PB v The King

[2025] NSWCCA 14

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

PB v R [2025] NSWCCA 14

Hearing dates:

6 February 2024

Date of orders:

21 February 2025

Decision date:

21 February 2025

Before:

Mitchelmore JA at [1];
Walton J at [2];
N Adams J at [4].

Decision:

(1) Grant leave to appeal.

(2) Appeal allowed in part.

(3) The aggregate sentence imposed by Judge Whitford SC on 28 July 2024 is varied to commence from 10 February 2018 rather than 4 March 2018.

Catchwords:

CRIME – Appeals – Appeal against sentence – error by primary judge when backdating the commencement date of the sentence to the expiration of a non-parole period imposed for a separate sentence – whether error could be remedied by simple adjustment or whether the error required the court to re-exercise the sentencing discretion – whether error constituted a Kentwell error – principle of totality – re-sentencing required – Court not satisfied a lesser sentence warranted at law – sentence backdated to correct date of expiration of the non-parole period of the separate sentence

Legislation Cited:

Crimes Act 1900 (NSW), ss 61L, 61J(1)

Crimes (Sentencing Procedure) Act1999 (NSW), ss 21B, 22B, 33

Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases Cited:

Hampton v R [2014] NSWCCA 131

House v The King (1936) 55 CLR 499; [1936] HCA 40

Huynh v R [2024] NSWCCA 61

JA v R [2024] NSWCCA 130

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Mill v R (1988) 166 CLR 59; [1988] HCA 70

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

R v BF [2007] VSCA 217; (2007) 177 A Crim R 331

R v MAK, R v MSK [2006] NSWCCA 381; (2006) A Crim R 159

Category:

Principal judgment

Parties:

PB (Applicant)
Rex (Respondent)

Representation:

Counsel:
Mr T Ramrakha (Applicant)
Ms E Jones (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2014/00325879

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW), a statutory non-publication order applies with respect to the name of the complainant and any matter which could identify her.

Section 6 of the Criminal Law (Sexual Offences) Act 1978 (Qld) applies with respect to information likely to lead to the identification of the victim of the prior offences committed in Queensland.

Section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) applies with respect to any matter that contains particulars likely to lead to the identification of the victim of the prior offences committed in Victoria.

A suppression order applies in relation to the contents of a confidential document contained in the defence bundle on sentence.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 July 2024

Before:

Whitford SC DCJ

File Number(s):

2014/00325879

JUDGMENT

1. MITCHELMORE JA: I agree with N Adams J.

2. WALTON J: I have had the opportunity to read in draft the reasons for judgment and orders proposed by N Adams J.

3. I agree with the reasons for judgment and proposed orders by her Honour. In the exercise of re-sentencing, I have, as her Honour did, arrived at a sentence which is higher than the sentence imposed below. However, in the absence of a ‘Parker’ warning, I consider the approach adopted by N Adams J to resentencing to be, with respect, correct.

4. N ADAMS J: The applicant seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the aggregate sentence imposed on him by Judge Whitford SC in the District Court on 26 July 2024. The offences were committed in 1995.

5. The applicant pleaded guilty to one count of assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (NSW) (now repealed), and one count of sexual intercourse without consent in circumstances of aggravation, namely, the infliction of actual bodily harm, contrary to s 61J(1) of the Crimes Act. The applicant asked the court to take a further offence contrary to s 61J of the Crimes Act into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act1999 (NSW) (“the Sentencing Act”).

6. The offence contrary to s 61L of the Crimes Act attracted a maximum penalty of imprisonment of 5 years and the offence contrary to s 61J(1) of the Crimes Act attracted a maximum penalty of imprisonment of 20 years. Neither offence attracts a standard non-parole period (“SNPP”).

7. After applying a 10% discount for the applicant’s late plea of guilty and taking into account the offence on the Form 1, the indicative sentence for the offence of aggravated sexual assault was 9 years and 11 months. The indicative sentence for the offence of indecent assault was 1 year and 6 months.

8. The applicant was sentenced to an aggregate sentence of imprisonment of 10 years and 6 months, with a non-parole period (“NPP”) of 7 years.

9. The sentence was backdated to commence on 4 March 2018, with the intent that it commence on a date “shortly prior to” the expiration of the NPP imposed for a separate sentence of imprisonment the applicant was previously serving in Victoria (“the Victorian NPP”).

10. It was common ground at the hearing of the appeal that the expiry date of the Victorian NPP was in fact 10 February 2018 and not 4 March 2018. The parties joined issue as to what his Honour meant by the words “shortly prior to” in the context of the commencement date of the sentence.

11. The applicant relies on two grounds of appeal:

1. The sentencing judge erred in commencing the sentence on 4 March 2018; and

2. The overall sentencing outcome did not give proper effect to the principle of totality.

12. The Crown conceded that it would be open to this Court to find that ground 1 is established to the extent that the sentence should have commenced from 10 February 2018. The Crown’s position was that there was no need for this Court to exercise the sentencing discretion afresh and that this Court would simply vary the commencement date of the sentence and otherwise dismiss the appeal: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”); Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 (“Lehn”). The applicant’s position was that the error was of a nature which did require the court to sentence the applicant afresh. It was submitted that this Court would impose a lesser sentence: s 6(3) of the Criminal Appeal Act.

13. For the reasons set out below, I am satisfied that the sentencing judge was led into error in relation to the commencement date of the Victorian NPP but that his Honour’s intention is unclear as to when he intended the present sentence to commence. Accordingly, this Court is required to re-sentence the applicant afresh: Kentwell. I would dismiss ground 2 and I am satisfied that no lesser sentence is warranted.

Agreed Facts

14. In the early hours of 8 October 1995, the complainant was walking home from a hospitality shift in the city of Newcastle. She was 18 years old. The applicant, who was then 27 years old, ran up from behind her to about two metres in front of her, before turning around quickly and asking whether she had seen two men who he said had stolen his bag. The complainant responded that she had not. The applicant continued to talk to her. She did not look in the applicant’s direction and attempted to ignore him.

15. As the applicant and the complainant arrived at a laneway, the applicant tried to grab the complainant. She moved back immediately. The applicant then said: “How about you and me get it on baby”. The complainant screamed “no”. The applicant grabbed the complainant around the neck and pushed her into the laneway. He threatened to harm her if she did not comply and said things repetitively such as, “come on, you know you want it” and “you’ll be alright, just shut up and I won’t hurt you”. The complainant tried to scream but was crying so hysterically that she was hyperventilating. The applicant’s hand was still on the complainant’s neck, and each time she made a noise, the applicant applied pressure.

16. The applicant then pushed the complainant up against a wall. The complainant tried to run away, but the applicant grabbed both of the complainant’s hands and slapped them against the wall. He then forced her to say her name and said, “this is going to be fun, you’ll enjoy it, just shut up”.

Count 1: Assault with act of indecency

17. The applicant laughed and pulled up the complainant’s top and bra above her breasts near her neck and proceeded to play with her breasts for about 20 or 30 seconds. The complainant was crying and pleading with the applicant to let her go. The applicant stated, “I told you that if you just let me touch you, I would have let you go, but I’ve changed my mind now”. This conduct constituted the count of assault with act of indecency.

Form 1 offence: Aggravated sexual assault

18. The applicant then unzipped the applicant’s pants, pulled down both her pants and underwear, and inserted a finger into her vagina, moving it in and out for about 20 seconds. At the same time, the applicant was repeatedly saying “you feel so good”. This conduct constituted the aggravated sexual assault reflected on the Form 1.

Count 4: Aggravated sexual assault

19. The applicant grabbed the complainant’s arms, pushed her to the ground, and immediately lay on top of her. He twisted her right arm behind her back and laid on top of it. He then asked her where she worked.

20. The applicant unzipped his pants and pressed his penis against the complainant’s anus. The complainant cried hysterically and resisted. The applicant then twisted the complainant’s arm each time she attempted to move or make a sound. The applicant prodded the complainant’s anus three times before slipping his penis between the complainant’s legs. He then spat on his hand and wiped saliva on the complainant’s vagina before forcibly inserting his penis into the complainant’s vagina. This caused the complainant to scream loudly. The applicant pushed her head into the ground. After about 20 seconds, the complainant felt the applicant ejaculate inside her. This conduct constituted the count of aggravated sexual assault.

21. The complainant pleaded with the applicant to let her go saying she would not tell anybody. The applicant said, “I know you won’t tell anybody because I know where you work and where you live”.

22. The applicant then said, “I haven’t finished with you yet”. In response, the complainant struck the applicant in the face and ran away.

23. The complainant reported the incident to police and participated in a sexual assault examination on the same day. Various swabs were collected from the victim and were submitted for DNA testing.

24. As at 1995, police were unable to identify the applicant as the person who committed these offences.

25. In 2011, the applicant was identified as a person of interest following a review of the forensic evidence which linked the victim’s DNA to the applicant.

26. The DNA link was confirmed on 8 August 2014 and charges were laid against the applicant on 4 November 2014. An arrest warrant was issued the next day. The applicant was at that time serving a sentence in Victoria.

27. On 16 September 2022, the applicant was arrested at Barwon Prison in Victoria. The NPP of the sentence he was serving in Victoria had expired on 10 February 2018, but the applicant had not applied for parole and thus was not released until the expiry of his head sentence on 16 September 2022. The applicant was extradited to New South Wales and refused bail. He has been in custody solely in relation to the present offending since that day.

28. The applicant initially defended the charges, and they were committed for trial. He ultimately pleaded guilty to each of the offences on 7 February 2024.

Proceedings on sentence

29. The proceedings on sentence were heard on 28 June 2024.

30. The Crown tendered the following material:

1. A Notice of Committal dated 1 March 2023;

2. The indictment;

3. A Form 1 dated 7 February 2024;

4. A statement of Agreed Facts;

5. The Queensland indictment dated 20 September 1999 and relevant facts dated 30 September 1999;

6. The transcript of the Queensland proceedings on 16 December 1999;

7. A copy of the Queensland Court of Appeal judgment pertaining to the applicant;

8. The Victorian indictment dated 20 July 2006 and relevant facts in relation to the Victorian offending;

9. The revised reasons of his Honour Judge Smalwood dated 20 July 2006;

10. A certificate of conviction and record of order dated 31 January 2024;

11. A copy of R v BF [2007] VSCA 217;

12. A letter from the Adult Parole Board dated 8 February 2024;

13. The applicant’s New South Wales criminal and custodial history;

14. The applicant’s Queensland criminal and custodial history; and

15. The applicant’s Victorian criminal and custodial history.

31. The applicant did not give evidence on sentence. He relied upon the following written material:

1. Psychological report prepared by Dr Michael R Davis dated 18 April 2023;

2. Pre-Sentence psychiatric report prepared by Dr Grant Lester in June 2007;

3. Psychological report prepared by Ian Joblin dated 8 July 2006;

4. Letter of remorse from the applicant (undated);

5. Various certificates;

6. Lockdown days document by the applicant (undated);

7. Reference by John Maricic APM, former Detective Chief Inspector of the NSW Police Force (suppressed);

8. Letter from Kara Granger dated 30 July 2019;

9. Public Defenders’s Sentence Table; and

10. A copy of Dimian v R [2016] NSWCCA 223 and Walsh v R [2015] NSWCCA 83.

32. It is to be noted that the report of Dr Davis was prepared prior to the applicant’s plea of guilty to the present offences. It was prepared in anticipation of a High Risk Offender application being made.

33. The brief sentencing remarks did not refer to much of this material. It is necessary to summarise some of it here in order to understand the context in which a number of his Honour’s findings were made.

The applicant’s subjective background

34. His Honour did not set out the applicant’s subjective background in his remarks on sentence noting that they were summarised in the applicant’s submissions. I have taken the following summary from the applicant’s written submissions referred to by the sentencing judge in his sentencing remarks.

35. At the time of the offences, the applicant was 27 years old. At the time of sentence, he was 56 years old.

36. The applicant was born in 1968, in what was then Yugoslavia. His mother was a Bosnian Serb, and his father was a Bosnian Muslim. He has one older brother, two older sisters, and one younger sister. He also has numerous half-siblings by his father. His immediate family arrived in Australia when he was one year old.

37. The applicant grew up in the Fitzroy area of Melbourne. His family was emotionally, financially, and materially deprived. He was the victim of sexual abuse by a family member and another older man at a young age. His mother, a homemaker, was regularly assaulted by his father. Whenever she fled for safety, his father would drag her back.

38. The applicant’s father was also violent and abusive towards all family members. This included being violent and abusive in front of, and against, the applicant. The applicant was eventually “kicked out” of home aged 18. His contact with his father after this was limited before he died in 1994. That contact included his father threatening him for helping his mother on an occasion when she fled following assaults. His mother is still alive, but elderly, frail, and in ill-health. She remains his biggest support within the community, although it appears she may have behaved inappropriately towards him when he was a child.

39. The applicant’s relationship with his siblings was for a time close but has not been for some time, especially given his offending against his niece in 2006. He has had some romantic heterosexual relationships over the years but nothing particularly long term. He does not have any children.

40. The applicant’s education appears to have been complicated by the family moving and his changing schools regularly. He appears to have done well at school, with some disciplinary issues and regular fighting, but left before finishing Year 12. Thereafter he held a variety of different positions, including senior management roles, in food and entertainment in a variety of different states within Australia.

41. The applicant also appears to have worked with various police agencies as an “almost” undercover operative in relation to numerous investigations. He was paid $25,000 for this work, which spanned over 3 years. It ended in 1993 after he was dealt with for “wilful and obscene exposure”. His general work continued until 1999 when he was incarcerated.

42. When in the community, the applicant had a significant issue with alcohol, and it appears this was related to his offending. He does not appear to have had any problematic drug or gambling issues.

43. With the exception of approximately six months in 2005 and 2006, the applicant has been in continuous custody since 1999. This has included during the COVID-19 pandemic when hardships were placed upon inmates. He has been the subject of further threats and assaults within custody. This has also resulted in him being segregated.

44. The applicant has managed to pursue further education and attained various qualifications. This includes certificates in relation to horticulture, warehousing, logistics, and information technology. He has also participated in various courses related to general offending, as well as in relation to specific sexual type offending. He has engaged in counselling in group and individual sessions.

45. The applicant has been employed within custody, including as an orderly in the prison hospital (in Port Phillip) and a gardener (in Junee), and spent a lengthy period of time as a “peer listener”.

46. He expressed remorse for his past conduct and insight into the impact it would have had upon each of the victims.

47. The applicant met the criteria for diagnosis of Persistent Depressive Disorder (including with intermittent major depressive episodes). He also met the criteria for a Mixed Personality Disorder (with borderline, narcissistic, histrionic, and schizotypal features) and possible Post­-Traumatic Stress Disorder. There was a suggestion that he marked below average against tests for psychopathy. He has previously made attempts to take his own life, using a variety of different methods.

48. The applicant was assessed as, variously, a “low to medium risk” of non-violent offending. He was considered to be a higher risk of re-offending in relation to sexual offences, noting the possibility of diagnoses such as a Compulsive Sexual Behaviour Disorder.

49. It is expected he will be deported to Bosnia and Herzegovina upon his release from custody.

The applicant’s custodial history

50. As the applicant’s then counsel conceded in his written submissions before the sentencing judge, the applicant has a “lengthy and troubling criminal record that commenced in 1988” in Victoria. He was 20 years old at that time when he was placed on bonds for property offences. In 1990, he was imprisoned for supplying heroin. He was fined for assault offences at that time as well. He was 22 years old by then.

51. By 1993, he had moved to New South Wales at which time he was fined and placed on a 16-month supervised recognizance for wilful and obscene exposure.

52. The subject offences were committed in Newcastle in 1995.

53. The applicant subsequently moved to Queensland. In 1999, he pleaded guilty in the District Court in Queensland to counts of assault with intent to rape, indecent assault involving penetration and anal rape. The circumstances of that offending were as follows.

54. The 19-year victim was walking to work at 6.30am on the morning of 2 January 1999. The applicant approached her and told her he was looking for his dog. She kept walking but the applicant attacked her from behind, grabbed her around the waist and put his other hand around her mouth. She struggled to get away, but he told her to be quiet or he would hurt her. He then forced her to nearby bushland. The victim pleaded for her safety. He told her he would not hurt her and only wanted to “feel” her.

50. He partially removed her clothing and digitally penetrated her vagina. He then pushed her, causing her to fall. He told her to crouch down and then penetrated her anus with his penis. She repeatedly told him it was hurting her. He replied, “I’m almost finished” and then continued for another five minutes. He ejaculated in her anus and then wiped himself on the victim’s jacket. He told her if she went to police, he would hurt her and find out where she lived. As he left, he said, “don’t look back or I’ll hurt you”.

51. Subsequent inquiries by police led them to the applicant. They spoke with him, but he denied everything. A forensic sample of his DNA was taken which later matched with the assailant. Police issued a warrant for the arrest the applicant. He was located at Perth International Airport on his way to Christmas Island.

52. The applicant was sentenced to 8 years’ imprisonment, with a minimum non-parole period of 6 years and 4 months for the Queensland offences. He served part of that term in Queensland before being transferred to Victoria, where he had family, to serve the remainder of it. He was paroled in mid-August 2005 at which time he went to live with his sister and her two daughters in Melbourne. He lived there for a few months before moving out. He later described being sexually attracted to his 14-year-old niece (the victim) and moved out.

53. Some time after he had moved out of his sister’s home, he returned to the premises. He let himself in with a key. He knew that the victim would be at home alone. He told police he went there with the intention of doing what he subsequently did to her which was to rape her and attempt to kill her. His motive was that he blamed her for having to leave the house and the poor state of his life after he did so.

54. After entering the house, the applicant confronted the victim wearing only his underpants and yelled at her that if she was not quiet, he would kill her. He dragged her into the bedroom and threw her onto the bed. When she began to scream, he told her that if she screamed, he would kill her. He started to choke her. The appellant made other threats to kill her during the events that followed. He then licked her vagina telling her, “[I]t’s either I lick you or I kill you”.

55. When the victim screamed, the applicant began to strangle her again. She could not breathe and thought she was going to be killed. She managed to grab hold of a desk and rocked it causing the items on the desk to fall onto both of them. She stood up briefly, but the appellant continued to strangle her so that she could not breathe. She spat out either vomit or mucus which had accumulated in her mouth while she was being strangled and her nose began to bleed. The applicant then penetrated her vagina with his fingers then rubbed his penis on her vagina and ejaculated.

56. The attack on the victim lasted for 20 to 25 minutes, during which time the victim was screaming and crying. She was later found to have extensive petechial haemorrhages on the face, ears and upper neck and extensive bruising. The medical evidence was that the application of pressure to the neck resulting in extensive facial petechia, and conjunctival haemorrhages was a “potentially life threatening event”.

57. The applicant’s initial sentence of 20 years’ imprisonment was reduced by the Court of Appeal to 15 years imprisonment with a non-parole period of 12 years’ imprisonment.

58. The Court of Appeal said this of the offending (at [28]):

“These were appalling offences. The victim, who was only 14 years old, was assaulted and raped by her uncle, whom she should have been able to trust. She was subjected to a terrifying attack, which lasted for at least 20 minutes, during which she feared she would be strangled. She suffered physical injuries and she is likely to be psychologically affected by the rape and the events surrounding it for many years, if not forever.”

64. As stated above, the applicant did not apply for parole and served the entirety of his Victorian sentence in custody. He was arrested for the present charges when that sentence expired.

65. There was conflicting evidence put before the sentencing judge as to when the Victorian NPP expired.

66. The Agreed Facts, signed by both the applicant and the prosecutor described the expiry date as being 2 March 2018.

67. In a letter from the Victorian Parole Board dated 8 February 2024 provided as part of the parole documentation put before the court, the expiry date was (correctly) described as 10 February 2018.

68. The judgment of the Victorian Court of Appeal on 2 November 2007 was also tendered before the sentencing judge: R v BF [2007] VSCA 217; (2007) 177 A Crim R 331. The Court of Appeal imposed a NPP of 12 years and noted that the applicant first entered custody in Victoria on 4 March 2006.

Submissions regarding totality

69. The focus of submissions at the proceedings on sentence turned on the relevance of delay, the appropriate discount for the plea of guilty given that the applicant did not go through the Early Appropriate Guilty Plea Scheme, the applicability of s 21B of the Sentencing Act and the application of the totality principle.

70. Section 21B(1) of the Sentencing Act provides that:

(1) A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing.

71. Despite this, s 21B(3) of the Sentencing Act provides that:

(3) Despite subsection (1), a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if—

(a) the offence is not a child sexual offence, and

(b) the offender establishes that there are exceptional circumstances.

(Emphasis added.)

72. The applicant submitted that the delay in him being charged was such as to amount to “exceptional circumstances” for the purposes of s 21B(3)(b) of the Sentencing Act.

73. As his Honour observed during oral submissions: “The really gnarly part of this exercise is consideration of questions of totality”.

74. The applicant relied upon the following portions of the transcript in support of ground 1:

“HIS HONOUR: In terms of totality, your position not only when you submit that you likely had served the non-parole period, that that arises I assume – correct me if I’m wrong - by a combination of the time spent solely referable and the necessity for there to be some backdating into earlier periods of - an earlier period of incarceration?

ROFF: Yes. Indeed, I go so far in the written submissions, and I say it now from the bar table, that he potentially has served the entirety of the sentence when one has regard to principles of totality. If he were in New South Wales, for example, for the offences that were actually in Victoria, your Honour would be looking at a commencement date for the sentence no later than when he otherwise would have been eligible for release for parole, and there are some Court of Criminal Appeal authority in support of that point. So that would be some time in 2018, but then questions of totality kick in so that if your Honour were not entirely minded to start the--

HIS HONOUR: Sorry, let me just make sure I understand that. You’re submitting he wasn’t released at the end of his non-parole period on the prior sentence.

ROFF: That’s right.

HIS HONOUR: If I had been considering backdating into a earlier sentence the discretion would permit me to go back into that non-parole period of that sentence, which is some time prior to 2018?

ROFF: Yes.

HIS HONOUR: Rather than just thinking about it in terms of backdating beyond the date of his actual release from the expiry of that sentence.

ROFF: Yes.

HIS HONOUR: I understand.

ROFF: I’m grateful to my friend the Crown for providing the decision of Todd, which has already been referred to, which if we put aside the exceptional circumstances aspect of this case has regard ultimately to questions of totality, even if it’s from another jurisdiction, but then I come back to the fact that if he were in New South Wales your Honour would be looking at a sentence that -taking into account the other sentence it would be very difficult to start after he was otherwise eligible for release on parole in 2018.”

Remarks on sentence

75. His Honour sentenced the applicant on 26 July 2024. After setting out the facts, he identified the following matters as being relevant to the assessment of the objective seriousness of the offending:

“(1) The victim and offender were not known to each other.

(2) The victim was walking home alone after work in the early hours of the morning when the offender committed these offences against her. To that extent she might reasonably be described as having been vulnerable at the time.

(3) The offences were committed after the offender had forced the victim into a laneway and had overpowered and physically restrained her. Part of the offender overpowering the victim entailed him grabbing her by the neck with a strong grip. He also applied pressure to her neck each time she made a noise.

(4) The offender suggested to the victim that she wanted what he was doing.

(5) The offender persisted with the offending despite the victim's protestations and despite her crying hysterically, screaming and hyperventilating.

(6) The offender threatened serious harm to the victim if she didn't comply.

(7) The offender tried to elicit personal information from the victim which he then used to warn her against reporting what he'd done.

(8) Quite apart from how terrifying the episode must have been for the victim, both at the time and in its likely subsequent emotional and psychological impacts, the victim also sustained injuries to her hand, arm, knees, neck, lower back, and buttocks during the offending.

(9) All of the offending was opportunistic.”

76. His Honour also noted that it is “properly conceded” that the Form 1 “must apply some upward pressure on the sentence otherwise to be imposed for the aggravated sexual assault offence to which it attaches.”

77. His Honour noted that the applicant was imprisoned in 1999 for sexual offences committed that year in Queensland. With the exception of approximately six months in 2005 to 2006, the applicant has been in continuous custody. Within the six-month period in which the applicant was not incarcerated, he violently sexually assaulted a young relative for which he was subsequently incarcerated in Victoria.

78. His Honour noted that the applicant’s period of incarceration included the COVID-19 pandemic and that he has been the subject of threats and assaults in custody resulting in his segregation. His Honour stated that the applicant’s period of incarceration has “been more burdensome than it otherwise might or should have been”. Despite this, the applicant has undertaken further education whilst in custody and has participated in various courses relating to his offending as well as attending counselling. He has also been employed whilst in custody.

79. It was noted that the applicant has a background of disadvantage including family violence, multiple sexual assaults as a child and compromises to his mental health, including several attempts to take his own life. His Honour acknowledged that whilst the applicant’s background and psychological or psychiatric history may reduce his moral culpability somewhat, “the practical effect of that mitigatory consideration is all but overwhelmed by considerations of community protection and specific deterrence”. In light of these considerations, his Honour stated that “the Court cannot be any more than guarded, if not indeed pessimistic, about the offender’s prospects of rehabilitation and his risk of re-offending”.

80. His Honour found that, given the length of time the applicant has spent in continuous custody, he must reasonably be considered to be institutionalised. His Honour considered that this justified a finding of special circumstances.

81. The sentencing judge observed that the applicant acknowledged his contrition in the letter, and that the applicant appeared to have insight into the effect of his actions.

82. His Honour addressed the four matters the subject of contention at the proceedings on sentence as follows.

83. First, his Honour assessed the discount for the late plea of guilty as 10%.

84. Secondly, as for the significance of the delay, his Honour noted that delay between the offending, the applicant being identified, his arrest, charging and finally his sentencing was “substantial”. He noted that it may have been prolonged by the fact that the applicant served the entirety of his Victorian sentence. His Honour found that it was appropriate to extend leniency to the applicant in the way contemplated by Street CJ in R v Todd (1982) 2 NSWLR 517 (“Todd”).

85. Thirdly, his Honour addressed the effect, if any, of the application of s 21B of the Sentencing Act. He was satisfied that the history of this matter constituted “exceptional circumstances” within the meaning of s 21B. Accordingly, he proceeded on the basis that the applicant should be sentenced in accordance with the sentencing patterns and practices at the time of the offending.

86. Finally, his Honour addressed the application of the totality principle. His Honour was satisfied that in light of the distinct criminality between the offending in Victoria and NSW, it was appropriate to backdate the commencement of the sentence to a date “shortly prior to” the expiry of the Victorian NPP. As stated above, his Honour commenced the sentence from 4 March 2018.

GROUNDS OF APPEAL

Ground 1: Commencement date

Applicant’s submissions

87. It was submitted that the sentencing judge erred in ordering the sentence to commence on 4 March 2018, which was about a month after the expiration of the NPP of the Victorian sentence on 10 February 2018.

88. It was further submitted under this ground that his Honour’s intention was to commence the date earlier than the expiration of the NPP he was then serving and that “shortly prior to” could be measured in months or longer. It was submitted that had the intention of the sentencing judge been to commence the sentence at the expiration of the Victorian sentence, he would have said so. It was submitted that to suggest that “shortly prior to” meant at the expiry is a “strain on the English language”.

89. It was submitted that “the error is not able to be remedied by simple adjustment or mathematical correction”, instead requiring the court to re-exercise the sentencing discretion: Kentwell; Lehn.

Crown submissions

90. The Crown accepted that his Honour erred in his understanding of when the Victorian NPP expired but that it is clear that his Honour intended that the present sentence commence at the expiration of that Victorian NPP. It was noted that three possible dates were before the court as to when that NPP expired.

91. It was the Crown position that the sentencing judge appears to have calculated the NPP to have expired on 4 March 2018 based on the reasoning in the decision of the Victorian Court of Appeal. His Honour appears to have calculated 12 years from the date the applicant was arrested (on 4 March 2006) to arrive at 4 March 2018. The difficulty is that the Victorian Court of Appeal actually commenced the 12-year NPP from 20 July 2006 and made a separate declaration that the applicant had spent 158 days in pre-trial detention which, when factored in, meant that the NPP expired on 10 February 2018.

92. It was acknowledged that the discrepancy between various Victorian NPP expiration dates should have been drawn to the attention of and clarified for the sentencing judge in the context of submissions regarding backdating: see Huynh v R [2024] NSWCCA 61 at [26].

93. It was submitted that it was necessary for the applicant to identify error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 to successfully challenge the exercise of the court’s general discretion in s 47(2)(a) of the Sentencing Act in giving effect to considerations of totality.

94. It was accepted that the sentencing judge mistook the date of the expiry of the NPP for the Victorian offences. It was submitted that it is tolerably clear that the sentencing judge’s intention was for the commencement of the sentence to be backdated to the expiry of the Victorian NPP, but that date was miscalculated. This does not necessitate a re-exercising of the sentencing discretion by the appellate court, instead being analogous to “a mistake as to when the plea was entered”: Kentwell; Lehn at [61], [72].

Consideration: Ground 1

95. It was common ground that the sentencing judge was mistaken as to the expiry date of the applicant’s Victorian NPP. Regrettably, this was the result of conflicting material being placed before his Honour on this issue and a failure by counsel before him to clarify the true position.

96. It was common ground at the hearing of the appeal that even if no other error is established, at the very least the applicant’s sentence should have commenced from 10 February 2018 rather than 4 March 2018.

97. The applicant’s position was that this error alone was sufficient to require this Court to re-sentence the applicant afresh whereas the Crown position was that this was one of the limited circumstances whereby this Court could simply correct the error.

98. Since the decision of the High Court in Kentwell, an intermediate appellate court is required to re-sentence a successful applicant afresh if error is established in the sentencing process. The relevant passage in Kentwell is [42] and is in these terms (footnotes omitted):

“… When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be ‘warranted in law’. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not ‘warranted in law’ unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence.”

99. Significantly, for the purposes of the present appeal, the High Court went on to observe in Kentwell at [42] that not “all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion”. The Court then went on to provide one example of the type of error which would not require this Court to sentence afresh as follows (at [42]):

“By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer’s discretion.”

100. In Lehn, a five-judge bench (Bathurst CJ, with whom Beazley P, R A Hulme, Schmidt and Wilson JJ agreed) held that even when the error is in respect of “a discrete part of the process”, it is still necessary for this Court to form its own view of the appropriate sentence “if the error affects the exercise of the sentencing discretion”: at [68]. Significantly, Bathurst CJ identified a further example of when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. That type of error was identified as an arithmetical error where the precise extent of the error can be properly determined: at [72].

100. Since Lehn, the question has arisen in a number of decisions of this Court as to which types of error can be corrected and which require the re-exercise of the sentencing discretion. I considered some of them in JA v R [2024] NSWCCA 130 at [35]-[49]. It is not necessary to consider them again here. What is clear is that when the sentencing judge’s intention is clear and/or the extent of any arithmetic error is apparent, then the error can be corrected without the need to re-sentence.

101. The Crown’s position was that the sentencing judge clearly meant to commence the sentence on the day the Victorian NPP expired. So much can be inferred, it was argued, because his Honour clearly thought that that sentence expired on 4 March 2018 and that is the date he commenced it from. It was submitted that his Honour could not have thought that the Victorian sentence expired on 2 March because he commenced the sentence two days after that date.

102. There is some force in the Crown submission. It seems to me that there are two explanations for what occurred: either the sentencing judge thought that the Victorian NPP expired on 2 March 2018 and made an arithmetic error in commencing the sentence shortly after the expiration of that sentence rather than “shortly prior to”; or, as the Crown contended, that he thought the relevant date was 4 March 2018 and his intention was to commence the sentence from that date.

103. Although I am satisfied that it is more likely that his Honour mistakenly thought the relevant date was 4 March 2018, that does not explain why he used the words “shortly prior to” when he actually meant “on the same day”. I am unable to accept the Crown submission that his Honour’s intention is clear in this regard.

104. On that basis, regrettably, I have concluded that this is not an arithmetic or numerical error the extent of which is readily apparent. In other words, I am not satisfied that the sentencing judge’s intention is sufficiently clear that this Court can simply correct the error. Accordingly, it is necessary for this Court to re-sentence the applicant.

105. By way of further clarification, had his Honour stated that he intended to commence the sentence “from the day of the expiration” of the Victorian NPP (or words to that effect), then this would have been one of those cases where this Court could simply have backdated the sentence to 10 February 2018 (presuming no other error).

106. Finally, for completeness, I do not accept the applicant’s submission that his Honour gave any indication during the proceedings on sentence that he meant to allow for an even greater degree of concurrence than he did. I have extracted the relevant portions of the transcript above at [74]. They do not support that submission. Further and in any event, this Court has cautioned against relying on transcript of the proceedings on sentence in lieu of the actual reasons provided by the sentencing judge. That is because error is to be found in the Reasons for Sentence and not in the transcript. As Johnson and Bellew JJ stated in Hampton v R [2014] NSWCCA 131 at [23] (Gleeson JA, Price and Garling JJ agreeing):

“The Court should keep in mind concerns which have been expressed where error is said to arise based upon interchanges between the Bench and counsel during submissions: R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475; [32]. These grounds also appear to strain the limits of permissible grounds of appeal as explained in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 477-478; [79]-[82].”

108. I would uphold ground 1.

Need to consider ground 2?

109. Given that this Court is required to re-sentence the applicant, on one view there is no need to consider ground 2 which complains that his Honour erred in not allowing for greater concurrence as between the Victorian sentence and the present aggregate sentence. In other words, complaint is made that the backdating was inadequate. I propose to consider that ground as it can be disposed of relatively shortly.

Ground 2: Totality

Applicant’s submissions

110. It was submitted that the overall sentencing outcome did not give proper effect to the principle of totality. Reliance was placed on the fact that where, such as in this case, the delay was not caused by the applicant, flexibility in approach is required. It was submitted that the sentencing outcome suggests the sentencing judge may not have taken a step back and considered the overall result: Mill v R (1988) 166 CLR 59; [1988] HCA 70 (“Mill”).

111. It was noted that as at the date on which the applicant was sentenced for these offences, he had been held in continuous custody for over 18 years. The NPP imposed extended that period to 3 March 2025, representing a total period of 19 years. The total sentence meant that that period was extended to 3 September 2028, representing 22 years.

Crown submissions

112. The Crown submitted that the sentencing judge was “plainly aware” that sentencing required him to consider totality in light of the applicant’s continuous custody. The way in which a sentencing judge undertakes that exercise is a matter for their discretion and judgment, and sentencing judges are entitled to flexibility in how they structure a sentence.

113. The sentencing judge considered that the whole of the applicant’s criminality would be proportionately reflected if there was some concurrency between the sentences achieved by backdating the sentence. This had the effect that 4 years and 7 months of the applicant’s non-parole period of 7 years was notionally served concurrently with the Victorian sentence. This backdating was particularly lenient when it is noted that the backdating occurred by reference to a period of custody which is unrelated to the New South Wales offending at a time prior to him being charged with the present offences. The sentencing judge was mindful of the distinct criminality of the offences committed in Victoria as opposed to in New South Wales.

114. It was submitted that the applicant failed to explain why the sentencing judge’s leniency, for example with respect to his Honour’s approach to s 21B(1) of the Sentencing Act, was insufficient in its mitigatory effect to reflect any potential unfairness arising from the delay. The sentencing judge had accepted a submission by the applicant’s counsel that the applicant should be sentenced in accordance with the sentencing practices and patterns that existed in 1995 at the time of the offending. That was the position taken despite the default position that exists in s 21B of the Sentencing Act.

115. Finally, it was submitted that the applicant’s institutionalisation informed the finding of special circumstances in the applicant’s favour. The applicant’s NPP represents two thirds of his overall sentence.

116. The Crown did not suggest that any one of these matters was a complete answer to the consideration of totality, but that all of these things together were considered by his Honour who adopted an “instinctive synthesis” approach to the exercise of the sentencing discretion.

Consideration: Ground 2

117. It is not unusual for an offender to be sentenced for offences committed in one State whilst awaiting to be dealt with for offences committed in another State. Often this will mean that after serving the sentence in one State an offender is then arrested upon release and taken to the second State and a second term of imprisonment is imposed. The relevant principles in such situations are to be found in Todd at 519-520 as follows:

“Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.” (Emphasis added.)

118. The applicant relied on this passage in support of his contention that the sentencing judge did not exhibit the flexibility of approach required in the circumstances. I do not accept that submission for the following reasons.

119. First, the applicant was not arrested for the present offences until 16 September 2022. He spent no time in custody on remand relevant to these New South Wales offences until that time. Despite that fact, his Honour backdated the sentence to early 2018. Such an approach is consistent with his Honour adopting a flexible and lenient approach.

120. Secondly, the result of the lenient backdating was that at the time the applicant was sentenced he only received a further 6-7 months in custody to serve as his non-parole period for these very serious offences. It is difficult to see how any further backdating would have been justified given the distinct offending.

121. The offences in Victoria occurred in a familial setting in the context of a pre-existing relationship between the applicant and his 14-year-old niece. Those offences were motivated by anger and resentment towards that victim. This is clearly distinct from the kind of spontaneous attack on a stranger that was perpetrated in New South Wales. The offending in each State also took place some 10 years apart, unlike in both Todd at [519]-[520] and Mill at [62] on which the applicant relies. It was well open to the sentencing judge to allow for a degree of concurrency in order to avoid the combined sentences exceeding the total criminality of the two sets of sentences.

122. Thirdly, the applicant received the benefit of s 21B(3) of the Sentencing Act on the basis of the delay in charging, again consistent with the flexibility suggested in Todd and also Mill in relation to delay.

123. There is no merit to any suggestion that his Honour did not apply a flexible approach to the totality principle in this matter. Had his Honour allowed for any greater period of concurrence he may have undermined public confidence by giving the impression that the applicant was being offered a discount for multiple offending: R v MAK, R v MSK [2006] NSWCCA 381; (2006) A Crim R 159 at [18].

124. I would not uphold ground 2.

Re-sentence

125. The applicant relied on further evidence in the event of re-sentence and filed two affidavits. In his affidavit dated 17 December 2024, the applicant set out his intentions following release including to undertake counselling and to join a Christian fellowship group once he is likely deported to Bosnia and Herzegovina. The applicant also described the courses he has completed whilst incarcerated and the fact that he has been unable to complete any further programs on remand and while an appeal is on foot.

126. Annexure A of Janet Witmer’s affidavit dated 16 December 2024 exhibited the applicant’s custodial file which confirmed that the applicant has not had any custodial charges, is employed and “has not been a problem in custody”. Relevant pages from the applicant’s custodial file set out the applicant’s employment history while at Junee Correctional Centre and the programs he has completed. Since the date of sentence, the applicant has been employed at the canteen at Junee Correctional Centre and has undertaken a course in Digital Literacy, undertaken a Vocational Education and Training assessment, completed a skills check and a mandatory safety brief.

127. I have had regard to this new material. Although it is generally favourable, given that he was only sentenced on 28 July 2024 it does not significantly advance on what was already before the sentencing judge.

128. The applicant submitted that the existing sentence is a “crushing one” and a lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act.

129. The Crown, on the other hand submitted that no lesser sentence is warranted in law. It was noted that, aside from submitting that the sentence was “crushing”, the applicant did not challenge the sentencing judge’s findings and those findings justify the sentence imposed.

130. I propose to re-sentence the applicant based on the findings made by the sentencing judge. The applicant submitted that I would allow for greater concurrence with the Victorian sentence and find that the applicant’s prospects of rehabilitation were improved given the recent evidence. I do not propose to do so for the following reasons.

131. As for the totality principle, I have already explained under ground 2 why I do not consider any error is established in the manner in which the sentencing judge applied the totality principle. His Honour had a broad discretion in this regard. In exercising my discretion afresh, I would not have allowed the same degree of concurrence as the sentencing judge did. Despite this, I propose to adopt the same approach as his Honour did.

132. As for the finding of prospects of rehabilitation, even having regard to the new material, they would appear to be the same as when he was sentenced on 28 July 2024. As stated above, his Honour observed at that time that he could not be “any more than guarded, if not indeed pessimistic” about the applicant’s prospects of rehabilitation and his risk of re-offending.

133. The offending the subject of this aggregate sentence was a horrifying act of sexual violence on an 18-year-old woman walking home from work. When the applicant was not apprehended at the time he subsequently went on to commit further acts of sexual violence on a woman in Queensland. Shortly after being released on parole for those offences, he committed further acts of sexual violence on a 14-year-old child in Victoria whilst on parole. Against that background, I am simply not able to make a more positive finding as to his prospects of rehabilitation than his Honour did.

134. Accordingly, I would adopt all of the findings made by his Honour, including as to the discount, sentencing principles, totality, remorse and special circumstances.

135. In re-sentencing the applicant, I have arrived at a sentence which is higher than that which was imposed by the sentencing judge. Although the language of s 6 of the Criminal Appeal Act permits this Court to impose a sentence that is “more or less severe” than that imposed at first instance, it is not the practice of this Court to impose a more severe sentence. As I observed in RO v R [2019] NSWCCA 183 at [119], the usual practice of this Court is that after hearing oral submissions the decision is reserved and judgment delivered at a later date. This practice renders it impractical to reconvene the court to give a “Parker” warning if a conclusion is made that a higher sentence is warranted in law: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.

136. During the hearing of this appeal, the applicant’s counsel accepted that, in the event that this Court was not satisfied that a lesser sentence was warranted at law, the appropriate course would be to allow the appeal in part and simply backdate the sentence to 10 February 2018. I propose to adopt that course.

137. The applicant’s non-parole period will have expired by the time of the publication of this judgment but that is the product, in part, of the significant backdating to his sentence.

Orders

138. Accordingly, I would propose the following orders:

1. Grant leave to appeal.

2. Appeal allowed in part.

3. The aggregate sentence imposed by Judge Whitford SC on 28 July 2024 is varied to commence from 10 February 2018 rather than 4 March 2018.

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Decision last updated: 21 February 2025