R v MAK

[2006] NSWCCA 381

Reported Decision: 167 A Crim R 159

New South Wales

Court of Criminal Appeal

CITATION:	R v M.A.K., R v M.S.K. [2006] NSWCCA 381
HEARING DATE(S):	28/08/2006
JUDGMENT DATE:	30 November 2006
JUDGMENT OF:	Spigelman CJ; Whealy J; Howie J
DECISION:	In respect of the appeal against the sentences imposed upon MAK the appeal is dismissed. In respect of the appeal against the sentences impose upon MSK the appeal is allowed and the sentences imposed by Hidden J are varied as follows: The sentence of 8 years imprisonment for the third count on the indictment relating to TW is to commence on 13 August 2019. The non-parole period of 4 years is to commence on that date and to expire on 12 August 2023. The sentence of 8 years imprisonment for the fourth count on the indictment relating to TW is to commence on 13 August 2021. The non-parole period is quashed and in lieu there is to be a non-parole period of 4 years and 6 months commencing on that date and to expire on 12 February 2026. The sentence in relation to the offence against CH is quashed and the respondent is sentenced to imprisonment for 9 years to commence on 13 August 2025 with a non-parole period of 12 months to commence on that date and to expire on 12 August 2026 the date upon which the respondent is first eligible to be considered for release to parole.
CATCHWORDS:	Criminal Law - Sentencing - Crown Appeal - relevance of prior convictions for offences committed after offences for which sentence is passed - whether discount for plea of guilty should reflect remorse - the application of the totality principle where multiple sexual assault offences committed against different complainants of increasing seriousness - whether sentences manifestly inadequate.
LEGISLATION CITED:	Crimes Act 1900 - ss 578A, 61J, 61JA, 61L Children (Criminal Proceedings) Act 1987 - s 11 Crimes (Sentencing Procedure) Act 1999 - ss 2A(2)(1), 3A, 21A, 21A(2)(d), 21A(2)(l), 21A(2)(m), 21A(3), 21A(3)(e), Div 1A of Part 4
CASES CITED:	R v MMK [2006] NSWCCA 272 Postiglione v The Queen (1997) 189 CLR 295 R v Clinch (1994) 72 A Crim R 301 R v Knight (2005) 155 A Crim R 252 R v Dodd (1991) 57 A Crim R 349 R v AJP (2004) 150 A Crim R 575 R v Hammoud (2000) 118 A Crim R 66 R v Wall [2002] NSWCCA 42 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Scott [2003] NSWCCA 286 R v Moore [2005] NSWCCA 212 R v Sharma (2002) NSWLR 300 Elyard v R [2006] NSWCCA 43 R v Salieb [2005] NSWCCA 85 Markarian v The Queen (2005) 79 ALJR 1048 R v Tadrosse [2005] NSWCCA 145 R v McNaughton [2006] NSWCCA 242 R v McInerney (1986) 42 SASR 111 R v Hutchins (1957) 75 WN(NSW) 75 R v Boney (NSWCCA unreported 22 July 1991) Charara v DPP (2001) 120 A Crim R 255 R v Bui (2002) 137 A Crim R 220 Ibbs v The Queen (1987) 163 CLR 447 R v Skaf [2005] NSWCCA 297 R v Hammoud (2000) 118 A Crim R 66
PARTIES:	Regina v M.A.K. Regina v M.S.K.
FILE NUMBER(S):	CCA 2006/911; 2006/914
COUNSEL:	R. Cogswell SC with J. Caldwell - Crown P. Hamill SC for M.A.K. S. Odgers SC for M.S.K.
SOLICITORS:	S. Kavanagh - Crown M. Croke & Co. - M.A.K. K. Kyriacou - M.S.K.
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2003/3; 2003/158
LOWER COURT JUDICIAL OFFICER:	Hidden J
LOWER COURT DATE OF DECISION:	05/04/2006

2006/911
2006/914

SPIGELMAN CJ
WHEALY J
HOWIE J

THURSDAY 30 NOVEMBER 2006

R v M.A.K

R v M.S.K

Judgment

1 THE COURT: These are appeals by the Crown against sentences imposed upon each of the respondents by Hidden J for sexual assault offences. The respondents are brothers. Their younger brother, MMK, was also charged with a sexual assault offence and sentenced by Hidden J.

2 The Court has dismissed an appeal by the Crown against the sentence imposed on MMK: see R v MMK [2006] NSWCCA 272. Although many of the arguments raised by the Crown in support of the present appeal were also raised in the appeal against the sentence imposed upon MMK, the facts of the matters were significantly different to justify hearing and determining that appeal separately from the appeals relating to these two respondents.

3 The complainants shall be referred to by the use of initials in order to protect their anonymity. The Court is aware that one of the complainants has allowed herself to be publicly identified. She is of course entitled to do so. Section 578A of the Crimes Act 1900 prohibits publication of material identifying a complainant in a prescribed sexual offence unless certain circumstances exist, one being that the complainant, who is of or over the age of 14 years at the time of the publication, consents. It is also an offence to publish the name of a complainant under the age of 16 at the time of the offence by reason of s 11 of the Children (Criminal Proceedings) Act 1987. There are exceptions to that prohibition one being where the complainant, who is of or above the age of 16 at the time of the publication, consents. Notwithstanding that the name of one of the complainants has been lawfully published, the Court considers it appropriate to maintain the use of initials for the purposes of this judgment.

4 The respondents are referred to by the use of initials, not because they are entitled to any anonymity, but because the Court is concerned to ensure that the Children (Criminal Proceedings) Act 1987 is not inadvertently breached. Although this Court is not bound by the provisions of this Act, publication of this Court’s judgments, especially on the Court website can, by reason of its electronic format, lead to widespread dissemination. Neither MAK nor MSK are entitled to any benefit from the operation of that Act but two of their brothers, including perhaps most relevantly MMK, were juveniles at the date of a range of offences that have become publicly notorious. Accordingly, naming either MAK or MSK would entail an unacceptable risk of an inadvertent breach of s11 of the Children (Criminal Proceedings) Act 1987.

M.A.K.
The sentences

5 MAK pleaded guilty on 20 June 2005 to a count on an indictment alleging an offence of aggravated sexual assault against TW contrary to s 61J of the Crimes Act 1900. That is an offence for which there is prescribed a maximum penalty of imprisonment for 20 years. MAK also asked the Judge to take into account, when sentencing for that offence, a matter on a Form 1 alleging an offence of indecent assault against TA, an offence contrary to s 61L of the Crimes Act and for which a maximum penalty of 5 years imprisonment is prescribed.

6 On 5 April 2006 the Judge sentenced MAK to imprisonment for 9 years to commence on 1 August 2012 with a non-parole period of 4 years to expire on 31 July 2016: see [2006] NSWSC 237.

7 At the time of being sentenced by Hidden J, MAK was serving sentences amounting to a total period of imprisonment of 16 years from 1 August 2002 with an effective non-parole period to expire on 31 July 2014. Sully J had imposed these sentences on 22 April 2004 for nine offences of aggravated sexual assault in company contrary to s 61JA of the Crimes Act; see [2004] NSWSC 319. An appeal against those sentences by MAK to this Court was dismissed: see [2005] NSWCCA 369.

8 As a result of the sentence imposed by Hidden J, the overall sentence imposed by Sully J was increased by three years with an extension of the minimum period to be served by two years. MAK cannot be considered for release to parole before 31 July 2016.

The facts

9 The offences for which the applicant was to be sentenced by Hidden J occurred on 14 June 2002. The facts were placed before his Honour by way of an agreed statement. They were set out in his remarks on sentence as follows:

………….TW and her two friends had travelled to Sutherland, where they were picked up by the offender and MMK in the offender’s car. He drove to the Ashfield home, stopping on the way for the men to buy alcohol and soft drinks.

In the course of socialising in the lounge room at the home, the offender sat next to TW and put his hand between her thighs. Discomforted by this, she left the lounge room to go to the toilet, intending to sit next to one of her friends when she returned. However, when she came back to the lounge room she was met by the offender, who took her hand and led her to the bedroom.

There, they sat on the bed with the light off, talking. The offender then kissed TW, to which she responded for a short time before realising that his contact was going further than she wanted. She said as much to him and tried to get up to leave, but he pushed her back onto the bed. He touched her under her clothing, pulled down her underpants and inserted his finger into her vagina. Then, despite her protest that she did not want him to do what he was doing, he had penile/vaginal intercourse with her until he ejaculated. He left the room, and it was then that MSK entered it.

…………… TW eventually left the bedroom and made her complaint to her friends, and the offender drove the three of them to a nearby railway station. The following morning, TW told members of her family what had happened and was interviewed by police. Biological testing of the underpants she had been wearing revealed an area of seminal staining with a DNA profile consistent with that of the offender

10 The offence on the Form 1 against TA occurred on 20 January 2002. The Judge stated the facts as follows:

TA’s older sister was acquainted with MMK, and on that day MMK had arranged to take out the sister in the evening. The sister asked TA to accompany her. The offender drove MMK to the young women’s residence in south-western Sydney. Also in the car was another of his brothers, MRK. They picked up the young women and the offender drove back to the Ashfield home. Again, they stopped on the way and MRK bought a bottle of vodka.

At the house the group sat in the lounge room. MRK poured vodka for everyone and encouraged TA to drink some, despite her saying that she did not want to. At one stage the brothers were discussing the type of girls to whom they were attracted, and the offender said to TA, “I like blonde Australian girls.” As he said this, he put his arm around her shoulder.

After a time, TA’s sister left the lounge room with MMK and went to another room. In an attempt to get away from the offender, TA got up from the lounge and went to the toilet. However, when she emerged from the toilet, the offender was standing there. He told her that he would show her the house. He took her to a bedroom and asked her to sit on the bed. She said she would like to go back to the lounge room, but he asked her to stay for “a couple of minutes.” She had “a bad feeling” about the situation, but thought that he might become angry with her if she did not do what he wanted.

She sat on the bed and the offender turned the light off. He sat next to her and tried to kiss her, but she said, “No, I have a boyfriend.” He told her to relax and massaged her shoulders. As he did this, he began to push her back so that she would be lying on the bed. She kept pulling herself back up and said, “No, can we just go back out into the lounge room? I have a boyfriend and I really don’t want to do this.”

He then pushed her down onto the bed and rolled onto her, so that she could not get up. He massaged her chest, and then moved his hand onto her top and inside her bra, rubbing her left breast. She began to cry and said, “I don’t want to do this. Can we please go back out to the lounge room?” The offender said, “Just a few minutes”, and moved so that he was sitting on top of her. He again tried to kiss her but she turned her head away. She was very upset and crying loudly. He said, “Be quiet, they’ll hear you.” She asked him to get off her and get her sister.

He rolled off her, but he then put his hand under her lower garments and touched her pubic area. She twisted to her side and pulled his hand away. He then left the room. Shortly afterwards, she told MMK and her sister what had happened.

Subjective features

11 MAK was aged between 21 and 22 at the time of the offences. There was in evidence before the Judge a pre-sentence report and a psychological report that had been tendered before Sully J. There was also a more recent psychological report dated 11 October 2005. MAK gave evidence at the sentence hearing before Hidden J but not at the hearing before Sully J.

12 MAK came to Australia from Pakistan in 1998 in order to complete his secondary education and to pursue a tertiary course of studies in engineering. This did not eventuate but he completed a security course and obtained work in that industry. He lived in a house in Ashfield with some of his younger brothers who were still at school. Although in the reports that had been prepared for the proceedings before Sully J MAK had portrayed his early life positively, the more recent psychological report contained an account in which he stated that he had been subject to harsh discipline by his father, that he was bullied at school and that he grew up in a lawless and threatening environment. He claimed to have been the victim of physical and sexual abuse while in Pakistan. After coming to Australia he was the victim of three armed robberies in the course of his employment, he was burdened with the responsibility for his brothers and he developed an escalating drinking problem. Hidden J accepted that this account of his upbringing was reliable.

13 In the course of his remarks Hidden J noted that the gravity of the offences was apparent from the facts. He gave MAK the benefit of a “clear criminal record at the time of these offences” and discounted the sentence by 15 per cent for the utilitarian value of the plea of guilty and remorse. His Honour assessed his rehabilitation as favourable. He took into account the fact that MAK was serving his sentence on protection and would continue to do so indefinitely with consequential restrictions on his access to educational courses and library services.

14 Hidden J noted that the criminality for the offences for which he was sentenced by Sully J was “considerably more serious” than those before him. He determined, however, that the sentence he was to pass must be partly cumulative “taking into account the principle of totality”. He found special circumstances for varying the statutory ratio between the non-parole period and the total term by reason of the accumulation of sentences.

The principle of totality

15 The Court noted the importance of the principle of totality to the task that was before Hidden J in relation to the sentencing of MMK. It was the application of that principle that required that the Crown appeal be dismissed in his case. It is a fundamental sentencing principle that Hidden J was, and this Court is, legally obliged to apply. Whenever the Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a ‘just and appropriate measure of the total criminality involved’: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons.

16 The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306:

… the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years my be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.

17 The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.

18 A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences.

The Crown submissions

19 The Crown submitted that the sentence was manifestly inadequate. It further asserted that the Judge had erred in the following ways:

(i) in imposing a sentence that was not proportionate to the gravity of the offence viewed objectively. In addition or in the alternative, it may be inferred that his Honour placed too much weight on the subjective circumstances of the respondent;

(ii) in rejecting the Crown’s submission that the sentence imposed on the respondent should be cumulative or substantially cumulative

(iii) in reducing the respondent’s sentence by 15 per cent for his guilty plea and remorse;

(iv) in failing to take into account the respondent’s prior convictions recorded by Sully J for the purpose of determining whether the respondent was deserving of lenient treatment, even though the convictions were for offences that took place later in time than the offence against TW; and

(v) in rejecting the Crown’s submission that the vulnerability of the victim was an aggravating factor that should be taken into account pursuant to s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999.

20 The Crown noted that the sentence imposed was “less than half of the maximum penalty for an offence under s 61J” and it was not proportionate to the seriousness of the offence. Reliance was placed on a passage in the judgment of this Court in R v Dodd (1991) 57 A Crim R 349 at 354 that stressed the need for a sentence to reflect the “gravity of the offence viewed objectively”. It was submitted that, although the Judge was required to have regard to promoting MAK’s rehabilitation, in doing so he failed to give appropriate weight to the other purposes of punishment set out in s 3A of the Crimes (Sentencing Procedure) Act. In particular the Crown argued that the sentence failed to ensure that the offender was adequately punished, to denounce the conduct of the offender or to recognise the harm done to the victim and the community.

21 The Crown submitted that, not only was the sentence inadequate to reflect the criminality of the offence on the indictment and the matter on the Form 1, but it was to a very large extent subsumed within the sentences imposed by Sully J so that in the result MAK was required to spend only a further period of two years in custody before being eligible for release to parole. Such a result, the Crown asserted, demonstrated a sufficiently egregious error in the exercise of Hidden J’s discretion as to warrant this Court’s intervention.

Respondent’s submissions

22 On behalf of MAK Mr Hamill SC submitted that there was no patent error in the sentencing remarks of the Judge nor did the sentence imposed reflect latent error. It was submitted that the sentence was within a legitimate range, that the Judge applied the correct sentencing principles, and that it was open in the exercise of discretion for the Judge to find special circumstances and to structure the sentence with those imposed by Sully J in the way that he did.

23 In respect of the offences for which MAK was sentenced by Hidden J it was argued that they fell within the low to middle range of seriousness of offences of their kind particularly in light of the absence of a number of aggravating features provided in the legislation for this type of offence. There was no threat to the complainant in the count for which MAK was sentenced and the offences were both opportunistic. MAK also relied upon positive findings by the Judge in respect to his remorse and his status as a protected prisoner.

24 It was noted that there was no standard non-parole period applicable for the offence and hence any increase in sentencing range that might result from the enactment of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act did not apply to the respondent: cf R v AJP (2004) 150 A Crim R 575. It was submitted that the extent to which the sentence was to be served cumulatively with the sentences imposed by Sully J was a matter that fell within Hidden J’s discretion and cannot be regarded as unjust or unreasonable: see generally R v Hammoud (2000) 118 A Crim R 66. Mr Hamill stressed that, when he came to be sentenced by Hidden J, MAK was a very young man facing a lengthy period in custody before he could be eligible for release for much more serious offences of a similar kind.

25 Mr Hamill, as did Mr Odgers SC appearing for MSK, stressed the limited basis upon which this Court can intervene in a sentencing judge’s discretion at the behest of the Crown and the very lively discretion that the Court has to refuse to intervene even though patent error can be shown or where in the Court’s assessment the sentence is “unreasonable or plainly unjust”. The Court was referred to the summary of the relevant principles set out by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]. It is not necessary to set out once more the considerations that apply in appeals by the Crown but the Court has kept them in mind.

Grounds of appeal

26 The first two grounds of appeal are of a general nature and amount to no more than a complaint about the leniency of the sentence imposed and the degree of the partial cumulation. They can be put to one side while the specific complaints are considered.

Ground (iii) The discount for plea and remorse

27 It has been noted that the Judge gave MAK the benefit of a discount from the otherwise appropriate sentence of 15 percent to reflect the plea of guilty and his remorse. The Crown contends that this discount was excessive.

28 MAK stood trial for the offence against TW jointly with his brother MMK. The trial commenced on 13 May 2005. However, as a result of the conduct of MMK during the course of the trial, Hidden J considered that the fair trial of MAK was in jeopardy and on 31 May 2005 granted him a separate trial. A new trial date was fixed for 14 June 2005 but later adjourned to 20 June 2005. On that date MAK pleaded guilty to the offence. However, before the trial of MAK aborted, the complainant had given evidence and had been extensively cross-examined on his behalf.

29 The Judge stated in his remarks on sentence at [90]:

…….His plea of guilty to the offence against TW has some utilitarian value, given that there might have otherwise been a further trial in which she would have to have given evidence, and he is entitled to a reduction of sentence on account of that plea and his remorse. I would reduce the sentence otherwise appropriate by fifteen percent. As I have said, he has also expressed remorse for the offence against TA. I assess his prospects of rehabilitation as favourable.

Later, just before imposing sentence, the Judge stated at [93]:

…………… But for his plea of guilty and his remorse, I would have imposed a sentence of ten and a half years. A reduction of fifteen percent for those factors yields a term a little under nine years, which I shall round off at nine years…………

30 At the hearing of the appeal, the Court raised with the parties whether there was any error committed by the Judge in determining the extent of the discount at 15 per cent after taking into account MAK’s remorse or the fact that the plea had saved the complainant the trauma of giving further evidence. The parties asked for, and were given, leave to file further submissions on this issue once the Court had reserved its decisions. Both parties availed themselves of that opportunity.

31 The Crown submitted that the passages in the remarks on sentence set out above could be read in one of two ways, but that both revealed error. On the one hand, the Crown contended, the statement that the respondent was “entitled to a reduction of sentence on account of that plea and his remorse” may be understood as indicating that the Judge had reduced the sentence by 15 per cent by reason of both the utilitarian value of the plea and such remorse as flowed from the “bare fact of [the respondent’s] plea”: see R v Thomson and Houlton (2000) 49 NSWLR 383 at [118]. If this is the preferred interpretation then, according to the Crown, the discount was unduly generous having regard to the lateness of the plea and the fact that the complainant had already given evidence and been cross-examined on behalf of MAK. The Crown submitted that a discount of no more than 10 per cent was warranted.

32 On the other hand, according to the Crown, the statements may be understood as indicating that Hidden J reduced the sentence by the stated discount to recognise “not only all of the matters that were manifested by his plea of guilty but also the respondent’s more general expressions of remorse”. If that were the case, then the Judge erred in attributing a percentage value to MAK’s general expressions of remorse as well as recognising other mitigating factors which, to a more or less degree, were based upon the finding that the respondent was remorseful, for example that he had good prospects of rehabilitation. The Crown relies upon a number of statements in judgments of this Court, including Thomson and Houlton, commenting upon the interrelation of factors in determining the appropriate sentence including the plea of guilty, evidence of remorse, and preparedness to assist authorities. The Crown submits that a quantifiable discount should only be given in relation to the utilitarian value of the plea and assistance to the authorities and not otherwise.

33 Mr Hamill submitted that the only reasonable interpretation of the portion of the Judge’s remarks quoted above is that the sentence was being reduced by 15 per cent for both the utilitarian value of the plea and the remorse demonstrated by that plea, that is the first interpretation suggested by the Crown. He then submitted that such a discount was within the Judge’s discretion and could not be shown to be unreasonable or wrong. He accepted that the preferable course was to identify a numerical discount based only upon the utilitarian value of the plea but submitted that it was not an error to include in the stated discount the other factors flowing from the plea itself. Mr Hamill relied upon decisions of this Court including R v Scott [2003] NSWCCA 286 and R v Moore [2005] NSWCCA 212 to support this last submission.

34 It was established in the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383 that an offender is entitled to a discount of the otherwise appropriate sentence of somewhere between 10 percent and 25 percent by reason of the utilitarian value of a plea of guilty. The amount of that discount would largely depend upon the timing of the plea and the complexity of the case; at [154] to [155]. The discount was a discrete factor to be taken into account in determining the sentence to be imposed independent of any remorse or contrition on the part of the offender for the criminal conduct; at [122]. It was recognised that the plea might also be evidence of remorse, as might the effect of the plea in saving the complainant or other witnesses in being required to give evidence and the trauma that this frequently entails particularly in sexual assault trials; at [117] to [121]. But the discount was based upon public policy considerations in encouraging offenders to plead guilty at an early point in the proceedings thus saving both court time and the limited recourses of the State in investigating and preparing allegations of criminal offences for committal proceedings and trial; at [122], [133].

35 The guideline judgment itself recognised that it may be appropriate for a sentencing court to quantify a discount flowing from a plea of guilty that transcends its purely utilitarian value. The second paragraph of the guideline is as follows:

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.

36 In R v Sharma (2002) NSWLR 300 the discount there under consideration related to the element of contrition and the utilitarian value of the plea of guilty. No attention was given by the Court to the issue now raised but there was nothing said by the Chief Justice, with whom the other members of the Court agreed, to indicate that the sentencing judge was in error in taking into account both factors in determining the appropriate numerical discount. However, the judgment of the Chief Justice did stress that the discount of 10 to 25 per cent, as laid down in the guideline judgment and consistently with the relevant statutory provision in this State, reflected the value of the plea viewed objectively without any consideration of the offender’s purpose or motivation in pleading guilty.

37 In R v Scott [2003] NSWCCA 286, a case relied upon heavily by Mr Hamill, the complaint by the applicant was that the sentencing judge erred in his assessment of “the appropriate discount for the plea and the contrition”. There the judge had accepted that the plea of guilty represented an expression of true remorse and that the plea of guilty was made at the earliest point in the proceedings. He granted a discount of 25 per cent. It was submitted before this Court, relying upon Thompson and Houlton, that the judge should have given a discount of more than 25 per cent to reflect both the utilitarian value of the plea and genuine remorse.

38 In dismissing the appeal Howie J, with the concurrence of the other members of the Court and after referring in depth to the judgment of the Chief Justice in Thomson and Houlton, stated in reference to that decision:

23. …….It should be noted that sentencing judges were being encouraged to specify the discount for the utilitarian value of the plea "where it was appropriate to separately deal with that matter." There are situations where it may not be appropriate to specify a discrete discount for the plea. The guideline in Thomson and Houlton itself recognised at [160(ii)] (that, in cases involving assistance to authorities, a "single combined quantification will often be appropriate", and see R v Sharma (2002) 54 NSWLR 300 at [72]. In such a case an early plea will simply be one component of the assistance being given by the offender and generally follows a full and frank disclosure of the offender’s guilt to the authorities.

24. Another case where it may not always be appropriate to give a separate discount for the plea is one such as the present where the plea is simply one event in a course of conduct by the offender following the commission of the offence which not only indicates remorse but reveals an attempt by the offender to redress the harm occasioned by the offence and to ensure that it does not occur again. Where, as in the present, there is a subjective case presented on behalf of the offender to show that the offence was out of character, that the commission of the offence had a salutary effect upon the offender and that his rehabilitation was well under way by the date of sentencing, I have some difficulty in appreciating how the plea can be viewed as anything but part of that process of rehabilitation and reform. Thomson and Houlton recognised that the then existing practice of giving a discount of up to thirty-five per cent for the plea by encompassing all relevant matters remained appropriate. This is the type of case where such a course might have been adopted.

39 That was a case where the plea had been forthcoming nine months after the offence and it did not justify a discount at the highest level for the utilitarian value of the plea alone. The judge, however, gave a discount of 25 per cent taking into account other aspects of the plea of guilty, such as remorse. But it was a case where, as Howie J pointed out, much of the remorse and rehabilitation had occurred between the commission of the offence and when the plea of guilty was forthcoming. That is why the plea of guilty in that case was seen as part of the process of rehabilitation that had occurred before the applicant was sentenced.

40 It should be noted that Scott was an offender’s appeal, and the Court was not called upon to consider whether the approach adopted by the judge might have led to an unduly generous discount in light of the circumstances of the particular case and the other matters taken into account by the judge in mitigation of the sentence. The argument that a more generous discount should have been given was rejected. The other cases relied upon by Mr Hamill, or to which he referred, similarly did not give rise to the particular issue that is now being considered.

41 In any event it seems to us that events have moved on somewhat since Thomson and Houlton was decided. In particular s 21A of the Crimes (Sentencing Procedure) Act has been enacted and requires the sentencing court to take into account specifically, as matters in mitigation of sentence, not only the plea of guilty but also that the offender is unlikely to re-offend and has good prospects of rehabilitation. In respect of the last two matters it is clear that remorse will be a major factor in determining whether those matters of mitigation exist: without true remorse it is difficult to see how either finding could be made. Although it is accepted that nothing in s 21A affects, or was intended to affect, the matters that were taken into account in determining the appropriate sentence before the section was enacted, the section does highlight the fact that there is an overlap between various sentencing considerations and has led this Court to be more sensitive to the fact of, or at least the appearance of, double counting either in favour of, or to the detriment of, the offender; see for example Elyard v R [2006] NSWCCA 43.

42 Rarely, if ever, at the present time does a sentencing court give a rolled up discount for all aspects of the plea of guilty. Yet this was a practice recognised by the Court when Thomson and Houlton was decided; see at [162]. In this Court’s experience the usual practice now is to specify a discount only for the utilitarian value of the plea and then to take remorse into account as it is reflected in the mitigating factors to which reference is made in s 21A(3) of the Crimes (Sentencing Procedure) Act and other considerations such as the absence of any need for specific deterrence. If remorse does not give rise to any of those findings in mitigation of sentence, it is difficult to see its relevance, let alone why the sentence should be discounted in recognition of it.

43 In R v Salieb [2005] NSWCCA 85 Bell J, with whom the other members of the Court agreed, stated:

It is preferable for sentencing judges not to separately quantify the discount for the aspect of the plea that evidences an offender’s remorse. The interplay of remorse with the other subjective factors forms part of the “complex of inter-related considerations” to which Gleeson CJ referred in R v Gallagher (1991) 23 NSWLR 220 at 228 and, as his Honour observed, the attempt to separate out one or more such considerations may be an artificial exercise.

44 We would go further and indicate that an approach quantifying a discount due for remorse generally, or as it is manifested by the plea of guilty, or in combination with the discount resulting from the utilitarian value of the plea of guilty is to be avoided as it is likely to result in a sentence that is unduly lenient by reason of double counting. In Thomson and Houlton the Court specifically rejected the submission by the Crown and the Attorney General that a quantifiable discount resulting from a plea of guilty should reflect both the utilitarian value of the plea and remorse.

45 In Markarian v The Queen (2005) 79 ALJR 1048 at [39] the Justices who participated in the joint judgment recognised that there may be occasions when “some indulgence in an arithmetical process” may be appropriate to serve the ends of transparency in the sentencing process. But in our view the benefit of transparency should not be achieved at the risk of double counting or by giving a discount for a factor, such as remorse, that is not susceptible to isolation from the other relevant factors or to mathematical evaluation.

46 In the present case, with respect, the discount of 15 per cent cannot be justified on any basis. Mr Hamill SC quite frankly conceded in oral submissions that it would have been open on the facts of this case for a court to give a discount of less than 10 per cent. Although MAK gave evidence that he was remorseful and this expression of remorse was accepted by the Judge as genuine, it should be noted that such remorse as the applicant felt for TW arose sometime in the month between the order for a separate trial and the plea of guilty. It is difficult to see what value it could have been accorded standing alone or in conjunction with the plea. The matter was further complicated by the fact that Hidden J found that MAK was also remorseful in respect of the offence against TA. As his Honour found that MAK’s prospects of rehabilitation were favourable, presumably based upon his expressions of remorse, there was a real likelihood in this case of double counting.

47 Mr Hamill has submitted that the evaluation of the discount was a matter within the discretion of Hidden J and could not in this case amount to an error justifying interference by this Court. But the discount of 15 per cent in the circumstances of this case was in our view unreasonable and plainly could not be warranted by the utilitarian value of the plea of guilty which, as a matter of practical reality, was negligible. The only benefit to the administration of justice by the plea of guilty in the circumstances of this case was the saving of court time by a further trial. Hidden J did not indicate how long that trial might have taken but it could only have been days rather than weeks. At the very most the discount should have been no greater than 10 per cent and we would have thought that something in the order of 5 per cent was appropriate. However, this error alone would not justify the intervention of this Court on a Crown appeal simply to increase the sentence by 10 per cent.

Ground (v) The vulnerability of the complainants

48 The fifth ground can be dealt with briefly. It was noted in the judgment dismissing the appeal against the sentence imposed upon MMK that the Crown had abandoned this ground in that appeal. The Crown conceded in oral argument that the submission that s 2A(2)(l) of the Crimes (Sentencing Procedure) Act was engaged by the facts of the offences committed by MMK was inconsistent with the decision of this Court in R v Tadrosse [2005] NSWCCA 145 which the Crown accepted as correctly stating the relevant principles.

49 The Crown also abandoned this ground so far as the appeal against the sentences imposed upon these respondents was concerned. That concession was well founded. Although relevant as a circumstance surrounding the commission of the offences, the fact that the complainant was intoxicated and in the respondent’s home at the time of the offending was not a matter that engaged s 21A(2)(l) as a matter of additional aggravation. There was thus no error by Hidden J in failing to refer to this matter as an aggravating feature of the offence.

Ground (iv) The relevance of the prior convictions

50 Hidden J noted that MAK was “entitled to the benefit of a clear criminal record at the time of these offences”. His Honour did not indicate how that benefit impacted upon the sentence he was to impose. Nor did his Honour identify the relevance of the absence of a criminal record at the time of the offending in light of the fact that MAK had subsequently committed more serious sexual assaults for which he had been convicted and sentenced to a lengthy term of imprisonment.

51 Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act provides that the fact that an offender has a record of previous convictions is an aggravating factor to be taken into account in determining the appropriate sentence for an offence. This Court comprising a bench of five judges recently considered the application of s 21A(2)(d) to the determination of a sentence. In R v McNaughton [2006] NSWCCA 242 it was held that a record of previous convictions cannot be taken into account in an assessment of the objective seriousness of an offence because to do so would infringe the principle of proportionality. The only relevance of such a record is whether it discloses that more weight is to be given to retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist.

52 In the present case at the time he was sentenced by Hidden J MAK had a record of previous convictions by reason of the sentences imposed by Sully J. But those sentences related to offences committed after the offence for which he was before Hidden J. The question arises as whether that record should be used as a factor in aggravation of the sentence under s 21A(2)(d) or to the detriment of the MAK in some other way. The Crown submitted that such a record could, and should in the present case, be used to deny him the leniency that might otherwise be shown to him. It was submitted that Hidden J was in error because he appeared to sentence MAK as if the absence of a prior criminal record was a matter of mitigation: see s 21A(3)(e) of the Crimes (Sentencing Procedure) Act.

53 In R v McInerney (1986) 42 SASR 111 the South Australian Court of Criminal Appeal considered the relevance of prior offences where conviction for those offences had occurred subsequent to the offence for which sentence was being passed. Cox J reviewed authorities on the question since 1789, including the decision of this Court in R v Hutchins (1957) 75 WN(NSW) 75.

54 In Hutchins the Court considered the relevance of convictions that had arisen between the commission of the offence in 1954 and sentencing in 1957. Street CJ, with whom Roper CJ in Eq agreed, stated (at 76):

I think it is clear that in sentencing the applicant in June 1957, for a crime committed in September 1954, his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates, and he was entitled to take them into account for the purpose of considering whether he should reduce what he would otherwise have regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth.

55 In McInerney Owen J held (at 77):

……………[The Chairman of Quarter Sessions] was entitled to look at those convictions, not for the purpose of imposing a sentence on the present charge heavier than would otherwise have been imposed, but for the purpose of considering whether the applicant was deserving of lenient treatment. Where I differ from the learned Chairman of Quarter Sessions is that I think that a proper penalty for the present offence, if that matter had come up for consideration in 1954, would have been imprisonment for a term of twelve months. Nothing that has happened since then seems to me to justify a reduction of that sentence, but nothing appears to emerge from the facts of that case which would have called for a heavier penalty.

56 Cox J in McInerney concluded that the weight of authority was in favour of a sentencing court taking into account subsequent convictions because the sentencer may have regard “to all of the defendant's behaviour, favourable or unfavourable, prior to sentence”. He thought that to ignore relevant subsequent convictions would be “artificial and unmeritorious and in some cases it could lead to quite absurd results.” He went on:

That is not to say, of course, that subsequent convictions will necessarily be taken into account in the same way as previous convictions. Whether the offences were committed before or after the offence for which the defendant is being sentenced may make a difference in some cases. The fact that it was not a first or isolated offence, that the defendant's recent history shows a procession from one offence to another, may well be important, but the conviction itself adds a significant dimension. A conviction is a formal and solemn act marking the court's, and society's disapproval of a defendant's wrongdoing, so that a prior offence may not assume quite the same significance as a prior offence coupled (by the time the instant offence is committed) with a prior conviction. So far as subsequent offences are concerned, they cannot justify the court in imposing a higher sentence than the instant offence intrinsically merits, but they might well lead the court to conclude that any leniency to the defendant would be misplaced. As always, of course, it will depend upon the circumstances of the particular case.

57 King CJ in agreeing with Cox J stated:

In my opinion the true rule is that a sentencing court may take into account in an appropriate way and for appropriate purposes, offences committed by an offender whether such offences were committed before or after the commission of the offence for which sentence is being passed and whether the convictions for such offences occurred before or after the commission of the offence for which sentence is being passed. For the reasons which I have given I do not think that it is necessary to reconsider any previous decision of the Full Court, in order to give effect to that view.

I conclude with some observations as to the way in which and the purposes for which subsequent offences may be taken into account. The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it. A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed……………..

Where the other offences have been committed after the immediate offence, they are relevant only in special circumstances. The offender has not committed the immediate offence with his character already affected by the offences nor after the experience of conviction. In circumstances, however, in which the offender might otherwise have been given credit for having lived a law abiding life in the period between crime and sentence, it is relevant that he has not so lived but has committed an offence or offences in that period. In some circumstances, the nature of the subsequent offences may be such as to suggest that a greater degree of personal deterrence than would otherwise have been contemplated, is required. It seems to me that the circumstances in which offences subsequent to the commission of the offence for which sentence is being passed, are relevant to the sentence, are more restricted than those in which prior offences are relevant…………..

58 The decision of Hutchins was applied by this Court in R v Boney (NSWCCA unreported 22 July 1991). There the offender had committed offences between the time of the commission of the offence for which he was to be sentenced and the date upon which sentence was imposed. The Court confirmed that the sentence could not be increased by reason of what were referred to as “interim offences” but that the judge could withhold leniency to the offender by reason of those offences. Boney was applied in Charara v DPP (2001) 120 A Crim R 255 where at [38] it was noted that:

It is obvious that, even if taken into account only for the purpose of withholding leniency, offences committed after the offence for which sentence is imposed can result in increased punishment in the sense that the punishment is greater than it would have been in the absence of the later offences………………….

59 The fact that MAK had been convicted and sentenced for offences by Sully J was a matter relevant to the sentence imposed by Hidden J for the offences before him: not by way of aggravating the offences, but by depriving the respondent of any leniency to which he might otherwise have been entitled by the fact that he had no criminal record at the time of the commission of those offences. The offences for which Sully J sentenced MAK might have indicated that personal deterrence was a relevant factor in sentencing for the earlier offences, however Hidden J found that MAK was unlikely to re-offend and so specific deterrence was not a consideration.

60 With respect it does not appear to us that the fact that MAK had no criminal record at the time of the offences was a significant factor in the determination of the appropriate sentence to be imposed upon him by Hidden J. Certainly it was not a matter that could justify any degree of leniency being shown to MAK in the circumstances of this case. In particular the criminal conduct for which Hidden J was imposing sentence could not be considered as an aberration or as foreign to MAK’s character. Rather the offence against TW was the first of a number of acts of sexual violence committed by him in the first half of 2002. This conduct escalated in seriousness with the offence against TA and then with the offences that were before Sully J.

61 We appreciate that less regard might be paid to later offending because at the time of the offence for which sentence is to be passed the offender has not been subject to the “formal condemnation of the law” or been given “the warning as to the future which the conviction experience implies”; see McInerney at 113 applied in R v Bui (2002) 137 A Crim R 220 at [27]. But in the circumstances of this case and given the seriousness of the conduct for which he was before Hidden J we do not think that the fact that MAK had not been convicted of sexual assault offences when he committed the offences against TW or TA was a basis for treating as a mitigating factor the absence of any criminal record.

Grounds (i) and (ii) Manifest inadequacy

62 Two errors therefore can be identified in the approach taken by Hidden J to assessing the sentence to be imposed upon MAK. But it does not follow that the Court should necessarily intervene to increase the sentence imposed. It has already been noted that the unjustified discount granted to MAK by reason of his plea of guilty would not itself warrant the appeal being upheld. The second error was relatively minor and it is difficult to believe that it could have had any substantial effect upon the exercise of the Judge’s discretion. However, these errors in approach might be considered as symptomatic of a leniency shown to MAK by the Judge that has resulted in sentences that appear to be at the lower end of what was appropriate if not inadequate.

63 But the Court must pay due regard to the discretion of the sentencing judge and should only interfere if the resulting sentence can be considered as being unjust or unreasonable. In dismissing the appeal in relation to MMK we quoted from the joint judgment in Makarian v The Queen (2005) 79 ALJR 1048 at [27]. It is apposite to quote the passage again in relation to this appeal:

Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

64 It must be stressed that it is not correct to consider the adequacy of the sentence imposed by simply having regard to the percentage of the maximum penalty that the sentence represents as the Crown did. Although the maximum penalty is an important consideration because it reflects the view taken by Parliament of the seriousness of the offence, the maximum penalty is to be used as a guideline against which the seriousness of a particular act of offending can be judged: Markarian at [30]. Not each matter of aggravation listed in the section creating the offence for which MAK was convicted would be of equal seriousness in every case. The nature of any matter of aggravation charged and the number of statutory aggravating factors relied upon will obviously affect the objective seriousness of the offence. But it is not appropriate to consider that each instance of an offence under the section results in the offender being liable, at least technically, for the maximum penalty prescribed for the category of offences coming within the scope of the section: see Ibbs v The Queen (1987) 163 CLR 447.

65 Nor is it appropriate simply to have regard to the increase in the sentences imposed by Sully J and ask whether that increase reflects the objective seriousness of the offences before Hidden J and fulfils the purposes of punishment set out in s 3A of the Crimes (Sentencing Procedure) Act. As was made clear in R v MMK a sentencing court is constrained and limited in applying that section by other important principles of sentencing that do not find express acknowledgment in that Act. In the case of MMK those principles warranted the approach taken by Hidden J of not imposing any further punishment upon that respondent. In the case of MAK those same principles required that there be some amelioration of the punishment otherwise warranted. Although in our opinion the actual punishment imposed for those offences is lenient, it is not such that requires the Court to intervene in the wider community interest or to establish proper sentencing guidance. A proper regard to the limits applying to Crown appeals leads to the conclusion that the appeal should fail.

M.S.K.
The sentences

66 On 14 June 2005 the respondent MSK was convicted by a jury of four counts of aggravated sexual assault in relation to the complainant TW. Each of the offences was contrary to s 61J of the Crimes Act for which there is prescribed a maximum penalty of imprisonment for 20 years. The circumstances of aggravation relied upon were that he was in company and that the complainant was under the age of 16 years. In one of the offences MSK was the principal offender, but in the other offences he was convicted on the basis of acting in a common purpose with the principal. Each of the offences arose from an incident on 14 June 2002.

67 On 18 July 2005 MSK pleaded guilty to one count of aggravated sexual assault contrary to s 61J. That offence was committed against a complainant, CH on 14 July 2002. The circumstance of aggravation was that the complainant was under the age of 16 years.

68 Hidden J sentenced the respondent for these offences on 5 April 2006 as follows: in respect of the first two counts against TW fixed terms each of imprisonment for 8 years to date from 13 August 2014 and to expire on 12 August 2022; on count 3 imprisonment for 8 years with a non-parole period of 4 years to commence on 13 August 2016 and to expire on 12 August 2020; on count 4 imprisonment for 8 years with a non-parole period of 4 years to commence on 13 August 2018 and to expire on 12 August 2022; and for the offence against CH imprisonment for 7 years with a non-parole period of 3 years to commence on 13 August 2021 and to expire on 12 August 2024. This was an effective sentence of imprisonment for 14 years to commence on 13 August 2014 with an overall non-parole period of 10 years to expire on 12 August 2024: see [2006] NSWSC 237.

69 On 22 April 2004 Sully J sentenced MSK for nine counts of aggravated sexual assault in company contrary to s 61JA of the Crimes Act. These offences had occurred on 27 July 2002. The effective sentence imposed was a total term of 22 years to date from 13 August 2002 with an overall non-parole period of 16 years 6 months to expire on 12 February 2019; see [2004] NSWSC 319. An appeal against those sentences by MSK to this Court was dismissed: see [2005] NSWCCA 369.

70 The effect of the sentences imposed by Hidden J was to lengthen the overall term by four years with an increase in the non-parole period of five years and 6 months. MSK cannot be considered for release until 12 August 2024 by which time he will have been in custody for 22 years.

The facts

71 Hidden J summarised the facts relating to the offences against TW as follows:

On that evening [24 June 2002], TW went with two of her friends to the home at Ashfield where the offender and his brothers lived. The gathering had been arranged by one of her friends, but she herself did not know the offender or any of the other residents at the home. She was fourteen years old at the time. There was evidence that she told the men that she was fifteen, but nothing turns on this for present purposes.

The group socialised for a time in the lounge room, and the men produced alcohol. The victim had a number of glasses of vodka and coke and became intoxicated. The Crown prosecutor submitted that I should find that the offender was a party to providing her with alcohol so as to weaken her resistance to sexual advances. I would not make that finding but, in any event, I do not consider it either to be a matter of significance. What the evidence does reveal is that the offender did in fact take advantage of her intoxicated state to achieve sexual contact with her.

At one stage she was sitting on a lounge between the offender and his brother, MAK. There was some evidence that she placed her hand on the offender’s leg in a flirtatious manner. Her own evidence was that the offender put his arm around her while MAK touched her leg and that she, feeling uncomfortable about this, got up and went to the bathroom at the back of the house. Yet again, I do not find this conflict of such significance as to require resolution. No sexual advantage should have been taken of a girl of her age and in her state of intoxication, whatever the circumstances.

When she returned to the lounge room, MAK took her to a bedroom off the hallway which adjoined the lounge room. The bedroom was in darkness. There, after some kissing, he inserted his finger into her vagina and had penile/vaginal intercourse with her over her protests. This gave rise to the first two counts, the offender having been in company with MAK at the time, that is, in close proximity to the bedroom, sharing with MAK his intention to have intercourse with TW whether or not she consented, and encouraging him to do so.

MAK left the room and the offender entered it. He massaged TW’s head, apparently in an attempt to relax her. She told police in a recorded interview that at this stage she was “kind of totally out of it.” He then had penile/vaginal intercourse with her, again over her protests, ejaculating inside her. It was this conduct which led to the third count. That count was left to the jury on the basis that the circumstance of aggravation was either that MAK was in the offender’s company in the relevant sense, or that TW was under the age of sixteen. The verdict does not tell us which circumstance of aggravation the jury found but, clearly, both were available on the evidence.

The offender left the room, whereupon a man who cannot be conclusively identified on the evidence came in. That man also had penile/vaginal intercourse with her against her will. Immediately prior to that act she kicked him, and he slapped her face and threatened to stab her. (The Crown did not suggest that he in fact had a knife.) The offender would not have been aware of this violent episode and, despite a submission by the Crown prosecutor to the contrary, I am not satisfied to the requisite degree that he anticipated that conduct of that kind might occur. This third incident gave rise to the fourth count, the offender again having been in company with that man in the relevant sense.

TW left the room after the third incident and complained to her two friends about what had occurred. Shortly afterwards, the three of them left the home and MAK drove them to a nearby railway station.

72 The Judge noted in his remarks the traumatic effect upon the victim of these assaults upon her and the serious aspects of the offence both by reason of the complainant’s age, 14 years, and the fact that the offences were part of a common enterprise between MSK and the other two men.

73 As to the facts in respect of the offence against CH, the Judge stated:

The agreed facts are that in the evening of 14 July 2002, by arrangement, the offender, his brothers MAK and MMK, and another young man whom I shall call RS, picked up CH at Bexley North in MAK’s car. They then picked up another young lady at Fairfield, and proceeded to the Ashfield home. CH was thirteen years old at the time.

In one of the bedrooms at that home MMK had consensual sexual intercourse with CH. He left the bedroom, whereupon the offender entered it, seized CH by the arm, and said, “I’m going to fuck you too.” He told her that he had hung his previous girlfriend from a balcony in Iraq. Not surprisingly, the victim became extremely fearful for her safety. The offender then had penile/vaginal intercourse with her without her consent, saying during this assault, “I choked her, I choked her, I killed her, I strangled her.” He withdrew from her before he ejaculated, and left the room.

Shortly afterwards, RS entered the room and also sexually assaulted the victim. The offender then returned to the room and acted in a threatening manner towards her. After he left, MMK returned to the room and the victim complained to him about the actions of the other two men. She walked out of the room and began to scream and cry. A short time later she was driven back to Bexley North by MAK and MMK.

74 Hidden J accepted evidence from MSK that, although he knew that CH was under the age of 16 years, he did know her actual age, 13 years.

Subjective features

75 MSK was aged 23 years when the offences were committed and was aged 27 years when sentenced by Hidden J. He was like his brother born and raised in Pakistan and was the eldest of the children. He travelled to Australia on nine occasions between 1998 and 2002 initially in order to study medicine but stayed for very short periods of time before returning home. His final trip to Australia was in June 2002 when he decided to settle permanently here. He arrived some days before the offence against TW. At the time of offending he was living with his brothers.

76 Although MSK married in Pakistan and had a son, aged six years at the time of sentencing, his family did not come to Australia until after he had been arrested for these offences and remanded in custody.

77 There was a large body of evidence before Hidden J as to MSK’s mental state both at the time of offending and when being sentenced. He had undergone proceedings to establish his fitness to stand trial for the offences shortly before the trial before Hidden J commenced. A jury found he was fit to stand trial notwithstanding evidence given by his father and his wife of a history of psychiatric disturbance since his childhood. He had explained his conduct either by reason of his psychiatric disorder or because of his cultural background. Hidden J rejected both explanations for reasons that he gave in the course of the sentencing remarks. They need not be repeated here except to note that the Judge found he was a witness of no credibility. Hidden J also found that he was prepared to manipulate the legal system “in any way he can to avoid facing the consequences of his crime”.

78 Hidden J found that the respondent’s behaviour “demonstrates an attitude to sexuality which is exploitive, dominating and aggressive”. His Honour concluded that he was not genuinely remorseful but was prepared to give evidence that would advance his case in mitigation of sentence. The Judge did recognise that there was some utilitarian value in the plea of guilty to the offence against CH and allowed a discount of ten per cent.

79 The respondent was serving his sentence on protection and this resulted in restrictions on the time he could spend outside of his cell. The Judge found that this would be so for the indefinite future. However, he did share a cell with his brother MAK.

80 Hidden J noted that the offences for which MSK was sentenced by Sully J were “significantly more serious” than those before him. His Honour was guarded about the prospects of his rehabilitation but was not prepared to find that there were none. He stated:

I must fashion an overall sentence which can foster his rehabilitation by providing the opportunity of a lengthy period of conditional liberty, subject to supervision and the sanction of parole.

The Crown submissions

81 The Crown submitted that the sentences were manifestly inadequate and that his Honour had erred in the exercise of his discretion in the following ways:

(i) in rejecting the Crown’s submission that the offences against TW and CH were at the high end of the scale of criminality. Even if his Honour were correct in rejecting that submission, it is contended that the sentences imposed were not proportionate to the gravity of the offences viewed objectively;

(ii) in settling sentences that resulted in a period of parole eligibility and a total term of imprisonment which did not accord with his Honour’s stated intention, so that even on his Honour’s own reasoning, the sentences were manifestly inadequate;

(iii) in rejecting the Crown’s submission that the sentences imposed on the respondent should be cumulative or substantially cumulative;

(iv) with respect to the offence against CH, in failing to take into account that the offences against TW took place before that offence, so that the respondent should not have been sentenced for the offence against CH as a first offender, but as a person whose character was affected by previous offending;

(v) in failing to take into account the respondents’ prior convictions recorded by Sully J for the purpose of determining whether the offender was deserving of lenient treatment, even though the convictions were for offences that took place later in time than the offences against TW and CH; and

(vii) in rejecting the Crown’s submission that the vulnerability of the victims was an aggravating factor that should be taken into account pursuant to s 21A(2)(1) of the Crimes (Sentencing Procedure) Act 1999.

Respondent’s submissions

82 Mr Odgers SC, who appeared for MSK, reminded the Court of the principles that govern Crown appeals and that are set out at length in his written submissions. He also made specific arguments against each of the asserted errors relied upon by the Crown. We have taken into account those submissions when dealing with the grounds common to both the respondents. Mr Odgers referred the Court generally to the decision in R v Skaf [2005] NSWCCA 297 that includes a review by this Court of sentences for sexual offences not falling within the worst category of offending and submitted that on an analysis of those decisions the sentences imposed upon MAK could not be found to be inadequate. He also stressed that the question of totality and the structure of the sentences with those imposed by Sully J was a matter of discretion upon which minds might legitimately differ: see R v Hammoud (2000) 118 A Crim R 66. Mr Odgers cautioned against the Court imposing a crushing sentence without due regard for the process of rehabilitation during the course of the sentences imposed by Sully J.

Grounds of Appeal

83 A number of the grounds relied upon by the Crown can be dealt with briefly. It has already been noted that the Crown conceded that there was no merit in the last complaint; that is that the Judge erred in rejecting a Crown submission that the offences were aggravated by reason of the vulnerability of the victims (ground (vii)). We have dealt with this ground earlier and need not address it again in respect of this respondent.

84 We have also dealt with the complaint about the manner in which his Honour took into account the lack of prior record (ground (vi)). The Judge stated that MSK was “entitled to the benefit of the absence of any significant criminal record at the time of these offences”. His Honour noted that Sully J had also given the respondent the benefit of that fact. For the reasons we have given above, the fact that MSK had no prior record could not have been taken into account by way of mitigation in the circumstances of this case, but rather the Judge would have been justified in withholding the leniency that such a fact might otherwise have suggested. Seen in context, within days of arriving in this country, the respondent chose to embark upon a course of conduct of sexual violence albeit on an opportunistic basis. This was conduct in which his brother MAK had already been involved. In any event in respect of the offence against CH the respondent had already committed the offences against TW (ground iv). Although he had not been convicted of those offences, there was little or no mitigation in that fact in light of the seriousness of the offending.

Ground (ii) Calculation error

85 It was conceded by Mr Odgers that this ground should succeed at least in so far as there should be an increase in the total term in order to reflect the stated intention of Hidden J.

86 His Honour stated:

The sentences I pass upon this offender must be partly cumulative upon Sully J’s sentences. Moreover, there must be some accumulation of the sentences on the four counts relating to TW, so as to mark their criminality and preserve the relativity between this offender’s culpability and that of MAK, who is to be sentenced for one count in relation to that victim. There must also be some further accumulation of the sentence for the offence against CH. All this must be done guided by the well established principle of totality, with an eye to the practical effect of the accumulation.

Because of the accumulation I propose, I find special circumstances warranting a departure from the usual statutory ratio in the non-parole periods I shall fix. The result will be a period of parole eligibility of six years. I do not believe that an effective non-parole period less than that which I propose would be sufficient to reflect the offender’s criminality. Because of the dates of the offences, I shall pass sentence in accordance with the procedure prior to the 2002 amendments to the Crimes (Sentencing Procedure) Act.

87 As has been pointed out, the effect of the sentences imposed by Hidden J was to increase the total term over that imposed by Sully J by four years rather than the six years intended. The total sentence ought to have expired on 12 August 2030 rather than on 12 August 2028. This result could be achieved by simply altering the sentence imposed in respect of CH.

Ground (i) and (ii) Sentences manifestly inadequate

88 The sentencing exercise confronting Hidden J was not an easy one by reason of the seriousness of the offences before the court, on the one hand, and yet having regard to the principal of totality on the other. That principle was involved at three points in the sentencing exercise: setting the total sentence for the offences against TW, the overall sentence for the offences before his Honour, and the totality of the criminality, including that before Sully J, for which MAK was ultimately to serve a period of imprisonment. Each of these decisions involved a significant degree of discretionary judgment. Ultimately it is probably the last assessment that is the most significant both to the respondent and the public generally: how long should the respondent serve in prison for all of his conduct against the complainants whom he sexually assaulted? However the Court should not overlook the importance of denunciation and the other purposes of punishment when considering the component parts of the sentence imposed by Hidden J even though there might appear to be a degree of artificiality in determining individual sentences and their commencement dates.

89 The Crown contention is both that the sentences imposed for the offences individually and collectively failed to reflect their objective criminality and that the ultimate period of punishment inflicted upon the respondent as a result of the exercise of Hidden J’s sentencing discretion is manifestly inadequate. As we have noted, his Honour imposed an overall sentence of 14 years with a non-parole period of 10 years for the offences before him. He also determined that the respondent should serve an additional period to the sentences imposed by Sully J of a total term of 6 years with an additional non-parole period of 5 years and 6 months. His Honour did not give effect to the intention.

90 Of course it must be borne in mind throughout a consideration of the sentences imposed that the final outcome cannot be considered in a vacuum. Clearly the further period for which the respondent is to remain in custody by reason of the offences before Hidden J cannot fully reflect the seriousness of the offences for which his Honour was passing sentence or what is required under s 3A of the Crimes (Sentencing Procedure) Act. As this Court explained in R v MMK, that section and the purposes of punishment generally must be constrained by the principle of totality.

91 The Crown submitted that the offences before Hidden J each fell within the higher range of criminality for offences coming within the scope of the section under which they were charged. It is further argued that, this being the case, the sentences imposed do not reflect this consideration, notwithstanding statements by the Judge acknowledging their seriousness. Of course one of the factors relied upon substantially by the Crown in support of this argument, the vulnerability of the complainants as an aggravating feature, was withdrawn at the hearing.

92 Of the offences relating to TW the Judge stated:

Of course, these offences are serious not just because of the behaviour of each of the men involved in the bedroom, but also because they were clearly engaged in a joint criminal enterprise to have sexual intercourse with TW whether or not she consented. In s61J of the Crimes Act Parliament has recognised that fact of combination as a matter which significantly aggravates the offence of sexual intercourse without consent, quite apart from the victim’s youth.

93 The offences against TW were indeed serious examples of their kind. True it is not difficult to imagine more serious scenarios but that does not decrease their gravity. The maximum penalty prescribed is imprisonment for 20 years. This is a significant matter in determining the appropriate sentence. As we have already noted, the maximum penalty provides a sentencing yardstick and invites a comparison between the case before the court and the worst possible case. There was little in the way of mitigation of sentence in our view: there was no remorse or contrition, there was little or no significance in the fact that he had no prior record in the circumstances of this case, and, although the Judge was not prepared to find that MAK had no prospects of rehabilitation, this finding did not act as a matter in mitigation of the sentence and reduced any importance that his age might have had. The only matter of significance was the fact that the respondent was in protective custody.

94 We are not persuaded that the individual sentences imposed by the Judge were manifestly inadequate although it must be said that any lesser sentence for the offence in which the respondent was the principal would have been so unreasonable as to give rise to a serious question whether this Court should intervene. However, the overall sentence of 12 years to reflect that criminality was in our view below the range of a legitimate sentencing discretion and a sentence that should attract this Court’s intervention on a Crown appeal notwithstanding the absence of any significant sentencing error. The respondent was criminally responsible for the activities of his co-offenders and therefore to be sentenced for his involvement in four acts of penetration of the complainant including three acts of penile penetration of her vagina. As we have indicated, there was little by way of mitigation of the offence or the sentences to be imposed to reflect their criminality. The least overall sentence that could have been imposed was in our view one of 15 years. There were no special circumstances to have reduced the overall statutory non-parole period applying to that sentence so that however structured the result should have been a total non-parole period of 11 years 4 months.

95 Hidden J said nothing about how he assessed the seriousness of the offence against CH. Presumably by starting at a sentence of 8 years before applying the discount he thought it was roughly of the same seriousness as the offence committed against TW by the respondent as a principal. With respect, we cannot agree with that assessment. The offence against CH was more serious objectively that any one of the offences committed against TW. She was only 13 years of age and, although the Judge accepted that the respondent did not know her age, he knew she was under sixteen and, therefore, there is little mitigation in the fact that he did not know how young she was. Although the fact that the complainant was under the age of 16 years is an element of the aggravated offence, the fact that she was well under that age is a significant matter. The threats of violence while implicit were grave and intended, as the Judge found, to terrify her, as undoubtedly they did. The fact that the complainant, prior to the offence by MAK, had consensual intercourse with his younger brother was irrelevant.

96 In our view there was little to mitigate the objective seriousness of the offence. The fact that the Judge held that the offence was opportunistic had little significance in light of the earlier offences committed against TW: the respondent was prepared to take advantage of a situation when it arose to seriously assault a young and helpless female. Nor in light of the earlier offences was the fact that MSK might have been intoxicated of any great moment. The only matters of significant mitigation were the plea of guilty, for which a 10 per cent discount was given, and the fact that the respondent was on protection. With respect we are of the view that the sentence imposed failed to reflect to a very significant degree the objective seriousness of the offence. The starting sentence should have been at least 10 years. With a discount of 10 per cent the least sentence that it was open to the Judge to impose was one of 9 years.

97 The totality of criminality involved in the offence before Hidden J was high. On its face the two instances of offending were completely independent and serious acts of sexual violence committed a month apart. There was little reason to make the sentences concurrent other than as an act of leniency so that the sentences that were otherwise justified might not be crushing. But elements of denunciation, retribution and deterrence were substantial while the prospect of any reform was minimal. The protection of the community was not an insignificant issue. The least sentence that could have served those purposes of punishment notwithstanding the totality principle was in our opinion one of 18 years. There being no special circumstances, but for considerations of accumulation, the non-parole period relating to that overall sentence should be 13 years 6 months.

98 However the next issue is how that sentence should be structured as against the sentences imposed by Sully J. It is important to note that Sully J was sentencing the respondent for completely separate acts of criminality from those before Hidden J although committed only three days after the offence against CH. They were more serious than the individual offences before Hidden J but of course Hidden J was sentencing for two separate acts of criminality whereas the offences before Sully J were related. Hidden J, rightly with respect, rejected a submission by the Crown that the sentences for offences before him were aggravated in that they involved a number of acts of criminality: cf s 21A(2)(m) and see R v Tadrosse, above. But all the offences committed by MSK could be considered as repeat offending over a relatively short period of time with an increasing degree of seriousness.

99 It should be made clear that, where a judge is sentencing for offences in a situation where another judge has already sentenced the offender for other offences, the second judge must regard the first sentence as an appropriate exercise of the first judge’s discretion and not seek to reduce or increase it by the sentences the second judge imposes. We are not suggesting that this is what Hidden J did or attempted to do. But we note the difficulty that confronts the second judge in trying to determine what the overall sentence would have been had a single judge been sentencing the offender for all offences for which he is, and has been, punished. That is in effect part of what an application of the principle of totality requires. We should approach the task, as Hidden J was required to do, by taking into account that the sentences imposed by Sully J were appropriate to reflect the seriousness of the offences before him.

100 As we noted in R v MMK, the sentences imposed by Sully J were justifiably heavy as the criminality was high and there was little by way of mitigation of the objective seriousness of the offences or otherwise. But as we have already stated, the total criminality before Hidden J was also substantial and there was little by way of mitigation. The principal consideration was therefore to impose a sentence that significantly reflected the total criminality and the proper purposes of punishment but took into account the purposes to be served by the principle of totality discussed above.

101 With respect and paying due regard to the discretion of Hidden J and the flexible approach he should be allowed in structuring sentences in such a difficult exercise of discretion, we believe that his Honour failed sufficiently to reflect the totality of the criminality before him having regard to the sentences imposed for the offences before Sully J. The ultimate sentence that the respondent is presently to serve is unreasonable in failing sufficiently to reflect the purposes of punishment that such serious offending warrants in light of the relative lack of subjective considerations justifying a lenient or merciful approach. In our opinion an increase in the sentences imposed by Sully J of the extent to which Hidden J intended, that is an increase of the total term of 6 years and of the non-parole period of 5 years and 6 months, is manifestly inadequate. Further we have come to the view that, notwithstanding the principle of double jeopardy and the other discretionary considerations attending a Crown appeal, we should intervene and increase the overall sentence the respondent is to serve.

102 We intend that the respondent should serve a further period in custody after the completion of the sentence imposed by Sully J and before being eligible to parole of 8 years with an extension of the head sentence by 10 years. This means that the respondent is to serve a total sentence of 32 years with a non-parole period of 24 years from 13 August 2002.

Orders

103 In respect of the appeal against the sentences imposed upon MAK the appeal is dismissed.

104 In respect of the appeal against the sentences imposed upon MSK the appeal is allowed and the sentences imposed by Hidden J are varied as follows:

The sentence of 8 years imprisonment for the third count on the indictment relating to TW is to commence on 13 August 2019. The non-parole period of 4 years is to commence on that date and to expire on 12 August 2023.

The sentence of 8 years imprisonment for the fourth count on the indictment relating to TW is to commence on 13 August 2021. The non-parole period is quashed and in lieu there is to be a non-parole period of 4 years and 6 months commencing on that date and to expire on 12 February 2026.

The sentence in relation to the offence against CH is quashed and in lieu the respondent is sentenced to imprisonment for 9 years to commence on 13 August 2025 with a non-parole period of 12 months to commence on that date and to expire on 12 August 2026 the date upon which the respondent is first eligible to be considered for release to parole.
**********