R v Kay - [2002] NSWCCA 286

No judgment structure available for this case.

Reported Decision:
(2002) 132 A Crim R 72

New South Wales

Court of Criminal Appeal

CITATION: Regina v Kay [2002] NSWCCA 286

FILE NUMBER(S): CCA 60564/01

HEARING DATE(S): 11 July 2002

JUDGMENT DATE:
24 July 2002

PARTIES :

Regina v Graham James Kay

JUDGMENT OF: Sheller JA at 1; Dowd J at 2; Carruthers AJ at 3

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70084/97

LOWER COURT JUDICIAL
OFFICER : Justice Hulme

COUNSEL : Applicant - R.J. Button
Crown - P.J. Power

SOLICITORS: Applicant - D.J. Humphreys
Crown - S.E. O'Connor

CATCHWORDS: Sentencing - appeal against sentence - four counts of aggravated sexual assault - four related sexual offences on a form 1 - manner in which the Form 1 offences were to be taken into account discussed - calculation of the discount for the utilitarian benefit of pleas of guilty discussed - appropriate approach to the determination of special circumstances discussed - whether despite errors of law some other sentences were warranted in law pursuant to subs 6(3) of the Criminal Appeal Act, 1912 considered.

LEGISLATION CITED: Crimes Act 1900 ss 61J, 61K
Crimes (Sentencing Procedure) Act 1999, ss 33, 48
Criminal Appeal Act 1912, subs 6(3)

CASES CITED:
Director of Public Prosecutions v Ottewell [1970] AC 642
Ibbs v The Queen (1987) 163 CLR 447
Pearce v The Queen (1998) 103 A Crim R 372
Power v The Queen (1973) 131 CLR 623
R v AEM Snr & Ors [2002] NSWCCA 58
R v Costen (1989) 11 Cr App R (S) 182
R v Dawson (unreported, CCA, 19/5/98)
R v Ellis (1986) 6 NSWLR 603
R v Harris [2001] NSWCCA 322
R v Kalache [2000] NSWCCA 2
R v Radich (1954) NZLR 86
R v Sharma [2002] NSWCCA 142
R v Simpson [2001] NSWCCA 534
R v Stabler (1984) 6 Cr App R (S) 129
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Winchester (1992) 50 A Crim R 345
Veen v The Queen [No 2] (1988) 164 CLR 465

DECISION: Application for leave to appeal granted. Appeal dismissed.

60564/01

SHELLER JA
DOWD J
CARRUTHERS AJ
Wednesday, 24 July 2002

REGINA v Graham James KAY

Judgment

1 SHELLER JA: I agree with Carruthers AJ.

2 DOWD J I agree with Carruthers AJ.

3 CARRUTHERS AJ: Graham James Kay (the applicant) seeks leave to appeal against sentences imposed upon him by Hulme J in the Central Criminal Court, Sydney on 26 July 2000.

4 The applicant pleaded guilty on 1 March 1999 to an indictment containing four counts under s 61J of the Crimes Act 1900 (the Act) of aggravated sexual assault; the aggravation being threats to inflict actual bodily harm on the victim by means of an offensive weapon, namely a knife. The maximum penalty for this offence is twenty years imprisonment.

5 His Honour was also asked to take into account, in relation to the third count, four offences listed in a Form 1. Two of these offences were also under s 61J of the Act, the aggravation again being threats to inflict actual bodily harm on the victim by means of an offensive weapon, namely a knife. The remaining offences were under s 61K of the Act, namely threatening to inflict actual bodily harm with intent to have sexual intercourse. The maximum penalty prescribed for an offence under s 61K is also twenty years imprisonment.

6 His Honour sentenced the appellant as follows:-

7 With regard to the sentences in relation to the third count, his Honour said that in specifying the days on which the applicant will become eligible for parole and release, he had departed from the examples provided under s 48 of the Crimes (Sentencing Procedure) Act, which reflect a misunderstanding (in his Honour’s view) of either simple counting or the law’s measurement of time. Absent special circumstances, the law does not take account of parts of a day. Seven days imprisonment commencing on a Monday expires at midnight on the following Sunday. A person is entitled to be released immediately thereafter, ie on the next Monday, not on the Sunday, as the first example states. His Honour noted, however, that whether for ease of administration the authorities choose to release such an offender on the Sunday is, of course, a different matter entirely.

8 His Honour numbered the eight relevant offences chronologically, irrespective of whether they were included in the indictment or in the Form 1. For the sake of convenience I shall adopt this course. Accordingly, the offences are listed chronologically as follows:-

9 All offences were committed against women at night in suburbs on the lower north shore of Sydney. Three of the victims were in their teens, four were in their twenties and one was aged thirty-nine.

10 Counsel for the applicant has not sought to challenge any of the findings of fact made by his Honour.

11 There is a pattern in the various offences. As the sixth offence (the third count) was the most serious offence, I shall set out hereunder the findings of fact made by his Honour with regard to that matter:

· “On 17 September 1996 at about 9.50 pm the sixth victim alighted from a train at Artarmon station. She walked to a key card machine directly opposite the station and withdrew $100 from the machine which she put in a bag she was carrying. She then walked along Hampden Road, across the bridge over the freeway, and into Taylor Lane. There a male voice called out from behind her ‘Give me your money or I’ll hurt you’. She screamed ‘Help!’ and the male grabbed her. He said ‘Shut up. Shut up. Shut up or I’ll use my knife on you’. Understandably the victim became scared and began to shake. She handed the man the $100 and said ‘Please don’t hurt me. Please don’t hurt me’.

· He pushed a dark coloured rag into her mouth and again said ‘Shut up or I’ll hurt you’. The victim saw him holding a knife which he then applied to her throat and pulled her down the lane saying ‘Give me all your credit cards’ and ‘Give me all your cards’. The victim gave him a key card and her driver’s licence. During the course of this exercise he had put his hand under her jumper and fondled her breasts. There is a pedestrian tunnel which goes under Hampden Road (or possibly Herbert Street, which is a continuation of it). The tunnel is dark. The assailant dragged the victim about 5 metres into the tunnel still with the knife against her throat. She was crying ‘Please don’t rape me. Please don’t rape me’. He said ‘Shut up I won’t rape you’. He grabbed her hands and forced them behind her back and tied them up. The victim’s head hit the wall.

· From behind, the assailant then unzipped her pants and pulled them and her underpants down to her ankles. He started to touch her vagina with his fingers. He put one inside and moved it around. Again she pleaded ‘Please don’t rape me’ and again he said he wouldn’t. He then unzipped his fly and said ‘Just for a little bit’ and the victim said she felt his penis go inside her vagina for a short time after which he removed it and again touched her vagina with his hands. He then put his penis back inside her vagina and started moving it in and out. The victim said ‘Please stop it I won’t tell anybody I promise, I promise’. After a short time the prisoner withdrew his penis and pulled up his pants. At about this time he picked up and looked at the victim’s driver’s licence and said ‘I’m going to go. I know where you live, so if you tell anybody I’ll come and get you because I know where you live’. He untied the victim’s hands and lifted her jumper up over her head. He again placed a finger inside her vagina, then grabbed the rag out of her mouth and ran off. The victim picked up the bags and cards she had been carrying and ran straight to work.

· When the victim arrived at work she was observed to be crying hysterically and complained to work mates of what had occurred. Examined at about 10.30 pm that night she was observed to be very tearful and to have, inter alia, swelling of, and abrasions to, her lips and a small abrasion to her finger. She also suffered a small graze on her neck.

· This sixth victim was twenty-three years of age at the time. After the attack she moved from where she was living because she was frightened that her assailant knew where she lived. Some months later she still felt nervous and anxious and she did not go out at night: In December 1996 she said that she did not think she could live on her own again and ‘I haven’t been back to work since and I am being moved to another location by my employer as I feel to (sic) anxious to go back to Artarmon’.”

12 Each of the other offences contained a number of the elements involved in the sixth offence, which elements may be summarised as follows:-

· The applicant was wearing a black hooded sloppy joe.

· The victim was threatened by the applicant holding a knife against the victim’s throat. In some cases actual injury was inflicted by the knife.

· Money and/or credit cards and/or driver’s licence were demanded.

· A rag was forced into the victim’s mouth.

· The victim was immobilised in some fashion.

· The victim’s address was ascertained and she was threatened with violence if she reported the matter to the police.

· Penetration by the applicant’s penis or finger.

· Fondling of the victim’s breasts.

13 The appellant was born on 26 September 1951 and is a graphic designer by trade.

14 His prior criminal record consists of convictions for assault female (1971), indecent assault (1975), peep and pry (1983), peep and pry (1987), and breach domestic violence order (1995). He was not sentenced to a period of custody in respect of any of any of these matters.

15 The appellant gave evidence in the sentencing proceedings.

16 His Honour was satisfied that most of the offences were not chance happenings occurring on the spur of the moment, or perhaps more accurately, after he sighted his victims, but premeditated and planned events.

17 His Honour concluded that during the period covered by the offences, the applicant was either not significantly remorseful for what he had done, or, was so driven by his instincts or other desires that any remorse was overcome. His Honour found the Crown argument that society needed protection from the applicant to be compelling.

18 His Honour noted that the applicant lied to the police when he originally denied involvement in any of the offences other than the seventh offence. However, even his account of the seventh offence was deliberately untruthful and calculated falsely to suggest willing co-operation on the part of the victim.

19 The applicant did not plead guilty at the committal proceedings to any of the charges brought at that stage, although he instructed his solicitor “not to cross-examine any of the victims or to cause any harm to the victims”. These instructions continued at least until 16 February 1999.

20 In his remarks on sentence, his Honour set out in detail the history of the matter up to 1 March 1999 when the applicant pleaded guilty to the four counts in the indictment and acknowledged having committed the offences on the Form 1.

21 His Honour accepted that the applicant was entitled to credit for the utilitarian benefits of his pleas and for his admission at an early stage of his guilt in relation to the offence of 22 October 1996. However, his Honour stated that in determining the weight to be given to such pleas or admission, account must be taken of the strength of the Crown case apparent to a suspect. In this regard his Honour referred to R v Winchester (1992) 50 A Crim R 345, and R v Ellis (1986) 6 NSWLR 603. This finding gave rise to the third ground of appeal.

22 His Honour also concluded that the applicant, as at the date of sentence, probably had some remorse extending beyond regret for the consequences he has suffered in the past and must suffer. However, his Honour concluded that in light of his past record and psychiatric assessments, the repetition of his offending and his failure to seek treatment prior to his arrest, only limited weight should be given to such remorse which had only manifested itself since his arrest. From a subjective point of view, his Honour noted that the applicant was involved for some fifteen years in a Volunteer Bushfire Brigade, rising to the rank of senior deputy captain.

23 His Honour had before him a report dated 12 March 1999 by Dr Bruce Westmore, forensic psychiatrist, obtained at the request of the solicitors for the applicant and a report dated 22 June 1999 by Dr C.L. Wong, consultant psychiatrist, obtained at the request of the Solicitor for Public Prosecutions.

24 The applicant it is clear, came from a stable family background; the family living in Sydney where the applicant was born.

25 He was divorced in 1994. He suffered from stress associated with the family breakdown and problems associated with one of his sons.

26 Dr Westmore identified no psychotic features such as delusions or hallucinations. The applicant presented as a man with good verbal skills, of at least average, and possibly above average intelligence, with apparently some insight into the impact his behaviour has had on his victims.

27 The applicant gave Dr Westmore a history of alleged sexual abuse perpetrated upon him by a male cousin which lasted for a period of five or six years. Dr Westmore thought this left the applicant with some unresolved issues.

28 Dr Westmore reported that the applicant has a functional, stable personality, and therefore, his offending behaviour was somewhat of an enigma in that it did not appear to arise from a personality disorder of any type. He thought that there was a reasonable possibility of fetish behaviour, which could have related back to his childhood.

29 Dr Westmore concluded that the applicant does have quite significant psycho-sexual difficulties. It was his belief that the applicant was highly motivated to seek assistance and, while psychiatry has no expertise in truthfulness, the applicant’s expressions of regret and distress about his behaviour and his distress about the origins of his behaviour appeared to be genuinely delivered.

30 Interestingly, Dr Wong did not consider that the applicant’s behaviour revealed any fetish tendency or any element of compulsion.

31 Dr Wong concluded that, as things stand at the moment, there are sufficient negative prognostic pointers in the applicant’s case to indicate very significant risks of re-offending.

32 Both Dr Westmore and Dr Wong gave evidence before his Honour. Dr Wong’s evidence, overall, seemed to his Honour to be more persuasive than that of Dr Westmore.

33 In considering the degree of criminality involved in these offences, his Honour expressed the view that the applicant’s conduct was calculated to instil, at least in some of his victims, the fear of death with the concomitant loss of all that life holds, unless they at least bowed to his demands.

34 With regard to the offences on the Form 1, his Honour said:

Morgan

Indeed, subject to the limits imposed by s 21 itself, it seems to me that there is no basis in the statute or in logic for imposing a lesser penalty for such offences if they are taken into account than would have been imposed had they been the subject of additional counts in the indictment

35 Section 33 of the Crimes (Sentencing Procedure) Act 1999 has replaced s 21 of the Criminal Procedure Act, 1986. There is no relevant distinction between the two sections.

36 His Honour considered the statistics published by the Judicial Commission relating to the subject offences, for comparative purposes, and also considered a number of specific cases annexed as a schedule to the reasons for sentence. His Honour concluded that ten of those cases supported the view that a total sentence of seven years was within the range appropriate for the worst of the offences, considered in isolation but taking into account the subjective circumstances.

37 Given that the principle of totality would limit the total sentence to be imposed on the applicant, his Honour was content to proceed on the basis of that sample of cases.

38 His Honour considered each offence in both the indictment and the Form 1 individually in the first instance, assessing a minimum and total term which seemed to be appropriate to reflect the totality of the criminality involved in each offence.

39 However, the ultimate sentencing regime imposed reflected, in his Honour’s assessment, the principle of totality in accordance with the principles laid down in Pearce v The Queen (1998) 103 A Crim R 372.

40 The applicant was in protective custody as at the date of sentence. He gave evidence that he had spent his time in custody prior to sentence seeking to understand his actions.

41 With regard to special circumstances, his Honour said:

“The nature of the Prisoner’s offences, the importance of rehabilitation, and the time he must serve in prison make it desirable that the additional term be lengthy. It seems to me appropriate that it accord with that normally imposed where the minimum term is fifteen years. As I intend to impose some fixed terms and the additional term will be imposed in respect of an offence or offences where the minimum term will be less than three times that period, there are special circumstances within s 44 of the Crimes (Sentencing Procedure) Act.”

42 This was the only reference which his Honour made to special circumstances.

43 I turn then to the first ground of appeal which is in the following terms:

“The learned sentencing judge applied a wrong principle with regard to special circumstances.”

44 It was submitted that his Honour erred in that special circumstances were found to exist, only to the extent that adjustments were made to individual cumulated sentences, so that the overall head sentence and non-parole period reflected the statutory ratio.

45 It was argued, therefore, that insofar as his Honour did not explicitly refer to the question whether special circumstances existed, above and beyond the technical aspects of the effects of accumulation, his Honour fell into error.

46 Reference was made to the fact that since the date of sentencing, this Court has confirmed that the liberal approach to the question of finding special circumstances is the appropriate one: see R v Simpson [2001] NSWCCA 534, esp at par [60]. The liberal approach now prevails over the strict approach adumbrated in cases such as R v Phelan (1993) 66 A Crim R 447.

47 It was submitted that as this Court could not be sure of the basis upon which a substantive finding of other special circumstances was rejected it should therefore intervene. In other words it is not known whether his Honour adopted the correct liberal approach or the now rejected strict approach. Thus it was argued, error is established and this Court should re-sentence the applicant.

48 The question of special circumstances was re-visited by counsel for the applicant under the fourth ground of appeal, to which I shall later refer.

49 The second ground of appeal is in the following terms:

“The learned sentencing judge applied a wrong principle with regard to taking matters into account on a Form 1.”

50 I have already quoted that part of the remarks on sentence in which his Honour concluded that, subject to the limits imposed by [s 33] itself, there is no basis in the statute or in logic for imposing a lesser penalty for offences contained in a Form 1, if they are taken into account, than would have been imposed had they been the subject of additional counts in the indictment.

51 It was submitted that such a view does not accord with the recent approach of this Court to the question of taking matters into account on a Form 1. Reliance was placed in this regard upon R v Harris [2001] NSWCCA 322 at [22] to [35] and R v AEM Snr& Ors [2002] NSWCCA 58 at [77] to [86], which judgments were delivered after the instant sentences were imposed.

52 Simpson J pointed out in Harris that different views have been expressed in this Court as to the approach to be taken to sentencing with regard to matters on a Form 1 and to the benefit (if any) an offender receives as a consequence of the use of the procedure, as distinct from being charged with and pleading guilty to each individual offence.

53 It is not necessary to analyse the difference of opinion to which her Honour referred. It is sufficient to note that the principle is now authoritatively stated in the joint judgment of the Court (Beazley JA, Wood CJ at CL and Sully J) in AEM at [82]:

Lemene

is entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted’

R v Harris

54 It must be taken, therefore, that it is not now the law that a sentencing judge is entitled to impose no lesser penalties when dealing with matters in a Form 1, than would have been imposed if they had been included in counts in the indictment.

55 Nevertheless, it is still the law that when serious offences are included in a Form 1, the sentences imposed in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that little by way of additional penalty should be imposed by reason of the fact that offences are included in a Form 1: see Harris at [23]-[26].

56 An error of law has been established under this ground, which was also re-visited by counsel for the applicant under the fourth ground of appeal.

57 The third ground of appeal is in the following terms:

“The learned sentencing judge erroneously took into account the strength of the prosecution case in determining the utilitarian discount.”

58 In his remarks on sentence, his Honour referred (as I have earlier pointed out) to the strength of the prosecution case in the context of discussing and determining the appropriate utilitarian discount. It has been correctly argued by the applicant that such approach is not consistent with the principles enunciated in the guideline judgment of R v Thomson and Houlton (2000) 49 NSWLR 383: see also R v Sharma [2002] NSWCCA 142. These judgments were both delivered after his Honour sentenced the applicant.

59 The crown fairly conceded that his Honour was in error in taking into account the strength of the Crown case in determining the utilitarian discount, particularly in light of the remarks of Spigelman CJ in Thomson at [137]. There the Chief Justice emphasised that the strength of the Crown case was linked only to the issue of contrition or remorse. “A ‘recognition of the inevitable’ may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea”.

60 It was submitted for the applicant that the pleas of guilty had a utilitarian value that was very substantial. Even a single trial involving eight complainants would have occupied a large number of days of Supreme Court time and a large amount of prosecution resources. Indeed there must have been a significant prospect, it was argued, of more than one trial prior to the entry of the pleas of guilty, in light of the strictness of the rules about the admission of tendency evidence.

61 The Crown’s response was that in view of the late entry of the guilty pleas, together with the serious nature of these serial offences, the applicant was only entitled to a minimal discount for his pleas of guilty. That aspect of the case will also be referred to again under the final ground of appeal.

62 Finally, it was argued under the fourth ground of appeal that the sentence is, in all the circumstances, manifestly excessive. Specifically it was argued that the operative head sentence was “erroneously massive” especially in light of the following facts:-

· Albeit tardily, the applicant pleaded guilty to all eight offences.

· Four of the offences were on a Form 1.

· The applicant had never served a sentence of imprisonment before.

· One can expect that he will be on protection for the whole of his non-parole period.

· He was not subject to conditional liberty at the time of the offences; and

· His criminal record, although not unblemished, featured nothing that approached the gravity of the subject offences.

63 It was common ground at the hearing of the appeal that, particularly in the light of decisions handed down by this Court subsequent to the sentencing process, errors of law had been established on the part of the sentencing judge. Counsel for the applicant realistically acknowledged, however, that it is not sufficient for the applicant to establish error before this Court would quash the subject sentences and impose lesser sentences. It is necessary that this Court be satisfied that “some other sentence .... is warranted in law and should have been passed”: see subs 6(3) of the Criminal Appeal Act, 1912; R v Simpson [2000] NSWCCA 534 at [79] and [99 –100].

64 Counsel for the applicant submitted that this Court would, taking into account the errors disclosed in the earlier grounds of appeal and the matters relied upon under ground four, which he described as “latent errors”, necessarily determine that some sentences other than those imposed were warranted in law, and should have been passed.

65 It is necessary then for this Court to focus upon the question whether some lesser sentences were warranted in law. It should be noted that counsel for the applicant did not seek to challenge the individual sentences imposed by his Honour but contended that the aggregate head sentences and non-parole period were manifestly excessive. Thus, he frankly conceded that if this Court were not satisfied that some other overall sentences should have been passed, then it was unnecessary for the Court to re-assess individual sentences which would achieve the same overall result.

66 One matter should be immediately noted. At par [95] of the remarks on sentence, his Honour said, after referring to Ibbs v The Queen (1987) 163 CLR 447 at 451-452, and Veen v The Queen [No 2] (1988) 164 CLR 465 at 478:

“Clearly, all of the prisoner’s offences fall well short of a ‘worst case’ under s 61J or s 61K.”

67 With respect to his Honour, who gave close consideration to the somewhat detailed evidence that was before him, this expression of opinion understates the degree of criminality involved in the majority of the offences. Therefore, I do not consider that the applicant is entitled (as his counsel seeks to do) to call in aid this expression of opinion by his Honour in evaluating the excessiveness or otherwise of the overall sentences.

68 It is convenient then to consider certain specific matters that were debated during the course of the appeal.

69 I turn firstly to the offences in the Form 1. These were all serious matters involving a high degree of criminality. The applicant is, however, entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been contained within the indictment. Nevertheless, the extent to which they are to be taken into account must reflect the totality of the criminal involvement. It is not appropriate that individual sentences be appropriated in isolation to each of the Form 1 offences. All that the law requires is that the penalty on the third count be increased in a globular fashion to take account of the criminality involved in the Form 1 offences, in accordance with the principles established in the cases to which I have referred.

70 The next matter to be addressed is the extent of the utilitarian discount without taking into account the strength of the Crown case.

71 In Thomson at [151] Spigelman CJ emphasised that the discount range appropriate to pleas of guilty should be such as to encourage early pleas of guilty. In his Honour’s opinion the appropriate range for a discount is from ten to twenty-five per cent. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. The Chief Justice continued at [154-158]:

“There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.

The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.

Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the ‘discount’ will be reflected in a step down in the hierarchy of sentencing options.

R v Stabler

R v Costen

R v Kalache

72 His Honour carefully traversed the history of the subject matters commencing with the applicant’s arrest on 18 February 1997. On that date the applicant conceded that he was responsible for the sexual assault on 22 October 1996 (the fourth count in the indictment). However, he denied any other offences. On 28 August 1997 the applicant was committed for trial on some 27 charges. Before and after the committal there was a deal of correspondence between the applicant’s solicitors and the Director of Public Prosecutions.

73 On 18 September 1998, the matters were fixed for trial commencing on 1 March 1999. At that time it was envisaged that there would be something in excess of twenty counts involving some eleven victims. Statements from some 195 witnesses had been served although counsel for the Crown indicated that he intended to “prune that list. On 1 March 1999 the Crown proffered the subject four count indictment and the applicant pleaded guilty as has already been indicated and acknowledged responsibility for the matters in the Form 1.

74 Adverting to the circumstances discussed by the Chief Justice in Thomson’s case, the following comments may be made. With one exception the pleas were made at a very late stage. The matters involved a degree of complexity by reason of the intention of the Crown to rely upon tendency and coincidence evidence, and the possibility (at least) existed that there might be some separate trials. In all the circumstances I am of the view that a discount in the order of ten per cent would be appropriate. Such discount would involve “grossing up” his Honour’s overall head sentence to a nominal twenty-two years.

75 Insofar as the objective criminality is concerned, these are offences where deterrence, both special and general, is an important aspect of sentencing. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offenders and persons with similar impulses that, if they yield to them, they will meet with severe punishment: see R v Radich (1954) NZLR 86. I turn then to the subjective circumstances.

76 It is true that the applicant has not served any prior custodial sentences. However, he has in his prior criminal record disclosed aberrant sexual conduct. He is not to receive greater punishment by reason of these prior offences but, nevertheless, they deny him the right to call in aid prior good character.

77 This Court was reminded by the Crown of the frequently quoted passage from the majority judgment of the High Court in Veen [No 2] at 477-478, where their Honours observed:

“In this case, Hunt J took into account the relevant purposes of criminal punishment in determining the sentence to be imposed. He was entitled to attach great weight to the protection of society as a factor in that determination.

Director of Public Prosecutions v Ottewell

Ibbs v The Queen

78 Thus the applicant suffers the disadvantage that he has manifested in his commission of the instant offences a continuing attitude of disobedience of the law designed to protect women from the type of criminality involved in the subject offences. The applicant also suffers the disadvantage that the evidence disclosed bleak prospects of rehabilitation on the applicant’s part. It is true that one can expect, as counsel for the applicant contends, that the applicant will be on protection for the whole of his non-parole period.

79 An affidavit affirmed by the applicant on 10 July 2002 was tendered by consent in these proceedings. It demonstrates that the applicant appears to be making some attempts at rehabilitation and coming to terms with his aberrant impulses. It confirms that since coming into custody he has remained on protection. It records one instance when he was hit over the head with a frozen water bottle and knocked unconscious and beaten up by some of the inmates.

80 It is true that the applicant was not subject to conditional liberty at the time of the offences. Although it is well established that the commission of offences whilst on conditional liberty is generally an aggravating factor to be taken into consideration, there is no principle of law that a lesser sentence should be imposed by reason of the fact that the offender was not, at the relevant time, subject to conditional liberty.

81 A particularly serious aggravating factor in the instant cases is that on all occasions a knife was used, in some cases involving actual wounding of the victim. This Court has repeatedly stated that offenders who use knives in sexual crimes can expect to be sternly punished: see eg R v Dawson (unreported, CCA, 19 May 1998).

82 In my view when one balances the objective and the subjective circumstances and applies the well established principles to which I have referred, the applicant has not established that a lesser aggregate head sentence than twenty years should be imposed. I do not overlook in this regard that his Honour applied the wrong principles in assessing the appropriate allowance for the Form 1 offences. Such error has not led him, in my opinion, into the assessment of an excessive aggregate head sentence.

83 I turn then to the non-parole period. This brings one back to the first ground of appeal and the question of special circumstances. The applicant is entitled to have the issue of special circumstances considered in the light of the liberal approach now established, as I have pointed out earlier. The sole basis of the argument on special circumstances was that a longer parole period than five years was warranted. Counsel for the applicant said that he has demonstrated profoundly anti-social tendencies for many years. Accordingly, the submission continued, it is vital that such tendencies be addressed which would require supervision by the Probation and Parole authorities for a period in excess of five years. Indeed, it was submitted, the appropriate period would be closer to seven or eight years.

84 Counsel for the applicant called in aid on this argument the view of Dr Wong that the applicant’s prognosis was poor and he demonstrated poor prospects of rehabilitation. Counsel stressed that the appellant’s aberrant behaviour had been a problem for years and little had been done about it.

85 This submission cannot stand with the well-established principle that a non-parole period must not have regard to the time within which the paroling authority must consider the prisoner’s case but to the time for which the prisoner must remain in confinement: see Power v The Queen (1973) 131 CLR 623 AT 627; Simpson at [57] per Spigelman CJ. As the Chief Justice further pointed out in Simpson (at [65]):

“More significantly, there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence.”

86 In my view the non-parole period fixed by his Honour should not be disturbed.

87 The final ground of appeal has, in my view, not been made out. This is despite the errors which have been established in the earlier grounds. A proper balancing of the objective and subjective circumstances and the application of the correct principles of law, demand the overall penalties imposed by his Honour.

88 Accordingly I would propose that the application for leave to appeal be granted but that the appeal be dismissed.

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Citations

R v Kay [2002] NSWCCA 286

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R v Simpson [2001] NSWCCA 534

CITATION:	Regina v Kay [2002] NSWCCA 286
FILE NUMBER(S):	CCA 60564/01
HEARING DATE(S):	11 July 2002
JUDGMENT DATE:	24 July 2002
PARTIES :	Regina v Graham James Kay
JUDGMENT OF:	Sheller JA at 1; Dowd J at 2; Carruthers AJ at 3

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70084/97
LOWER COURT JUDICIAL OFFICER :	Justice Hulme

COUNSEL :	Applicant - R.J. Button Crown - P.J. Power
SOLICITORS:	Applicant - D.J. Humphreys Crown - S.E. O'Connor
CATCHWORDS:	Sentencing - appeal against sentence - four counts of aggravated sexual assault - four related sexual offences on a form 1 - manner in which the Form 1 offences were to be taken into account discussed - calculation of the discount for the utilitarian benefit of pleas of guilty discussed - appropriate approach to the determination of special circumstances discussed - whether despite errors of law some other sentences were warranted in law pursuant to subs 6(3) of the Criminal Appeal Act, 1912 considered.
LEGISLATION CITED:	Crimes Act 1900 ss 61J, 61K Crimes (Sentencing Procedure) Act 1999, ss 33, 48 Criminal Appeal Act 1912, subs 6(3)
CASES CITED:	Director of Public Prosecutions v Ottewell [1970] AC 642 Ibbs v The Queen (1987) 163 CLR 447 Pearce v The Queen (1998) 103 A Crim R 372 Power v The Queen (1973) 131 CLR 623 R v AEM Snr & Ors [2002] NSWCCA 58 R v Costen (1989) 11 Cr App R (S) 182 R v Dawson (unreported, CCA, 19/5/98) R v Ellis (1986) 6 NSWLR 603 R v Harris [2001] NSWCCA 322 R v Kalache [2000] NSWCCA 2 R v Radich (1954) NZLR 86 R v Sharma [2002] NSWCCA 142 R v Simpson [2001] NSWCCA 534 R v Stabler (1984) 6 Cr App R (S) 129 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Winchester (1992) 50 A Crim R 345 Veen v The Queen [No 2] (1988) 164 CLR 465
DECISION:	Application for leave to appeal granted. Appeal dismissed.