R v Crowe

Case •

[2016] NSWCCA 39

•

11 March 2016

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: R v Crowe [2016] NSWCCA 39
Hearing dates:26 February 2016
Date of orders: 11 March 2016
Decision date: 11 March 2016
Before: Hoeben CJ at CL at [1]
Johnson J at [103]
Davies J at [104]
Decision:

(1) The Crown appeal is allowed.
(2) The aggregate sentence imposed by Garling ADCJ on 3 September 2015 is quashed.
(3) In lieu thereof, the respondent is sentenced to a term of imprisonment which consists of a non-parole period of 10 years, with a balance of term of 5 years, commencing 18 August 2014. The respondent will be eligible for release to parole on 17 August 2024. The balance of term will expire on 17 August 2029.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – eleven offences against five victims including sexual assaults and kidnapping – aggregate sentence imposed – historical offences occurring 22 years before sentence imposed – offender suffering from schizophrenia not related to offending – seriousness of offending to be balanced against strong subjective case – use of indicative sentences to understand reasoning behind aggregate sentence – Crown appeal successful – sentence increased.
Legislation Cited: Crimes Act 1900 - ss 61(1), 61C(1)(b), 61D (1), 61E(1), 61F, 61(2)(b), 61J(2)(b), 61L, 61P, 66A, 90A
Crimes (Sentencing Procedure) Act 1999 – ss 3A, 21A(2)(j)
Criminal Appeal Act 1912 – s 5D(1)
Sentencing Act 1989
Cases Cited: AB v R [2015] NSWCCA 31
Aslan v R [2014] NSWCCA 114
Attorney General’s Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Behman v R [2014] NSWCCA 239
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
CMB v Attorney-General (NSW) [2015] HCA 9; 89 ALJR 407
Cullen v R [2014] NSWCCA 162
Davis v R [2006] NSWCCA 392
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Doyle v R; R v Doyle [2014] NSWCCA 4
Everett v The Queen [1994] HCA 49; 181 CLR 295
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Magnuson v R [2013] NSWCCA 50
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MPB v R [2013] NSWCCA 213
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v AEM (Snr); KEM; MM [2002] NSWCCA 58
R v Brown [2012] NSWCCA 199
R v Gavel [2014] NSWCCA 56; 239 A Crim R 469
R v Gommerson [2014] NSWCCA 159
R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327
Truong v R [2013] NSWCCA 36
Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Category:Principal judgment
Parties: Regina – Applicant Crown
Richard John Crowe - Respondent
Representation:

Counsel:
Ms N Noman SC – Applicant Crown
Ms B Rigg SC - Respondent

  Solicitors:
Solicitor for Public Prosecutions – Applicant Crown
Legal Aid NSW - Respondent
File Number(s):2014/242473
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
3 September 2015
Before:
Garling ADCJ
File Number(s):
2014/242473

Judgment

  1. HOEBEN CJ at CL:

Offences and sentence

The Cold Case Justice Project identified the respondent from DNA left at five crime scenes between 1989 and 1991. On 18 March 2015 the respondent pleaded guilty in the Local Court to a series of 11 child sex offences. The sentence proceedings took place on 7 August 2015 and the respondent was sentenced on 3 September 2015.

  1. Garling ADCJ imposed an aggregate sentence. The respondent was sentenced to imprisonment for 12 years to commence 18 August 2014 with a non-parole period of 7 years and 6 months to expire on 17 February 2022. The balance of term is to expire on 17 August 2026.

  2. The offences to which the respondent pleaded guilty were:

Victim RW

Sequence 1 – Detain for advantage and cause injury to victim (s 90A Crimes Act 1900) – maximum penalty 20 years imprisonment – indicative sentence 6 years.

Sequence 2 – Sexual intercourse with a child under the age of 10 years (s 66A Crimes Act 1900) – maximum penalty 20 years imprisonment – indicative sentence 6 years (including Form 1).

Form 1 (attached to Sequence 2) – Two offences of indecent assault (s 61E(1) Crimes Act 1900) – maximum penalty 4 years imprisonment.

Victim EW

Sequence 5 – Detain for advantage and cause injury to victim (s 90A Crimes Act 1900) – maximum penalty 20 years imprisonment – indicative sentence 5 years.

Sequence 6 – Sexual assault (Cat 2) threaten actual bodily harm with intent to have sexual intercourse (s 61C(1)(b) Crimes Act 1900) – maximum penalty 12 years imprisonment – indicative sentence of 5 years (including Form 1).

Form 1 (attached to Sequence 6) indecent assault (s 61E(1) Crimes Act 1900) – 4 years imprisonment.

Victim IM

Sequence 8 – Detain for advantage and cause injury to victim (s 90A Crimes Act 1900) – maximum penalty 20 years imprisonment – indicative sentence 5 years.

Sequence 20 – Sexual assault (Cat 3) person under 16 years of age (s 61D(1) Crimes Act 1900) – maximum penalty 10 years imprisonment – indicative sentence 5 years.

Victim GG

Sequence 10 – Detain for advantage and cause injury to victim (s 90A Crimes Act 1900) – maximum penalty 20 years imprisonment – indicative sentence 6 years.

Sequence 21 – Sexual assault (Cat 3) person under 16 years of age (s 61D(1) Crimes Act 1900) – maximum penalty 10 years imprisonment – indicative sentence 6 years (including Form 1).

Form 1 (attached to Sequence 21) – Attempt sexual intercourse without consent (s 61D(1), 61F Crimes Act 1900), indecent assault (s 61E(1) Crimes Act 1900) maximum penalties 10 years and 4 years imprisonment.

Victim RN

Sequence 14 – Detain for advantage and cause injury to victim (s 90A Crimes Act 1900) maximum penalty 20 years imprisonment – indicative sentence 7 years.

Sequence 24 – Aggravated sexual assault (s 61J(1) Crimes Act 1900) maximum penalty 20 years imprisonment – indicative sentence 7 years.

Sequence 25 – Aggravated sexual assault (s 61J(1) Crimes Act 1900) maximum penalty 20 years imprisonment – indicative sentence 7 years (including Form 1).

Form 1 – (attached to Sequence 25) Aggravated sexual assault (x 2) (s 61J(2)(b) Crimes Act 1900), attempted aggravated sexual assault (s 61J(2)(b)/ 61P Crimes Act 1900), indecent assault (x 3) (s 61L Crimes Act 1900) maximum penalty 20 years imprisonment for first three offences and imprisonment for 5 years for the three indecent assaults.

  1. The Director of Public Prosecutions has appealed pursuant to s 5D(1) of the Criminal Appeal Act 1912 against the aggregate sentence imposed by his Honour on the single ground that the sentence imposed upon the respondent was manifestly inadequate. Notice of Appeal was served upon the respondent on 19 September 2015, i.e. 16 days after he was sentenced by his Honour.

Factual Background

  1. The offences, the subject of the Crown’s appeal, occurred between 20 August 1989 and 16 September 1991. The victims were aged between 9 years and 17 years at the time of the offences. The respondent was aged between 19 and 21 years at that time. All of the victims were unknown to the respondent.

Victim RW

  1. Shortly before 10am on Sunday 20 August 1989 the victim aged nine years was walking from her home in Bankstown to another street in that suburb. She was planning to attend Sunday School. She attended the church on most Sundays and usually walked with a school friend but on this occasion was walking alone. As she walked past a derelict house, the respondent grabbed her from behind, putting his hand over her mouth to prevent her from screaming. He lifted her off the ground and carried her down the side passage of the house and into the backyard. That was the kidnapping.

  2. The respondent carried RW inside the house by the back door. The victim was unable to break away from him and was having trouble breathing. When they entered the house the respondent said words to the effect: “If you scream I’ll kill you.” The respondent then lay the victim, who was wearing a skirt, on the floor. The respondent lifted her skirt, pulled down her underpants and stockings. He fondled her breasts and genitals. He unzipped his pants and exposed his penis. The respondent laid down on top of the victim with his bare penis against her genitals. The respondent ejaculated.

  3. During the commission of the offence, the respondent penetrated the victim’s genitalia. A medical examination identified extensive redness and abrasions similar to chafing on the inner thighs. There was also redness and abrasion to the outer and inner vaginal lips. There had been some penetration of the entrance to the genital area. She was seen by a doctor who concluded that it was unlikely that there was full vaginal penetration, i.e. penetration past the hymen.

  4. At some stage during the commission of the offence, the respondent said words to the effect: “I know where you live”. When the offence ended the victim ran to a nearby McDonald’s restaurant and was taken to hospital.

Victim EW

  1. On 6 January 1990 the victim, who was then aged 12 years, and her younger brother, aged ten years, left their home in Strathfield. They rode their bikes to the end of their street to enter a bike track. As they were riding along the bike track, they saw the respondent sitting in the bushes near a stormwater canal. The respondent stood up and moved towards them as they went past him.

  2. When the victim and her brother reached the end of the park, they were unable to locate their friends, so they turned around and started heading home. As they approached the offender for a second time, he moved into their path, blocked the track and caused the victim and her brother to stop riding. The respondent said words to the effect: “Get off your bike, you’re coming with me. I’ve got a knife.” The victim got off her bike and was grabbed by the respondent. When the victim’s brother also got off his bike, the respondent said words to the effect: “Not you”. The respondent told the victim’s brother to go home and he rode away to get help.

  3. The respondent held the victim by the wrist and pulled her away from the track into the bushes. That was the kidnapping. She was still wearing her backpack and helmet. She said: “If you let me go I won’t tell anyone.”

  4. The respondent took the victim over a grass embankment towards an industrial building out of sight of the bike track. He produced a knife with a 10 inch blade from a sheath in his pants. He told the victim to lie down and she complied. The respondent told the victim to take her pants off and he pushed her so that she was lying on her back. He pulled down her pants and underpants. He removed her jumper from around her waist. The respondent pulled down his own pants and exposed his penis. He lay on top of the victim. The victim tried to keep her legs together but the respondent put his penis between her legs and started moving backwards and forwards. The Crown was unable to establish beyond reasonable doubt that penetration occurred.

  5. The respondent’s body weight was holding the victim to the ground. She was having trouble breathing. He was still holding the knife. The victim told him she would do anything or give him anything if he did not hurt her. The respondent said she should do what he said or she would get hurt. The respondent turned her over so that she was lying on her stomach, put his penis between her legs and again started moving backwards and forwards. The respondent was panting and making noises. He ejaculated onto the victim’s genitals. He ran off. The victim went home, she was crying and made an immediate complaint. She was taken to hospital and examined.

Victim IM

  1. On 19 March 1990 IM, aged ten years, was walking home from the Franklins Supermarket at Bankstown. As she was walking home she saw the respondent standing on Stacey Street, in front of a demolition site. As she walked past him, he grabbed her by the hand, put his hand over her mouth, and dragged her into the demolition site. That was the kidnapping. He told the victim to be quiet or he would stab her with a knife, but at no stage did she see a knife.

  2. The respondent walked behind the victim into the demolition site. He pushed her from behind. She was scared that he would do something bad to her if she did not comply. Eventually the respondent stopped behind some trees and bushes. He pushed the victim on to the ground, removing her underpants and pulling down his own pants so as to expose his penis. The respondent lay on top of the victim and started rubbing his penis against the her genitalia. Due to the respondent’s weight, the victim was having trouble breathing. After a few minutes he ejaculated.

  3. During the commission of this offence the respondent penetrated the victim’s genitalia with his penis. A medical examination revealed swelling and abrasions on the introitus, posterior fourchette and the hymen. There was a small amount of soil on the victim’s labia majora and labia minora. There was blood on the victim’s thighs and in her underpants. There was no issue that penetration had occurred.

  4. At the conclusion of the offence the offender said: “You had better not tell anyone or I’ll kill you with a knife.” He told the victim to stay there and then ran off.

Victim GG

  1. On 26 August 1990, GG, who was aged ten, left her home in Punchbowl and walked the local park to find her brother. There was a stormwater canal at the other end of the park which ran up into Punchbowl Road. The victim was standing near the stormwater canal throwing rocks when she was approached by the respondent. He grabbed her and put his hand over her mouth. He dragged her into the stormwater canal and into the concrete underpass. There was no water in the canal at the time. That was the kidnapping.

  2. The victim started screaming. The respondent said that if she screamed again he would kill her. He took off her tights and underpants. He opened his zipper and pulled down his pants, exposing his penis. He told the victim to put his penis in her mouth, but she refused to open her mouth. The respondent started touching the victim and put his penis in her vagina. This caused pain. The respondent kept on doing it and turned the victim over and tried to put his penis into her anus. The respondent started kissing the victim and she kept asking him to stop. The respondent ejaculated.

  3. At some time during the offence, the respondent hit the victim on the leg with a rock and threw the rock in the canal. The respondent ran off. As a result of the offence, the victim sustained bruising to the back of her right calf and upper arm. She had various grazes, a split lip and was bleeding. When she was medically examined, semen was detected.

Victim EL

  1. On 25 February 1991 the respondent kidnapped and indecently assaulted another young girl (EL) aged nine. He was arrested for that offence on 19 March 1991 and was bail refused until 17 April 1991. He was released on bail on 17 April 1991 upon conditions, including a condition that he continue treatment with Dr Lucire, psychiatrist, for such period as required by the doctor. The respondent was sentenced on 19 June 1992 for his offences against EL (see [30] below).

Victim RN

  1. The offences against RN were committed whilst the respondent was subject to conditional liberty. On 16 September 1991 RN was aged 17 years. She was on her way to work as a hairdressing apprentice. She was walking from her home towards Artarmon station. She was walking along a bush track through the Artarmon Reserve which was a track frequently used by commuters. When RN noticed someone walking behind her, she started to walk faster. When she heard footsteps coming closer, she could not see anyone else on the track.

  2. The respondent came up behind the victim and put his hands over her mouth. She tried to scream but found it hard to breathe because the respondent’s hand was pushing hard against her lips. He said: “If you don’t shut up I have a knife and I will kill you.” At no stage did the victim see a knife. The respondent pushed the victim off the track and into the bushes closer to the railway line. That was the kidnapping.

  3. The victim started crying. The respondent pushed her through bushes towards a wire fence. He put his hand on top of her head , pushed her down under the fence and into some bushes. He pushed her to the ground and lay on top of her with his weight holding her back against the ground. He had one hand over her mouth and another around her throat.

  4. The respondent unbuckled her belt. She asked him to let her go but he said: “I will when I’m finished what I want to do.” He pulled down the victim’s pants and underpants and pulled down his pants, exposing his penis. His penis was erect. He put two fingers inside her vagina, withdrew his fingers, lay down on top of her and put his penis inside her vagina. He was breathing heavily.

  5. After approximately one minute the respondent withdrew his penis and kissed the victim on the mouth. He then lifted her skivvy and started kissing her on her breasts on the outside of her bra. He told her to turn over. She asked him to let her go. He rolled the victim over so that she was lying on her stomach and pushed her legs underneath her so that she was in a kneeling position. He put his erect penis against her anus and started pushing, however, he was unable to penetrate her. The respondent pulled the victim so that she was again lying on her back. He again lay on top of her with his penis near her vagina. He started to masturbate himself using his hand and his penis. The victim tried to push him away. He ejaculated onto her genitalia.

  6. The respondent stood up and pulled the victim into a sitting position. He held her head and pulled it towards his penis, put his penis inside her mouth but she pulled her head away. The respondent then held her head so that she could not pull away and continued to move his penis backwards and forwards inside her mouth for approximately one minute. He withdrew his penis, again lay down on top of her and pushed his penis inside her vagina. He was holding her down with his hands on her shoulders. He continued to move his penis backwards and forwards in her vagina for approximately one minute. She was asking him to stop and not do it. The respondent withdrew his penis and ejaculated on the outside of her genitals. He stood up, pulled his pants up and said to the victim, “Walk the other way” and ran off.

  7. The victim ran for the train station and made immediate complaint. The victim sustained grazes to her neck, buttock, thighs and lower back. Semen was detected.

Victim EH

  1. In April 1992 the respondent committed an aggravated act of indecency on a 12 year old girl. He was arrested and was bail refused from 27 April 1992. This was EH. For this offence, and for the kidnapping and indecent assault offences against EL, the respondent was sentenced to a fixed term of imprisonment for 11 months commencing 28 April 1992 and to a term of imprisonment of 2 years and 3 months with a minimum term of 6 months. The respondent was released to parole supervision on 27 September 1993, having spent a total of 17 months in prison.

  2. The sentence proceedings

  3. Having set out the facts of the offending, Garling ADCJ reviewed the respondent’s subjective case. His Honour noted his criminal record of abduction and indecent assault and aggravated act of indecency committed against EL and EH for which the respondent had served a term of imprisonment. The respondent at the time of sentence was aged 45. The respondent was taken into custody for these offences on 18 August 2014.

  4. The respondent did not give evidence in the sentence hearing. Despite that, his Honour had before him a report from Dr Bruce Westmore, psychiatrist; a report from Catherine Wakely, psychologist; a report from Dr Peter Ashkar, psychologist and pre-sentence reports from 1992 and also August 2015.

  5. His Honour noted the conclusion of Dr Westmore that as of the date of sentencing, the respondent was suffering from multiple psychiatric conditions including substance abuse (cannabis), episodic alcohol abuse, depressive episodes, possible PTSD arising from a motor vehicle accident and chronic paranoid schizophrenia. Dr Westmore opined that the respondent was a paedophile but that the pattern of offending was unusual. Dr Westmore thought that the respondent’s prognosis was generally poor, because he suffered from a chronic unremitting treatment resistant schizophrenic illness. When Dr Westmore examined him in 1991 he was not suffering any psychotic symptoms. The respondent was diagnosed as having a psychiatric illness in the early 2000’s.

  1. Ms Wakely provided further information to the effect that the respondent’s functioning was complicated by many factors. She noted a history of exposure to earlier mistreatment and abuse that was repeated and severe, along with exposure to parental mental illness. Ms Wakely also noted a history of head trauma and the diagnosis of schizophrenia. Ms Wakely had concerns for his current level of functioning, his ability to participate within the courtroom setting and to give instructions.

  2. By reference to the report of Dr Peter Ashkar his Honour noted that the respondent demonstrated considerable variability in his intellectual and cognitive functioning. He was within normal limits in some areas and below normal in other areas. Dr Ashkar found an impairment of language skills that was consistent with brain injury. He concluded that the respondent understood the charges brought against him.

  3. From the pre-sentence reports, his Honour noted that the respondent appeared to have been managing his risk factors well over a long period of time, i.e. the previous 22 years. Nevertheless, his mental health issues and presentation at interviews hindered full exploration of all the factors which were present at the time of his offending. Importantly, nowhere in the reports was it asserted that his mental illness played any role in the offences, the subject of these proceedings.

  4. His Honour observed that the sentencing of the respondent involved the consideration of a number of sentencing principles. His Honour noted that the offences had occurred almost 22 years before at a time when the respondent was aged about 20. His Honour noted that the respondent must be sentenced as he would have been at or about the time when the offences occurred. This would affect the ratio of the non-parole period to the sentence as a whole. His Honour noted that he had to consider the respondent’s mental condition at the time of the offences, its effect on his commission of the offences and the effect of deterrence as a sentencing principle. In that regard, his Honour noted that he also had to have regard to the respondent’s present mental condition and how it would affect the way in which he served his sentence.

  5. His Honour gave attention to the effect of delay since the offences occurred and that the respondent had not committed any other offences during the intervening 22 years. His Honour noted that he had to have regard to the offences in 1991 – 1992 for which the respondent was convicted and for which he received prison sentences.

  6. His Honour considered that Dr Westmore was in a good position to assess the respondent’s state of mind, both at the time of the offending and at the present time, because he had seen the offender in October 1991 and in February 2015. Specifically his Honour noted the conclusions of Dr Westmore that at the time of the offending the respondent had a psychosexual disorder consistent with paedophilia and that there was no history that his mental illness played any role in the offending. By way of guidance, his Honour referred to Aslan v R [2014] NSWCCA 114 where Simpson J (Adams and McCallum JJ agreeing) said:

“33   This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collides with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. … “

  1. Although not applicable in this case, his Honour noted that where mental illness contributed to the commission of an offence, the offender’s moral culpability may be reduced. His Honour observed that in such circumstances, the need to denounce the offending may be reduced so that there is a reduction in the sentence. His Honour noted that such a finding might also have the consequence that the offender was an inappropriate vehicle for general deterrence. His Honour had regard to the fact that where mental illness is present, a custodial sentence might weigh more heavily on an offender because the serving of the sentence would be more onerous. His Honour noted that none of those principles were absolute.

  2. In particular his Honour noted that although the potential effect in any given case of mental disability was important, it did not follow necessarily that because an offender suffered from some mental impairment or disability, his moral culpability is reduced and that he is an inappropriate vehicle for general deterrence, nor that the custodial sentence will weigh more heavily upon him. Each case depended on its own facts.

  3. His Honour concluded that because the respondent’s mental condition did not appear to contribute to the offending, there was no reason why less weight should be given to general deterrence. His Honour found that although the respondent would have some difficulty in serving his sentence, most prisoners did so and that prison authorities would be able to cope with the respondent’s particular problems. His Honour accepted that the respondent had to be sentenced to a term of imprisonment and that the sentences had to be partially accumulated, keeping in mind the requirement of totality.

  4. On the other side of the ledger, his Honour noted that he had to take into account that the respondent was aged about 20 at the time of the offending, that the offences occurred 22 years ago, that the respondent had not offended since then and that he entered an early plea of guilty for which he was entitled to a 25 per cent discount on sentence.

  5. In relation to the seriousness of the offending, his Honour said:

“These are extremely serious sexual offences committed against young girls over a period of two years, five separate victims, 9, 10, 12 and 17 years of age. Four victims were kidnapped and subjected to sexual intercourse and one kidnapped with intention to have sexual intercourse together with other offences. It was predatory behaviour. He set out to physically attack, with one exception, young girls, children going about their daily life, no doubt feeling safe, enjoying their youth, as all children are entitled to and he perpetrated these sexual acts on them which no doubt would, and did, terrify them, also changed their life. No longer did they feel safe, it badly affected all of them and the brother of one of the girls.

The other, a 17 year old going to work as an apprentice, no doubt starting out on an exciting new life is viciously, sexually assaulted. Whilst the term has gone out of use, she was raped by a total stranger at 8.30am in the morning. The victims were threatened, the 17 year old, “I have a knife I’ll kill you” and threatened to kill other victims and told one he knew where she lived. Each of these offences is most serious and requires its individual sentence and some accumulation as far as each victim is concerned.” (Sentence judgment 12.4)

  1. His Honour observed that delay should not affect the sentence to be imposed except where there was a different sentencing pattern at the time when the offences occurred. Although his Honour was not provided with sentencing statistics for these kinds of offences which occurred at that time, he was satisfied from his own experience that “sentences for these type of offences were lower, at a lower level than they are today”. His Honour also noted by reference to Magnuson v R [2013] NSWCCA 50 (Button J, with whom McClellan CJ at CL and Bellew J agreed) that “the Court was not satisfied that sentences for rape committed against children before 1981 were shorter than sentences imposed nowadays for sexual intercourse without consent” (Sentence judgment 13.7). By reference to those matters, his Honour said:

“I have therefore reached these sentences by looking at the maximum penalties available then and normal sentencing principles. I also have taken into account that the offender must be sentenced in such a way that he knows and others know, others in the community know, that if they commit offences of this type they will be sentenced to terms of imprisonment and lengthy terms of imprisonment.” (Sentence judgment 13.8)

  1. Because of the way in which the parties have joined issue in the appeal, it is necessary to set out what his Honour said when recording the indicative sentences:

“The first series of offences commencing in August 1989 relating to RW include kidnapping, sexual intercourse with a child under 10 and Form 1 offences. They form one set of offences, part of the same act and I will make them concurrent between each other. I have to take into account the 25% discount. Those offences should carry a term of imprisonment of six years to commence on 18 August 2014.

As far as EW is concerned the offences carry a maximum penalty of 20 years and 10 years. Again there are other matters on a Form 1, after a deduction of 25% between them they should carry a penalty of five years and that sentence should commence on 18 August 2015.

The offences relating to IM carry maximum penalties of 20 years and 10 years, they are the same set of offences and should be concurrent between them and should, after a deduction of 25%, carry a penalty of five years, to commence on 18 February 2017.

The offences relating to GG carry a maximum penalty of 20 years and 10 years are part of the same set of offences and after a discount of 25% should carry a sentence of six years commencing on 18 August 2018.

The offences relating to RN carry maximum penalties of 20 years and after a discount of 25% should between them carry a sentence of seven years to commence on 18 August 2019 and conclude on 17 August 2026.” (Sentence judgment 14.1)

Crown submissions

  1. The Crown submitted that a body of statistical material did not exist to reflect the pattern of sentencing for these kinds of offences at the time when they occurred. The Crown submitted that an unusual feature of this case was the large number of victims and that the offending occurred over a relatively short period. No similar factual scenario had arisen in the reported cases in the 1980’s and early 1990’s. Nevertheless, the Crown accepted the relevance of the analysis in Magnuson which recognised that between 1983 and 1991, although sentences at the beginning of that period were lenient by today’s standards, they had moved upwards by the end of the period.

  2. The Crown submitted that his Honour’s sentencing discretion miscarried because of the following matters:

  1. The sentence failed to adequately reflect the objective criminality of the offences.

  2. As reflected by the indicative sentences, there was a failure to recognise the different offences and the different maximum penalties applicable.

  3. As reflected by the indicative sentences, there was a failure to appropriately determine the seriousness of the individual kidnapping offences; with each kidnapping offence being given the same indicative sentence as the sexual offence for that victim.

  4. There was an error in the indicative sentence for the sexual offending upon RN for which the offending on a Form 1 was required to be taken into account.

  5. There was a failure to consider the aggravating feature of the respondent being on conditional liberty at the time of the offending upon RN.

  6. The sentence failed to adequately reflect an appropriate application of the totality principle.

  1. In elaboration of those matters, the Crown submitted that despite his Honour’s findings that the offending spanned some two years, that each involved a kidnapping and a physical attack on children going about their daily life and that the conduct was predatory with serious sexual offences being committed upon each victim, there was a significant disconnect between those matters and the aggregate sentence imposed. The Crown submitted that the aggregate sentence simply failed to reflect those findings and that these were extremely serious offences committed against five young girls over a period of 2 years. The Crown submitted that part of the difficulty was that his Honour did not make specific findings about the seriousness of each offence but approached the matter on a general basis, i.e. that the sexual offences were “extremely serious offences”. The Crown submitted that these generic findings, although appropriate, masked the seriousness of each group of offences committed against each of the five victims.

  2. The Crown submitted that except for EW the respondent had committed acts involving penetration against the four other victims. In each case there was a threat to kill and in one case, a weapon was produced. Despite those “most serious” aspects of the offending, the indicative sentences ranged between 5 and 7 years. This was despite the maximum penalties ranging between 10 and 20 years.

  3. The Crown submitted that except for IM there were other serious offences on a Form 1 for each of the other four victims. The Crown submitted that it was clear from the indicative sentences that little, if any, effect was given to those Form 1 offences. This was particularly so in the case of RN where apart from the offences in Sequences 14, 24 and 25 each having a maximum penalty of imprisonment for 20 years, two of the offences on the Form 1 also had maximum penalties of 20 years. The Crown submitted that an indicative sentence of 7 years could not in those circumstances be said to comply with the guidance in Attorney General’s Application under Section 37 of the Crimes (Sentencing Procedure) Act1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146. The Crown submitted that this flaw was highlighted by his Honour’s treatment of IM where there were no Form 1 offences. IM was treated in the same way as the other victims with an indicative sentence of 5 years.

  4. The Crown submitted that the offences against RN were committed while the respondent was on bail for the offences committed 7 months earlier upon EL. The Crown submitted that the offending against EL was of a similar kind to that which was perpetrated against RN, albeit not as serious. The Crown submitted that committing offences while on conditional liberty, which involved similar offending, i.e. kidnapping and sexual offending, was an important aggravating feature which has always been treated seriously by the courts (s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999; R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 at [48]). The Crown submitted that because his Honour did not refer to this factor, it should be inferred that his Honour failed to take it into account.

  5. The Crown submitted that apart from characterising each of the offences as “most serious”, no further determination or separate analysis of the seriousness of the individual offences was undertaken. The Crown submitted that the assessment of objective seriousness is and has always been a critical component of the sentencing process (Markarian v The Queen [2005] HCA 25; 228 CLR 357). The Crown submitted that without such assessment, it was not possible to reliably impose a sentence that was reasonably proportionate to the criminality of the offending: (Veen v R (No 2) [1988] HCA 14; 164 CLR 465).

  6. The Crown submitted that in addition to the sexual offending, there was a kidnapping count involving each of the victims with the same maximum penalty of 20 years imprisonment. For each victim his Honour indicated the same sentence for the kidnapping counts as indicated for the sexual offences. The kidnapping entailed the victims being grabbed and taken to another location, i.e. an abandoned house (RW), over a grass embankment (EW), a demolition site (IM), a water canal (GG) and off a bush track (RN). The Crown noted that there was no issue that the kidnapping offences involved more than the detention required to commit the sexual offences. The Crown submitted that the reasoning behind the indicative sentences for the kidnap offences was flawed in that no allowance was made for the additional criminality involved in them.

  7. The Crown submitted that each of the offences involved the forced taking of a child. The first four victims were aged 9, 12 and two were aged 10. The final victim was still a child, although older at age 17. The Crown submitted that the age of the children was a relevant factor as the younger the child, the greater the vulnerability. The Crown submitted that by imposing the same penalty for the kidnapping count to mirror the sentence for the sexual offences, his Honour failed to appropriately assess the relative seriousness of the offending.

  8. In relation to totality, the Crown submitted that a fundamental question to be asked was whether the criminality of the one offence could encompass the criminality of the other offences. If not, the sentence should be at least partially cumulative otherwise there was a risk that the total sentence would fail to reflect the total criminality of the offending. This was so regardless of whether the offences could be regarded as part of a single episode of criminality (Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]).

  9. The Crown noted that because his Honour had set out the commencement date for each indicative sentence, it was possible to analyse the structure of those indicative sentences:

RW indicative sentence of 6 years to commence on 18 August 2014.

EW indicative sentence of 5 years to commence 18 August 2015 (accumulated by 1 year but subsumed).

IM indicative sentence of 5 years to commence 18 February 2017 (accumulated by 1 year and 6 months).

GG indicative sentence of 6 years to commence 18 August 2018 (accumulated by 1 year and 6 months).

RN indicative sentence of 7 years to commence 18 August 2019 (accumulated by 1 year).

  1. It should be noted that the authorities are clear that when an aggregate sentence is imposed, not only is specification of commencement dates unnecessary, it ought not be done: Truong v R [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239 at [26]; AB v R [2015] NSWCCA 31 at [10]; Cullen v R [2014] NSWCCA 162 at [26]. R v Brown [2012] NSWCCA 199 at [17] does, however, allow consideration of indicative sentences as a mode of assessing whether they are consistent with the aggregate sentence. Here, both the Crown and the respondent have based much of their submissions on the indicative sentences and their commencement dates. It is for that reason that I have taken into account those matters.

  2. The Crown submitted that although there was some accumulation of the indicative sentences, its modest extent failed to appropriately reflect the serious criminal conduct included in the numerous individual offences. This needed to be reflected in the aggregate sentence. The Crown submitted that the proposed accumulation failed to partially accumulate the sentences for each victim as his Honour intended in that there was no meaningful sentence imposed for the offences upon EW. The indicative sentences for both the kidnapping and sexual offending committed against EW were subsumed within the indicative sentence for RW. The Crown submitted that because the criminality of each of the offences was distinct, in that they each involved separate victims, separate punishment was warranted in respect of each offence. The Crown submitted that the aggregate sentence, taken with the indicative sentences, failed to encompass that the offences involved separate components with each victim being not only sexually assaulted but also kidnapped. The Crown submitted that the seriousness of the respondent’s conduct called for a greater degree of accumulation between the individual indicative sentences resulting in a larger aggregate sentence.

  3. The Crown submitted that although determinations on totality are discretionary, such determinations must be in accordance with principle. Here, his Honour intentionally made all offences against a victim identical and concurrent. This failed to take into account that the criminality of the kidnapping entailed different offending to that of the sexual offences. The Crown submitted that the nature of the error was clear when the indicative sentences for the offences upon RN are examined. RN was the only victim to have more than one sexual offence for sentence. The second of the two sexual offences had considerable criminality reflected on the attached Form 1. The Crown submitted that in the case of RN, not only did his Honour’s approach to the individual sentences reflect error, but the making of all three offences concurrent exacerbated that error.

  1. The Crown submitted that the aggregate sentence did not account for the harm occasioned to each of the victims. This was despite his Honour’s finding that the offending undoubtedly terrified the victims and changed their lives as “no longer did they feel safe, it badly affected all of them and a brother of one of the girls”. The aggregate sentence did not reflect his Honour’s finding that he was sentencing upon “extremely serious” and “most serious” offences committed over two years upon five separate victims. Taking all these matters together, the Crown submitted that the aggregate sentence was manifestly inadequate.

  2. By way of response to the respondent’s submissions, the Crown submitted that too much weight should not be given to the fact that the respondent had not engaged in offending behaviour since 1992. In making that submission, the Crown relied upon the opinion of Dr Westmore who had diagnosed the respondent as suffering from paedophilia at the time of the offending. Dr Westmore said that it was most unusual with paedophilia to have a level of offending such as occurred here and then no further offending. Dr Westmore was unable to explain the absence of offending since 1992.

  3. On the basis of that evidence, the Crown submitted that this was not a case where there was clear evidence of rehabilitation with the passage of time. The Crown submitted that what has occurred here was quite inexplicable and that it is by no means clear that re-offending would not occur. In support of that proposition, the Crown relied upon the disordered thinking of the respondent revealed in his antipathy to certain racial groups while in prison and the difficulty experienced by psychologists in ascertaining the current risk which the respondent presented to the community.

Respondent’s submissions

  1. Not surprisingly, the respondent reviewed in detail prominent features of his subjective case. These included his current condition of treatment resistant schizophrenia, a brain injury when he was aged 7 as a result of a car accident, low intelligence albeit somewhat variable when tested and a dysfunctional early family life with a violent father who subjected the respondent and his mother to mental and physical abuse. The respondent noted that when imprisoned in 1992 – 1993 he had self-harmed and had a strong suicidal ideation. He was emotionally immature with low self-esteem. In 1991 – 1993 Corrective Service records show him to be depressed and withdrawn. Before his arrest for these offences, he had been living independently in Housing Commission accommodation at Riverwood for about 5 years. In 2014 Ms Wakely reported:

“Mr Crowe’s disclosed social network is non-existent, apart from his close relationship he shares with his mother and sister. He reported that he “does not like anyone around him apart from his mother and sister”.”

  1. The respondent referred to the history recorded by Dr Westmore that he no longer had any recollection of having committed these offences and Dr Westmore’s conclusion that:

“Understanding why he committed a series of sexual offences as a young adult is probably impossible now because of all the events which have subsequently occurred in his life, his generally below average intelligence and his poor historical ability.” (Dr Westmore – p7)

  1. The respondent referred to Dr Westmore’s conclusion that at the time of the offending, he had a serious sexual disorder consistent with paedophilia and that the offences probably arose as a result of psychosexual difficulties he was experiencing at the time.

  2. In relation to rehabilitation, the respondent acknowledged that the STATIC-99 test had assessed him as being at a medium to high risk of re-offending. By way of balance, he relied upon the following opinion of Dr Westmore:

“The offending behaviour which I have identified as being of a paedophilic type is certainly unusual in that it appears to have been a cluster of offences committed during a relatively short period of time in his life and not subsequently repeated or carried on throughout his life. That history is in my view unusual …

If I assume that he has not acted in a sexually violent way since the cluster of offences occurring some years ago, then that might suggest that his risks of re-offending are at the lower end of the spectrum. There are always obvious difficulties in predicting risk in both violent and sexual offences, the offences have not been identified to have occurred in the context of his mental illness and probably arose as a result of psychosexual difficulties he was experiencing at the time and other emotional and personality problems which were impacting upon as well.” (Report p8)

  1. By reference to totality, the respondent submitted that the Court should not become engaged in a dissection of how the sentencing judge dealt with concurrency and accumulation in the indicative sentences. He accepted that the criminality of none of the offences against one victim could be encompassed in the criminality of the offences committed against any other victim. He submitted that this error had not occurred. The staggering of the commencement date for the indicative sentences made that clear.

  2. In relation to the indicative sentences proposed in relation to each victim, the respondent submitted that it would have been wrong and oppressive to have increased the sentences for the sexual assault offences because of the kidnapping offences. He submitted that the detention in these cases was no longer than necessary to commit the sexual offence. They were not detentions in the order of hours or days with conduct towards the victim additional to that occurring for the commission of the sexual offences. The respondent submitted that none of the kidnapping charges needed to be laid against him in order to reflect the whole of the criminality engaged in. He submitted that had he been charged only with the sexual assault offences, they would have included the criminality arising from the kidnap offences. This is because an important aspect of the sexual assault offences was that they were predatory and that he had exploited the vulnerability of girls at semi-secluded locations in the suburbs of Sydney where he was able to grab them and quickly be out of sight. In those circumstances, it was open to his Honour to make the sentences for the sexual assault offences and the kidnap offences wholly concurrent.

  3. The respondent submitted that far from failing to address the objective seriousness of the offending, his Honour had analysed each offence in considerable detail and was clearly fully aware of that aspect. He noted that no objection had been taken by the Crown to his Honour’s assessment that these were “most serious” offences.

  4. The respondent submitted that when one had regard to the 25 per cent discount which was to be applied to the indicative sentences, it was by no means clear that they were inadequate. In particular when one carried out that exercise in relation to the offences against IM and GG, it was clear by reference to the maximum penalty for those offences, that the indicative sentences were, if anything, high.

  5. By reference to RN, the respondent noted that the starting point for that indicative sentence was 9 years and 4 months. He submitted that although the circumstance of aggravation was the threatening of the victim with a knife, no knife was actually produced. He submitted that the time over which these offences were committed was not specified but it could be inferred that they occurred over a matter of minutes. By reference to these matters and his subsequent lack of offending for over 20 years, the respondent submitted that his offending was significantly less than that in R v AEM (Snr); KEM; MM [2002] NSWCCA 58. In R v AEM the sentence imposed was less than the indicative sentence in his case. He noted that in R v AEM the offences were very grave, committed against two different victims who were deprived of their liberty for many hours and subjected to horrific degradation and fear. He submitted that R v AEM, where a range of cases was reviewed by the court, made it clear that an indicative sentence of 7 years for the offending against RN was unremarkable.

  6. The respondent submitted that the Crown’s challenge to the lack of accumulation in relation to the offences against each victim in reality involved double counting. On one approach the kidnapping offence could encompass the sexual assault offending. Alternatively, the sexual assault offending could encompass the kidnapping offence (Pearce v The Queen [1998] HCA 57; 194 CLR 610). The respondent submitted that in the majority of cases of sexual assault, there was the deprivation of a victim’s liberty and that deprivation of liberty can be far longer than the time to complete the sexual offence. In that regard, the respondent referred to Davis v R [2006] NSWCCA 392 at [56] where Howie J made it clear that it is the interference with the liberty of the person that is the conduct at the heart of the modern day concept of kidnapping. The respondent submitted that because these offences occurred before the decision in Pearce, it was appropriate for his Honour to address the issues of concurrency or accumulation in accordance with the practice at the time, i.e. that the sentences imposed for the sexual assault and kidnapping offences, should be concurrent.

  7. The respondent submitted that it was clear from his Honour’s description of the sexual assault offending in respect of each victim (in particular RN at sentence judgment 12.8) that his Honour was taking into account how these victims were detained as part of the sexual offences. The respondent submitted that it was entirely appropriate for his Honour to do so. There was no requirement to segregate in some way the sexual assault offending from the circumstances in which it occurred, i.e. taking the victims from a public street or park etc.

  8. The respondent submitted that what the Court should not do is to go into the detail of the indicative sentences, but focus upon the aggregate sentence since the issue before the Court is whether that sentence was plainly unjust or not. The respondent submitted that the aggregate sentence was plainly not unjust. He submitted that it was clear that his Honour had allowed for a substantial degree of accumulation when formulating that sentence. This was not a case where the indicative sentences were in a minor way accumulated with one another. The respondent submitted that when one looked at the head sentence of 12 years it was greater than if two of the indicative sentences had been entirely accumulated. He submitted that the aggregate sentence was longer than any of the individual sentences which showed that they all had a role to play in producing the final sentence and that his Honour regarded that as appropriate for the totality of the criminality involved in the offending.

Consideration

  1. A claim of manifest inadequacy requires the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single “correct” sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25], Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58]).

  2. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question, but also in the general public and are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown as well as convicted persons to appeal against sentences assists in maintaining confidence in the administration of justice: Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306 per McHugh J.

  3. The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. In the exercise of its jurisdiction under s 5D Criminal Appeal Act 1912 the Court retains a residual discretion to decline to interfere with a sentence, even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1]. The Crown must negate any reason why the residual discretion of this Court not to interfere should be exercised: CMB v Attorney-General (NSW) [2015] HCA 9 at [36]; 89 ALJR at 407.

  4. However, it was observed in Green v The Queen; Quinn v The Queen at [42] that cases might arise where the Court concludes that the inadequacy of the sentence appealed from is so marked that it amounts to “an affront to the administration of justice” which risks undermining public confidence in the criminal justice system. In such a case, the Court is justified in interfering with the sentence.

  5. Those principles need to be kept clearly in mind when considering the issues raised in this case.

  6. His Honour was fully aware of the historical nature of the offending and of the need to consider sentencing patterns, if such were available. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Simpson J in a passage which was approved by the plurality in Hili v The Queen; Jones v The Queen said:

“303   A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.

304   But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that “unifying principles” may be discerned: Wong and Leung, at [59].”

  1. Observations to similar effect were made by Garling J (with whom Basten JA and R A Hulme J agreed) in MPB v R [2013] NSWCCA 213 where his Honour said:

“83   In some circumstances, it will be possible for the relevant sentencing pattern to be capable of being readily discerned. As cases such as Shore, Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540, PWB v R [2011] NSWCCA 84; 216 A Crim R 365, and Magnuson show, a comprehensive identification of similar cases, or else references to readily available statistical databases may assist in establishing earlier sentencing patterns. But, as experience shows, such sources need to be considered with some care because of inherent difficulties with them. For example, are the cited cases truly representative of those decided over the period, or else how is it that the statistical tables or analyses provided take into account, and identify, the wide variations in objective criminality and subjective circumstances. Statistical tables of sentencing outcomes are always to be treated with care.

…

87   The guide which is entirely objective and is easily ascertainable, and therefore which is likely to be of most use to a sentencing court, when attempting to impose sentences which accord with an earlier practice or pattern, is the maximum penalty fixed by the law for the offence charged, together with the range of criminality encompassed by the offence charged. By having regard to these features, a sentencing judge will be able to readily assess where the particular offence charged falls along the spectrum of conduct encapsulated in the offence, and accordingly how the particular offence ought be viewed against the maximum penalty fixed by the legislation.”

  1. There is no issue in this case that although the offences against the first victim (RW) – 20 August 1989 – were committed before the commencement of the Sentencing Act 1989 which commenced on 25 September 1989, all the offences would have been sentenced under that Act if there had been no delay because of its retrospective provisions. No historic pattern of sentencing was advanced before his Honour. There was reference to an increase in maximum penalties for some offences and that there had been an increase in sentences up to the present. His Honour accepted that historically sentences for most of these types of offences were lower.

  2. As the parties have appreciated, the sentencing exercise which confronted his Honour was a difficult one. The offending was objectively very serious, involving five victims, all of whom were young and four of whom were very young. Regrettably, all were of an age such that the effects of the offending will be felt by them for the rest of their lives. Balanced against that is the unusual subjective case of the respondent. He had at the time a number of mental deficits comprising frontal lobe damage and depression. He came from a dysfunctional background with an abusive father. There is, however, no evidence that those matters contributed to the offending. On the contrary, the evidence is to the effect that they did not.

  3. Somewhat remarkably, as set out by Dr Westmore, apart from this sequence of offending over a period of two and a half years (if one includes the offending against EL and EH) no further offences appear to have been committed for a period in excess of 20 years. Generally speaking, the psychiatrists and psychologists who have examined the respondent are unable to explain this unusual feature other than by reference to his increasingly isolated lifestyle and the significant worsening of his mental condition.

  4. It is that latter consideration which adds a further element to the respondent’s subjective case. There is no issue that the respondent’s mental condition has significantly deteriorated over the years and he now suffers from treatment resistant schizophrenia. He says that he cannot remember committing any of the offences.

  5. The question of his rehabilitation and possible danger to the community is largely equivocal. On the positive side, there is the uncontradicted fact that he does not appear to have offended for over 20 years. On the negative side, that lack of offending is unexplained by medical experts. Psychological testing has identified him as a risk and while in custody he has reported delusional beliefs with a bias against Asians and Arabs.

  6. As was made clear in such cases as Magnuson v R, R v AEM (Snr); KEM; MM and MPB v R sentences imposed for these kinds of offences were less than those imposed now, although in the case of offences against children the difference was not great. That was a matter to which his Honour referred to and it is a matter of which this Court is fully aware and has taken into account.

  7. Despite the care which his Honour took in relation to this matter, I have concluded that the aggregate sentence is manifestly inadequate and that the explanation for that can be seen in the matters relied upon by the Crown.

  1. There is considerable force in the Crown submission that by focusing on the respondent’s offending in a general way, his Honour failed to fully appreciate individual aspects of the offending against each victim. This is particularly so in the case of RW and RN. To the extent that the indicative sentences reveal his Honour’s reasoning, his Honour failed to give adequate weight to the Form 1 offences in those cases and the significantly more serious offending against RN and the maximum sentences to which that offending was subject. It is also clear that his Honour failed to have regard to the aggravating feature of the offending against RN in that the respondent was on bail.

  2. Although RN was older than the other victims, she was exposed to a more serious and aggressive level of offending which appeared to take place over a longer period. It is difficult to see how in accordance with sentencing principles, a protracted episode of offending could be properly regarded as producing fully concurrent sentences. The indicative sentences in relation to the offences against RN strongly suggest that his Honour did not fully appreciate the level of criminality involved.

  3. The aggregate sentence failed to reflect the seriousness of the respondent's offences against five separate victims: R v Brown at [50]. It is important that sentences passed for child sex offences recognise the harm done to the victims of the crime: R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [87]; R v Gommerson [2014] NSWCCA 159 at [98], [102]; s 3A(g) Crimes (Sentencing Procedure) Act 1999. Although these offences were committed many years ago, ss 3A and 21A Crimes (Sentencing Procedure) Act 1999 applied to the sentencing of the respondent: clause 45(2), Schedule 2, Crimes (Sentencing Procedure) Act 1999.

  4. It was necessary for the notional level of accumulation involved in setting the aggregate sentence to give proper regard to the fact that there were five separate young victims of the respondent's predatory attacks upon girls who were strangers to him. It is important that there be punishment that is referrable in a real sense to each of the five victims of the respondent's serious and separate criminal conduct: Doyle v R; R v Doyle [2014] NSWCCA 4 at [459]-[461]; R v Gommerson at [100]-[102]. The aggregate sentence in this case clearly did not meet this requirement.

  5. In relation to all of the victims, but particularly RW and RN, there is a difficulty in the lack of accumulation between the kidnapping counts and the sexual assault counts. As was conceded, albeit in a qualified form by counsel for the respondent on the appeal, there was additional criminality in the kidnapping which was not encompassed by the sexual assault charges. Each victim was grabbed in a public street and taken to a secluded location apparently selected in advance by the respondent. Regardless of the intention of the respondent, the effect on the victims would have been one of terror. While the level of accumulation in those circumstances would not have been particularly great, there was a requirement for some.

  6. It follows therefore that the aggregate sentence for those reasons was manifestly inadequate and constituted an “affront to the administration of justice”.

  7. That does not end the matter. There remains the question of whether the Court, despite that finding, should in the exercise of the residual discretion refrain from interfering with the sentence.

  8. The respondent submitted that the Court should not re-sentence because any adjustment to the aggregate sentence was likely to be so modest as to not justify the Court’s intervention. Additionally, the respondent submitted that it was clear from his affidavit and that of Ms Hill that the level of hardship being experienced by the respondent while in custody is significant. He has already been attacked on one occasion by a fellow prisoner and there have been occasions of self-harm. Because of the nature of his offences, the respondent has been classified as PRLA (Protected Limited Association Areas) which self-evidently restricts his activities while in custody.

  9. The Crown submitted that despite the respondent’s mental illness, general deterrence and denunciation of the offending still had an important role to play so that an increased sentence would not only have a deterrent effect on putative offenders, but would also accord with community expectations as to appropriate sentences. The Crown also referred to the importance of public confidence in the administration of justice being maintained by the imposition of appropriate sentences for serious offending such as this.

  10. While it is clear that the respondent is experiencing hardship in custody because of his classification, it needs to be kept in mind that his lifestyle before going into custody was already substantially isolated and his only real personal contact was with his mother and sister. Although there is some evidence of self-harm in the form of cuts to his right arm, that is nothing like the problems he experienced when he was originally incarcerated in 1992 – 1993.

  11. As already stated, an important purpose of a Crown appeal against sentence is to lay down principles for the guidance of courts having a duty of sentencing convicted persons. In this case, given the seriousness of the offending, the inadequacy of the aggregate sentence appealed from is such that it amounts to “an affront to the administration of justice” which needs to be remedied. Not to do so runs the risk of undermining public confidence in the criminal justice system. The additional evidence filed in this Court has been taken into account for the purpose of resentencing.

  12. It follows that the Crown has persuaded me that the residual discretion should not be exercised and that the respondent should be re-sentenced. In doing so, it is not necessary to set out new indicative sentences or to adjust those proposed by his Honour. It is sufficient to say that of themselves the indicative sentences are adequate but there needed to be in the case of each victim, in particular RW and RN, some level of accumulation of the indicative sentences.

  13. The orders which I propose are:

  1. The Crown appeal is allowed.

  2. The aggregate sentence imposed by Garling ADCJ on 3 September 2015 is quashed.

  3. In lieu thereof, the respondent is sentenced to a term of imprisonment which consists of a non-parole period of 10 years, with a balance of term of 5 years, commencing 18 August 2014. The respondent will be eligible for release to parole on 17 August 2024. The balance of term will expire on 17 August 2029.

  1. JOHNSON J: I agree with Hoeben CJ at CL.

  2. DAVIES J: I agree with Hoeben CJ at CL.

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Decision last updated: 11 March 2016

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Cases Citing This Decision

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Pereira v R [2018] NSWCCA 171
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Statutory Material Cited

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Aslan v R [2014] NSWCCA 114
Magnuson v R [2013] NSWCCA 50
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518