R v MM

[2002] NSWCCA 431

Reported Decision: (2002) 135 A Crim R 216

New South Wales

Court of Criminal Appeal

CITATION:

R v MM [2002] NSWCCA 431

FILE NUMBER(S):

CCA 60302 of 2001

HEARING DATE(S):

13 September 2002

JUDGMENT DATE:

1 November 2002

PARTIES :

REGINA

v

MM

JUDGMENT OF:

Levine J at 1; Hidden J at 36; Howie J at 37

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/31/0222
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

COUNSEL :	R J Button (Applicant) RA Hulme (Crown)
SOLICITORS:	DJ Humphreys (Applicant) SE O'Connor (Crown)
CATCHWORDS:	Criminal Law - procedure - sentencing - first trial convicted of 14 offences quashed - new trial - convicted of 11 offences - same overall sentence imposed - question of "increase" - sentencing convention - principles in operative sentences
LEGISLATION CITED:	Criminal Appeal Act 1912
CASES CITED:	Campbell v The Queen; Baker v The Queen [1996] FCA 1 Griffiths v The Queen (1989) 167 CLR 372 Pearce v The Queen (1998) 194 CLR 610 Regina v Bedford (1986) 5 NSWLR 711 Regina v Gilmore (1979) 1 A Crim R 416 R H McL v The Queen (2000) 203 CLR 452 Regina v Merritt [2000] NSWCCA 365 Regina v Mitchell [2002] NSWCCA 380 Regina v MM [2000] NSWCCA 78
DECISION:	Leave to appeal granted; appeal dismissed (see paragraph35).

- 2 -IN THE COURT OF

60302 of 2001

LEVINE J
HIDDEN J
HOWIE J

1 November 2002

REGINA v MM

Judgment

1 LEVINE J: The applicant seeks leave to appeal against sentences imposed on him in the District Court on 12 April 2001 by his Honour Judge Coolahan.

2 The trial before Coolahan DCJ was a retrial consequent upon a decision of this Court in R v MM [2000] NSWCCA 78. At his first trial in the District Court before his Honour Judge Job, the applicant was convicted and sentenced in respect of fourteen offences. At the retrial before Coolahan DCJ, the applicant was convicted of eleven of the same charged fourteen offences and acquitted of three of them.

3 Judge Coolahan imposed the same concurrent sentences in respect of each of the eleven offences as had been imposed for those after the first trial. The total effective sentence remained one of 8 years with a non-parole period of 6 years.

4 In each trial the applicant was indicted for fourteen offences, thirteen of which were sexual in nature. The fourteenth was assault occasioning actual bodily harm. The table appended to these reasons sets out a brief description of each count in the indictment, relevant facts, the outcome in the second trial and the sentences imposed in each trial in respect of which there was a verdict of guilty. From that table it can be seen that the jury found the applicant not guilty of the assault occasioning actual bodily harm in the second trial for which a fixed term of two years imprisonment had been imposed at the conclusion of the first, and by direction, verdicts of not guilty were returned in relation to counts nine and eleven, indecent assault and sexual intercourse. In respect of the former, a 3-year fixed term had been imposed and the latter, a minimum term of 6 years and an additional term of 2 years had been imposed.

5 It is to be noted that in the sentencing proceedings before Coolahan DCJ it was accepted by both parties that the sentences previously imposed by Job DCJ were generally appropriate. The applicant’s counsel submitted to his Honour, however, that there should be some reduction with regard to the overall sentence in the light of the fact that the applicant had been acquitted after retrial of three of the counts for which he had previously been convicted and sentenced. That submission was not accepted and the identical sentences were imposed with the same operative head sentence of imprisonment of 8 years and non-parole period of 6 years. The question of special circumstances did not arise. The reasons given by Coolahan DCJ for ordering the same sentences as originally imposed by Job DCJ were, first, the agreement between the parties that the sentences first imposed were appropriate sentences at the time had the convictions not been set aside and secondly:

“When one reads [Judge Job’s] remarks on sentence it is obvious that he sentenced the offender on the basis of these offences not being totally isolated offences involving their own separate acts of criminality as such but on the basis of the context in which the offences were committed. That is not to say of course that his Honour sentenced the offender on the basis of misconduct not charged in the indictment, but it is clear from the sentences themselves and the way they were structured that his Honour did take into account the background against which they were committed”.

6 The applicant contends that as a consequence the operative sentences imposed by Coolahan DCJ represent, effectively, an “increase”. It is argued for the applicant that in the light of the acquittals on the retrial, the learned sentencing Judge effectively “increased” the sentences on the remaining counts beyond the sentences that were imposed at the earlier trial “without good reason” being demonstrated for doing so.

7 The fundamental proposition of principle advanced for the applicant is that after a retrial sentences should not be increased unless, generally, there are good reasons for so doing.

8 The first authority to which the applicant points is the decision of Street CJ in R v Gilmore (1979) 1 A Crim R 416. In that case the applicant had received a total effective sentence of 14 years with a non-parole period of 6 ½ years for four offences. This was after a retrial following a successful appeal against conviction. At his first trial he had been sentenced for the same offences to a total effective period of 8 years with a non-parole period of 3 years. Street CJ examined the English Criminal Appeal Act which made specific provision limiting the sentence to be passed upon conviction at a retrial to one of no greater severity than that passed on the original conviction. He found that there were two underlying policy considerations. First, that absent such a provision, persons convicted at trial in which there was some appealable defect should not be deterred from seeking a remedy on appeal for fear of receiving a greater sentence on retrial. Secondly, that the passing of a heavier sentence on a new trial would give the impression, albeit groundless, that the criminal justice system involved a element of retribution in respect of those who succeeded in having their convictions overturned on appeal. Although there was no similar provision within the New South Wales legislation, he regarded these policy considerations as equally applicable and held that:

“It is a sound principle of sentencing that, on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial” (at 419).

9 Gilmore’s sentence was quashed and he was re-sentenced in terms identical to the original sentence.

10 The issue was considered again in R v Bedford (1986) 5 NSWLR 711. The appellant had been convicted at a trial involving groups of sexual offences concerning two complainants. Nine counts involving the first complainant yielded sentences totalling 6 ½ years and 2 counts involving the second complainant yielded cumulative sentences of 3 ½ years. Against the total effective sentence of 10 years there was specified a non-parole period of 5 years. It was held on appeal, in effect, that there should have been separate trials for each complainant, the convictions and sentences were quashed and there was an order for new trials. At the re-trial relating to the first complainant Bedford was again convicted of all counts and again sentenced to a total of 6 ½ years to run from the date of verdict in that trial. A non-parole period of 3 years was specified. At the time of his appeal he was still to be re-tried in respect of the offences concerning the second complainant. It was contended, in effect, that the sentences relating to the first complainant had effectively been increased because no regard was had to a period of 7 ½ months custody following the first trial.

11 Street CJ referred to what he had said in Gilmore (the passage extracted above) and explained:

“lt is significant to emphasise that the enunciation of the principle includes 'should ordinarily not receive' The word 'ordinarily’ must be given full room to operate. It might perhaps have been preferable to have expressed this as a prima facie approach rather than elevating it to principle.

Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to his view" (713-714).

12 Both Gilmore and Bedford were recently considered by this Court in R v Merritt [2000] NSWCCA 365. The sentence in question was, effectively, one involving a minimum term of 9 years with an additional term of 5 years. This was identical to the disposition of the matter at a first trial before convictions were quashed on appeal to this Court. In conjunction with the conviction appeal the Court also had before it a Crown appeal against the asserted inadequacy of sentence. Although it became unnecessary for the Crown appeal to be determined, the Court took the opportunity to express the view that the sentence was “so lenient as to indicate a failure by the learned sentencing judge properly to apply his discretion”. After the retrial, the sentencing judge expressed a similar view as to the inadequacy of the sentence originally imposed but felt constrained to impose the same because of what was said in Gilmore and Bedford. O’Keefe J (Beazley JA and Smart AJ agreeing) examined Gilmore and Bedford and endorsed what was said in the latter as to the existence of a discretion in the second sentencing judge to depart from the original sentence when there were proper reasons to do so. Accordingly, it was held that the sentencing judge had erred in regarding himself as constrained by Gilmore and Bedford to impose the same sentence notwithstanding his view that it was inadequate. The sentence was quashed and a new sentence, of 18 years with a non-parole period of 13 ½ years imposed (see also R v Mitchell [2002] NSWCCA 380).

13 In this context the Crown referred to a decision of the Full Court of the Federal Court on an appeal from Supreme Court of the ACT: Campbell v The Queen; Baker v The Queen [1996] FCA 1 (11 September 1996) in which the Federal Court had occasion to consider a case in which the convictions at retrial were for less offences than in the original proceedings. At his first trial, Baker was convicted of five counts and sentenced to a total effective sentence of 5 years (5 + 5 + 2 + 3 + 5 = 5) with a non-parole period of 2 years. At his retrial he was convicted of three of those counts and sentenced to a total effective sentence of 4 years (4 + 4 + 3 = 4) with a non-parole period of 18 months. Two of the counts carried a maximum penalty of 10 years and/or 1,000 penalty units. The third count had no defined maximum penalty, it being a common law offence. The two counts for which he was not sentenced at the retrial carried maximum penalties of 10 years and/or 1,000 penalty units in one case and 25 years imprisonment in the other. It was held that the reduction in the head sentence from 5 years to 4 years was a substantial one and reflected the changed circumstances. In relation to the non-parole period, complaint was made that there was no effective reduction because of the fact that the appellant had spent in excess of 5 months in custody between the first trial and his successful appeal. That is, he would be required to serve a custodial period about three weeks short of the original non-parole period. Despite this complaint, the Court held that the sentence imposed was within the discretion of the sentencing judge. It was recognised that the practical difficulty he faced was “to keep the reduction within bounds such that the sentence would not fail to reflect the inherent gravity of the offences”.

14 The present applicant contends that there was “no good reason” for the effective “increase” imposed upon him. Although it is true, it is submitted, that there a number of concurrent sentences, that submission of the appellant is supported, it is said, by what is described as the “core” of the High Court requirement for “transparency” with regard to original sentences in Pearce v The Queen (1998) 194 CLR 610. It is submitted that there should be “some reduction” in the head sentence and a commensurate reduction in the non-parole period.

15 For the applicant it was suggested that a reduction in the head sentence beyond 16 months and a reduction in the non-parole period beyond 12 months could not be, and was not, sought.

16 The authorities referred to above, could be understood as demonstrating that where the convictions following a retrial are fewer than in the original proceedings, two factors provide an important guide in the approach to sentencing. The first is the manner in which the first sentencing judge applied the totality principle (it was so regarded in Bedford). The second is the overall requirement that the sentence must be one that appropriately reflects the objective gravity of the offences.

17 Traditionally, there have been a number of ways in which the totality principle has been accommodated when sentencing for multiple offences. In Griffiths v The Queen (1989) 167 CLR 372, Gaudron and McHugh JJ said:

“It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently” (at 393).

18 In Pearce a re-assessment of the application of the principle was made with the requirement that:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality" (per McHugh, Hayne and Callinan JJ at 624).

19 The number of counts, and the manner in which the totality principle is applied, can throw up a variety of situations. A simple case might involve multiple, but few, offences where, in the original sentencing exercise, the sentences are specified to be served consecutively and there is no need for compression of any of the sentences to take into account the principles of totality. There may be little difficulty in sentencing on a re-trial, where the offender has been convicted of some and acquitted of others, in simply imposing the same sentences as originally passed (subject to there being no other relevant considerations).

20 A more difficult example is provided by a case in which there has been, in the original sentencing exercise, an order that sentences be served consecutively, or partly consecutively, together with some compression of individual sentences because of considerations of totality. In such a case, upon a retrial where there is conviction for some offences, but not all, it would be appropriate that there be some relaxation of the compression of the individual sentences. That is, it would be appropriate for the individual sentences to be increased. A different situation arises in the present case where discrete sentences were determined in respect of each offence but there was an order that each be served concurrently. This is similar to the situation in Campbell v The Queen; Baker v The Queen, supra, but a significant difference, it is said, is the number of counts and the proportion that were the subject of conviction at the re-trial.

21 Some reference to these situations appears in R H McL v The Queen (2000) 203 CLR 452. The appellant had been convicted of 16 offences for which was imposed a total effective sentence of 12 years with a non-parole period of 10 years. The Victorian Court of Appeal quashed the convictions with regard to 4 offences and ordered that there be a new trial. However, in applying s569(1) Crimes Act 1958 (Vic) (the equivalent of s7(1) Criminal Appeal Act 1912 (NSW)), it increased the sentences for the remaining counts so that the total effective sentence remained one of 12 years with a 10 year non-parole period. It was common ground that if there had been no alteration of the sentences on the remaining counts they would have been rendered manifestly inadequate.

22 The approach of the sentencing judge in relation to the principle of totality was regarded as being of significance. Gleeson CJ, Gaudron and Callinan JJ said:

" 34 …Much may depend upon the manner in which the sentence judge has applied that principle. If the judge has followed the course recommended in the cases of Mill and Lomax, and responded to considerations of totality, not by reducing individual sentences, but by fixing individually appropriate sentences and making them wholly or partly concurrent, then no occasion to invoke s 569(1) may arise. On the other hand, if, as in the present case, a sentence judge has given effect to considerations of totality partly by imposing individual sentences which were less than they would otherwise have been, then that is the very kind of case which may call for an exercise of the power to re-sentence under s 569(1)”.

23 Similarly, McHugh, Gummow and Hayne JJ said:

“44 The Court of Appeal was entitled to increase the remaining sentences because they were imposed for offences which were part of a continuing course of criminal conduct by the appellant and those individual sentences did not reflect the appropriate punishment for the offences for which they were imposed. That was because Judge Harbison had compressed the individual sentences to ensure, that their totality did not reflect more than proper punishment for the course of the criminal conduct".

and,

“75 In modem times, s 569(1) of the Act is likely to have its most frequent operation in circumstances where the sentencing judge has compressed sentences by reason of the totality principle. There would be less occasion for the Court of Appeal to exercise its powers under that sub-section if sentencing judges imposed the sentence appropriate in respect of each conviction and then gave effect to the totality principle, where that principle did require a reduction of the cumulative effect of the sentences, by making concurrent any sentence or sentences that conflicted with the totality principle".

24 (The latter joint judgment includes (at [72]) an endorsement of what was referred to in Bedford as the "prima facie approach" with reference to the policy considerations referred to in Gilmore).

25 Factors relevant to the re-sentencing power of an appeal court after quashing only some of an appellant's convictions are equally relevant to a sentencing exercise when there has been a conviction for some, but not all, offences on a re-trial. As Bedford and McL demonstrate, the manner in which the totality principle has been accommodated in the initial sentencing exercise will guide the subsequent determination of the appropriate sentence. It may provide sound reason to depart from the "prima facie approach” of imposing no greater sentence than that initially imposed.

26 The appellant's argument is, in effect, that in a case in which concurrent sentences have been imposed in the original proceedings and where there is an acquittal for some offences in the subsequent proceedings, there should ordinarily be a reduction in the total effective sentence. In the appellate environment, this would occur through recourse to the court's powers under s7(1). If this is something that should ordinarily occur, it was not recognised as such by the High Court. It is implicit in the above extracts from the two joint judgments that their Honours contemplated the usual course where there are concurrent sentences would be for the appellate court not to resort to its power to alter the remaining sentences.

27 In the present case, as has been mentioned, it was conceded before Coolahan DCJ that the sentences imposed by Job DCJ were appropriate. The only issue was whether the sentences should be altered because of the acquittal in respect of three counts and also because of what was asserted to be the delay arising from the subsequent successful appeal against conviction in the first trial. Further, for the applicant, it was contended that an additional fundamental consideration in the circumstances with which the Court presently is concerned, is that of “fairness” to the applicant.

28 For the Crown the following six relevant considerations were advanced as required to be considered: first, the extent of the difference in the number of offences (here the applicant was convicted of what was described as a major proportion of those originally charged). Secondly, the extent of the difference in the objective gravity of the offences (here, briefly stated, the objective gravity of the found offences in the second trial were such as independently to warrant sentences to the same effect as those imposed as a result of the first trial). Thirdly, there is to be taken into account the manner in which the original sentences were ordered to be served (concurrently), and the manner in which the original sentencing judge accommodated the principle of totality (here, conformably with Pearce, each offence was separately sentenced and the separate sentences, to achieve totality, were ordered to be served concurrently). Fifthly, (following Merritt) where the proper exercise of the discretion of the second sentencing judge leads to a conclusion that the sentences imposed at the first trial were “inadequate”, the second sentencing judge is not bound to impose any greater effective sentence. Sixthly, in all cases, the primary consideration is that the sentences must properly reflect the objective gravity of the individual offences and the total effective sentence must pay heed (as was contended to have occurred in this case) to the principle of totality.

29 It was contended for the Crown that this was a case in which the totality principle was applied by the specification of individual sentences each one appropriate to its individual offence with an order that they be served concurrently, and thus it is not necessary for the sentences to be reduced. For example, if a total sentence of 8 years was appropriate in respect of count five, it remains so upon conviction in respect of that count at the second trial. In other words, there has been no effective increase in the applicant’s sentence.

30 The authorities confirm the discretion which reposes in the judge sentencing after the retrial to make an independent assessment as to the appropriate punishment. Here, it must be demonstrated why a totally effective sentence of 8 years with a non-parole period of 6 years was beyond the scope of the sentencing discretion exercised by Coolahan DCJ.

31 The individual sentences of 8 years with non-parole periods of 6 years for counts five and twelve to fourteen were within the scope of the second sentencing judge’s discretion. Counts six and nine had initially attracted concurrent fixed terms of 2 years and 3 years respectively; acquittal on those counts do not justify a reduction in the sentence appropriate for counts five and twelve-fourteen. As the Crown submitted, rhetorically, why should acquittal on count eleven, which was initially determined to warrant a sentence of 8 years with a non-parole period of 6 years, bring about any reduction in the sentence imposed upon the applicant for counts five and twelve-fourteen which were determined to be worthy of the same level of punishment?

32 The series of decisions referred to above provides for the application, in a principled way, of a convention in sentencing. It may be to some extent described as cognate with “double jeopardy”. Certainly, in my view, it cannot be said that those cases establish a “rule”. Irrespective of whether the view could be formed that the first set of sentences was manifestly inadequate or manifestly excessive, it has to be recognised that the second sentencing judge is not “resentencing” but exercising an independent sentencing discretion with respect to the offences of which the particular offender has been convicted. Of course it will be the case that if sentence “x” is imposed in relation to fourteen offences and the same sentence “x” is imposed in relation to eleven of those fourteen offences, it can be perceived that the sentence has been “increased”. The explanation for the “increase” or the “good reason” therefor, should be identifiable by the exposed application of principle to that (second) independent sentencing exercise.

33 In the instant application the Crown’s rhetorical question referred to above must be answered, in my view, to the effect that there was no reason for any reduction. An examination of Judge Coolahan’s reasons, taking into account “fairness”, taking into account no suggestion of “inadequacy” in relation to Judge Job’s sentences, discloses the principled application of the convention to which I have referred. Looking at the circumstances of the convictions at the second trial, the quantum of each sentence in relation to each found offence is appropriate and the principle of totality correctly reflected in this instance by concurrence. The criminality involved in the found offences is such as to warrant the sentences imposed. That conclusion is available irrespective of an available fine discrimination of the kind advanced by the applicant to the effect “less findings of guilt therefore less criminality”. This last proposition may well apply in another case; indeed, as oral submissions reflected, the examples of the variables can be endless.

34 Thus I am persuaded that no error in principle in the peculiar situation attending his Honour Judge Coolahan’s sentencing exercise has been exposed. In any event, I add, having regard to the criminality which fell to be punished upon the findings of guilt in the second trial, it was persistent and enduring for an extensive period and involved the extreme mistreatment of a young child. No other sentence would otherwise have been warranted pursuant to s6(3) of the Criminal Appeal Act.

35 I would propose that leave to appeal be granted but that the appeal against sentence be dismissed.

36 HIDDEN J: I agree with Levine J.

37 HOWIE J: I have had the benefit of reading the judgment of Levine J in draft. I agree with his Honour’s proposed orders and generally with his reasons for them. I merely wish to add some brief observations of my own in addition to what his Honour has written.

38 This is yet another endeavour to turn sentencing into a mathematical exercise governed by a rigidity of approach which is the very antithesis of the exercise of discretion, albeit a discretion exercised in accordance with established principles and with due consideration to relevant guidelines or relevant statistical information as to the exercise of a similar discretion in similar situations.

39 In the present case the sole argument relied upon for asserting that the sentencing judge’s discretion miscarried was that less criminality must result in less punishment. In the arithmetical way that the argument was advanced before this Court it was asserted that conviction of eleven offences in the second trial had to result in a lesser sentence than was considered to be appropriate for conviction of fourteen offences at the first trial. But as attractive as that argument might be to a mathematician, it is an over-simplification of the proper approach to sentencing for multiple offences generally, and the sentencing exercise undertaken by both Judge Job and Judge Coolahan in particular. It attributes to the exercise of the sentencing discretion an exactitude that is as unrealistic as it is unwarranted.

40 The approach also seeks to compare the exercise of the discretion by the two sentencing judges rather than to focus upon the discretion exercised by Judge Coolahan. The question for this Court is concerned with the correctness of the sentence imposed by Judge Coolahan for the offences for which the applicant was convicted before him. His Honour was to impose a sentence appropriate to that criminality. The fact that his Honour came to the conclusion that the sentence imposed by Judge Job was also appropriate to reflect the criminality before him does not on its face suggest that the sentence was erroneous. As I understand the argument before this Court, it was not suggested that the sentence imposed was manifestly excessive if the sentence imposed by Judge Job were disregarded.

41 How then can it be that his Honour’s sentence miscarried? Reliance is placed upon the convention that Levine J has reviewed in relation to sentencing after a re-trial. I doubt that the prima facie approach referred to in R v Bedford (1986) 5 NSWLR 711 applies in this case. I find a substantial degree of artificiality in considering the sentence imposed by Judge Coolahan to be an increase in the sentence imposed by Judge Job. Judge Coolahan imposed the sentence he believed was appropriate and was not prepared to reduce the sentence simply in recognition that Judge Job imposed the same sentence for more offences.

42 Further, I do not understand how the policy considerations behind the general approach to sentencing after a re-trial that are referred to in R v Gilmore (1979) 1 A Crim R 416 apply to the situation before Judge Coolahan. How could a convicted person be deterred from seeking to appeal because the same sentence was imposed after re-trial albeit for fewer offences? How could there be a perception that the sentence had an element of retribution for the applicant having succeeded on appeal? In any event, as Levine J has shown, there was good reason for Judge Coolahan to impose a heavier sentence than that imposed by Judge Job, if, contrary to my view, that is how the sentence should be regarded and accepting that the convention after re-trial did apply.

43 I have indicated that in my view the appropriate task is to consider the exercise of the discretion by Judge Coolahan and not to compare and contrast the sentence imposed by his Honour with that imposed by Judge Job in order to determine whether any error occurred. But even if the sentence imposed by Judge Coolahan is considered from the perspective of the sentence imposed by Judge Job, no error is apparent. Judge Job, in accordance with Pearce v The Queen (1998) 194 CLR 610, determined the appropriate sentence to be imposed for each offence and then dealt with the question of totality of criminality by making all sentences concurrent. In other words, he determined that the appropriate sentence for the most serious offence was adequate to address the total criminality arising from what was a continued course of criminal conduct. Why then should those sentences be disturbed, if they remain appropriate to reflect the criminality of each offence, simply because there were now less offences within the course of criminal conduct before the court? To reduce the sentence for any one offence in order to affect the total sentence imposed would risk infringing the principle in Pearce.

44 In a case such as the present, where there is a course of criminal conduct between the offender and the victim over a lengthy period of time and involving multiple offences of the same or similar nature arising from the same motivation (in this case sexual gratification), the totality of criminality resulting from that course of conduct is particularly unsusceptible to precise calculation. Generally speaking, the extent of the criminality will be unlikely to vary significantly with the addition or reduction in particular incidents relied upon as revealing the course of conduct. Certainly, it was well open to Judge Coolahan to determine that the absence of the three offences from the criminality that was before Judge Job made no appreciable difference to the extent of the criminality disclosed by the course of conduct in which the applicant had been engaged for nearly six years as revealed by the offences before him.

45 Ultimately counsel for the applicant, who argued the matter with considerable skill and conviction, relied upon the general notion of fairness to support his submission that this Court should intervene. As I understand the argument, it was submitted that the applicant would have a justifiable sense of grievance if he were to receive the same sentence as imposed by Judge Job notwithstanding that he had been convicted of less offences. But, if it is accepted that the sentence imposed is appropriate to the criminality before Judge Coolahan and if any lesser sentence is not warranted, why should this Court intervene? How can the applicant have a sense of grievance to which this Court should have regard? The result is explained by the principle of totality and the manner in which each sentencing judge attempted to impose an overall sentence in accordance with that principle. If the applicant has a grievance, it is not one that this Court should in the exercise of its discretion seek to redress.

Count	Offence	Facts	Result at 2nd trial	Section and maximum penalty	Sentence (All concurrent)
1	Indecent assault – person under 16 years 25.5.83 – 25.5.84 at Mona Vale	Massaged ZM’s testicles and penis during a masturbation session whilst watching pornographic videos. (SU 18). ZM aged 9 years.	Guilty	s. 61E(1) 6 years	Fixed term 3 years
2	Indecent assault – person under 16 years 25.5.83 – 25.5.84 at Mona Vale	Whilst kissing and licking ZM who was lying naked on MM’s bed, MM placed ZM’s penis in his mouth. This incident concluded with ZM masturbating MM. (SU 19) ZM aged 9 years.	Guilty	s. 61E(1) 6 years	Fixed term 3 years
3	Indecent assault – person under 16 years 25.5.83 – 25.5.84 at Mona Vale	Digitally penetrated ZM’s anus during a session of kissing and masturbation in MM’s bedroom. SU 20-21) ZM aged 9 years.	Guilty	s. 61E(1) 6 years	Fixed term 3 years
4	Indecent assault – person under 16 years 25.5.83 – 25.5.84 at Mona Vale	MM sucked ZM’s penis (Count 4) and subsequently had ZM penetrate MM anally (Count 5) on an occasion in MM’s bedroom (SU 21-22). ZM aged 9 years.	Guilty	s. 61E(1) 6 years	Fixed term 3 years
5	Buggery 25.5.83 – 25.5.84 at Mona Vale	Guilty	s. 79 14 years	Min term 6 years Add term 2 years
6	Assault occasioning actual bodily harm 25.5.83 – 25.5.84 at Mona Vale	MM became angry at ZM’s refusal to go to MM’s bedroom, during the course of which he beat ZM with a stick “all up my back, on my backside, on the head and that” causing bruising (SU 22A – 24) ZM aged 9 years	Not Guilty	s.59 5 years	(Fixed term 2 years)
7	Indecent assault – person under 16 years & under authority 25.5.86 – 25.5.87 at Terrey Hills	When sitting in a parked car at Terrey Hills, MM masturbated ZM (SU 24-25) ZM aged 12 years.	Guilty	s.61E(1A) 6 years	Fixed term 3 years
8	Sexual intercourse – person above 10 years & under 16 years - & under authority 25.5.87 – 25.5.88 at Charlestown (Newcastle in 2nd indictment)	On a trip to Newcastle, ZM and MM stayed in a motel. Whilst watching a pornographic movie MM fondled ZM’s penis and then took it into his mouth (SU 26) ZM aged 13 years.	Guilty	s.66C(2) 10 years	Fixed term 3 years
9	Indecent assault – person under 16 years & under authority 25.5.87 – 25.5.88 at Raymond Terrace	At the first trial ZM gave evidence that in a motel room in Raymond Terrace there was kissing and fondling which included MM fondling ZM’s penis (T1 - 27.4.98 at p.33). However at the second trial, could not recall the details, beyond that something of a sexual nature occurred in a motel room in Raymond Terrace when ZM was 13 years old (T 26-27; 47.6).	Not Guilty (by direction)	s.61E(1A) 6 years	(Fixed term 3 years)
10	Incite to act of indecency – person under 16 years & under authority 25.5.87 – 25.5.88 at Kings Cross	MM commanded ZM to masturbate him in a cubicle at the back of an establishment in Kings Cross while watching a pornographic video and after administering a substance known as “Rush” to ZM (SU 26-28) ZM aged 13 years.	Guilty	s.61E(2A) 4 years	Fixed term 2 years
11	Sexual intercourse – person above 10 years & under 16 years - & under authority 25.5.87 – 25.5.88 at Mona Vale	ZM gave evidence of sexual conduct in MM’s bedroom on the evening of the day on which count 10 occurred. He described various activities including MM sucking ZM’s penis but could not recall, and so gave no evidence, of his penetration of MM’s anus upon which the Crown relied for this count. (T1 27.4.98 at pp. 39-40; T2 at 35).	Not Guilty (by direction)	s.66C(2) 10 years	(Min term 6 years) (Add term 2 years)
12	Sexual intercourse – person above 10 years & under 16 years - & under authority 1.1.89 – 1.5.89 at Newcastle	MM’s anus penetrated by ZM’s penis on an occasion at home in Mayfield (SU 29 – 30). ZM aged 14 years.	Guilty	s.66C(2) 10 years	Min term 6 years Add term 2 years
13	Sexual intercourse – person above 10 years & under 16 years - & under authority 1.1.89 – 31.12.89 at Newcastle	MM sucked ZM’s penis in a cleaner’s storeroom in a building for which MM held the cleaning contract (SU 30-31). ZM aged 14–15 years.	Guilty	s.66C(2) 10 years	Min term 6 years Add term 2 years
14	Sexual intercourse – person above 10 years & under 16 years - & under authority 1.1.89 – 31.12.89 at Forster	MM’s anus penetrated by ZM’s penis when the two staying in a motel at Forster whilst visiting ZM’s mother and sister. This preceded by MM sucking ZM’s penis. (SU 31-32). ZM aged 14-15 years.	Guilty	s.66C(2) 10 years	Min term 6 years Add term 2 years

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