Portnoy v The King

[2025] NSWCCA 60

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Portnoy v R [2025] NSWCCA 60

Hearing dates:

26 March 2025

Date of orders:

23 April 2025

Decision date:

23 April 2025

Before:

Davies J at [1]
Sweeney J at [2]
Huggett J at [43]

Decision:

(1) Grant leave to appeal.

(2) Allow the appeal.

(3) Quash the sentence imposed by Noman SC DCJ in the District Court on 17 May 2024.

(4) In lieu thereof, sentence the applicant to an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years to date from 17 January 2024. The sentence will expire on 16 July 2027. The non-parole period will expire on 16 January 2026.

Catchwords:

CRIME – Appeals – Appeal against sentence – Two offences of sexual intercourse without consent – Aggregate non-parole period greater than the sum of the two indicated non-parole periods – The totality principle applies to aggregate sentences – An aggregate non-parole period which exceeded the sum of the indicated non-parole period constituted error – Applicant resentenced

Legislation Cited:

Crimes Act 1900 (NSW), s 61I

Crimes (Sentencing Procedure Act) 1999 (NSW), ss 44(2C), 53A, s 54B

Cases Cited:

Aryal v R [2021] NSWCCA 2

Bojlevski v R [2024] NSWCCA 208

Dimian v R [2016] NSWCCA 223

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Kentwell v the Queen (2014) 252 CLR 60; [2014] HCA 37

Kliendienst v R [2020] NSWCCA 98

Noonan v R [2021] NSWCCA 35

Category:

Principal judgment

Parties:

Alexander Portnoy (Applicant)
Crown (Respondent)

Representation:

Counsel:
K Averre (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2023/87434

Publication restriction:

Statutory non-publication order re complainant’s
identity

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

17 May 2024

Before:

Noman SC DCJ

File Number(s):

2023/87434

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was sentenced in the District Court for two offences of sexual intercourse without consent, each of which had standard non-parole periods prescribed. The judge sentenced him by way of an aggregate sentence. The sentencing judge indicated sentences and non-parole periods for each offence. Her Honour stated that the close temporal and factual circumstances of the offences supported significant notional concurrency of the indicated sentences in the aggregate sentence.

The aggregate non-parole period exceeded the total of the two indicated non-parole periods by one month. The applicant submitted that that was an error.

The Court (Sweeney J, Davies and Huggett JJ agreeing) upheld the appeal and resentenced the applicant:

1. Affirming that the principle of totality applies to aggregate sentences: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528; Aryal v R [2021] NSWCCA 2; Kliendienst v R [2020] NSWCCA 98; Noonan v R [2021] NSWCCA 35; Bojlevski v R [2024] NSWCCA 208 applied.

2. Finding that an aggregate non-parole period which exceeded the sum of the indicated non-parole periods constituted error.

The applicant was resentenced consistently with the sentencing judge’s stated intention to achieve significant notional concurrency of the indicated sentences in the aggregate sentence.

JUDGMENT

1. DAVIES J: I agree with Sweeney J.

2. SWEENEY J: Alexander Portnoy, the applicant, seeks leave to appeal against the aggregate sentence imposed upon him by Noman SC DCJ in the District Court on 17 May 2024. The applicant was sentenced for two offences of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW), which each had a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years prescribed. There was a further offence of sexual touching without consent taken into account on a Form 1 when the applicant was sentenced on the first offence of sexual intercourse without consent.

3. The indicative sentences, each reduced by 25% for pleas of guilty in the Local Court, were for the first offence, and taking into account the offence on the Form 1, 1 year and 7 months imprisonment with a non-parole period of 11 months, and for the second offence, 3 years imprisonment with a non-parole period of 1 year and 9 months.

4. The aggregate sentence imposed, backdated, to take account of pre-sentence custody, to commence on 17 January 2024, was 4 years imprisonment with an aggregate non-parole period of 2 years and 9 months.

5. It can be seen immediately that the aggregate non-parole period exceeded the total sum of the two indicated non-parole periods by one month. That is the essence of the applicant’s sole ground of appeal that:

“The sentencing judge erred in failing to have regard to the indicative non-parole periods set for the offences when fixing the aggregate non-parole period which resulted in an aggregate non-parole greater than the sum of the two indicated non-parole periods.”

6. The Crown’s position was that no error was demonstrated.

The Remarks on Sentence

7. Because the applicant did not otherwise challenge the findings of Noman SC DCJ, I will summarise her Honour’s Remarks on Sentence to the extent necessary to deal with the sole ground of appeal.

8. Her Honour summarised the agreed facts as follows.

9. The offender and victim were both in their 40’s and both were “on the spectrum”. They communicated on a dating application from early 2022. They discussed personal details but did not meet. The victim informed the offender of her Autism Spectrum Disorder (“ASD”) diagnosis in July 2022. There was no indication that the offender recalled this the following year. He did not disclose his similar diagnosis. There was no evidence the offender sought to exploit the fact of the victim’s autism.

10. Coincidentally both attended a charity event on 12 March 2023. They spoke and interacted. After some time, the victim indicated she needed to leave as she had children at home and assignments due. The offender offered to drive her home. The victim agreed to enter his car with the understanding she would be taken home.

11. Immediately upon entering the car the offender reached his hand inside the victim’s swimsuit and squeezed her breast for about 20 seconds. The victim froze. That was the sexual touching offence on the Form 1. Her Honour stated that “This offence occurred without notice or any encouragement. The victim was not provided an opportunity to respond.” At the same time the offender placed his finger or fingers inside the victim’s swimsuit and digitally penetrated her genitalia. She did not respond. There was no indication of the duration of that act. Her Honour determined the offender believed there was consent to that act, but that there was no reasonable basis for that belief. Her Honour determined that offence to “fall towards the lower end of objective seriousness”.

12. The offender and victim then kissed each other in the car. The offender did not drive the victim home. He drove her to his home. The victim repeated her need to be with her children and do her assignments. Inside the offender’s apartment the offender pulled the victim close and removed her clothing. Her Honour found this reflected that the offender contemplated sexual activity but this contemplation did not involve non-consensual activity.

13. The offender told the victim to lie on his bed and she did. He performed cunnilingus for about 30 seconds. He told her to turn over, which she did. The offender asked the victim if she engaged in anal intercourse. She said she did not. The offender then engaged in penile genital penetration, during which he slapped the victim’s buttocks, pulled her ponytail, squeezed her neck and bit her back and bottom, causing marks.

14. Her Honour found that the complainant did not consent to going to the offender’s home, to engaging in this sexual activity or to being “manhandled”, but it was not alleged the offender was aware of the lack of consent.

15. The offender then penetrated the victim’s anus, with his penis or his fingers. This caused pain and it occurred for “some time”, which her Honour took to mean more than brief. Her Honour noted the offender “had been told before the vaginal intercourse that [the victim] did not want anal intercourse”. Her Honour determined the offender was “reckless to consent”. Her Honour took into account that “From the offender’s perspective this act occurred immediately after what he believed to be consensual intercourse.” Her Honour assessed the anal intercourse offence as “a serious offence, but one falling below the mid-range of objective seriousness”.

16. Her Honour then recounted that the offender drove the victim towards her home. He indicated he wanted to engage in further acts of intercourse. She reminded him of her children and her assignments. He then kissed her and exposed her breast, asked for her phone number and asked if she would send him a photograph of a bite mark.

17. The victim reported the incident to the police with the assistance of a friend.

18. Her Honour noted the contents of the victim impact statement.

19. Her Honour found that the only matters that may lessen the offender’s moral culpability were his “social and emotional limitations associated with his likely ASD”. Her Honour stated “I accept there to be a causal connection between the ASD and offending. He was unable to accurately perceive the environment and to restrict his conduct.” Her Honour found there was “only modest diminution of moral culpability”. Her Honour accepted the offender’s expressions of remorse to be genuine.

20. Her Honour stated the offender was then aged 49. He had a limited criminal history, involving driving offences resulting in fines, which did not deprive him of leniency.

21. From a psychological report her Honour noted that:

“The offender was exposed to some emotional abuse from his mother and sexual abuse by another on several occasions at the age of 8. He otherwise had family support and received education through to tertiary qualifications. He was able to secure and maintain employment with some periods of unemployment.”

Her Honour stated “He has compromised understanding of other’s feelings, emotions and intentions.” Her Honour found the offender’s prospects of rehabilitation were “reasonable but not unquestioningly positive”, and that “personal deterrence [had] a meaningful role to play”. Her Honour stated that the offender’s being “on the spectrum” did not operate to lessen the importance of general deterrence.

22. Her Honour noted that the offender’s being in custody would have an impact on his son and his father who were both reliant on the offender for care.

23. Her Honour stated that, in complying with the principle of totality:

“That the offences occurred close in time, albeit at different locations, and both are factually related supports significant concurrency. However, some degree of accumulation is necessary to address the separate components of the separate offending.”

24. Her Honour found special circumstances, to vary the statutory ratio of the non-parole period to the head sentence, in the need to notionally accumulate indicative sentences, the modestly more onerous conditions in custody due to the offender’s mental health, the need for an extended period of mental health support upon his release for treatment, and the hardship occasioned to his son and father from his absence. When her Honour announced the aggregate sentence and aggregate non-parole period her Honour stated “This variation to the statutory ratio to 68% gives effect to my finding of special circumstances.”

The applicant’s submissions

25. The short submission by the applicant was that the aggregate non-parole period fixed exceeded the total of the two indicated non-parole periods. Counsel relied on Dimian v R [2016] NSWCCA 223 in which this Court said it was an error for a sentencing judge to impose an aggregate sentence which exceeded the total of the indicative sentences. Counsel submitted that the same principle must apply to non-parole periods. He submitted that the aggregate non-parole period was not consistent with the sentencing judge’s statement that the circumstances of the two offences supported “significant concurrency”.

The Crown’s submissions

26. The Crown submitted that the sentencing judge did not err because the aggregate non-parole period is to be fixed in relation to the aggregate head sentence, not the indicated non-parole periods. The Crown placed great weight on the final sentence of her Honour’s Remarks on Sentence: “No lesser term or non-parole period would address the seriousness of the offending” and submitted that the sentencing judge made a considered determination of the appropriate non-parole period for the aggregate sentence.

Aggregate sentencing – some relevant provisions and principles

27. Section 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW) (“the Act”) empowers a court to impose aggregate sentences of imprisonment. It provides, relevantly:

53A Aggregate sentences of imprisonment

(1)  A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2)  A court that imposes an aggregate sentence of imprisonment… on an offender must indicate to the offender… —

(a)  the fact that an aggregate sentence is being imposed,

(b)  the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

…

28. There is no need to indicate the non-parole period that would have been imposed for each offence: s 44(2C) of the Act, unless that is required by s 54B of the Act, that is when a standard non-parole period is prescribed for an offence. In this matter the two offences for sentence did have standard non-parole periods prescribed, so the sentencing judge was required to indicate non-parole periods as part of the sentences indicated for the two offences.

29. In JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 RA Hulme J, with whom the other justices agreed, summarised the legal principles about aggregate sentencing which had been expressed at that time: at [39] – [40]. Those relevant to this matter included:

• Aggregate sentencing “offers the benefit when sentencing for multiple offences of obviating the need to engage in the … task of creating a “cascading’ or ‘stairway’ sentencing structure” when the principle of totality requires some accumulation of sentences”. (citations omitted).

• “One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality.”

• “The indicative sentences… are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence.” (citations omitted).

30. In Aryal v R [2021] NSWCCA 2 RA Hulme J, with whom the other justices agreed, said at [40] that the principle of totality “applies just as much when an aggregate sentence is imposed”.

31. In Kliendienst v R [2020] NSWCCA 98 N Adams J, with whom the other justices agreed, said in considering the extent to which complaint can be made about the degree of concurrence and accumulation in an aggregate sentence:

“[76] The applicant’s complaint is directed at the degree of accumulation and concurrence as between the two indicative sentences. Had the sentencing judge imposed separate sentences for these two offences his Honour would have been required to first arrive at an appropriate sentence for each offence and then have regard to issues of concurrence and accumulation according to principles of totality’: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 … Cahyadi v R [2007] NSWCCA 1.

…

[77] The extent of accumulation and concurrence is very much a matter of discretion for the sentencing judge. (citation omitted).

…

[84] It is clear that the totality principle still applies to aggregate sentences. As R A Hulme J observed in JM, a sentencing judge is still required to assess the criminality of each offence separately before imposing an appropriate aggregate sentence. Despite this, it is also clear that the same transparency regarding the degree of accumulation and concurrence that is available when an offender is sentenced separately on each offence is not apparent when an aggregate sentence is imposed, with one exception: when an aggregate sentence is imposed for only two offences there is some transparency.

[85] A common complaint to this Court when alleging manifest excess (or manifest inadequacy) of an aggregate sentence is to contend that the sentencing judge has erred in the degree of accumulation and concurrence. Such a complaint will be upheld in obvious cases, such as when the aggregate sentence is the same length as one of a number of indicative sentences showing there was no accumulation… But the failure to properly apply the totality principle must be able to be gleaned from the indicative sentences when compared with the aggregate sentence…”

Her Honour concluded that “it is not impermissible to have regard to the indicative sentences when looking at whether error is disclosed in the aggregate sentence”: at [103].

32. In Noonan v R [2021] NSWCCA 35 (“Noonan”) Beech-Jones J, with whom the other justices agreed, said at [33]:

“…The starting point is that the subject matter of an application for leave to appeal against an aggregate sentence is the aggregate sentence itself, not any indicative sentence. Next, it is necessary to identify the error complained of in the fixing of the aggregate sentence. If the complaint is an error such as a failure to apply the totality principle then an appellant may seek to deploy a comparison between the indicative sentences and the total aggregate sentence to argue that the principle was misunderstood or misapplied such that an error has been demonstrated. For example, if there were three related offences with the indicative sentence for each being 2 years imprisonment and the total aggregate sentence was 6 years imprisonment then it might be inferred that the sentencing judge failed to apply the totality principle. In that case, one of the forms of error discussed in House v R (1936) 55 CLR 499; [1936] HCA 40 would be established even though the aggregate sentence was not itself manifestly excessive (namely a failure to take ‘into account some material consideration’: House v R at 505).”

33. In Bojlevski v R [2024] NSWCCA 208 Fagan J, with whom Leeming JA and Campbell J agreed, said at [18] that a mathematical analysis was not open to the applicant but that:

“In an appropriate case it may be open to consider the potential for accumulation or concurrency in so far as that would cast light upon whether the sentencing discretion has been soundly exercised.”

Leeming JA said at [8]:

“That is not to deny that in some cases it is possible to identify patent error in the exercise of the sentencing discretion by reference to indicative sentences; sometimes the indicative sentences may be a guide to whether error is established in relation to the aggregate sentence: JM v R [2014] NSWCCA 297 at [40(11)].”

34. Although Mr Portnoy’s complaint was of a specific patent error, it was essentially a complaint about the application of the principle of totality to arrive at the non-parole period fixed.

35. While I accept, as the Crown submitted, and as the Crimes (Sentencing Procedure) Act requires, there is a relationship between the aggregate head sentence and the aggregate non-parole period, that does not mean that the non-parole periods indicated cannot be examined to illustrate whether an error occurred in the application of the principle of totality. Just as Beech-Jones J in Noonan considered that the total accumulation of three indicated sentences to achieve an aggregate sentence would likely lead to the inference that the sentencing judge failed to apply the totality principle, in this case, a non-parole period which exceeds the sum of the indicated non-parole periods leads to the inference that the sentencing judge in this case made an error. It is also inconsistent with her Honour’s finding that the circumstances of the offences supported “significant concurrency” of the sentences indicated for each offence.

34. Aggregate sentencing was intended to be facilitative of the sentencing process, to avoid the need for sentencing judges to specify multiple commencement and end dates of sentences and non-parole periods when sentencing for multiple offences. It cannot have been intended, as a matter of fairness and justice, that an offender would be worse off by being sentenced by way of an aggregate sentence, than he would have been if sentenced for two offences by the imposition of separate sentences for each, partially accumulated to the extent necessary to achieve an appropriate sentence for the total criminality. The non-parole period fixed in this case could not have been achieved had the applicant been sentenced for his two offences separately. To arrive at that result in an aggregate sentencing process leads to the inference that an error occurred in the exercise of the judge’s sentencing discretion. Therefore, it is necessary to resentence the applicant: Kentwell v the Queen (2014) 252 CLR 60; [2014] HCA 37.

Resentencing

37. There was no assertion of manifest excess in respect of the aggregate head sentence, although counsel submitted it would be open to this Court to impose a lesser head sentence. Counsel did not challenge any of the sentencing judge’s findings. I will proceed on the basis of her Honour’s factual findings, her Honour’s assessment of the objective seriousness of the two offences, her Honour’s findings about the contribution of the applicant’s ASD to the offences, his remorse, his other subjective factors, and the same special circumstances warranting a variation in the ratio between the aggregate head sentence and aggregate non-parole period.

38. In resentencing, the applicant relied on two affidavits from himself and one from his solicitor. The applicant said he had been assaulted in his previous correctional centre and moved. He said in his current correctional centre he is not able to engage in Open University courses which he would like to undertake. He said he is working in textiles, which usefully occupies some of his time. I have taken into account his motivation to spend his time in custody usefully. He said he has not been able to see a psychologist in custody, or to receive appropriate testing and treatment for a condition which increases his risks of certain types of cancer.

39. In response to the latter the Crown produced the applicant’s Justice Health records, which showed that his need for the necessary screening tests for his cancer risks had been noted, as had his need for psychological supports, and that he had trialled medication and therapy. He had had some testing for his physical condition and arrangements were being made for his annual testing. Therefore, it appears that Justice Health’s response to the applicant’s psychological and physical health needs has been better than his anxious perception of them.

40. I have taken into account all of those matters, and the close temporal connection between the offences, warranting significant notional concurrency of the sentences indicated for the individual offences. For the individual offences, the indicative sentences for which were not challenged, taking into account the nature and circumstances of the conduct and the applicant’s ASD contributing to the conduct, applying the 25% discount for the pleas of guilty, and the offence on the Form 1 in relation to the first offence, the indicative sentences and non-parole periods are as indicated by Noman SC DCJ. They are: for the first offence and taking into account the offence on the Form 1, 1 year and 7 months imprisonment with a non-parole period of 11 months, and for the second offence, 3 years imprisonment with a non-parole period of 1 year and 9 months.

41. The aggregate sentence is 3 years and 6 months imprisonment, with a non-parole period of 2 years; to date from 17 January 2024. The sentence will expire on 16 July 2027. The non-parole period will expire on 16 January 2026.

Orders

42. I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence imposed by Noman SC DCJ in the District Court on 17 May 2024.

4. In lieu thereof, sentence the applicant to an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years to date from 17 January 2024. The sentence will expire on 16 July 2027. The non-parole period will expire on 16 January 2026.

43. HUGGETT J: I agree with Sweeney J.

**********

Amendments

23 April 2025 - 23 April 2025 - Coversheet - Decision - Paragraph (4) - 10 July 2027 changed to 16 July 2027

23 April 2025 - Paragraph [41] - 10 July 2027 changed to 16 July 2027

23 April 2025 - Paragraph [42] - 10 July 2027 changed to 16 July 2027

Decision last updated: 23 April 2025