R v O

[2005] NSWCCA 327

CITATION:	Regina v O [2005] NSWCCA 327
HEARING DATE(S):	25 August 2005
JUDGMENT DATE:	16 September 2005
JUDGMENT OF:	Sully J at 1; Hidden J at 59; Hall J at 63
DECISION:	Crown appeal against sentence allowed; Sentences passed in District Court quashed; Sentenced in lieu - see judgment

LEGISLATION CITED:	Crimes Act 1900 (NSW)
CASES CITED:	Reg v Dent 14 March 1991 (unreported)
PARTIES:	Regina O
FILE NUMBER(S):	CCA 2005/910
COUNSEL:	P. Miller - Crown G. Gartelmann - Respondent
SOLICITORS:	Director of Public Prosecutions Legal Aid of NSW

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3361
LOWER COURT JUDICIAL OFFICER:	Williams DCJ

2005/910

SULLY J
HIDDEN J
HALL J

Friday 16 September 2005

REGINA v O

Judgment

SULLY J:

Non Publication Order. The Court has made the following orders:


(1) that there be no publication of the name of the respondent or of any matter that would identify him;

(2) that the respondent be referred to in any record of these proceedings as “O”;

(3) that the names of the victims, and any material apt to identify them, or any of them, are not to be published;

(4) that the victims be referred to in any record of these proceedings as, respectively, “KW”, “JS” and “TS”.

Introduction

1 This is a Crown appeal against sentence.

2 In July 2004 the respondent stood trial by jury in the District Court. There were two separate trials, the first taking place from 19 to 23 July; and the second taking place from 26 to 28 July.

3 In the first trial the respondent faced four charges of serious sexual assault offences. Three charges alleged sexual intercourse with the victim KW, being then a child aged 5 or 6 years. The fourth charge alleged a further act of sexual intercourse with that victim, being then a child aged 8 years. Each such offence contravened section 66A of the Crimes Act 1900 (NSW) and attracted upon conviction a statutory maximum penalty of imprisonment for 20 years.

4 At this first trial the respondent pleaded not guilty to all four charges. He was found guilty on the fourth charge; and the jury was unable to agree upon a verdict in any of the other three matters.

5 At the second trial the respondent was charged with two counts of aggravated indecent assault upon the victim JS. He pleaded not guilty to each charge; but the jury found him guilty in each case.

6 It was proposed to present the respondent for re-trial upon the three charges as to which the jury at the first trial had been unable to agree; but in October 2004 the respondent pleaded guilty to one charge of sexual intercourse with KW, being then a child aged 5 or 6 years; and he asked that there be taken into account a charge of aggravated indecent assault upon the victim TS, being then a child aged 6 years.

7 Each of the charges of aggravated indecent assault of which the respondent was convicted, either upon the verdict of a jury at trial or upon a plea of guilty, contravened section 61M(2) of the Crimes Act, and attracted upon conviction a statutory maximum penalty of imprisonment for 10 years.

8 The respondent stood for sentence on 22 April 2005. He was sentenced as follows:

[1] For the offence of sexual intercourse with KW , of which he had been found guilty at the first trial: to imprisonment for 3 years commencing on 28 July 2005 and expiring on 27 July 2008. A non-parole period of 1 year, commencing 28 July 2005 and expiring on 27 July 2006 was set.

[2] For each of the two offences of aggravated indecent assault upon JS , of which he had been found guilty at the second trial: to imprisonment for 18 months commencing on 28 July 2005 and expiring on 27 April 2007. A non-parole period of 1 year, commencing on 28 July 2005 and expiring on 27 July 2006 was set.

[3] For the offence of sexual intercourse upon KW to which he had pleaded guilty, and taking into account the one matter of aggravated indecent assault upon TS : to imprisonment for 2 years 9 months commencing on 28 July 2004 and expiring on 27 April 2007. A non-parole period of 1 year, commencing on 28 July 2004 and expiring on 27 July 2005 was set.

9 The effect overall of this sentencing structure entailed an effective head sentence of 4 years commencing on 28 July 2004 and expiring on 27 July 2008; and an effective non-parole period of 2 years, commencing on 28 July 2004 and expiring on 27 July 2006.

10 It is the present contention of the Crown that the sentencing outcome was manifestly inadequate.

The Material Facts

11 I extract these from the helpful written submissions of learned counsel for the Crown.

12 The facts concerning the offence of which the respondent was found guilty at his first trial are:

“This was a count of digital penetration of KW’s vagina by the respondent when she was in bed with him. She was aged eight at the time of this offence.
KW’s grandmother was married to the respondent and slept in the same bed as him. KW got into bed from time to time when she visited. The facts are set out in KW’s recorded interviews with police on 13 November 2002 and 3 December 2002, tendered at trial as Exhibits A and B, respectively. KW said in her first interview (Exhibit A) that one morning she climbed into the bed shared by her grandmother and the respondent . They usually had a “muck around, it’s like we tickle each other and we always laugh and that” . On this particular morning, KW’s grandmother left the bedroom to make hot chocolate. The respondent then “rolled over and cuddled me and he put his hand there” . He was lying down on his side and he was cuddling me” . The complainant was lying on her back. The complainant said: “He pulled the front of my nightie up and then started playing with my private” . His hand was moving around and “[h]is fingers, were going down into my private. Well he, he was tickling me on the outside and then he went on the inside and moved his fingers around in there” .
KW’s grandmother gave evidence at the trial that KW had climbed into their bed, cuddled her and said, “Good morning, Nanny” . At about that time she (KW’s grandmother) got up and made Milo for them.”

13 The facts concerning the two offences of which the respondent was found guilty at his second trial are:

“These counts involved the respondent massaging JS’s penis under and above his clothing, respectively, when JS was in the respondent’s bed. JS was aged nine at the time of the offences.
JS (who is also known by another surname commencing with P, as his Honour pointed out in his sentencing remarks) took part in a recorded interview with the police on 15 November 2002. JS had stayed at the respondent’s house about two or three weeks earlier. There were other children staying in the house on that occasion. JS slept in the same bed as the respondent and his wife. When she got out of bed during the night to have a shower, the respondent “wriggled over” towards JS. The respondent was lying on his stomach. JS said, “He pulled my pants down and started being rude to me” . The respondent pulled down JS’s pants and underpants to his knees, while JS kept trying to pull his pants up, but the respondent “kept pulling my pants down and touching my rude part” . He said that the respondent was “massaging ….. but not in a nice way” what was clearly his penis for about ten minutes before the respondent rolled back over and fell asleep. JS clarified in evidence that the respondent had touched his penis.
On an earlier and separate occasion JS was in the bed, the second time he stayed over there, the respondent touched him in the same way but on top of his clothing for about five to seven minutes. Again JS clarified in evidence that the respondent had touched his penis.”

14 The facts concerning the offence to which the respondent pleaded guilty are:

“Agreed facts were tendered in respect of this offence. The victim of this offence, KW, was also the victim in the first trial. The respondent worked as a bus driver. KW, her brother and the respondent’s wife sometimes travelled on buses driven by the respondent. One night between 5 November 1999 and 28 August 2000 (the dates being the period when the respondent was employed by a particular bus company), KW’s brother and the respondent’s wife left the bus and went home. KW stayed on board the bus with the respondent. Once all the passengers had alighted and during the trip back to the depot, the respondent asked KW to come forward and stand beside him. She did so and he pulled her pants backwards and put his left hand down the back of her underpants. He then put his hand between her legs and inserted his fingers into her vagina. He moved his fingers around inside her vagina for a short time. He asked her, “Do you like that?” . She said, “No” . He told her, “Go and sit down” , so she went to the back of the bus. He continued driving back to the depot and they went back to his house where she stayed overnight. KW was aged 5 or 6.”

15 The facts concerning the offence which the respondent asked to be taken into account in conjunction with his aforesaid plea of guilty are:

“Agreed facts were tendered. The victim of this offence, TS, is the sister of the victim JS and their mother was a friend of KW’s mother. The children stayed overnight at the respondent’s house on occasions when their mothers attended social functions. One Friday night between 31 July 2002 and 31 October 2002, TS and JS were staying overnight with the respondent and his wife. They were all watching a video in the lounge room. When the video finished, TS got up to change into her pyjamas. She walked out of the lounge room into the hallway and was walking towards a bedroom. The respondent followed her, took hold of her and squeezed the outside of her vagina over the top of her skirt. The respondent stopped when TS told him to stop. TS was aged 6.”

16 Victim impact statements were made by the victims KW and JS. It suffices for present purposes to say that they evidence serious personal and psychological problems suffered by those victims in consequence of the offences committed respectively against them.

Objective Criminality

17 The offences committed by the respondent must be regarded, by any reasonable and responsible reckoning, as being of a very substantial objective criminality. The offences have about them characteristics of which Courts have repeatedly said that they heighten the level of objective criminality.

18 First, there were multiple victims, and each of them was very young at the material times.

19 Secondly, there was more than one offence against each of the victims KW and TS.

20 Thirdly, the offences were committed at discrete times between 5 November 1999 and 31 October 2002.

21 Fourthly, each offence entailed a grievous abuse of familial trust.

22 Fifthly, the adverse consequences to two, at least, of the victims were serious and prolonged.

Subjective Considerations

23 Once again the Court is greatly assisted by the Crown’s written submissions, which give the following summary:

“The respondent was born in May 1943, making him 61 at the time of sentencing in April 2005. The respondent tendered on sentence a Department of Corrective Services medical form indicating viral orthopaedic medical conditions (see Exhibit 1 on sentence).
A report dated 18 February 2005 by Professor Frederick Ehrlich, an expert in orthopaedic rehabilitation (Exhibit 2 on sentence) recorded that the respondent’s orthopaedic difficulties dated back to December 1997 when he suffered serious injuries in a work accident. He was near a truck when twenty-two gates, used to hold cargo in place on the truck, collapsed and fell in a domino fashion onto his left upper trunk inflicting extensive injuries to his left upper arm and a crushing injury to his left lower leg. He was hospitalized. A vein-graft to his arm was needed to assist arterial function and he had three surgical procedures between 2002 and 2003 in an attempt to fuse the bones in his left ankle. He had ongoing pain in his ankle requiring analgesics and could not put weight on his left foot. He reported several falls in the shower whilst in the prison hospital and was seeking a shower chair to assist him in washing.
Professor Ehrlich stated that the respondent presented with obvious trophic changes to the left foot and visible wasting of the left leg. There was only slight movement available in the left ankle. He was in a wheelchair in custody and reported difficulty using crutches.
Professor Ehrlich opined from the x-rays and scans available to him that the surgical attempts at bone fusion had not been a success. He concluded that the respondent had an “ununited fracture of his ankle” . Due to the difficulty he faced using walking aids due to abnormalities in his upper limbs, he was “for practical purposes confined to a wheelchair” . The respondent was dependent on regular analgesic medication.
A medical report by Dr. George Kirsch dated 25 October 2004 stated that the respondent’s wife had had a knee replacement and a revision knee placement. Her mobility was limited and she was unable to drive any significant distance and ideally for no longer than 20-30 minutes (Exhibit 3).
The respondent tendered several testimonies as Exhibit 4, attesting to his good character and describing his voluntary efforts in different sporting activities.”

24 I observe that the respondent was wheel-chair bound when he attended before this Court at the hearing of his present application. He looked, insofar as one could judge in the prevailing circumstances, both old and frail.

The Remarks on Sentence

25 The learned primary Judge gave fairly brief reasons for the sentencing structure that his Honour adopted. Certain features of his Honour’s exposed process of reasoning do, however, stand out.

26 First, his Honour proceeded upon the basis that the maximum penalty for the section 66A offences was one of imprisonment for 25 years. In fact, it was one of imprisonment for 20 years.

27 Secondly, his Honour took the view that the respondent was entitled at least to some discounting of sentence because of his one plea of guilty. His Honour was alive to the plain fact that the plea could scarcely be said to have been entered at the earliest available opportunity; but his Honour took account, and in my respectful opinion correctly so, of the fact that the plea had spared KW the stress and the distress of having to give evidence at a second trial; and that, in a more broadly utilitarian sense, the plea had at least some mitigating value.

28 Thirdly, and on the issue of objective criminality, his Honour sent, if I may so put the point, mixed signals.

29 His Honour considered early in the remarks on sentence, a submission which had been put for the respondent to the effect that digital penetration, although by statute an act of sexual intercourse, was really an act of indecent assault and should be, in practical terms, so treated for sentencing purposes. Reference was made to some opinions expressed by Lee CJ at CL in an unreported decision of this Court: Reg v Dent, 14 March 1991. The learned primary Judge commented:

“I do not know that it is very helpful, quite frankly, to look at these offences in that way. They are sexual assaults of a description. The maximum penalty for sexual intercourse with a child under the age of ten years in twenty-five years imprisonment. All one could say about the present cases in that regard is that they would have to fall at the lower end of that scale for sentencing. I would class them beyond indecent assault though. But, whatever they are, however one might classify them, they would have to be regarded at the lower end of the offending spectrum, given that one unfortunately does get to deal with more violent and more significant sexual assaults than the ones in question. I would agree with the submission that digital penetration is significantly less serious (than) penile penetration. However, one only has to look at the victim impact statements of (JS) and (KW) to realise that, however one categorises what occurred, the effect on the victims has been and will be significant.”

30 Later in the remarks on sentence his Honour returned as follows to the matter of objective criminality;

“These are serious offences. They are serious, apart from anything else, because the parliament has indicated that the maximum penalty for two of them is twenty-five years’ imprisonment. But they are also serious because society demands that children be protected from the unnecessary physical and psychological consequences of inappropriate sexual behaviour towards them by adults. The community is rightly concerned about the fact that such offences are committed, and the unfortunate fact that they appear to be more frequently reported and the more unfortunate fact that they appear to be committed by persons usually in close association with the victims.”

31 It seems to me that there are, with respect, some parts of the foregoing reasoning that are apt to lead to error in sentencing in such a case as the present one.

32 I would accept that, as a general proposition, an act of digital penetration, as such, is less serious than an act of penile penetration as such. I do not agree, however, that such a general proposition is, more or less as of course, a proposition of universal applicability in cases of digital penetration. One has only to read the victim impact statements of KW and of JS to see at once how damaging to a particular victim an act of digital penetration, let alone more than a single such act, can be to a very young child.

33 I would at once agree that the acts of digital penetration are not properly to be regarded as the worst types of sexual intercourse on a scale of statutory penalties that peaks at a sentence of imprisonment for 20 years. That said, however, I do not agree that the offences here relevant are to be treated as though they were more or less trifling offences. They were, in my opinion, nothing of the kind. They were, for the reasons earlier herein explained, in my opinion offences of significant objective criminality.

34 I cannot pin-point in the remarks on sentence anything actually said by his Honour that manifests patent error in the respects of which I have been speaking. I do believe, however, that the remarks on sentence, having as they do the features that I have noted, raise for consideration a real question whether there has been some latent error in his Honour’s process of reasoning. It will be appropriate to return later herein to that question.

35 Fourthly, his Honour dealt as follows with the topic of general deterrence:

“There should be, for the reasons that I have indicated, a significant degree of general deterrence in the sentence imposed by the Court. The fact that there are these different victims at different times also indicates that there should be a reasonably significant degree of specific deterrence of this offender from committing these offences. There is certainly nothing before me to indicate one way or the other the likelihood of re-offending, and one cannot help but think, given the history of these matters and the charges that he faced before, that there is probably, except for health matters, a reasonable prospect of re-offending.”

36 Once again, as I respectfully think, there is something about this passage that is internally inconsistent. If there was “certainly nothing before …………. (his Honour) …………… to indicate one way or the other the likelihood of re-offending”, then it is not easy to see upon what evidentiary basis his Honour felt that “given the history of these matters and the charges that he faced before, ……………there is probably, except for health matters, a reasonable prospect of re-offending”. The reference to “the charges that he faced before” is a reference to certain allegations of sexual impropriety as to which the respondent had been acquitted after a hearing on the merits. His Honour took the view, with which I respectfully agree, that he was not entitled to take into account in any way those allegations. This makes it difficult, as I respectfully think, to see why his Honour thought that it was relevant to refer at all to those matters.

37 In the context of a Crown appeal, it seems to me that any significance in the above apparent inconsistencies lies in any strengthening that they might give, in the overall scheme of things, to a conviction that the sentencing process miscarried.

38 Fifthly, his Honour dealt as follows with the offence to which the respondent had pleaded guilty:

“In regard to the earliest s 66A matter, which is the digital penetration of (KW) that occurred on the bus between ’99 and 2000, I would have thought an appropriate penalty in respect of that matter was one of three years imprisonment, which I reduce to two years and nine months for the plea of guilty, and I take into account on that matter the Form One.”

39 In the paragraph immediately following, his Honour says:

“In regard to the s 66A matter, the digital penetration of (K) in the bedroom in 2002, I feel an appropriate penalty for that matter is one of three years imprisonment.”

40 Yet again, as it seems to me, there is a troubling ambiguity about these statements. On the one view, they could convey that his Honour thought that the earlier incident was less serious than the later one, so that a putative sentence of 3 years’ imprisonment as an appropriate head sentence for an offence of sexual intercourse by digital penetration, could be employed for the earlier offence when weighted appropriately so as to take account of the Form 1 matter. That does not seem to me to be a sustainable view on the whole of the relevant evidence. On another possible view, his Honour simply omitted to factor in to the sentence on the earlier matter an appropriate weighting for the Form 1 offence.

41 Yet again, I hesitate to hold that there is patent error. I believe, however, that there is, yet again, reason to question whether something latent has not gone awry in this particular sentencing exercise.

Has the Crown established error warranting, prima facie, the intervention of this Court?

42 As to patent error, I would answer: no.

43 As to latent error, I would answer: yes.

44 In my opinion a properly structured sentence would have taken the earliest act of digital penetration, being the act to the commission of which the respondent had pleaded guilty; and, adding a real margin to take account of the Form 1 matter, would have taken as a provisional head sentence one of imprisonment for 4 years or thereabouts. A proper discount of the plea of guilty might appropriately have reduced that provisional sentence to one in the order of 3 years and 9 months. I agree that the case is one for the setting of a lower than normal non-parole period; and that by reason of the special circumstances that his Honour found, and in my opinion correctly found, this would have yielded a provisional non-parole period in the order of 2 years.

45 It would have been appropriate then to have considered the later, discrete offence committed against the same victim. A fair provisional sentence would have been something that balanced, on the one hand the absence of a Form 1 offence requiring to be taken into account; and on the other hand the absence of any discount for a plea of guilty. I would have thought that an appropriate provisional sentence for this offence would have been one in the order of 3-1/2 years with a non-parole period of 1 year 9 months.

46 As to the two discrete acts of indecent assault on JS, I would have thought that a reasonable provisional sentence upon each, would have been in the order of 2-1/2 years with a non-parole period in the order of 1 year 3 months.

47 The simple aggregation of all of these provisional sentences would have yielded an overall result of an effective head sentence of 12 years and 3 months and an effective non-parole period of 6 years and 3 months. Plainly, sentences of that magnitude could not possibly have been justified on the facts of the respondent’s case. It would have become, thereupon, necessary to take a more realistic view of what the proper application of the principle of totality might be though to require; and then to re-shape the individual sentences so as to achieve that overall result. That would have entailed, in its turn, a proper use of the techniques of concurrence and of cumulation.

48 Given such an overall context, there is no doubt plenty of room for a primary sentencing Judge to move in making a proper assessment of the requirements of totality; and in making the necessary adjustments of what would otherwise have been appropriate individual sentences.

49 It seems to me, however, that after every proper allowance has been made for the margin of flexibility properly available to a primary sentencing Judge, an end result of an effective head sentence of 4 years and an effective non-parole period of 2 years simply does not achieve an overall result that reflects appropriately the objective criminality of the acts of the respondent, even when that objective criminality is fairly and sensibly balanced against the available subjective considerations.

50 There is, in my opinion, a convincing prima facie case for the intervention of this Court.

Should the Court in fact intervene; and if so, how?

51 I do not see how the Court could responsibly exercise its undoubted residual discretion in favour of doing nothing about these sentences. It is easy to identify significant subjective features of the applicant’s case. It is easy, and in my view, wholly appropriate, to find special circumstances. Those considerations must not be allowed, however, to swamp the relevant objective criminality, involving as it does serious and repeated sexual abuse of very young children in a context where they were so abused by someone in a position of trust.

52 Quite what should be done is not easily settled. Certainly, whatever is now done must reflect in a fair way, and must not merely pay lip service to, the well established constraints upon re-sentencing in the wake of a successful Crown appeal.

53 It is necessary to take properly into account, thereupon, the affidavit material that this Court received against the contingency of the re-sentencing of the respondent.

54 Of particular concern in that connection are the following matters which are outlined in an affidavit of the respondent himself:

“4. In September 2004 I was at Goulburn Correctional Centre. I felt and heard a snap in my left ankle. Me leg gave way beneath me and I fell to the ground and felt severe pain. I was put in a wheelchair to go to the clinic. An officer pushed the wheelchair up a ramp. My foot was protruding from the footrest of the wheelchair and was jammed between the ramp and the wheelchair. This also caused extreme pain.
5. After the incident referred to above, I attended the clinic at Goulburn Correctional Centre. I was referred to Goulburn Base Hospital for X-rays of my left ankle.
6. In about November 2004 I was transferred to the Metropolitan Remand & Reception Centre at Silverwater. In about December 2004 I was transferred to Long Bay Correctional Centre.
7. In December 2004 I attended the clinic at Long Bay Correctional Centre. I was referred for a CT scan of my left ankle. I was advised the scan confirmed. (sic)
8. On 18 February 2005, Professor Ehrlich, an orthopaedic surgeon arranged by Legal Aid, attended Long Bay Correctional Centre.
9. Professor Ehrlich advised that I should be confined to a wheelchair. Following his attendance I was provided with a wheelchair, which I have been using since. Professor Ehrlich also advised that I should be provided with a shower chair. In June 2005 I was transferred to Area Three, Metropolitan Special Programs Centre at Long Bay Correctional Centre. This Area had disabled facilities including a shower with a shower chair. Until this time, I had not had regular (sic)
10. Since I have been in custody, I have fallen on approximately six occasions while showering in communal showers and trying to support myself on my right leg. I have sustained injuries including bruising and soreness as a result.
11. While I have been in custody, my left ankle has been struck on a number of occasions. For example, in February 2005, while in a wheelchair on my way to a visits area, I was pushed down stairs, causing me to fall out of the wheelchair and the wheelchair to land on top of me. My left leg was struck in the course of the fall, which caused me severe pain.
12. As a result of my disability I have been unable to access some areas of the correctional centre, such as the educational facilities, library, and to participate in activities such as work, and art and craft.”

55 The picture thus sketched is supplemented by the following opinion of Dr. David Lunz, which was furnished on 20 August 2005:

“Mr. O has had an ankle arthrodesis and is in fixed equines. There does not appear to be any union at the arthrodesis site, however, there is no loosening of the screws or loosened lines to suggest a non-union. He also has arthritis involving his subtalar joint and symptoms suggestive of a chronic regional pain syndrome about his scar.
There are a number of issues concerning Mr. O that need to be resolved. His arthrodesis does not appear to be fused on CT scan, however, there is no evidence of loosening of the screws or screw breakage. He also has arthritis affecting his subtalar joint and this may be contributing to his pain. In addition, he has some evidence of a regional pain syndrome and needs to be assessed by pain clinic. These can all be attended to under the care of Correctional Services, however, there are often delays and logistical problems involved in arranging appointments to coincide with the necessary escorts that are required. His current medical condition will make his time in jail more onerous than if he did not have a left ankle problem.”

56 I have come to the conclusion that justice would be done both to the public interest which is represented by the Crown and to the legitimate interest of the respondent himself, if the sentences passed at first instance upon the respondent were re-structured in a way that yielded an effective overall head sentence of imprisonment for 5 years and an accompanying overall non-parole period of 2-1/2 years.

Conclusions and Orders

57 For the whole of the foregoing reasons I would propose the following orders:

[1] Crown appeal against sentences allowed.

[2] The sentences passed in the District Court are quashed.

[3] The respondent is sentenced in lieu as follows:

(a) On each of the two counts charged in the second indictment: to a fixed term of imprisonment for 2 years, commencing on 28 July 2004 and expiring on 27 July 2006.

(b) On the count charged as Count 4 in the first indictment; to imprisonment for a fixed term of 2-1/2 years commencing on 28 July 2004 and expiring on 27 January 2007.

(c) On his plea of guilty and taking into account the Form l offence: to imprisonment for 3 years commencing on 28 July 2006 and expiring on 27 July 2009; with a non-parole period of 6 months commencing on 28 July 2006 and expiring on 27 January 2007.

[4] The respondent is to be released to parole on 28 January 2007.

58 The effective head sentence thus becomes one of 5 years commencing on 28 July 2004 and expiring on 27 July 2009. The effective non-parole period thus becomes one of 2-1/2 years commencing on 28 July 2004 and expiring on 27 January 2007. Each of the re-structured sentences has been framed so as to bring about that end result both as to head sentence and as to non-parole period.

59 HIDDEN J: I have had the benefit of reading in draft the judgment of Sully J, but I am unable to agree with the orders which his Honour proposes.

60 Put shortly, the Crown’s position is that there should have been a greater measure of accumulation of the sentences and that, in any event, the overall sentence fails to reflect the objective gravity of the offences and the need for deterrence. I think that, because of the lack of appropriate accumulation, the overall sentence is manifestly inadequate. On the other hand, as Sully J has recognised, the extent to which this Court could intervene is constrained by the well-established principles relating to re-sentence on a Crown appeal, as well as the respondent’s age and health. In the result, the increase of sentence proposed by his Honour is necessarily modest.

61 I would not suggest that increases of the effective sentence by one year and of the non-parole period by six months are insignificant. Nevertheless, I do not consider it appropriate to allow a Crown appeal for the purpose of making adjustments of that order. In all the circumstances, including the respondent’s age and the evidence about his health, both in the sentence proceedings and in the affidavit material before us, I am of the view that the Court should exercise its residual discretion not to intervene.

62 I would dismiss the appeal.

63 HALL J: I agree with Sully J.

**********