R v Cannon

[2015] NSWDC 125

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Cannon [2015] NSWDC 125
Decision date:	09 July 2015
Jurisdiction:	Criminal
Before:	Payne DCJ
Decision:	Sentenced to a term of imprisonment of 7 years with a non-parole period of 3 years
Catchwords:	CRIMINAL LAW – sentence – sexual assault – offence committed in 1986 – relevant sentencing principles – legislative history; CRIMINAL LAW – sentence - totality
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Parole of Prisoners Act 1966 (NSW) Probation and Parole Act 1983 (NSW) Probation and Parole (Remissions) Amendment Act 1986 (NSW) Probation and Parole (Serious Offences) Amendment Act 1987 (NSW) Sentencing Act 1989 (NSW)
Cases Cited:	AJB v R [2007] NSWCCA 51; 169 A Crim R 32 Betts v R [2015] NSWCCA 39 CPW v R [2009] NSWCCA 105; 195 A Crim R 149 Ewen v R [2015] NSWCCA 117 LJS v R [2015] NSWCCA 47 Magnuson v R [2013] NSWCCA 50 MD v R [2015] NSWCCA 37 MPB v R [2013] NSWCCA 213; 234 A Crim R 576 Pearce v The Queen [1998] HCA 57; 194 CLR 610; 72 ALJR 1416; 103 A Crim R 372; 156 ALR 684 Power v The Queen [1974] HCA 26; 131 CLR 623 R v Close (1992) 65 A Crim R 55; 31 NSWLR 743 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481 R v Moffitt (1990) 49 A Crim R 20 R v Simpson [2001] NSWCCA 534; 126 A Crim R 525; 53 NSWLR 704 R v Swan [2005] NSWCCA 252 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104 R v Wakefield [2010] NSWCCA 12 RL v R [2015] NSWCCA 106 SHR v R [2014] NSWCCA 94
Category:	Sentence
Parties:	Regina (Crown) Kenneth Barry Cannon (Offender)
Representation:	Counsel: M King (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown)
File Number(s):	2014/00060448
Publication restriction:	Name of victim anonymised

SENTENCE

1. Mr Cannon pleaded guilty in the Local Court and was committed for sentence on 6 August 2014 from Wagga Wagga Local Court.

2. The date of the offence is 7 November 1986.

3. The offence is contrary to s 61D(1) Crimes Act 1900 (NSW), being sexual assault (category 3) sexual intercourse without consent, the victim being aged less than 16 years. The maximum penalty prescribed for the offence is imprisonment for 10 years. Mr Cannon was arrested on 26 February 2014.

4. The Court Attendance Notice is as follows:

“Between 4.00am and 4.30am on 8/11/1986 at Wagga Wagga did have sexual intercourse with AGW without her consent and knowing that AGW had not consented to the sexual intercourse.”

5. It is also part of the Court Attendance Notice that it is a sexual assault (category 3) - person under 16 years of age.

6. I convict him of this offence.

7. This is a very complex sentencing exercise, as Mr Cannon stands to be sentenced applying sentencing principles and the relevant legislation as it was in 1986, some 29 years ago: R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481, MPB v R [2013] NSWCCA 213; 234 A Crim R 576.

8. Further, he is already serving a very lengthy sentence imposed many years ago, which is structured in a particular way.

9. The current maximum penalty for a like current offence is imprisonment for 20 years, with a standard non-parole period prescribed of imprisonment for 10 years. That was certainly not the situation in 1986, as already noted. The maximum penalty has doubled.

10. The relevant legislation is the Probation and Parole Act 1983 (NSW), which commenced on 27 February 1984, as amended by the Probation and Parole (Remissions) Amendment Act 1986 (NSW), which commenced on 25 May 1986. This Act inserted s 21A, which is headed “Disentitlement to remissions - non parole period”. The Probation and Parole (Serious Offences) Amendment Act 1987 (NSW) does not apply as it did not commence until 1 January 1988. Subsection (4) of s 20A provides:

“A reference in this section to a serious offence does not include a reference to an offence committed before the commencement of this section.”

11. In any event, this particular offence is not one found in Sch 5, which lists what are serious offences.

PLEA OF GUILTY

12. The Crown conceded a reduction of 25 percent for utilitarian considerations only should be given. The defence made the same submission.

13. In AJB v R [2007] NSWCCA 51; 169 A Crim R 32, Howie J said at [28]:

“The Judge indicated that he was giving a discount of 25 percent for the utilitarian value of the plea. The fact that the overall sentence imposed is four years suggests that, without that discount, the overall sentence would have been five years and four months. Of course one curious result arising from the approach of dealing with the applicant according to sentencing practices that existed in 1982 is that he would not have under that practice received a discount of 25 percent for his pleas.”

14. Mr King, counsel for the prisoner, submitted an allowance was given and not quantified prior to R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104. As noted though, he submitted a 25 percent discount should be specified.

15. In MPB, Garling J (with whom R A Hulme J agreed) said at [99]:

“In respect of each offence, the sentencing judge allowed a discount of 25 percent to reflect the applicant’s early pleas of guilty. He was well entitled to do this.”

16. Given the joint concession and what is found in MPB, I intend to give the prisoner an identifiable benefit of 25 percent for utilitarian considerations only.

17. The present s 21A Crimes (Sentencing Procedure) Act 1999 (NSW) applies to this sentencing exercise. This is because although the section commenced on 1 January 2003, it applies to the determination of a sentence for an offence whenever committed. The exception to that is not applicable to this case. Equally, s 3A Crimes (Sentencing Procedure) Act applies to this sentencing. This is because of the provisions of cl 45(1) of Pt 7 of Sch 2 of the Crimes (Sentencing Procedure) Act, which provides as follows:

“Except as provided by subclause (2), the amendments made to this Act by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 do not apply to offences committed before the commencement of the amendments.”

18. Subclause (2) states:

“Sections 3A and 21A of this Act, as inserted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, apply to the determination of a sentence for an offence whenever committed, unless:

(a)   a court has convicted the person being sentenced of the offence, or

(b)   a court has accepted a plea of guilty to the offence and the plea has not been withdrawn,

before the commencement of the section concerned.”

See also MPB at [161].

19. Section 21A(3)(i) Crimes (Sentencing Procedure) Act provides:

“the remorse shown by the offender for the offence, but only if:

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)”.

20. The prisoner gave lengthy sworn evidence and was cross-examined.

21. Despite his account that he cannot remember the offence, I accept he has taken responsibility by pleading guilty and said he was sorry for his offending behaviour and acknowledged the damage occasioned to the victim (transcript 12 March 2015, pp 36 and 45).

22. There is reference to this also in the pre-sentence report of 12 September 2014.

23. The relevant standard is on the balance of probabilities and I am so satisfied.

FACTS

24. The factual circumstances of the offence are found in an agreed facts document. This is as follows:

“On 7 November 1986, around 3.50am, AGW (the complainant), born xx 1971, was walking home on Edward Street, towards Tarcutta Street.

Near the bushes at Bolton Park, the complainant saw a man walk from the bushes towards her. The complainant kept walking. Kenneth Cannon (the accused) approached the complainant and put his arm around her. The complainant kept walking and said, ‘Don’t do that’, while she shrugged the accused’s arm off her. The accused hung onto the complainant and said, ‘Don’t make a sound unless you want to get cut.’ The complainant and accused had stopped walking. The accused held a knife in his right hand towards the complainant’s throat.

The accused pushed the complainant towards a tree, approximately twenty to thirty metres from Edward Street. The accused pushed the complainant to the ground. The accused lay on top of the complainant and held the knife near her left ear. The complainant was too scared to scream.

The accused pulled the complainant’s shoes off, taking with them her socks. The accused lifted himself off the complainant and held her down by her chest. The accused undid the zipper on the complainant’s jeans and pulled them off. The accused pulled his jeans down and lay on top of the complainant. The accused put a hand under the complainant’s top and pushed her bra over her breasts. The accused put his hands on either side of the complainant’s head and inserted his penis into her vagina and moved his penis in and out, causing pain to the complainant. The accused ejaculated in the complainant’s vagina, got off her and pulled his pants up. The accused threw the knife in front of him and it stabbed into the ground. The accused threw the complainant’s clothes at her and she got dressed. The accused helped the complainant put a shoe on and she asked if she could go home.

The accused grabbed the complainant’s jacket and pulled her towards him and said, ‘I don’t care if you report this or not, it’s just one of those things.’ The accused picked up the knife and put it up his sleeve.

The complainant walked towards Tarcutta Street and watched the accused walk towards Baylis Street, along Edwards Street. When the accused was out of sight, the complainant ran home and immediately complained to her friend and then her mother. The complainant reported the matter to Wagga Police.

The complainant was taken to Wagga Base Hospital for a medical examination. A sexual assault kit was completed and forwarded to the Division of Forensic Medicine, in addition to clothing worn by the complainant. Semen was detected on the vaginal smears, jeans and underwear.

Whilst an inmate at Goulburn Correctional Centre, the accused was DNA tested and his DNA placed on the DNA database.

In November 2008, a Scene Link was received matching the accused’s DNA to the semen in the complainant’s underwear.

On 26 February 2014, the accused was arrested in relation to the offence. The accused participated in an electronically recorded interview and forensic procedure.

The accused was charged.

Analysis of the accused’s forensic sample confirmed the presence of the accused’s semen on the complainant’s underwear.”

OBJECTIVE SERIOUSNESS OF THE OFFENDING

25. This is a very serious example of behaviour which is made criminal under the relevant section.

26. The offence involved the threatened and actual use of a weapon, in this case a knife. The offence involved the threatened use of violence.

27. The knife was held “towards the complainant’s throat”, and at a later point, “near her left ear”. The prisoner threatened to use it, threatening to cut her if she made a sound. He said, “Don’t make a sound unless you want to get cut.”

28. I accept the defence submission the complainant, being aged 15 years and some five months, was at the high end of the age range.

29. The complainant was pushed to the ground. He ejaculated in the complainant’s vagina, with the potential consequences such involves in respect of sexually transmitted diseases and pregnancy.

30. She was walking alone at night, or in the very early hours of the morning. She had every right to be doing this and to be free from such an horrendous assault upon her.

31. The victim experienced pain during the intercourse.

32. This must have been a terrifying experience for the victim - alone in the dark, pushed to the ground by an adult male with a knife.

33. I do not elevate her vulnerability to a feature of aggravation as submitted by the Crown. I accept the defence submission. The Crown’s submission focuses on the perceived vulnerability of the victim rather than a class of victims, which is the focus of s 21A(2)(l) Crimes (Sentencing Procedure) Act: Betts v R [2015] NSWCCA 39 at [29]-[30] (R S Hulme J).

34. I reject the Crown submission the offence was part of a planned criminal activity pursuant to s 21A(2)(n) Crimes (Sentencing Procedure) Act: RL v R [2015] NSWCCA 106 at [36]-[37]. The offence was not part of a planned or organised criminal activity: s 21A(3)(b) Crimes (Sentencing Procedure) Act. There was though some planning. The prisoner had a knife and was in the bushes at about 3.50 in the morning.

35. The prisoner had a significant problem with alcohol at and around the time of the subject offence. He maintains he has no recollection of the offence. What is clear though from the agreed facts is he well knew what he was doing when he was doing it. His actions and what he said disclose purposeful behaviour and knowledge of his behaviour. As the Crown submitted, “he was in control of his actions at the time of the commission of the offence.”

36. In all the circumstances, the objective seriousness is towards the upper end of the high range.

SUBJECTIVE FEATURES

37. The prisoner was born on 14 February 1960. He is now aged 55. At the time of the offence, he was aged 26 years and some nine months.

38. He had a very difficult young life. His parents were violent alcoholics. He was a person who abused alcohol.

39. He has a criminal record but the offences are not as serious as the present offence.

40. He was committed to juvenile institutions in 1975, 1976 and again in 1977. The first committal, when he was aged 15, was for an offence of indecent assault on a female.

41. He was charged with driving with the low range prescribed concentration of alcohol, drive while disqualified and drive speed dangerous some 15 days after the present offence, 22 November 1986.

42. He was sentenced at Wagga Wagga Local Court on 5 January 1987.

43. He had further offences of drive while disqualified in 1987 and 1988.

44. He committed the offence of murder on 19 April 1987, the victim being a young woman.

45. On 11 May 1990, he committed sexual offences against MQ, another young woman, aged 16 years. The offences involved the use of a knife. The prisoner made admissions about this and pleaded guilty.

46. He pleaded not guilty to the murder but was found guilty by a jury. He maintains his innocence. He says he cannot remember the actual offending on 11 May 1990.

47. All offences were committed in Wagga Wagga.

48. Before proceeding to consider relevant law and the sentences imposed upon the prisoner, it should be said the present offence is first in point of time. His record as of that date was not one which in my view would have disentitled him to leniency. As against that, he continued to reoffend in a most serious way and has demonstrated a continued disobedience to the law. This in my view considerably moderates the leniency he would otherwise have been entitled to.

49. The present offending was certainly not an aberration or foreign to the prisoner’s character: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [50] ff.

50. I have given consideration to the psychiatric reports which were tendered, together with the facts sheet, in relation to MQ. These reports however are now very old, dated between 1987 to 1991.

51. His custody has been served on protection and his progress within the gaol system has been delayed because of the present offending coming to light so late.

52. The proceedings on sentence have also been protracted for a number of reasons.

53. He has been assaulted at least six times during his time in custody. The last time was six or seven years ago and involved head injuries from which the offender says he has not fully recovered (transcript, 12 March 2015, p 25).

54. The defence has put forward very carefully considered written submissions in relation to the prisoner’s prospects for rehabilitation and contends the Court should find the prisoner has good prospects for rehabilitation. The Crown makes a contrary submission. He has done in custody what has been available to him. Unfortunately though, through no fault of his own, he has had little, if any, treatment for his sexual deviance.

55. I am of the view he has at this time just fair prospects for rehabilitation.

56. The Crown points out he still denies the murder, despite having served the sentence in full. Further, five months after this offence, he committed the murder of an 18 year old girl. Three years after the murder, he committed a nearly identical sexual assault offence. He raped another teenage girl, aged 16, at knifepoint.

57. His prospects for rehabilitation cannot be considered and assessed only in reference to the present offending.

58. I make no finding as to the likelihood or not as to his reoffending. However, his offending was gravely serious and concern must be had for his future behaviour, even despite the very long passage of time and his advancing age.

SPECIFIC AND GENERAL DETERRENCE

59. In my view, there must still be an element of specific deterrence in this sentencing exercise. Further, there must be some weight given to the protection of the community, despite the long passage of time.

60. General deterrence must clearly be an important feature of this sentencing exercise.

SENTENCES THE PRISONER HAS BEEN SUBJECT TO OR IS STILL SUBJECT TO AND SOME LEGAL PRINCIPLES

61. The prisoner has been in continuous custody since 23 May 1990. Accordingly, as of today, he has served some 25 years and about one and a half months.

62. The total period of his offending is from 7 November 1986 to 11 May 1990, a period of some three and a half years. It was committed against three separate victims. At the moment, he is eligible for consideration for release to parole on 28 June 2016. The total effective non-parole period is 26 years, one month, six days. The total effective total term is 30 years, one month, six days. The maximum possible period he will be on parole is four years.

63. The percentage of the non-parole period to the head sentence is 86.7 percent.

64. It should be observed this was after intervention in the prisoner’s favour by the Court of Criminal Appeal by judgment dated 30 August 1993.

65. The prisoner was sentenced by his Honour Mr Justice Studdert on 29 August 1991. This was after the commencement of the Sentencing Act 1989 (NSW), which commenced on 25 September 1989. Accordingly, the terminology was minimum term and additional term. His Honour imposed a minimum term of 16 years and an additional term of five years. Three quarters or 75 percent of 21 years is 15 years, nine months. The pre-sentence custody of some 14 months, from 11 July 1990 (date of murder charge) to 29 August 1991 (date of sentence) was taken into account. The prisoner had though in fact been in continuous custody since 23 May 1990 for the offences committed on 11 May 1990 against MQ.

66. Accordingly, the total custodial period was some 17 years, three months and six days, and the total sentence was 22 years, three months and six days, the ratio of non-parole period to total term being close to 77.5 percent. Three quarters or 75 percent of 22 years and three months is about 16 years and eight months. So even at this point, if one looks at the total effective custodial component, the non-parole period was in excess of 75 percent of the head sentence.

67. On 29 November 1991, again after the commencement of the Sentencing Act, his Honour Judge Shadbolt sentenced the prisoner for the May 1990 offences against MQ. His Honour imposed a minimum term of seven years with an additional term of two years and four months, accumulated on the end of the existing non-parole period. His Honour then imposed a further cumulative minimum term of four years and six months and an additional term of 18 months. Accordingly, the total effective sentence was 11 and a half years minimum term with an additional term of 18 months, a 13 year period. If the effective minimum term was to be 75 percent, then it would have been nine years and nine months.

61. The effect of this was a total effective minimum custodial component of 28 years and some nine months, six days and a total term of 30 years and three months, six days - a period of supervision of only 18 months and a ratio of some 95 percent between the minimum term and the additional term.

62. The Court of Criminal Appeal intervened, as already noted, and reduced the second minimum term to one year and 10 months and the additional term to four years. This gave an allowance for the two months pre-sentence custody which had been overlooked by his Honour Judge Shadbolt. Accordingly, the total sentence was 12 years and 10 months, with a minimum term of eight years and 10 months. Three quarters of twelve years and ten months is nine years, seven and a half months, so this was an allowance for special circumstances in relation to that sentence, or more accurately, those two sentences.

63. The Court of Criminal Appeal - the then Chief Justice Gleeson giving the leading judgment, Cripps JA and Grove J agreeing - said the sentence for the murder was appropriate. His Honour, the then Chief Justice, said:

“Considered alone, or even in the light of the previous sentence imposed by Studdert J, the total terms of sentence of thirteen years in respect of these two sexual assaults, even allowing for the pleas of guilty, are not manifestly excessive. However, there is a difficulty about the ultimate practical result flowing from the sentences imposed by Shadbolt DCJ, having regard to the relationship between the total minimum term and the additional term. Allowing for all the pre-sentence custody, the ultimate result is that the appellant will have an effective minimum term, including such pre-sentence custody, of twenty eight years and ten months, and an additional term of eighteen months. Whilst in the extreme circumstances of this case I would have no quarrel with the total overall term, the relationship between minimum term and additional term is striking. In my view it allows insufficient flexibility to permit the executive government to take appropriate steps to prepare the applicant for his ultimate release to the community when that comes due. It is well settled that the effect of the imposition of cumulative sentences can itself constitute special circumstances within the meaning of s 5(2) of the Sentencing Act 1989 (R v Moffitt (1990) 20 NSWLR 114). The present case provides a rather extreme example of that proposition. (See also Bugmy v The Queen (1990) 64 ALJR 309).”

71. The Court of Criminal Appeal did not give specific reasons for imposing an effective minimum term well in excess of 75 percent of the total head sentence: R v Wakefield [2010] NSWCCA 12 at [26]. The judgment though makes it clear the seriousness of the offending - "the extreme circumstances of this case” - required the imposition of the effective sentence and minimum term imposed.

72. Accordingly, the total effective custodial component at the moment is from 23 May 1990 to 28 June 2016 - 26 years, one month, six days.

73. It has been necessary to state in such detail the sentencing history as it is against this background and the existing effective sentence and minimum term that the sentence for the present offence has to be imposed.

74. Some relevant law has already been referred to.

75. At the time of this offence, remissions applied to both the head sentence and the non-parole period. This was the case from 27 February 1984. Prior to that time, remissions were only applied to the head sentence. This was the regime under the Parole of Prisoners Act 1966 (NSW).

76. All remissions were abolished with the introduction of the Sentencing Act. This Act commenced on 25 September 1989.

77. There was no concept of special circumstances or any statutory ratio as the law was at 7 November 1986. Special circumstances was only legislated for in the 1989 Act.

78. In 1982, when the Parole of Prisoners Act was in operation, the non-parole period was fixed at somewhere between a third and a half of the term of the sentence. This was because of the reduction of the head sentence by the application of remissions. Reference was made to this in CPW v R [2009] NSWCCA 105; 195 A Crim R 149.

79. In R v Moffitt (1990) 49 A Crim R 20 at 38, Badgery-Parker J noted that prior to the Sentencing Act, non-parole periods were “often as short as 50 percent of the head sentence or even less.”

80. The case law indicates the existence of a different sentencing practice can be regarded as amounting to special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in sentencing an offender for old offences: CPW at [69], MPB at [31] (Basten JA), AJB at [37].

81. The Crown conceded this would be a basis for a finding of special circumstances to justify a departure from the statutory ratio between non-parole period and head sentence: Crown submissions, 22 April 2015, Exhibit D.

82. Further, MPB at [34] and [150]-[151] is authority for the proposition that s 44(2) Crimes (Sentencing Procedure) Act applies to this sentencing exercise.

83. The repealed s 44 Crimes (Sentencing Procedure) Act is the relevant legislation in respect of this sentencing as it applies in relation to the determination of sentences for offences committed before 1 February 2003. This again is because of cl 45(1) of Pt 7 of Sch 2 of the Crimes (Sentencing Procedure) Act noted earlier.

VICTIM IMPACT STATEMENT

84. The Crown contends the emotional harm occasioned to the victim should be elevated to a feature of aggravation pursuant to s 21A(2)(g) Crimes (Sentencing Procedure) Act. In my view, without diminishing in any way the seriousness of the harm, the very significant impact is of a kind to be expected in such a case: RL at [52]. Accordingly, I do not accept the Crown submission.

85. One of the purposes of sentencing noted in s 3A Crimes (Sentencing Procedure Act, subpara (g), is to recognise the harm done to the victim of the crime and the community.

86. I take into account the victim impact statement in this way.

DELAY

87. In relation to this matter, there has no doubt been delay.

88. In November 2008, the prisoner’s DNA was linked to semen located in the underwear of the victim. It was not until some five years and three months later, on 26 February 2014, the prisoner was charged with the present offence.

89. The Crown in the written submissions (undated but subsequent to the submissions of 23 April 2015) explains the delay. Some of the delay is not acceptable.

90. I have considered both the Crown and the defence submissions concerning this.

91. I give some weight to the delay and the positive steps the prisoner has taken towards his rehabilitation. I have already stated though my view as to his prospects for rehabilitation.

DEFENCE AND CROWN SUBMISSIONS

92. I have reviewed all of the submissions and the evidence. This includes:

• Crown written submissions on sentence dated 22 April 2015 (Exhibit D);

• Crown updated written submissions on sentence, undated (Exhibit E);

• Defence written submissions on sentence, dated 23 April 2015 (Exhibit 4);

• Defence final reply to additional Crown submissions, dated 29 May 2015 (Exhibit 8);

• Transcript of proceedings on sentence, Wagga Wagga District Court, 4 December 2014 (MFI 1);

• Transcript of proceedings on sentence, Griffith District Court, 12 March 2015 (MFI 2);

• Extract of proceedings on sentence, Albury District Court, 24 April 2015 (MFI 4);

• Further extract of proceedings on sentence, Albury District Court, 24 April 2015 (MFI 5);

• Transcript of proceedings on sentence, Albury District Court, 28 April 2015 (MFI 6);

• Transcript of proceedings on sentence, Albury District Court, 29 April 2015 (MFI 7);

• Exhibits A, B, C and F tendered in the Crown case;

• Exhibits 1, 2, 3, 5, 6 and 7 tendered in the defence case.

93. I have referred to a deal of the submissions already. It will not be possible to refer to all of them. I have though considered all of the material.

94. With respect to the Crown, I do not take into account in any way the submission made in relation to the Crimes (High Risk Offenders) Act 2006 (NSW). In my view, this would be completely wrong.

95. The defence contended in the oral submissions (transcript 28 April 2015, p 17, lines 7-12):

“Finally your Honour, the ultimate submission is because of the way the sentences are structured and for the reasons that I have already submitted there should be a degree of concurrency in this final sentence and your Honour should strive to achieve as close to the statutory ratio as possible. That will ultimately result in a further non-parole period which is measured in months, not years.”

96. The Crown contends effectively the sentence should be one which standing alone is the appropriate sentence, placing reliance on the 2006 Act which may or may not be utilised or even if utilised the Court may not agree to its application in this case.

97. To adopt the defence view would be to not give sufficient weight to the principles which must be applied and the requirement for some separate and real punishment for this very serious offending.

98. To adopt the Crown view would be to effectively ignore the principle of totality, the requirement for the application of sentencing principles as they were in 1986, and take into account an eventuality which may or may not happen. As already noted, in my view this would be quite wrong.

TOTALITY

99. The principle of totality is a very significant feature of this sentencing exercise.

100. The principle in Power v The Queen [1974] HCA 26; 131 CLR 623 cannot be overlooked. Since that decision, as early as it was in 1974, it has been clear that a non-parole period represents the minimum period of imprisonment required to be served by an offender, having regard to all of the purposes of justice: LJS v R [2015] NSWCCA 47 at [17].

101. Further, as Button J pointed out in Magnuson v R [2013] NSWCCA 50 at [143], the Court’s approach to questions of accumulation and concurrence was “more lax” prior to the High Court decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610; 72 ALJR 1416; 103 A Crim R 372; 156 ALR 684, LJS at [18].

102. Partial accumulation and accumulation can be a special circumstance: R v Close (1992) 65 A Crim R 55; 31 NSWLR 743, R v Simpson [2001] NSWCCA 534; 126 A Crim R 525; 53 NSWLR 704, R v Swan [2005] NSWCCA 252 at [3] (Grove J, Howie J agreeing), MD v R [2015] NSWCCA 37 at [68], LJS at [24], Ewen v R [2015] NSWCCA 117 at [227].

103. In my view, this is the position in this case. The sentence I intend to impose will be partially accumulated but there will only be a modest partial accumulation.

104. Accordingly, I make a finding of special circumstances on the two bases noted in these Remarks.

105. Only one case concerning sentences imposed for s 61D offences was referred to by defence counsel: SHR v R [2014] NSWCCA 94.

106. No statistics were tendered and that is understandable, given the date of the offence.

107. The Court in every case must bear in mind the maximum penalty prescribed for the offence, the particular facts and circumstances - both objective and subjective - of the case, and the requirement for both general and specific deterrence.

108. The principle of totality must be given consideration to and in relation to that principle, the matter of concurrence and accumulation.

109. The effective extension of the non-parole period in this case, and the degree of concurrence and accumulation, is the one which in my view, after giving very earnest consideration to the matter, is appropriate, giving weight to all of the matters noted in these Remarks.

SENTENCE

110. The sentence I would have imposed prior to reduction for utilitarian considerations of 25 percent is 9 years and 4 months. That reduced by 25 percent is 7 years.

111. The total term of imprisonment is 7 years, commencing on 29 December 2015 and expiring on 28 December 2022.

112. The non-parole period I impose is one of 3 years, commencing on 29 December 2015 and expiring on 28 December 2018.

113. I am aware the ratio of the total effective non-parole period to the total effective head sentence is now 87.7 percent. I am further aware this is an increase of one percent on the previous ratio.

114. The special circumstances are those noted in my remarks on sentence.

115. You will be eligible for consideration for release to parole on 28 December 2018.

116. The total effective sentence is now 32 years, 7 months, 6 days. The total effective non-parole period is 28 years, 7 months, 6 days.

117. A period on parole of four years is still available, subject to the prisoner being released on parole at the end of his non-parole period.

118. I recommend in the strongest terms the prisoner receive any treatment or be given the opportunity to undertake any treatment programs for his sexual deviance as soon as possible.

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Amendments

21 July 2015 - Word "complainant" changed to "victim" in publication restriction.

Decision last updated: 21 July 2015