NSWCCA 354
HEARING DATE(S):	24 October 2006
JUDGMENT DATE:	16 November 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Sully J at 2; Hislop J at 3
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed.
CATCHWORDS:	The order previously made suppressing the publication of the names of the victims is continued - Criminal law - Sentence - Malicious infliction of grievous bodily harm by infecting with HIV virus - Worst case category - Discount for plea of guilty - Totality - Not manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 - ss 35(1)(b), 36 Crimes (Sentencing Procedure) Act 1999 - ss 3A, 21A(3)(k), 21A(5)), 22(1), 45, 101A Criminal Appeal Act 1912 - s 6(3)
CASES CITED:	Markarian v R (2005) 215 ALR 213 Mill v the Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Johnstone [2004] NSWCCA 307 R v Scott [2003] NSWCCA 286 R v Simpson (2001) 53 NSWLR 704 R v Thompson (1999-2000) 49 NSWLR 383 R v Twala (NSWCCA unreported 4 November 1994) R v Weldon [2002] 136 A Crim R 55 R v Wilson [2005] NSWCCA 219 Veen v The Queen [No 2] (1987-1988) 164 CLR 465
PARTIES:	Applicant - Stanislas Kanengele-Yondjo Respondent - Regina
FILE NUMBER(S):	CCA 2006/1382
COUNSEL:	Applicant - Mr J. Stratton SC Respondent - Ms D. Woodburne
SOLICITORS:	Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/1025
LOWER COURT JUDICIAL OFFICER:	Andrew DCJ
LOWER COURT DATE OF DECISION:	2 December 2005

- 1 -

2006/1382

McCLELLAN CJ at CL
SULLY J
HISLOP J

16 November 2006

Stanislas Kanengele-Yondjo v REGINA

Judgment

The order previously made suppressing the publication of the names of the victims is continued.

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

2 SULLY J: I agree with Hislop J.

HISLOP J:

3 The applicant was born on 22 December 1963 in the Democratic Republic of the Congo. He was educated to matriculation level and attended University where he completed two years of a degree in Industry Sociology. He has five children from four relationships. He came to Australia in April 1993. He has been employed in Australia as a printer’s assistant, a storeman and a security officer. He has convictions for matters of dishonesty in Australia. In 1997 he was placed on a two year good behaviour bond for obtaining financial benefit by deception. In 2003 he was sentenced to 12 months imprisonment for fraud. In 2004 he was sentenced to 12 months imprisonment for obtaining money by deception, receiving, and larceny as a clerk. He also had a conviction for stealing in 1997. He was on bail at the time of the commission of the offences the subject of this application.

4 On 8 February 2005 the applicant pleaded guilty at Penrith Local Court to the following charges:

1. Between 8am on 1 January 2003 and 5pm on 7 March 2003 at Blacktown he did maliciously inflict grievous bodily harm upon “A”; and
2. Between 8am on 4 March 2003 and 5pm on 28 March 2003 at Blacktown he did maliciously inflict grievous bodily harm upon “B”.

5 The offences were in breach of the Crimes Act 1900 s 35(1)(b). The maximum penalty for such an offence is seven years imprisonment.

6 On 2 December 2005 the applicant was sentenced in the District Court in respect of those offences. On the first count he was sentenced to a fixed term of 6 years imprisonment commencing on 13 April 2004 and expiring on 12 April 2010. On the second count he was sentenced to imprisonment for a non-parole period of 3 years to commence on 12 April 2010 and expire on 11 April 2013 with a parole period of 3 years to commence on 11 April 2013 and expire on 10 April 2016. The applicant thus received sentences totalling 12 years imprisonment with a non-parole period of 9 years.

7 The applicant has sought leave to appeal against those sentences pursuant to the Criminal Appeal Act 1912 s 5(1)(c). The grounds of appeal are:

1. His Honour erred in finding that the case fell within the worst class of case;
2. His Honour erred in not giving the applicant sufficient discount for his plea of guilty;
2A. His Honour erred in failing to give adequate or any reasons for only giving a discount of 15% for the plea of guilty, despite the fact that the plea was entered into at the earliest opportunity;
3. His Honour erred in not giving sufficient weight to the applicant’s subjective circumstances;
4. His Honour erred in not giving reasons for failing to fix a non-parole period for count one;
5. His Honour erred in not taking into account the principles of totality;
6. The sentences were individually and collectively manifestly excessive.

8 The undisputed facts as stated by the sentencing judge in his Remarks on Sentence were as follows:

“In February 1999, Dr Virginia Furner advised Stanislas Kanengele-Yondjo that he was HIV positive. In 2003 the accused had unprotected sexual intercourse with Ms A and with Ms B and communicated the HIV virus to each. Both have been diagnosed as HIV positive. In each case the HIV virus was communicated by Stanislas Kanengele-Yondjo.

Dr Virginia Furner is the Director of Clinical Services at the Albion Street Centre in Surry Hills Sydney. Dr Furner graduated from the University of New South Wales as a doctor of medicine in 1975. From February ’99 through to June 2001, Dr Furner was the attending medical officer providing ongoing HIV medical care to Stanislas Kanengele-Yondjo.

On 2 February ’99 Dr Furner interviewed Stanislas Kanengele-Yondjo. On 4 February ’99 HIV antibody testing was undertaken and on 5 February ’99 Stanislas Kanengele-Yondjo was diagnosed as HIV positive.

On 5 February ’99, in addition to notifying the accused of his HIV positive result, the accused was counselled by Dr Furner in relation to how the HIV virus was transmitted, how to undertake safer sexual practices, the fact that all persons with HIV remain infectious to their sexual partners for life, the legal responsibility to notify future sexual partners of his HIV status, and of the necessity to use a condom on all occasions of sexual intercourse.

In the course of the counselling on 5 February ’99 Dr Furner also told Stanislas Kanengele-Yondjo that if he was to infect anyone in the future with the HIV virus civil or even criminal action could potentially be undertaken against him if there was a failure to take steps to prevent the transmission of the HIV virus by notifying sexual partners and by using a condom.

In the course of this counselling the accused’s responsibility to notify of his HIV status and to use condoms in the course of sexual intercourse was emphasised several times. The modes of transmission of HIV, the need to adhere to safe sexual practices and the accused’s legal responsibilities were emphasised as a priority during initial consultations.

Dr Furner who has eighteen years experience in the field of HIV AIDS clinical care, sexual health care and prevention of sexually transmissible infections, was assured by Stanislas Kanengele-Yondjo that he could understand his responsibilities at that time.

In the case of Stanislas Kanengele-Yondjo Dr Furner gave to him more information and more explicit direction than any other person for who she has provided medical care. Over the course of several interviews at the Albion Street Centre Dr Furner emphasised to the accused that contact details of all known sexual partners were needed to identify anyone with the HIV virus so that they could access appropriate treatment if needed and so that those persons did not transmit the HIV virus to their sexual partners.

The accused was initially reluctant to disclose the information relating to his sexual partners. He was seen by a second physician, Dr Julian Gold. Dr Gold is the Director of the Albion Street Centre, and advised the accused of his responsibilities to provide the information and of the consequences of failure to provide that information.

On 21 February 2001 Stanislas Kanengele-Yondjo indicated to Dr Furner that he would be going to Africa for a four through to six month period. On 2 March 2001 the accused was noted as having stable immune monitoring. The accused told Dr Furner that he was going to remain off treatment while overseas.

On 10 February-April 2000 Stanislas Kanengele-Yondjo was referred to a clinical psychologist at the Albion Street Centre for support concerning issues relating to directions in his life and the need to meet family obligations in Australia and in Africa. The accused failed to attend a pre-arranged follow up consultation.

On 6 June 2001 the accused told Dr Furner that he had returned from a twelve month visit to Africa. He was tested at the Albion Street Centre and was advised to attend for further assessment in six weeks’ time and to discuss possible recommencement of antiretroviral therapy. Stanislas Kanengele-Yondjo was lost to follow-up following this visit and Dr Furner had no further contact with him for clinical care at the Albion Street Centre.

Ms A was born on 1 January 1977 and graduated as a nurse in 2002. She lives in the Republic of Ireland. She was HIV negative. Ms A arrived in Australia on 11 November 2002. Ms A met Stanislas Kanengele-Yondjo in early January 2003. The two met at the Cheers Establishment in George Street, Sydney. Ms A and the accused were chatting and she thought that the accused was quite charming.

From early January 2003 Ms A and the accused were intimate. On several Ms A and the accused had conversations about the accused wearing condoms. Ms A and the accused discussed infections and pregnancy. In the course of one conversation about pregnancy and infections, Ms A said that she was concerned about pregnancy and also concerned that she did not know where the accused had been before or what the accused might have. The accused said to her “I would never hurt you, I don’t have anything.” Ms A said something like ‘How can you be sure?” The accused indicated that he could be sure because he went back to the Congo so frequently he got tests. Ms A asked him what tests and the accused replied that he got everything tested. The accused told Ms A that he got tests regularly. Stanislas Kanengele-Yondjo had unprotected sexual intercourse with Ms A at no stage advising her that he was HIV positive.

Some time after 7 March 2003, Ms A last saw the accused. She became sick with a sero conversion illness. She suffered sore throat, headaches and a rash. The rash spread all over her body and she had lesions in her mouth and throat.

Later, at the start of September 2003, Ms A started working as a nurse at the Metropolitan Medical Transit Centre at the Long Bay Prison. Her duties were to assess incoming prisoners on whether they are at risk of self-harm or a risk to others. On or about 19 September 2003 Ms A was working at Long Bay Prison as a nurse when she looked up and saw Stanislas Kanengele-Yondjo standing in front of her. Ms A asked another nurse to do the medical induction because she knew the accused. There was a brief discussion between Ms A and her nursing colleague about her knowing the prisoner. The colleague asked Ms A what the man’s surname was. In answering that question, Ms A pointed to the name on the accused’s file.

In the course of looking at the file Ms A discovered that the accused had been diagnosed HIV positive since 1999. Ms A started crying and became hysterical. She was escorted by a colleague to the Prince of Wales Hospital where a blood test was conducted. That blood test indicated that she was HIV positive. At no time did the accused tell Ms A that he was HIV positive.

Ms B lives in Germany. She was born on 5 November 1969 and holds a Master of Arts in Organisation Psychology. She works mainly in the recruitment area. In December ’99 and in October 2002 when Ms B donated blood she was tested and was HIV negative. She came to Australia on 14 August 2002 and worked in May 2003 for a local recruitment agency.

In the beginning of March 2003, Ms B met Stanislas Kanengele-Yondjo and the two were seeing each other for about a month, starting on 4 March 2003 when the two met at the agency for which Ms B was working. The following day sexual intercourse took place and a condom was used by Stanislas Kanengele-Yondjo.

On 8 March 2003 Ms B visited the accused at his address and stayed there until 11 March 2003. On one occasion during intercourse the accused withdrew his penis from Ms B’s vagina and took the condom off his penis. Ms B asked the accused why he took off the condom and told him that she was concerned about HIV, hepatitis and pregnancy in the absence of a condom being used. The accused said “You shouldn’t be worried, I have private health insurance and I have to do an HIV test once a year.” The accused also told her that he had given seminars about sexually transmitted diseases. The accused indicated to Ms B that he was not HIV positive. From about this time sexual intercourse without condoms took place. At no stage did the accused tell Ms B that he was HIV positive.

Ms B became sick with a sero conversion illness. She suffered red spots on her face and the front of her body and upper arms and thighs. She had ulcers all the way down her throat and a high temperature. Later on 31 July 2003 she was advised that she was HIV positive. A second test on 11 August 2003 confirmed that she was HIV positive. Her treating doctor made enquiries about the whereabouts of the accused but he was unsuccessful. He also advised her to contact police.

In mid 2003 Dr Furner became aware that Ms B had acquired the HIV virus earlier in 2003 from a man Ms B identified as Stanislas Kanengele-Yondjo. The police contacted Dr Furner. As part of the process of identifying women who have had sexual intercourse with the accused, Dr Furner and another doctor interviewed Stanislas Kanengele-Yondjo at the Metropolitan Remand and Reception Centre at Silverwater. During the course of this interview the accused failed to identify any women with whom he had had a sexual relationship in recent years.

On 3 October 2003 Stanislas Kanengele-Yondjo told police that he knew the HIV virus was transmitted from one person to another by sexual contact and that condoms are used as a precaution to prevent the virus being passed on. He told police that he knew that he was HIV positive and that he had been diagnosed HIV positive in 1999 by Dr Virginia Furner. He told police he had been advised about his obligations to take precautions when having sexual intercourse. He told police he had been informed by Dr Furner and by material provided that once a person acquired the HIV virus that person’s system starts fighting the virus, but that the body cannot destroy the virus, it multiplies and diseases that the body can normally fight become very dangerous because the immune system is compromised. He told police that he was aware that HIV can develop into AIDS.

Stanislas Kanengele-Yondjo agreed that he met Ms A and that the two were in a relationship for approximately one month. Stanislas Kanengele-Yondjo told police that he did not tell Ms A that he was HIV positive. He said that he used a condom while having sexual intercourse with Ms A. Stanislas Kanengele-Yondjo told police that he had met Ms B. He agreed the two had sexual intercourse. He told police that he did not tell Ms B that he was HIV positive. He said he used a condom when he was having sexual intercourse with Ms B and that the condom did not break.

The HIV virus in Ms B and the HIV virus in the accused have both been analysed. The accused communicated the HIV virus to Ms B. The HIV virus in Ms A and the HIV virus in the accused have both been analysed and the accused communicated the HIV virus to Ms A.”

By way of background, the facts disclose further that in early ’99 a young female sexual partner of the accused presented at the Albion Street Centre after being diagnosed by a GP as having an HIV infection. As a result, contact was then made with the accused on 2 February ’99 and he was interviewed by Dr Furner at the Centre. Then, as submitted:


“Following urgent HIV antibody testing on 4 February ’99 the accused was informed of the positive result on 5 February ’99. However the following weeks the accused was aggressively counselled as to the effect of the disease, its consequences and as to his responsibilities.

In her statement of 9 September 2004 Dr Furner commented: ‘In this case more information and explicit direction was given to Mr Kanengele-Yondjo than any other person for whom I have provided clinical care.’

Further, as stated already, the accused was told that if he was to infect anyone in the future with the HIV virus, civil or even criminal action could potentially be undertaken against him if there was a failure to take steps to prevent the transmission of the HIV virus by notifying sexual partners and by using a condom.”

9 The grounds of appeal are considered hereunder.

Ground 1 - His Honour erred in finding that the case fell within the worst class of case.

10 His Honour held the offences were within the worst case category and took the maximum penalty provided by s 35(1)(b) as his starting point for sentence. His Honour rejected:

… the offender’s assertion in evidence that he did not accept the diagnosis and that he was in denial as to that condition.

11 In Veen v The Queen [No 2] (1987-1988) 164 CLR 465 at 478 the High Court held:

…the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.

12 In R v Twala (NSWCCA unreported 4 November 1994) Badgery-Parker J, with whom Carruthers and Finlay JJ agreed, said:

… in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed).

13 The applicant in his written submissions contended:

… given that the basis of the applicant’s guilt was recklessness, rather than intent, this case did not fall into the worst class of case.

14 This submission appears to be misconceived. If the basis of the applicant’s guilt had involved intent the maximum sentence open to be imposed would have been 25 years imprisonment (Crimes Act s 36) not 7 years. No other written or oral submissions were advanced for applicant on this ground.

15 His Honour described the offences in the following terms:

In my view these are both heinous crimes which showed a contemptible and callous disregard for the lives of two innocent fellow human beings. The offender engaged in unprotected sexual intercourse, well-knowing the grave risk and potentially devastating consequences involved. There was, in my view, a gross callous and reprehensible disregard for the health and welfare of the victims. It was carried out with indifference to human life or suffering.
Further, as stated, the offender had concealed his condition notwithstanding a relevant enquiry by each victim and his deliberate conduct was carried out in the knowledge of its legal consequences. In my view that places these two cases, on an objective basis, as falling within the category of the worst case for this offence and deserving, at least as a starting point, of the maximum sentence available.

16 His Honour also took into account the impact of the offence upon the victims. He said, inter alia:

Medical evidence discloses that they will experience depression and anxiety arising from concerns about loss of physical function and potential deterioration in physical appearance; dramatic wasting due to HIV or due to medication side effects; physical disfigurement due to cancer of the face or body; a variety of losses, work, mobility or relationship; and ultimately death and dying issues. There has always been an enormous amount of stigma associated with having HIV infection and the majority of those infected lead socially isolated lives with ongoing fear of rejection or worse by their partner, families and by their community. Many of those factors are now being experienced by both victims … Further the risk of the spread of HIV has enormous and dire implications for the health and welfare of the general community and I consider this to be a seriously aggravating factor in these cases.

17 In my opinion his Honour accurately described the offences and their effect. It was open to him to categorise the offences as falling within the worst case category under the Crimes Act s 35(1)(b). No error has been demonstrated. This ground of appeal is rejected.

Ground 2 – His Honour erred in not giving the applicant sufficient discount for his plea of guilty.
Ground 2A – His Honour erred in failing to give adequate or any reasons for only giving a discount of 15% for the plea of guilty despite the fact that the pleas were entered into at the earliest opportunity.

18 Section 21A(3)(k) of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) provides that a plea of guilty by an offender is to be taken into account as a mitigating factor in determining the appropriate sentence for an offence. However the fact that any such mitigating factor is relevant and known to the Court does not require the Court to reduce the sentence for the offence (s 21A(5)) of the Act.

19 Section 22(1) of the Act provides:

In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

(a) the fact that the offender has pleaded guilty, and

(b) when the offender pleaded guilty or indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

20 The rationale for reducing the penalty by reason of a plea of guilty is that the plea may be seen as a manifestation of remorse or contrition, it may spare victims from the painful process of giving evidence and it has a utilitarian value in that the community is spared the expense of a contested trial - see R v Thompson (1999-2000) 49 NSWLR 383 at [3].

21 In Thompson, which was a guideline judgment of a five member Bench of this Court, it was held (at [152], [153]):

The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10 to 25% discount on sentence and the determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.

22 The Court continued [157 and 158]:

In some cases a plea will not lead to any discount. … There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate … There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate.

23 The guidelines in R v Thompson create no presumption of, or entitlement to, a particular discount – R v Scott [2003] NSWCCA 286 at [28]. A submission that a plea of guilty coming at the earliest opportunity should automatically result in a 25% discount seeks to convert the upper limit of a guideline range into a rule, whereas the determination of where the discount should fall within a particular case is a matter for the discretion of the sentencing judge. As Sully J observed in R v Johnstone [2004] NSWCCA 307 at [25[:

… the guideline judgment [in R v Thompson ] does not of itself relieve a sentencing Judge of the duty to assess the extent of a proper discount having regard to the whole of the relevant facts and circumstances.

24 The Crown submitted in the Court below that even though the plea had been entered at the earliest opportunity, the nature and circumstances of the offences were such that it was inappropriate that there should be any discount for the plea of guilty. The applicant submitted he was entitled to the maximum value of the discount because of the utilitarian value of the plea.

25 His Honour, in considering the effect of the pleas of guilty, observed that a plea of guilty “would ordinarily, unless in the most extreme case, warrant a reduction in sentence”. He referred to the Crown’s submission that it was inappropriate in the circumstances to allow any discount for the pleas in this case. He referred to Thompson’s case and the rationale for reducing the penalty by reason of a plea of guilty. He concluded the pleas had a utilitarian value, exhibited some contrition and that the victims had been spared the ordeal of appearing at the trial. He also found there was some initial reluctance by the applicant and an initial denial of unprotected sex and continued equivocation as to diagnosis of which the applicant was well aware and as to his moral culpability. These, in my opinion, were relevant factors in considering the exercise of the discretion, particularly in relation to the question of contrition or remorse.

26 His Honour concluded:

I would assess the plea of guilty as warranting a reduction in the sentence from the maximum term in each case of seven years imprisonment to one of six years.

27 In his written submissions in this Court the applicant said:

Given that there had been a plea at the first available opportunity and there was evidence of genuine contrition, the appropriate discount should have been in the order of 35%.

28 In my opinion the circumstances of this case were such that it was open to his Honour, consistently with principle, to have allowed no discount for the plea of guilty. His Honour’s reduction in sentence from 7 years to 6 years represented a discount of approximately 15% for the plea of guilty and was well within the range open to him. In my opinion, no error has been demonstrated in this regard.

29 It is clear from the context of his Honour’s comments in his Remarks on Sentence that the discount arrived at by him was the product of a balancing, having regard to the relevant facts and circumstances, of the Crown’s submission that there should be no discount with the applicant’s submission that he should receive the maximum discount. Further explanation by his Honour was neither necessary or appropriate. In my opinion there was no failure to provide adequate reasons for the discount selected.

Ground 3 – his Honour erred in not giving sufficient weight to the applicant’s subjective circumstances.

30 His Honour identified the subjective circumstances as some exhibited remorse and contrition, that the conditions of incarceration will involve hardship and that the applicant had been diagnosed with HIV and his life expectancy was thereby reduced. His Honour stated that he would take each of these matters into account on sentence.

31 The applicant in his written submissions contended his Honour did not take these matters into account

… either in relation to the head sentence or the non parole period. The deduction on each of the sentences for counts 1 and 2 was wholly attributable to the plea of guilty. The total non-parole period was 9 years meaning that the statutory proportion between the head sentence and the non-parole period was maintained. The applicant’s subjective circumstances should have led to a variation in the proportion between the non-parole period and the head sentence.

32 Section 45(1) of the Act provides that:

When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence if it appears to the court that it is appropriate to do so:

(a) because of the nature of the offence to which the sentence relates or the antecedent character of the offender, or

(b) because of any other penalty previously imposed on the offender, or

(c) for any other reason that the court considers sufficient.

33 In R v Simpson (2001) 53 NSWLR 704 at 719 [70] Spigelman CJ held:

There is no hurdle for a sentencing judge if that judge wishes to impose a higher than statutory proportion. Indeed, at all times the sentencing judge has had a discretion to impose a fixed term without a non-parole period of any character (now found in s 45 of the 1999 Act).

34 The Crown submitted that by reason of the nature of the offences this was an appropriate case for the Court to decline to set a non-parole period for either of the offences.

35 His Honour, in dealing with that submission, said:

It is the Crown’s submission that no parole period should be allowed at all having regard to the extreme seriousness of the offences. But in my view, there are factors in mitigation in this case, which cannot be ignored … I must take into account the subjective features mitigating the penalty to be imposed. In all of the circumstances I am satisfied that it would be inappropriate to refuse to set a non-parole period.

36 It is apparent from the comments quoted in the preceding paragraph that his Honour did take into account in assessing the non-parole period the various matters of mitigation to which he had earlier referred in his Remarks on Sentence. The weight which his Honour assigned to these factors was a discretionary matter and it has not been demonstrated that there was any error in that regard. In the circumstances of this case one cannot infer from the fact that the “statutory proportion between the head sentence and the non parole period was maintained” that his Honour had not given any or any appropriate weight to the applicant’s subjective case.

Ground 4 – His Honour erred in not giving reasons for failing to fix a non-parole period for count 1.

37 The applicant, in his written submissions, stated:

His Honour imposed a fixed term of 6 years for count 1. His Honour gave no reasons for doing so. In fact on the previous day his Honour had imposed a non-parole period of 4 years 6 months on count 1. Section 45(2) of the Crimes (Sentencing Procedure) Act 1999 states that if a Court declines to set a non-parole period it must make a record of its reasons for doing so.

38 The reasons for his Honour not fixing a non-parole period for count 1 are abundantly clear. His Honour initially sentenced the applicant to imprisonment for 6 years with a non-parole period of 4 years and 6 months on each offence. His Honour’s stated intention in so doing was that the total sentences imposed would result in imprisonment for a total of 12 years with a non parole period of 9 years.

39 His Honour subsequently became aware that, mathematically, the orders made by him failed to achieve his stated purpose. As a result he listed the matter on the following day and made the orders which are the subject of the application.

40 His Honour failed to comply with the requirements of s 45(2) of the Act. As his reasons for not setting a non parole period for the first count are clear the failure to comply with the subsection is purely technical, particularly as it does not invalidate the sentence imposed (s 45(4) of the Act) though such a failure may be considered by an appeal Court in any appeal against sentence (s 101A of the Act). In my opinion, the failure is not such as to merit any interference by this Court with the sentence.

Ground 5 - His Honour erred in not taking into account the principles of totality.

41 In Mill v the Queen (1988) 166 CLR 59 the High Court at 62 - 63 said:

The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences … The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is `just and appropriate' ... It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences

42 In Pearce v The Queen (1998) 194 CLR 610 the High Court held:

[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish the offender twice for the commission of the elements that are common …
[45] … A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

43 In R v Weldon [2002] 136 A Crim R 55 it was held:

[46] A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case .

[47] The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.

44 In R v Wilson [2005] NSWCCA 219 at [37]-[38] it was stated:

It is well established that questions of accumulation are, subject to the application of established principle, discretionary. … To fail to accumulate, at least partially [where there is more than one victim], may well be seen as a failure to acknowledge the harm done to those individual victims.

45 The applicant, in his written submissions, contended that though the offences called for a degree of accumulation they were two offences close in time and there should have been either a shortening of individual sentences or a degree of concurrency to take into account the principles of totality. The individual sentences were clearly not reduced to take into account totality, because the only deduction made from the statutory maximum sentence was to take into account the plea of guilty.

46 His Honour in initially sentencing the applicant stated:

… in my view the nature and circumstances of both offences require that the sentences be cumulative. Failure to accumulate would amount, in my view, to a failure to acknowledge the harm done to the individual victims. These were offences involving extreme criminality and the paramount principle must reflect the totality of the objective criminality and be proportionate to the gravity of the offences.

47 It is apparent from the material referred to in the preceding paragraph that his Honour had regard to the principles of totality. He determined in the exercise of his discretion that the circumstances of the offences, the criminality involved and the effect on the victims was such that cumulative sentences were appropriate. Such an approach was open to him and no error has been demonstrated in this regard.

Ground 6 – The sentences were individually and collectively manifestly excessive.

48 The applicant submitted:

That both the individual sentences were manifestly excessive, and that the accumulation of the sentences produced a total sentence, which was manifestly excessive.

49 His Honour concluded:

These were offences involving extreme criminality and the paramount principle must reflect the totality of the objective criminality and be proportionate to the gravity of the offences.

50 The nature, circumstances and effect of these crimes was accurately described by his Honour in his Remarks on Sentence, part of which is replicated in paragraphs 15 and 16 of this judgment. Such offences were deserving of condign punishment and that is what they received. In my opinion, neither the individual sentences or the total sentence was manifestly excessive. Accordingly this ground of appeal fails.

Conclusion

51 This is a Court of error. The Court may interfere with the sentence imposed by the sentencing Judge only if it be shown that the sentencing Judge was in error and then only if the Court forms a positive opinion that some other, less severe, sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79], Criminal Appeal Act 1912, s 6(3).

52 In my opinion, it has not been established his Honour made any error such as to justify the intervention of this Court nor were the sentences imposed such as to cause me to conclude that some other sentences, less severe, are warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal I would dismiss the appeal.

Orders

53 I propose the following orders:

1. Leave to appeal granted.
2. Appeal dismissed.
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