PB v R

[2016] NSWCCA 258

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	PB v R [2016] NSWCCA 258
Hearing dates:	29 August 2016
Date of orders:	24 November 2016
Decision date:	24 November 2016
Before:	Rothman J at [1]; Davies J at [54]; Garling J at [59]
Decision:	(1)   Leave to appeal granted;  (2)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – Appeal against sentence – failure to fix non-parole period for standard non-parole offence – failure to address effect of Form 1 offences on certain counts – resentence to occur – no less severe sentence warranted – appeal dismissed.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Karel Eedens v R [2009] NSWCCA 254 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Parker v DPP (1992) 28 NSWLR 282 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Phillip Sea (Court of Criminal Appeal (NSW), 13 August 1990, unrep) R v TWP [2006] NSWCCA 141 SGJ v R; KU v R [2008] NSWCCA 258 Shannon v R [2006] NSWCCA 39 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category:	Principal judgment
Parties:	PB (Applicant) Regina (Crown)
Representation:	Counsel: C Wasley (Applicant) H Baker (Crown)   Solicitors: Office of the Legal Aid Commission NSW (Applicant) Office of the Director of Public Prosecutions (Crown)
File Number(s):	2013/158745
Publication restriction:	Non-publication order in relation to the names and anything that would identify the two victims (SA and JA), including the applicant, their step-father.
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 17 October 2014 Before: Conlon SC DCJ File Number(s): 2013/158745

Judgment

1. ROTHMAN J: The applicant, in relation to whom there is an order restricting publication of any matter that would identify him so as to protect the names and identities of the two victims, seeks leave to appeal and, if leave be granted, appeals the sentence imposed upon him by the District Court on 17 October 2014. The applicant was sentenced to an aggregate sentence of 14 years’ imprisonment commencing on 22 April 2014 and concluding on 21 April 2028 with a non-parole period of eight (8) years’ imprisonment, concluding on 21 April 2022.

2. The sentence imposed related to five counts, for which an indicative sentence was set, in the following circumstances:

Count 1: Aggravated indecent assault, contrary to s 61M(2) of the Crimes Act1900, for which there is a maximum penalty of 10 years’ imprisonment and a standard non-parole period of eight (8) years’ imprisonment and to which were attached four further offences described on a Form 1, each of which was a contravention of s 61M(2) of the Crimes Act and for which his Honour set an indicative sentence of three (3) years’ imprisonment.

Count 2: Sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act, for which there is a maximum penalty of 10 years’ imprisonment and to which was attached, on a Form 1, a further three offences, being a common assault (s 61 of the Crimes Act); an aggravated indecent assault (s 61M(2) of the Crimes Act); and sexual intercourse with a child aged between 14 and 16 years (s 66C(3) of the Crimes Act). His Honour set an indicative sentence of four (4) years’ imprisonment.

Count 3: Sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act, for which there is a maximum penalty of 10 years’ imprisonment and to which was attached, on a Form 1, a further two offences, namely an aggravated indecent assault (s 61M(2) of the Crimes Act); and sexual intercourse with a child aged between 14 and 16 years (s 66C(3) of the Crimes Act) for which his Honour set an indicative sentence of four (4) years’ imprisonment.

Count 4: Sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act, for which there is a maximum penalty of 10 years’ imprisonment and for which his Honour indicated an indicative sentence of four (4) years’ imprisonment.

Count 5: Sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act, for which there is a maximum penalty of 10 years’ imprisonment and attached to which, on a Form 1, were a further six offences, namely four counts of aggravated indecent assault (s 61M(2) of the Crimes Act); one count of incite act of indecency (s 61N(1) of the Crimes Act); and one count of sexual intercourse with a child aged between 14 and 16 years (s 66C(3) of the Crimes Act) and for which his Honour set an indicative sentence of four (4) years’ and six (6) months’ imprisonment.

3. The applicant pleaded guilty to each of the above mentioned Counts and received approximately 20% discount for his plea of guilty (Remarks on Sentence, p 13.9).

Grounds of Appeal

4. The applicant relies on two grounds of appeal (the first of which is divided into two parts) in or to the following effect:

Ground 1: His Honour erred in that he failed:

1. to engage in an assessment of the criminality of Counts 2 – 5; and

2. to indicate how he took into account the Form 1 offences attached to Counts 2, 3 and 5 in arriving at the indicative sentences.

Ground 2: The aggregate sentence was manifestly excessive in the circumstances.

5. During the course of the oral argument, it was pointed out that the indicative sentence in relation to Count 1 did not include an indicative non-parole period in circumstances where the offence had prescribed a standard non-parole period. Further, the indicative sentences, if applied consecutively, would give rise to a total sentence of 19½ years and his Honour fixed a total of 14 years with a non-parole period of 8 years. In other words there is “concurrency” amounting to some 5½ years, and no explanation or express reference to the principles of totality.

Facts

6. Because a plea was entered, the Crown and the applicant were able to agree upon facts which were tendered before the sentencing judge (Exhibit A) and which the sentencing judge summarised in his Remarks. The learned sentencing judge’s summary of the facts is not in dispute and is in the following terms:

“The complainant, [SA], turned sixteen on 22 May 2013. The offender was her step father and at the time of the commission of the offences was between 50 and 51 years of age.

The complainant had apparently moved back in with her mother and the offender in February 2013. On 22 May 2013 the complainant attended the police station to complain about the offender having sexual intercourse with her.

COUNT ONE

In early February 2013, almost immediately after the complainant had come to live with her mother and the offender, the offences commenced. The offender drove the complainant to a bridge over the river in [suburb omitted], they were alone and both out of the car sitting on the rocks by the river. The offender kissed the complainant on the mouth, putting his tongue into her mouth. He complained that she was not kissing him back. He grabbed her by the face and slapped her. He told her he would drown her in the river. The complainant then told the offender that she did love him and that she would kiss him back.

COUNT TWO

In February 2013 after the offence in count one, the offender drove her to a beach at [suburb omitted]. It was a secluded area. He took her to the sand hills. He kissed her on the breast, moving aside her swimmers. He performed cunnilingus on her and then had penile vaginal intercourse with her. He ejaculated in her vagina and he was not wearing a condom. He said to her, ‘That wasn’t bad, was it?’

COUNT THREE

Between February 2013 and 30 April 2013, the offender drove the complainant to a motel in [suburb omitted]. The offender asked the complainant to take her clothes off. She did so and the offender moved her over to the bed. He sucked and licked her breasts. He then kissed her stomach. He performed cunnilingus and then had penile vaginal intercourse with her. He asked her to play with his nipples as it would make him finish faster. He then ejaculated inside the complainant and was not wearing a condom.

The act of cunnilingus is a matter that is to be taken into account on a Form One Schedule.

COUNT FOUR

Between 19 and 22 May 2013 the offender was at home at [suburb omitted] with the complainant. The offender told the complainant to go and get the blanket ready in the shed. She complied. The offender came out to the shed, took his shorts off, asked the complainant to take her clothes off. He had penile vaginal intercourse with her. He ejaculated and the complainant saw semen on the blanket. The offender was not wearing a condom.

COUNT FIVE

In respect of count five, it was, as I understand it, later on the same day following the commission of count four, that the offender came to the complainant’s bedroom. She was asked to take off her clothes and the offender took off his clothes. He moved her legs apart and had penile vaginal intercourse with her until he ejaculated. He was not wearing a condom.

This is the offence which comprises count five.

The following offences are to be taken into account on a Form One Schedule.

On that same day, the complainant after the act giving rise to count five went out to the lounge room. The offender followed her, he kissed her putting his tongue inside her mouth, he pulled up her shirt, moved her bra kissing her on the breast. He told her to get down on her knees and had her kiss his nipples. He then kissed her on the mouth and again put his tongue inside her mouth.

The complainant recalled another occasion when the offender leant her forward over a chair and put his penis in her vagina. This occurred in May 2013.

After the above offences being counts four and five, and the related Form One offences occurred the complainant left the house and walked half an hour, then caught a taxi to her father’s residence at a caravan park. The complainant’s father is intellectually delayed. The complainant then went to report the offences to the police.

She was taken to hospital for a medical examination and swabs were taken. High and low vaginal swabs were taken and there was a mixed DNA profile developed. It was consistent with a DNA profile of the offender.

Her underpants were also seized and sent for examination. The analysis showed semen. The DNA profile once again was consistent with that of the offender.

The facts state that the offences are representative counts as the offending against her first commenced when she was about ten years of age.

Having been asked to take into account four offences on a Form One Schedule when dealing with count one of the offence against the complainant, [SA], it is appropriate to also place on record the facts giving rise to those four counts against [JA]. Those facts have been set out in exhibit D.

During the time of these offences which dated between April and May 2013, [JA] was about ten or eleven years of age.

OFFENCE ONE

In April 2013, the complainant was in the kitchen at her home making lunch. The offender was watching pornography on television. He walked into the kitchen, stood behind the complainant. He placed his arms around her waist and slid both hands down her front towards her vagina. When he reached the top of her underwear the complainant said, ‘No’ and moved away. The offender yelled, ‘Come back I’m not finished with you.’

OFFENCE TWO

Immediately following this the complainant walked out to the shed on the land built to house chickens. The offender followed her. He put his hand down her top and moved his hands over her breasts. She asked the offender to leave her alone and again moved away from him. She climbed a tree to get away from him. The offender shouted, ‘Come back here you cunt I’m not finished with you. When you come down I will do it again.’ The complainant replied that she would not come down.

At the time of both of those offences she was about ten years of age.

OFFENCE THREE

Sometime in May when she had turned eleven she was watching television having an evening meal and then she went to bed. Through the night she woke up to find the offender lying next to her in bed. The offender put his hands under the blankets, slid his hands down the complainant’s body and put his hand underneath her underpants and touched her on the vagina. The complainant got out of bed and she asked the offender ‘What are you doing?’ The offender told her to come back and said, ‘I’m not finished with you.’ The complainant was afraid she went to the bathroom and then to her mother. After some time the complainant returned to her bed and found the offender had left her room.

OFFENCE FOUR

The complainant recalled that some time after this in 2013 she woke and

went to the lounge room, she saw the offender and her mother had brought

mattresses out to the lounge room. She saw her old sister, [SA], lying on

one side of the mattress. Her mother was in the middle and the offender on

the other side. The complainant went to the bathroom and then returned to the lounge room. The offender told her to get on the mattress beside him. She did as she was told. The offender started to rub her on her back, slid his hands down to her vagina, touching her vagina. He used his fingers to ‘play with her vagina.’ The complainant told him to stop. The offender told her that he would not. The complainant got up and returned to her own bedroom.

Those facts reveal that the mother of the complainant remained supportive of the offender and maintains a relationship with him.

In May 2013 the complainant approached her sister, [SA], about running away. They indeed then left the house together on 22 May 2013. They walked for half an hour together and apparently called a taxi from [suburb omitted]. A driver agreed to take them to the caravan park where their natural father lived for no fee. The police were contacted on their arrival at their fathers (sic). Their natural father apparently has a significant intellectual disability.”

Consideration of Appeal

7. The learned sentencing judge is an extremely experienced criminal lawyer and judge. One must have some regard to the workload and expertise of the judicial officer in drawing any inference as to what his Honour may or may not have had regard. Nevertheless, there is a need to display a level of transparency sufficient to allow an offender and the community, including the victim and the victim’s family, to appreciate the reasons for the sentence that has been imposed and otherwise to comply with the requirements of the law governing the sentencing process.

8. The sentencing judge did not, as alleged, express a view as to the level of objective seriousness of the offences. I have no doubt that his Honour took the issue into account and expressly described the offences in adjectival terms that disclosed the serious view that he took. Nevertheless, there was, unfortunately, no assessment made of the objective seriousness in terms of the range of seriousness for each of the offences.

9. I also have no doubt that his Honour took account of the Form 1 offences attached to Counts 2, 3 and 5. However, having expressly referred to the Form 1 offences for Count 1, his Honour did not expressly refer to any Form 1 offences for the other relevant counts. Nor did his Honour express in a manner that was sufficiently clear the manner in which the Form 1 offences were factored into the sentence to be imposed. If the only issue were the last mentioned aspect, I would, in the light of the comments otherwise made by his Honour, be inclined to refuse leave. In the light of the other issues however, I accept that error has been disclosed.

10. Further, the learned sentencing judge was not assisted by the manner in which the charges were structured. The Form 1 offences were, in some instances, more serious than the offence to which they were attached.

11. During the course of the appeal, it was pointed out that Count 1 was an offence for which a standard non-parole period applied and the terms of the s 54B of the Crimes (Sentencing Procedure) Act 1999 required a sentencing judge to express a non-parole period, even in respect to an indicative sentence: s 54B(4) of the Crimes (Sentencing Procedure) Act. The learned sentencing judge did not do that. Notwithstanding the point being raised, no attempt was made to amend the grounds of appeal.

12. The failure to indicate a non-parole period is an error, although it is not an error that, in any sense, can affect the aggregate sentence imposed. It is from the aggregate sentence that the appeal lies (with leave). Further, the terms of s 54B(7) of the Crimes (Sentencing Procedure) Act make clear that the failure to indicate a non-parole period does not invalidate the sentence. That provision does not relieve a sentencing judge from the obligations imposed by the provision. Nor does it overcome error for the purpose of an appeal.

13. For the foregoing reasons, error has been disclosed. I have not dealt with manifest excess, but, given the existence of error, re-sentencing is necessary and the submission on manifest excess is overtaken and dealt with in that process.

Resentence

14. It is necessary to reiterate a number of matters. First, as a matter of principle, there can be few worse breaches of trust than a breach of trust of the kind involved in these circumstances. A parent and step-parent offending against a minor is inconsistent with every notion of trust that is required of them. These offences, in particular, are, in each case, above the mid-range of objective seriousness.

15. Further, each offence is said to be a “representative” offence. In the case of SA and JA, the offending conduct commenced when each complainant was about 10 years of age and continued for some time thereafter or until apprehension.

16. The breach of trust associated with the offending against SA is exacerbated by the fact that PB was aware that SA had been sexually abused by her own father in earlier years. I agree with the learned sentencing judge below, who, in turn, cited Badgery Parker J in R v Phillip Sea (Court of Criminal Appeal (NSW), 13 August 1990, unrep), that a significant aspect of the degree of seriousness relating to offences of this kind depends upon the degree to which the offender has, or is seen to have, exploited the youth of the victim. The present charges involved, as is clear from the facts of Count 1, the actual and threatened use of violence. Indeed, the applicant not only hit the complainant but threatened to drown her if she were not to comply.

17. While there is authority for the proposition that the aggravating feature associated with the commission of an offence in the home of the victim does not apply where that home is one shared by both the offender and victim, in this case, as is made clear by the learned sentencing judge, the applicant exploited a vulnerable young child, his step daughter, in circumstances where she was entitled to feel safe and protected in her own home and he abused the circumstance that he was living in the same house that she was.

18. That aspect of the offence is different from the breach of trust to which I have otherwise referred, in that it would apply to a person who was a flatmate of a parent. As already stated, however, the offender did abuse a position of trust, and also took advantage of the fact that the victims were vulnerable and, in the case of SA, particularly vulnerable because of the known previous sexual abuse.

19. There is no doubt that the offences involved a series of criminal acts against more than one victim and was committed for the most selfish of reasons, being the sexual gratification of the offender.

20. The learned sentencing judge took into account the good behaviour and lack of record of the applicant. As was said by this Court in R v TWP [2006] NSWCCA 141 (a Crown appeal), offences of this kind are, in some senses, similar, in relation to “previous good character”, as most white-collar crime. The non-apprehension of the applicant (or his prior good behaviour) is almost a necessary condition to the commission of the crime. The sentencing judge, as can be seen later in these reasons, expressed a similar view.

14. If the applicant had been sentenced previously for conduct of this kind, he may never have had the opportunity to commit the offences in question here. Moreover, SA returned to live with her mother and the applicant in or about February 2013 and the offences commenced almost immediately thereafter.

15. Were it not for the fact that the two victims ran away from this place on 22 May 2014 and reported the matters to the police, the offending conduct, no doubt, would have continued. As indicated earlier, the charges preferred are representative charges and the offending occurred on a weekly (if not daily) basis over the whole of the three to four month period.

16. In those circumstances the prior good behaviour is not as significant as it would be for an offence that was committed once and once only.

17. However, notwithstanding the foregoing comment, this is the first time that the applicant is before the courts for any serious offence and the first time that the applicant will be incarcerated and he is, as a consequence of that, entitled to some leniency and consideration.

18. The Form 1 offences attached to Counts 1, 2, 3 and 5 cannot increase the sentence beyond that which is appropriate. The Court is imposing a sentence only for the charges that have been preferred.

19. Nevertheless, the Form 1 offences may indicate a greater degree of offending associated with the charges to which they are attached. This may have the consequence of disclosing a greater need for specific deterrence and a greater need for more severe punishment in the preferred charges, than might otherwise be the case.

20. Given that the Form 1 offences are offences against the two victims of the preferred charges and that the Court is taking into account that the charges are “representative”, it is not permissible to double count the effect of both the representative nature of the offences charged, on the one hand, and, on the other hand, the Form 1 offences insofar as those Form 1 offences are offences of the same or similar kind and would fall within conduct that was “represented” by the offences charged. As I have already taken into account the “representative” nature of the offences, the Form 1 offences have no additional impact.

21. As earlier stated, each of the charges is above the mid-range of offences for the particular charge.

22. I accept, except as otherwise dealt with above, the subjective matters to which the sentencing judge referred. No further material has been put to the Court which would satisfy me that the finding by the sentencing judge, that the applicant has not displayed any genuine remorse, should be overturned.

23. The subjective circumstances to which the learned sentencing judge referred were the offender’s age (52 years of age) and his lack of significant criminal offences, the last offence being in 1982 for goods in custody and remaining upon inclosed lands for which small fines were imposed. Apart from those two offences, the record is, as described by the learned sentencing judge, inconsequential.

24. As earlier noted at [19], the sentencing judge also went on to suggest that good character is usually of little weight in offences of this kind, with which comment I would agree, save that, if these were repeat offences, different considerations might apply.

25. The offender worked as an Aboriginal Education Officer and was successful in that work and promoted. Leading up to the offences in question, the offender was said to be suffering from stress and sleep deprivation due to the responsibilities surrounding his employment. He was, at the time, abusing sleeping tablets.

26. In the Pre-Sentence Report on which the learned sentencing judge relied, the applicant was quoted in terms which sought to condone his own behaviour but did acknowledge the effect of the behaviour on the victims. Nevertheless, notwithstanding the ages of the victims, he seemed to suggest that the relationships were consensual.

27. I also agree with the learned sentencing judge’s comments that the offending in relation to the younger sister undermines the claims the applicant makes in relation to the nature of the relationship with SA.

28. Notwithstanding the foregoing, the applicant pleaded to the charges and agreed upon the facts and gave full and complete admissions to the conduct involved in those offences (and the Form 1 offences). Such conduct avoided the necessity of each of the two young victims having to give evidence and face their abuser in Court. He was aware of the fact that his actions were wrong and was aware of it at the time that he engaged in the conduct for which he is to be sentenced. The plea was taken into account and the learned sentencing judge discounted the sentence by “about 20%”. I allow the same discount.

29. I have dealt with the aggravating and mitigating factors outlined in s 21A of the Crimes (Sentencing Procedure) Act 1999 and note that sentencing in any offence, but particularly in offences of this kind, can be a most difficult task. It involves goals or purposes that are often pulling in different directions and to some extent may be inconsistent. Those purposes include the protection of society, the deterrence of the offender and of others who might be tempted to offend, retribution and reform: s 3A of the Crimes (Sentencing Procedure) Act and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

30. Those purposes are consistent with the well-known purposes of sentencing and include the principles of proportionality and totality: see Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. Those latter principles require a sentence that, overall, reflects the total criminal conduct and is proportionate thereto.

31. In the case of multiple sentences for multiple offences, the totality principles adumbrated by the High Court in Pearce, supra, are well known and ought to be applied. Nevertheless, a sentencing judge is entitled to the flexibility to which the High Court referred to in Johnson, supra, and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; namely, that a sentencing judge should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is to be effected.

32. The appeal in the present matter is an appeal technically and strictly against the aggregate sentence that has been imposed. The appeal is not against the indicative sentences.

33. In my view, the indicative sentences to which his Honour the learned sentencing judge referred were, in light of the period of offending, the fact that there was more than one victim and the fundamental breach of trust, inadequate. However, that comment is made in circumstances where the sentence would be fixed in accordance with the principles set forth by the High Court in Pearce, supra.

34. The learned sentencing judge commented on the “absurdity” of having a maximum penalty of 10 years’ imprisonment, with a standard non-parole period of eight years’ imprisonment. The relationship there between the maximum penalty and the standard non-parole period certainly restricts the flexibility that might otherwise apply, assuming, for present purposes, that the standard non-parole period were given effect.

35. Nevertheless the standard non-parole period discloses the legislature’s view of the seriousness of the offences and, together with the maximum penalty, should be treated as guideposts. It is not for the Court to ignore the prescription.

36. As the High Court made clear in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the standard non-parole period and the maximum penalty are each a guidepost to be taken into account by the sentencing judge. Even if one were to ignore the standard non-parole period, a maximum penalty of 10 years’ imprisonment, in circumstances where one is imposing a sentence for an offence that is above mid-range in objective seriousness and for which there are good reasons for a greater role for specific deterrence, does not equate with a head sentence of three years’ imprisonment.

37. I accept that the aggravated indecent assault is generally a less serious offence than the sexual intercourse, being the conduct involved in Counts 2, 3, 4 and 5, in each case with a person between the ages of 14 and 16 years by a person of much older age and in a position of trust.

38. Statistically, and one must be careful with the use of statistics, the mean non-parole period for an offence under s 66C of the Crimes Act is two years’ imprisonment and the mean offender is sentenced to a head sentence of three years’ imprisonment. Where there are multiple offences, the non-parole period for each seems to be the same (in mean terms) but in head sentence terms seems to be three years’ and six months’ imprisonment. I reiterate that these offences are above mid-range. However, the most severe sentence (Count 5) imposed, has an indicative head sentence of four years’ and six months’ imprisonment.

39. Notwithstanding the less serious nature of Count 1, this offence was the first in time and involved the applicant threatening SA with physical violence and death, if there were non-compliance with his requests. This involved a different level of seriousness and inferentially that threat carried through to the other offences in relation to SA. In my view notwithstanding the subjective factors, the indicative sentences are inadequate, given the seriousness of the offending and the lack of remorse.

40. I would set the following indicative sentences:

Count 1: taking account of the Form 1 offences attached, six (6) years’ imprisonment as the head sentence, with a non-parole period of four (4) years’ imprisonment (i.e. a starting sentence of seven (7) years’ and six (6) months’ imprisonment before the 20% discount);

Counts 2 – 4: a sentence of four (4) years’ and 10 months’ imprisonment each (being, before discount, a starting point of six (6) years’ imprisonment), taking account of the Form 1 offences attached to Counts 2 and 3;

Count 5: taking account the Form 1 offences attached thereto, five (5) years’ and six (6) months’ imprisonment (rounded down after reducing by 20% the starting head sentence of seven (7) years’ imprisonment).

48. The offending in question took place over three, almost four, months and involved two courses of action, one with each victim. Nevertheless each offence involved a separate intention to commit the offence in the knowledge that the conduct was wrong. Further, each offence, in and of itself, was representative of a course of conduct. As a consequence, ordinarily, I would accumulate to a greater degree than did his Honour, the result of which would be a sentence that was more severe than that imposed by his Honour.

49. In the absence of a Crown appeal and in the absence of a warning (see, Parker v DPP (1992) 28 NSWLR 282), it is inappropriate (if not impermissible) for this Court to impose a more severe sentence than the sentence imposed at first instance. In those circumstances I propose that the Court determine that no less severe sentence is warranted in law and the appeal be dismissed.

50. None of the foregoing should be taken as authority for the proposition that it is necessary, when determining that no lesser sentence is warranted in law, to express in the detail above, the sentence that would otherwise be imposed.

51. Since the original drafting of the foregoing reasons and the orders that follow, I have had the advantage of reading, in draft, the reasons for judgment of each of Davies and Garling JJ. In my view, the error in reasons below was manifest, even though not in any way the fault of the sentencing judge.

52. I am grateful for the more complete treatment of the errors below in the reasons of my colleagues. I reiterate my ready acceptance (see [8] above) of the proposition that an experienced sentencing judge, such as in this case, would take account of objective seriousness. However, if “instinctive synthesis” is to be other than “an arcane process into the mysteries of which only judges can be initiated” (Markarian at [39]), there remains a necessity for sufficient transparency and express reference to objective seriousness. Otherwise, I agree fully with the reasons for judgment of both Davies and Garling JJ.

53. I propose that the Court make the following orders:

1. Leave to appeal granted;

2. Appeal dismissed.

54. DAVIES J: I agree with the judgment of Rothman J and the orders his Honour proposes. I also agree with the additional remarks of Garling J. In particular, I join with Garling J in his view that the way in which the counts on the indictment were presented and the inclusion of the number and range offences on the various Form 1 schedules meant that the sentencing judge had a difficult task to perform.

55. This Court has on more than one occasion expressed strong views about the approach taken to the inclusion of offences on a Form 1 in cases where a separate victim is involved and where the offences carry standard non-parole periods: SGJ v R; KU v R [2008] NSWCCA 258 at [24]-[29] and Karel Eedens v R [2009] NSWCCA 254 at [17]-[19].

56. In the present case it was inappropriate for four offences of aggravated indecent assault against a different victim to have been placed on a Form 1 when the offence to which that Form 1 was attached charged one count of aggravated indecent assault against the principal victim. The second victim was younger than the principal victim being aged 10 or 11. The principal victim was aged 15. The age of the second victim was a matter of some significance and made the offences on the Form 1 objectively more serious than the principal offence charged: Shannon v R [2006] NSWCCA 39 at [28]; Eedens at [17]. Further, the offences against her were committed at a different time and in different circumstances from the offence against the principal victim.

57. In respect of counts 3 and 5 charging sexual intercourse with a child aged between 14 and 16, an offence which does not carry a standard non-parole period, each such count had a Form 1 which charged (inter alia) aggravated indecent assault which carries a standard non-parole period. As the Court said in SGJ at [26] it is illogical to include crimes relating to one victim on a Form 1 where the offence to which it attached was charged against another victim, and it made it difficult for the sentencing judge to give such offences any real weight when sentencing on the count relevant to the Form 1. Further, as the Court made clear in Eedens at [19] the significance of the standard non-parole provisions loses its impact when the offence is placed on a Form 1.

58. I have little doubt in the present case that the approach taken by the Crown in the regard to which I have referred contributed to the applicant being given a more lenient sentence that was in all the circumstances appropriate.

59. GARLING J: I agree with orders proposed by Rothman J, that leave to appeal should be granted and that the appeal be dismissed. I have had the benefit of reading the remarks of Davies J. I express my entire agreement with those remarks.

60. The way in which the counts on the Indictment were presented and, in particular, the inclusion of the number and range of offences on the various Form 1 schedules, meant that the sentencing Judge had to grapple with an unduly and particularly complex sentencing exercise. As well as this complexity, the counts charged were regarded as representative counts.

61. The approach by the sentencing Judge, namely to impose an aggregate sentence, was one which most readily enabled him to consider and apply the sentencing principles of totality and proportionality. Notwithstanding the absence of express reference to these principles in the Remarks of the sentencing Judge, I am not in any doubt that his Honour did have due regard to those fundamental principles.

62. In the course of a sentencing exercise of the kind undertaken here, there is a clear and compelling need for the sentencing Judge to consider, assess and set out his evaluation of the objective seriousness of the criminal conduct involved in the offences to which the applicant pleaded guilty. Unless he did so, it is impossible to understand how, if at all, the sentencing Judge took into account the statutory guidepost of the standard non-parole period. Nor is it possible to understand how the very serious offences included on the Form 1 schedules were given their proper attention and weight.

63. It is for that reason that I am satisfied that error has been demonstrated, and Ground 1 should be upheld.

64. I wish to make it plain that I do not intend by these remarks to indicate that error can be demonstrated by pointing to mere infelicities of expression, or an absence of an express reference to basic sentencing principles in short and succinct remarks on sentence, nor do I wish to discourage the entirely commendable practice of delivering sentence remarks either ex tempore or shortly after the conclusion of sentencing hearings. Having regard to the workload and sentencing burden placed on judges of the District Court, to impose such requirements would not be in the interests of justice. However, the complexities of this particular sentencing matter required an exposition of the matters to which I have earlier referred.

65. Whilst the identification of error on Ground 1 necessitates re-sentencing, and means that the Court does not have to consider Ground 2, I wish to record my view that any contention that this sentence was manifestly excessive is wholly without merit. The aggregate sentence imposed was, in my opinion, unduly lenient. In my view, this applicant ought to have received a much lengthier sentence than he did.

66. However, as Rothman J points out in [49] above, it is not open to this Court to re-sentence the applicant to any lengthier sentence than that imposed by the sentencing Judge.

67. Accordingly, I agree that the appeal ought be dismissed.

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Decision last updated: 24 November 2016