R v Daley

[2010] NSWCCA 223

New South Wales
Court of Criminal Appeal

CITATION:	R v Daley [2010] NSWCCA 223
HEARING DATE(S):	10 September 2010
JUDGMENT DATE:	8 October 2010
JUDGMENT OF:	Hodgson JA at 1; Price J at 2; Fullerton J at 66
DECISION:	1.The Crown appeal against sentence be upheld. 2.The sentence imposed in the District Court on 28 April 2010 be quashed. 3.The conviction is confirmed. 4.The respondent is sentenced to a term of imprisonment of 5 years consisting of a non-parole period of 3 years 6 months commencing on 18 November 2010 and expiring on 17 May 2014 with a balance of term of 1 year 6 months commencing on 18 May 2014 and expiring on 17 November 2015. The earliest date on which the respondent will be eligible for release to parole is 17 May 2014.
CATCHWORDS:	CRIMINAL LAW - Crown appeal - sexual intercourse without consent - whether actual or threatened violence an element of the offence - whether young prison inmate vulnerable - whether non-conclusive finding on future prospects of rehabilitation available - consideration of relevance of duration of offence - whether structure of sentence reflected overall criminality - whether sentence manifestly inadequate - Crown appeal upheld
LEGISLATION CITED:	Criminal Appeal Act 1912 s 5D Crimes (Appeal and Review) Act 2001 s 68A Crimes Act 1900 s 61I, s 61L, s 61J(2), s 61J(2)(a), s 61J(2)(b), Crimes (Sentencing Procedure) Act s 21A, s 21A(2), s 21A(2)(b), s 21A(2)(I), s 21A(4)
CATEGORY:	Principal judgment
CASES CITED:	Doolan v R (2006) 160 A Crim R 54 House v The Queen (1936) 55 CLR 499 Malvaso v The Queen (1989) 168 CLR 227 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v AJP (2004) 150 A Crim R 575 R v De Simoni (1981) 147 CLR 383 R v Fernando (1992) 76 A Crim R 58 R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) R v Hibberd (2009) 194 A Crim R 1 RJS v R (1993) 31 NSWLR 649 R v Johnson [2005] NSWCCA 186 R v Johnson [2004] NSWCCA 140 R v King [2009] NSWCCA 117 R v Lardner (Court of Criminal Appeal, 10 September 1998, unreported) R v M.A.K; R v M.S.K [2006] NSWCCA 381 R v Simpson (2001) 53 NSWLR 704 R v Tadrosse (2006) 65 NSWLR 740 R v Wickham [2004] NSWCCA 193
PARTIES:	Regina Farin William Daley
FILE NUMBER(S):	CCA 2009/139982
COUNSEL:	Ms S Dowling (Applicant) Ms C Loukas (Respondent)
SOLICITORS:	Mr S Kavanagh (Applicant) Aboriginal Legal Service (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Williams DCJ
LOWER COURT DATE OF DECISION:	28 April 2010

2009/139982

HODGSON JA
PRICE J
FULLERTON J

8 October 2010

R v DALEY

Judgment

1 HODGSON JA: I agree with Price J.

2 PRICE J: This is a Crown Appeal pursuant to s 5D Criminal Appeal Act 1912 against a sentence imposed upon the respondent by Williams DCJ (the Judge) in the District Court at Bathurst on 28 April 2010.

3 The respondent pleaded guilty to an alternative count of sexual intercourse without consent on 4 February 2008 contrary to s 61I Crimes Act 1900. He had also been charged with one count of sexual intercourse without consent in circumstances of aggravation contrary to s 61J Crimes Act but the plea to the alternative count was accepted by the Crown in full satisfaction of the indictment. The Judge sentenced the respondent to imprisonment with a non-parole period of 3 years 6 months commencing on 29 November 2009 and expiring on 28 May 2013 with a balance of term of 1 year 6 months expiring on 28 November 2014.

4 At the time of the commission of the offence, the respondent was serving a sentence at the Kirkconnell Correctional Facility imposed upon him at the District Court on 12 January 2007 by Bell DCJ for one count of assault occasioning actual bodily harm contrary to s 59 Crimes Act, one count of committing an act of indecency contrary to s 61L Crimes Act and one count of sexual intercourse without consent contrary to s 61I Crimes Act. These offences were committed on 22 September 2005 whilst he was serving a sentence at the Bathurst Correctional Centre.

5 For the offence of assault occasioning actual bodily harm a fixed term of imprisonment of 7 months was imposed commencing 18 May 2006 and expiring 17 December 2006. As to the offence of assault with an act of indecency, the respondent was sentenced to a fixed term of 9 months commencing 18 September 2006 and expiring 17 June 2007. For the offence contrary to s 61I Crimes Act a sentence was imposed of imprisonment with a non-parole period of 4 years 8 months commencing on 18 February 2007 and expiring on 17 October 2011 with a balance of term of 2 years 10 months expiring on 17 August 2014. The overall sentence imposed by Bell DCJ was imprisonment with a non-parole period of 5 years 5 months expiring on 17 October 2011 with a balance of term of 2 years 10 months expiring on 17 August 2014.

6 The Judge partially accumulated the sentence that he imposed on the existing sentence by commencing it from 29 November 2009. The applicant will be eligible for release to parole on 28 May 2013. As the non-parole period for the sentence imposed by Bell DCJ does not expire until 17 October 2011, the sentence imposed by the Judge extended the respondent’s non-parole period by 1 year 7 months 11 days and the balance of term by 3 months 11 days.

7 The maximum penalty for a s 61I Crimes Act offence is 14 years imprisonment. A standard non-parole period of 7 years applies. The Judge had found that the respondent was entitled to a utilitarian discount for the plea of guilty of between 17 to 18 per cent.

The Facts

8 During the sentencing proceedings an agreed statement of facts was tendered which the Judge partially detailed in his remarks on sentence as follows (ROS at 2):

“In regard to the current offence, Mr Daley was aged thirty-seven and the victim was aged nineteen. Whilst there is an agreed statement of facts, one issue was in dispute, requiring the victim to give evidence via CCTV at the Bathurst Court House. The agreed statement of facts in part, is as follows:
On the evening of 4 February 2008, the victim had been watching television and went to the cell to go to bed. That was a cell that he was sharing with Mr Daley. At the time the victim was only wearing a pair of underpants. The offender was lying on the bottom bunk, as the victim approached the ladder to the top bunk, the offender sat up and said “Are you gay? the victim replied, “No why would you ask that? the offender said “You are gay you white cunt.” The offender seemed angry and said “Shut up or I’ll put the Breville over your head.” The offender then pushed or threw the complainant face down on the bottom bunk. The victim said “What the fuck” and the offender said “Don’t say nothing or all the brothers will space you.” The victim’s underpants were pulled down and the offender put his penis in the victim’s anus and moved it back and forth. The victim says he felt very scared and helpless. After some time the offender removed his penis. The victim does not know if the offender ejaculated or not. The offender told the victim not to say anything.
This offence occurred in the Kirkconnell Correctional Facility, mid-way between Lithgow and Bathurst. The victim was transferred to Kirkconnell which is a low security correctional facility on 26 January 2008. Mr Daley was transferred there on 29 January 2008, and was transferred out on 6 February 2008.”

9 Included in the agreed facts were the details of the victim’s medical examination at Bathurst Hospital on 6 February 2008. The examining doctor observed three bruises to his lower back and right buttock and redness to either side of the anus. The examining doctor expressed the opinion that the bruises were consistent with the victim being physically held, and the anal redness was secondary to anal penetration.

10 During an electronically recorded interview, the respondent said that he and the victim were involved in a consensual sexual relationship. He suggested that the allegation of rape arose because he told the victim that he was in gaol for the sexual assault of another inmate, and how that person received a large amount of compensation. The respondent said that he had been set up by the victim.

11 The respondent gave evidence before the Judge that prior to the commission of the offence he and the victim had been in a consensual sexual relationship over some five nights, which the victim firmly denied when he gave evidence via CCTV.

12 The Judge described the respondent’s contention as being “that he and the victim had been in a consensual sexual friendship and that the victim cried rape as it were, when he found out that Mr Daley was in prison for a similar offence, in order to get compensation”: (ROS at 5). His Honour found the respondent to be unreliable on this “significant factual issue” and did not accept the evidence.

13 The victim was 19 years old at the time of the respondent’s offending. A victim impact statement was tendered in which the victim described his shame, fear, suicidal thoughts about the incident and very bad anxiety attacks. He stated that he still could not get his head around what had happened.

Subjective circumstances

14 The respondent, who is of Aboriginal descent, was born on 19 May 1970 and was 39 years old when sentenced by the Judge. The respondent gave evidence before the Judge and three reports from Dr Allnutt, a psychiatrist, were tendered as were two Probation and Parole reports, some letters and references.

15 The respondent is the youngest of four children. In a Probation and Parole report dated 1 December 2006, Mr Easterbrook, the author of the report, noted that the respondent’s family history was marred by alcohol abuse and inherent neglect. His father had died from an alcohol-related illness when the respondent was 6 years old. The respondent began sniffing petrol when aged 9 years and was smoking cannabis from the age of 13. He began to consume alcohol when aged 15 years and his alcohol consumption had become problematic by the age of 17 years. The respondent made repeated claims to the Probation and Parole Service that he had been “a repeat victim of sexual abuse from the age of six years.” The respondent was educated to a year 9 standard and had occasional employment as an aboriginal cultural entertainer and seasonal work since leaving school. Mr Easterbrook noted that the respondent had had frequent interaction with both the criminal justice system and the Probation and Parole Service for at least the past 15 years and persistent attempts to assist him had “yielded little results.” He observed “as a matter of particular concern, it would appear [the respondent’s] criminal recidivism, levels of violence and possible alcohol dependency issues have escalated.”

16 In a Probation and Parole report dated 22 February 2010, Mr Bannerman, the author of the report, observed that the respondent had a lengthy criminal history with several breaches of community orders. His custodial performance now that he had been convicted of two sexual assault matters was equally poor but “somewhat balanced” by “his stated willingness to change through the CUBIT program or other Departmental Interventions.” Mr Bannerman reported that the respondent “has been assessed using the Static 99 sexual assessment tool as being at a high risk of re-offending.”

17 The respondent in evidence told the Judge that whilst he had been at the Junee Correctional Centre he had been the lead singer and guitar player in a ‘Koori’ band and had been attending the Mormon Church. He had tried to become involved in the CUBIT program because he wanted help and it would make a better man of him. CUBIT (Custody Based Intensive Treatment) is a sex offender treatment program run by the Department of Corrective Services for sex offenders whilst they are in custody.

18 In a report dated 19 April 2010, Dr Allnutt noted that the respondent had regained his C1 classification in February 2009 which was a prerequisite for CUBIT, had been approved for admission into CUBIT and had been due to commence CUBIT in six to eight months provided he did not incur an additional custodial sentence. Dr Allnutt opined that the respondent had manifested symptoms consistent with an adjustment disorder but did “not believe that he manifested symptoms with a major depressive disorder.” Dr Allnutt reported that the respondent did not manifest any psychiatric disorder or cognitive problem that would impact his capacity to engage in a sex offender rehabilitation program. The psychiatrist opined:

“…whether or not he will be successful [sic] rehabilitated can only be determined once he has engaged in a sex offender rehabilitation programme and his performance evaluated.”

19 The Judge said (ROS at 6-7):

“The upshot of the psychiatric reports that I have seen are, that Mr Daley does not suffer any significant psychiatric illness, either now or when the offences were committed. Whilst he does have problems related to early and lengthy alcohol and drug abuse, early sexual abuse of him, homelessness, and violence, which have given rise to an adjustment disorder with depressed mood, he is currently not being treated, nor is he on any medication, which I say in the context of Mr Daley being an Aboriginal man. Since his imprisonment for the 2006 offences, I accept that Mr Daley worked hard to gain entry into the Cubit Program, and had achieved the appropriate low risk status as a prisoner evidenced by his transfer to Kirkconnell. Apparently eligibility for the Cubit Program is not really considered seriously until a person is due for release in the relatively near future, as there is a waiting list to get on the program. But for the present matter, for which he has to be sentenced, he was due to enter the program in six to eight months time.
I understand that the program can take eighteen months to two years to complete. I also accept that he has been proactive within the prison system in regard to other indigenous prisoners and prisoners from non English speaking backgrounds. He is also involved in a number of other cultural activities, as Koori delegate within the prison system and has not incurred any disciplinary charges. It is certainly recommended by Dr Allnutt that he undertake a Sex Offender Rehabilitation Program as well as alcohol and other drug rehabilitation, some of which he [sic] is available at the Namatjira Haven on the North Coast, where most of his cultural ties exist and where he in 2003, spent some months in rehabilitation.

20 The respondent’s criminal record reveals an unattractive history of offending involving violence. He has had convictions for assault occasioning actual bodily harm, assault, assault police, malicious damage, violent disorder, contraventions of apprehended domestic violence orders, break enter and steal, and the offences for which he was sentenced by Bell DCJ on 12 January 2007.

21 The offences for which he was sentenced by Bell DCJ were committed at the Bathurst Correctional Centre on 22 September 2005 whilst the respondent was serving sentences for assault occasioning actual bodily harm and contraventions of an apprehended domestic violence order. The respondent was sharing a cell with the then complainant who was 20 years old. Whilst under lockdown in the cell at around 8:30pm, the respondent punched the complainant in the nose, indecently assaulted him and shortly thereafter had anal intercourse without the victim’s consent.

22 The Judge said (ROS at 5-6):

“If there is one place in the world where the concept of general deterrence may have some meaning, it is in my view in the prison system. In that regard, it needs to be made very clear, that the type of behaviour indulged in by [the respondent], will not be tolerated no matter what the circumstances might be.”

The Judge considered that there needed to be an element of specific deterrence in the sentence.

23 The Judge found that “the most significant aggravating feature is this offence occurred while serving a sentence for an early similar offence.” The respondent’s need to undergo CUBIT, his Honour, said, entitled him to find special circumstances. His Honour was of the view that the principles set out in R v Fernando (1992) 76 A Crim R 58 had little relevance given that the offence was “a repeat offence, committed whilst in custody”.

Dealing with the appeal

24 The notice of appeal identifies the following grounds of asserted error by the Judge:

(i) “Finding that the aggravating features referred to in s 21A(2)(b) and (l) Crimes (Sentencing Procedure) Act were implicit in the offence;
(ii) Failing to properly take into account the aggravating features referred to in s 21A(2)(b) and (l) Crimes (Sentencing Procedure) Act ;
(iii) Finding that…the likelihood of re-offending “remains to be seen”;
(iv) Failing to find that the likelihood of re-offending was high;
(v) Finding that the objective seriousness of the offence was in the mid-range;
(vi) Structuring the sentence in such a way that his Honour failed to impose an overall sentence that properly reflected the overall criminality of the respondent;
(vii) Imposing a sentence that is in all the circumstances manifestly inadequate.”

Ground 1: Finding that the aggravating features referred to in s 21A(2)(b) and (l) Crimes (Sentencing Procedure) Act were implicit in the offence

Ground 2: Failing to properly take into account the aggravating features referred to in s 21A(2)(b) and (l) Crimes (Sentencing Procedure) Act

25 The first and second grounds of appeal may conveniently be dealt with together. The Crown complained that the Judge erred by finding that the aggravating features referred to in ss 21A(2)(b) and (l) were implicit in the offence and by failing to properly take them into account.

26 During his sentencing remarks, the Judge said (ROS at 9):

“I am required to consider the provisions of s 21A of the Crimes (Sentencing Procedure) Act . There are a number of aggravating features which might apply, but in my view, tend to be implicit in the circumstances of the offence in any event. For example, 21A(2)(b) actual or threatened use of violence…”

27 The Crown was critical of the Judge’s assessment that he did not regard the actual or threatened use of violence as an aggravating factor but as an element of the offence. The Crown argued that the bruising on the victim’s back and buttocks was violence that was other than the innate sexual violence that is present in every act of non-consensual sexual assault. It was also the Crown’s contention that there were threats of physical violence beyond that which was involved in the actual sexual activity.

28 The respondent contended that the Crown’s position on actual violence was contrary to what was said by Hunt AJA in R v Johnson [2005] NSWCCA 186. As the respondent’s plea to the non-aggravated offence had been accepted by the Crown in full satisfaction of the indictment, the Judge, the respondent argued, was constrained by proper legal principle in relation to the question of actual bodily harm and the Judge had not erred.

29 It was accepted by the Crown that the circumstances of aggravation for the s 61J Crimes Act count were the infliction of actual bodily harm on the victim: s 61J(2)(a) Crimes Act. Furthermore, another circumstance of aggravation is found in s 61J(2)(b) which, relevantly, is as follows:

“at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim…by means of an offensive weapon or instrument.”

30 The maximum penalty for an offence of aggravated sexual assault contrary to s 61J is imprisonment for 20 years and a standard non-parole period of 10 years is prescribed.

31 Section 21A(2) Crimes (Sentencing Procedure) Act, relevantly, provides:

“The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
...
(b) the offence involved the actual or threatened use of violence;
… ...
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as taxi driver, bus driver or other public transport worker, bank teller or service station attendant).

...

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.”

32 Section 21A(4) is as follows:

“The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.”

33 Section 21A(2) prohibits the taking into account in aggravation of any of the aggravating factors it specifies, “if it is an element of the offence.” Section 21A(4) requires the court to disregard a matter of aggravation if to take it into account would be to punish the offender for an offence which was more serious than that for which the offender was to be sentenced: R v De Simoni (1981) 147 CLR 383; R v Wickham [2004] NSWCCA 193. In R v Johnson, Hunt AJA said at [23]:

“When defining the offence of sexual intercourse without consent, s 61 I of the Crimes Act 1900 makes no reference to violence, and its title “Sexual Assault” does not go beyond the common assault which is inherent in the “sexual connection” to which the definition of “sexual intercourse” in s 61H refers. It does not include any suggestion of either violence or (as violence is usually defined) the exercise of physical force. Many sexual assaults do involve violence, and that violence is appropriately taken into account by way of aggravation in a sexual assault charge under s 61 I — provided that it does not involve the infliction of actual bodily harm, when the offender becomes exposed to a greater maximum sentence, one of imprisonment for twenty years (s 61J “Aggravated Sexual Assault”), in lieu of imprisonment for fourteen years (s 61 I “Sexual Assault”). The principle laid down in R v De Simoni (at 388–392), that a matter may be taken into account in aggravation of sentence only where it does not render the accused liable to a greater punishment, would otherwise be infringed.”

34 The Judge was obliged not to take into account an injury which would amount to actual bodily harm as to do so would infringe the De Simoni principle. Whilst the bruising on the victim’s back and buttocks might not have been inherent in the sexual connection involved in the anal intercourse, it seems to me that the bruising amounted to actual bodily harm which was occasioned to the victim. It is trite to observe that the phrase “bodily harm” is to be given its ordinary meaning and includes “any hurt or injury calculated to interfere with the health or comfort of the victim”: R v Lardner (Court of Criminal Appeal, 10 September 1998, unreported). While it need not be permanent, it must be “more than merely transient or trifling.” The Judge was correct, in my view, in disregarding the bruising.

35 The threat that was made immediately before the sexual intercourse to “shut up or I’ll put the Breville over your head” was another matter, in my view, that the Judge was obliged to disregard. Whilst the respondent did not say in express terms that actual bodily harm would be inflicted if the victim did not comply, the victim would have readily understood that the respondent was threatening to inflict actual bodily harm on him by use of the Breville. An object which in its nature and in its ordinary use is not offensive may become an offensive instrument by reason of its use and accompanying intent: RJS v R (1993) 31 NSWLR 649. The threat of the infliction of actual bodily harm by the use of an offensive instrument was an aggravating circumstance in s 61J(2) and could not be taken into account for an offence under s 61I.

36 The Judge, however, was entitled to take into account, as an aggravating circumstance, the threat that was made immediately after the offence was committed not to say anything or “all the brothers will [smash] you” as the threatened violence did not involve the use of an offensive instrument and was neither a specified aggravating circumstance in s 61J(2) nor was it an element of the offence. I do not think, however, that his Honour’s failure to take into account this threat as an aggravating circumstance had a material impact upon the length of the sentence that was imposed.

37 The next complaint by the Crown is that the Judge erred in not finding that the victim was vulnerable for the purposes of s 21A(2)(l) and the Judge should have found that this aggravating factor applied. The Crown argued that the 19-year-old victim, a very young inmate, in an adult gaol was clearly vulnerable. He was confined in a cell with the respondent who had a known propensity to rape young cellmates. On the other hand, the respondent submitted that the Judge took into account the victim’s confinement in prison in assessing the objective seriousness of the offence. The remarks upon which the Crown founded its criticism, the respondent put to the Court, had to be considered in context. His Honour, it was contended, was making the additional point that the circumstances did not fit neatly into the categories outlined in the statutory form of aggravation in s 21A(2)(l) and had not erred.

38 The Crown’s complaint focussed on the following passage in his Honour’s sentencing remarks (ROS at 10):

“As to the victim being vulnerable, that is a question of concern because of the fact that both offender and victim were in prison at the time. The victim’s opportunity to leave from a situation was limited and he was certainly younger, but otherwise there was no other particular vulnerability in the victim. He was not a person who was very young, or very old, or any of the other matters referred to in subs (l).”

39 It is settled principle that s 21A(2)(l) is concerned with the vulnerability of a particular class of victim and not with the threat posed by a particular class of offender: R v Tadrosse (2006) 65 NSWLR 740; Doolan v R (2006) 160 A Crim R 54. Contrary to the Crown’s submission, the respondent’s prior sexual assault on a young cellmate is an irrelevant consideration in the assessment of the vulnerability of the victim. The particular class of victim, however, is not confined to the examples given in s 21A(2)(l). In my opinion, young prisoners who are confined to their prison cells after lockdown fall within a class of victim who are vulnerable to offences being committed against them.

40 In any event, it appears to me that the Judge in the passage quoted at [38] above did not fail to take into account in aggravation of the offence that the victim was vulnerable due to his custodial confinement but intended to indicate that the circumstances did not otherwise fit into the examples provided in s 21A(2)(l). I am not persuaded that the Judge erred.

Ground 3: Finding that…the likelihood of re-offending “remains to be
seen”.

Ground 4: Failing to find that the likelihood of re-offending was high.

41 The Crown submitted that the Judge’s finding on the likelihood of re-offending appears to have disregarded the respondent’s antecedent criminal history and the pessimistic assessments made in the pre-sentence report.

42 The Crown’s criticism was founded upon his Honour’s remarks (ROS at 10):

“As to the likelihood of re-offending, and prospects of rehabilitation, they remain to be seen and I guess will significantly depend upon, the success of a program like the Cubit Program.”

43 There was a deal of evidence before his Honour as to the need for the respondent to undergo CUBIT before his release and the respondent had testified that he had tried to enter the program as he wanted help. The Judge was in, my opinion, merely reflecting in his remarks the opinion of Dr Allnutt in the passage quoted at [18] above that whether or not the respondent could be successfully rehabilitated would only be determined when he engaged in a sex offender program and his performance was evaluated. The Judge was not obliged to find that the likelihood of re-offending was high.

44 Such a non-conclusive finding on the applicant’s future prospects was available to the Judge on the evidence and I do not think that the Judge erred.

Ground 5 : Finding that the objective seriousness of the offence was in the mid- range.

45 The Crown contended that the circumstances of the offence positioned it at the high end of the range of sexual assault offences. The Crown made reference to the full penile/anal penetration without a condom which was accompanied by actual and threatened violence with the victim being a 19 year-old prison inmate.

46 During the proceedings on sentence, the Crown Advocate put to the Judge that the offence fell within the mid-range of objective seriousness. The Crown Advocate’s submission did not, however, fetter his Honour’s sentencing discretion: Malvaso v The Queen (1989) 168 CLR 227 at 233.

47 The respondent referred to the Crown Advocate’s submission to the Judge that the offence was in the mid-range and to the Crown’s concession that the offence appeared to have been “spontaneous”. Reliance was also placed by the respondent on the offence being of short duration.

48 As the respondent has pointed to the short duration of the offence, I propose now to deal with this issue. In R v Hibberd (2009) 194 A Crim R 1 I said at [56] that the duration of the offence was a relevant consideration in the assessment of the seriousness of an offence contrary to s 61I Crimes Act. I wish to make it clear that the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased. The short duration of the present offence neither mitigated nor magnified the objective seriousness of the offence. The degree of violence, the form of forced intercourse and the circumstances of humiliation were all relevant considerations in determining where on the scale of objective seriousness the offence lay: R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) at [10-11] per Mahoney JA.

49 A determination of where the subject offence lies on the scale of objective seriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v The Queen (1936) 55 CLR 499. As was said by Simpson J in R v Johnson [2004] NSWCCA 140 at [36]:

“For the Crown to succeed on this aspect of the appeal, it is necessary that it establish that the finding, which is essentially one of fact, was not open to his Honour. The finding, being an evaluation, is akin to an exercise of discretion and may only be held to be wrong if it can be shown that some wrong principle was applied, or irrelevant consideration taken into account (or a relevant consideration overlooked) or that the finding itself simply was not open on the evidence: House v The King…”

50 The Judge was plainly aware of seriousness of the forcible anal penetration without consent in a prison environment when he said (ROS at 8):

“It is difficult to see a more confronting situation, particularly where assistance and resources are not near at hand or readily available, not to mention the problems resulting from having a fellow inmate charged with an offence. In that regard I would have to say that this offence is in the mid range of objective seriousness…”

51 In making an assessment of where the offence lay on the scale of objective seriousness, the Judge was not confined to the form of the forced intercourse, albeit an important consideration: R v AJP (2004) 150 A Crim R 575; Hibberd at [56]; R v King [2009] NSWCCA 117. Although reasonable minds might differ, it was within the Judge’s discretion to conclude on the evidence that the objective seriousness of the offence was in the mid-range when regard was had to the spontaneity of the offence, and the actual physical hurt inflicted. I am not persuaded that the Judge erred in characterising the offence as being in the mid-range.

Ground 6: Structuring the sentence in such a way that his Honour failed to impose an overall sentence that properly reflected the overall criminality of the respondent.

Ground 7: Imposing a sentence that is in all the circumstances manifestly inadequate.

52 As these grounds of appeal raise the issue of inadequacy of sentence, they may for the sake of convenience be considered together.

53 The Crown submitted that the Judge failed to structure the sentence to appropriately reflect the criminality of the offence, which involved a separate victim and necessitated a greater degree of accumulation on the sentence imposed by Bell DCJ. The Crown was also critical of the degree of departure by the Judge from the standard non-parole period of 7 years and argued that the Judge had failed to adequately explain a non-parole period, which was half of the applicable standard. His Honour’s failure to properly address the standard non-parole period was one of the reasons, the Crown said, that the sentence was manifestly inadequate.

54 The respondent argued that the Judge had applied correct principle and questions of accumulation are discretionary. In exercising the discretion, the Judge was said to have been mindful of the total time that the respondent had been incarcerated and no error had been established. With regard to the assertion of manifest inadequacy, the respondent submitted that the most that could be said is that other judges could have imposed a heavier sentence without falling into error. Whilst the accumulated sentence was at the lower end of an appropriate range, the sentence itself did not support a conclusion of latent error by way of inadequacy.

55 The maximum penalty for the offence is 14 years and the standard non-parole period is 7 years. The undiscounted starting point of his Honour’s sentence must have been 6 years 1 month 6 days (round figures) if the discount for the plea was 18 per cent and 6 years 9 days (round figures) if the discount was 17 per cent. The non-parole period of 3 years 6 months is 50 per cent of the standard non-parole period. As the sentence was partially accumulated on the sentence imposed by Bell DCJ, the effective non-parole period is 1 year 7 months 11 days and the balance of term of the existing sentence was extended by 3 months 11 days.

56 There is nothing in the sentencing remarks, which explains the extent of the accumulation upon the existing sentence.

57 The Judge recognised that the standard non-parole period was “a bench mark as to the appropriate minimum term.” His Honour noted (ROS at 7):

“…that since 26 November 2003, Mr Daley has only been at liberty for less than nine months and I am conscious that I need to address the totality of his offending in determining an appropriate sentence.”

58 The Judge correctly identified that he was required to consider the totality of the criminality involved not only for the offence for which the respondent was being sentenced but also for any offences for which he had been serving a sentence: Postiglione v The Queen (1997) 189 CLR 295. The respondent had been in continuous custody since 9 February 2005, which included not only the sentence imposed by Bell DCJ but also the sentence that he was serving when the first sexual assault was committed. His Honour, however, was obliged to fix an appropriate sentence for the offence for which he was sentencing the respondent and then consider questions of cumulation or concurrence, as well as the question of totality: Pearce v The Queen (1998) 194 CLR 610. Whilst the principle of totality operated in the present case, it seems to me that the Judge overlooked the necessity to ensure that the effective non-parole period appropriately reflected the criminality involved in the offence, including its objective gravity and the need for general deterrence: R v Simpson (2001) 53 NSWLR 704.

59 Apart from the plea, the factors identified by the Judge in justifying the departure from the standard non-parole period were that the offence was not planned and the finding of special circumstances to enable the respondent to undergo the CUBIT program. The promotion of rehabilitation is an important consideration in the sentencing exercise. It was, however, incumbent upon the Judge not to give undue weight to rehabilitation in the balancing process and to have proper regard to the serious objective circumstances of the respondent’s offending. I note that the Judge did not make a finding that the respondent had good prospects of rehabilitation. There was little in his subjective case, which could be said to mitigate the offence.

60 A striking feature of the respondent’s conduct was that he committed the crime whilst serving a sentence for an almost identical offence of sexual assault upon a young cellmate. This behaviour demonstrated that he had learnt little from the sentence imposed upon him by Bell DCJ and that he was prepared to gratify his sexual impulses notwithstanding his further incarceration. The prior sexual assault and history of violent offending required significant weight to be given to personal deterrence and the protection of the community.

61 In this case, weight was also to be given to the need for general deterrence. It must be clearly understood by offenders serving a prison sentence that a sexual assault upon another inmate will be met with severe punishment. All prisoners are entitled to serve their sentences without the fear of sexual molestation.

62 Should the question of totality not have been an important consideration, I would have concluded that the head sentence and non-parole period were manifestly lenient. Whilst the Judge in his sentencing remarks did not refer to the sentence being designed to avoid the imposition of a “crushing sentence”, he was obliged to ensure that the total length of the sentence was not “crushing” so as to put at risk any incentive that the respondent might have to rehabilitate himself: R v M.A.K; R v M.S.K [2006] NSWCCA 381. In my view, the error that has occurred in the sentence is, as I have indicated at [58] above, in the commencement date. The Judge, in this respect, erred in the exercise of his discretion.

63 Although he acknowledged the need for specific and general deterrence, his Honour, with respect, ultimately failed to give sufficient weight to these considerations in the overall sentence. An effective non-parole period of 1 year 7 months 11 days is not merely lenient but is manifestly inadequate. In my opinion, so as to properly reflect the matters to which I have referred the effective non-parole period should be 2 years 7 months. An increase in the total time to be served in custody by almost 12 months does not amount to a “crushing sentence”.

64 I am not of the opinion in the circumstances of this case that the Court should exercise its discretion not to intervene. As s 68A Crimes (Appeal and Review) Act 2001 applies, this Court in reviewing the sentence imposed by the Judge does not have regard to the notion of “double jeopardy”.

65 I confirm the Judge’s finding of special circumstances to which I would add as a special circumstance the accumulation of sentence. Accordingly, the orders that I propose are:

1. The Crown appeal against sentence be upheld.

2. The sentence imposed in the District Court on 28 April 2010 be quashed.

3. The conviction is confirmed.

4. The respondent is sentenced to a term of imprisonment of 5 years consisting of a non-parole period of 3 years 6 months commencing on 18 November 2010 and expiring on 17 May 2014 with a balance of term of 1 year 6 months commencing on 18 May 2014 and expiring on 17 November 2015.

The earliest date on which the respondent will be eligible for release to parole is 17 May 2014.

66 FULLERTON J: I agree with Price J.

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