R v WC - [2008] NSWCCA 268

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
REGINA v WC [2008] NSWCCA 268
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
No 2006/14616

HEARING DATE(S):
Monday 3 November 2008

JUDGMENT DATE:
19 November 2008

PARTIES:
REGINA v
WC

JUDGMENT OF:
McClellan CJ at CL Hall J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/11/0781

LOWER COURT JUDICIAL OFFICER:
Flannery DCJ

LOWER COURT DATE OF DECISION:
11 April 2008

COUNSEL:
C: P Ingram
R: H Cox

SOLICITORS:
C: S Kavanagh
R: Mark Klees & Associates

CATCHWORDS:
CRIMINAL LAW - SENTENCING - Appeal - Crown appeal against sentence - application of the totality principle - where, at date of senetncing, offender was already serving a lengthy sentence for earlier convictions - whether individual sentences imposed in respect of five counts are manifestly inadequate - whether the aggregate sentence as between the five counts is manifestly inadequate - whether the total effective sentence is manifestly inadequate

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
Regina v Holder [1983] 3 NSWLR 245
Regina v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Regina v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
Regina v Rossi (unreported, Court of Criminal Appeal of SA; 20 April 1988)
Regina v Wall [2002] NSWCCA 42

TEXTS CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/14616
McCLELLAN CJ at CL
HALL J
HARRISON J
WEDNESDAY 19 NOVEMBER 2008

REGINA v WC

Judgment

McCLELLAN CJ at CL: I agree with Hall J.
HALL J: The Director of Public Prosecutions for the State of New South Wales appeals pursuant to s.5D of the Criminal Appeal Act 1912, in respect of sentences imposed in the Sydney District Court (Flannery DCJ) on 11 April 2008.
The respondent was found guilty in respect of five counts following a trial conducted between 13 June 2007 and 20 June 2007.
Offences charged
The five counts pleaded in the indictment were as follows:-
Count 1: That between 1 November 1999 and 31 December 2000 at Orange, the respondent had sexual intercourse with H, a person aged above 10 years and under 16 years, namely, 11 or 12 years.
The offence in respect of Count 1 was contrary to s.66C(1) of the Crimes Act 1900 and attracted, on conviction, a maximum penalty of imprisonment for a term of eight years.
Count 2: That between 1 November 1999 and 31 December 2000 at Orange, the respondent indecently assaulted H in circumstances of aggravation, namely, that at the time, H was under the age of 16 years, namely 11 or 12 years.
The offence in respect of Count 2 was contrary to s.61M(1) of the Crimes Act and attracted, on conviction, a maximum penalty of imprisonment for a term of seven years.
Count 3: That between 1 November 1999 and 31 December 2000 at Orange, the respondent had sexual intercourse with H, a person aged above 10 years and under 16 years, namely 11 or 12 years.
The offence in respect of Count 3 was contrary to s.66C(1) of the Crimes Act and attracted, on conviction, a maximum penalty of imprisonment for a term of eight years.
Count 4: That between 1 November 1999 and 31 December 2000 at Orange, the respondent had sexual intercourse with H, a person aged above 10 years and under 16 years, namely 11 or 12 years.
The offence in respect of Count 4 was contrary to s.66C(1) of the Crimes Act and, as stated above, attracted, on conviction, a maximum penalty of imprisonment for a term of eight years.
Count 5: That between 1 November 1999 and 31 December 2000 at Orange, the respondent incited H, who was then a person under the age of 16 years, namely 11 or 12 years, to an act of indecency with or towards the respondent.
The offence in respect of Count 5 was contrary to s.61N(1) of the Crimes Act and attracted, on conviction, a maximum penalty of imprisonment for a term of two years.
At the time of being sentenced by Flannery DCJ, the offender was serving sentences in respect of earlier convictions, inter alia, for manslaughter. The period of each sentence imposed by Flannery DCJ for the five counts in question is set out below.
Sentences imposed
The sentencing judge, on 11 April 2000, imposed the following sentences in respect of the five counts:-
(1)Count 1: a fixed term of two years to commence on 16 July 2030 and to expire on 15 July 2032.
(2)Count 2: a fixed term of 12 months to commence on 16 July 2030 and to expire on 15 July 2031.
(3)Count 3: a fixed term of two years to commence on 16 July 2030 and to expire on 15 July 2032.
(4)Count 4: a fixed term of 18 months to commence on 16 July 2030 and to expire on 15 January 2032.
(5)Count 5: a fixed term of three months to commence on 16 July 2030 and to expire on 15 October 2030.
Accordingly, the aggregate sentence imposed in relation to the five offences was a fixed term of two years to commence on 16 July 2030 and to expire on 15 July 2032.
By reason of these and the pre-existing sentences, the earliest date upon which the respondent will be eligible for release will be 15 July 2032.
In the written submissions on behalf of the respondent, it is acknowledged that, whilst the sentences in question in this Crown appeal may be considered lenient, they are to be considered in the context of the length of the existing sentences that had been imposed upon the respondent, the details of which are set out below.
Existing sentences
The total effective sentence and non-parole period imposed upon the respondent prior to the imposition of the sentences by the District Court was a total effective period of imprisonment of 37 years and 29 days commencing on 18 September 2003 and expiring on 16 October 2040 and a total effective non-parole period of 27 years, nine months and 29 days commencing on 18 September 2003 and expiring on 16 July 2031.
Ground of appeal
The single ground relied upon by the Crown in its appeal is that the sentences are said to be manifestly inadequate.
Facts
Ms H Cox of counsel, who appeared on behalf of the respondent, in her written submissions dated 27 October 2008 (paragraph [8]) acknowledged that the Crown’s written submissions accurately set out the facts of the offences and the respondent’s subjective case. Accordingly, I reproduce below the facts as recorded in the Crown’s written submissions at paragraphs [7] to [11]:-
“Facts
Count 1 and count 2 (ROS 1.5 – 1.7).
7.At the relevant time in 1999/2000 the Respondent lived and worked at the family property of the Complainant who was then aged 11 years.
8.On the subject occasion, the Complainant was walking home from her grandmother’s home which was located elsewhere on the family property when the Respondent stopped the Complainant and asked her to accompany him to a shed. The Complainant complied.
9.While in the shed, the Respondent told the Complainant to remove her clothing and lay on a mattress that was there. The Complainant further complied. Then, after smearing Vaseline over his penis and over the vagina of the Complainant, the Respondent engaged in penile-vaginal intercourse with the Complainant (count 1) and, after withdrawing his penis, the Respondent rubbed the Complainant upon the vagina with his hand (count 2).
Count 3 and count 4 (ROS 1.8 – 1.9).
10.Some few days after the events in the first two counts, and again at the direction of the Respondent, the Complainant went to the shed, removed her clothing and lay upon a bed. The Respondent removed his own clothing and licked the vagina of the Complainant (count 3) and then engaged in penile-vaginal intercourse with the Complainant (count 4).
Count 5 (ROS 2.1).
11.Some days later again, the Complainant was at her own home when she observed the Respondent walk into the lounge room carrying a number of videotapes and then play one of the tapes in a VCR. The videotape portrayed two woman and a man engaged in sexual activity. When the Complainant went to leave, the Respondent grabbed hold of her and said ‘Stay!’. Thereafter, the Respondent sat next to the Complainant as the tape was played and asked her whether she felt ‘any different’ (count 5).”
Three groups of sentences
The Crown, in its written submissions, summarised what it termed the three groups of sentences, including the sentences the subject of the present appeal, as follows:-
(1)The first group of offences were imposed in the District Court on 21 October 2004 by his Honour Judge Norrish QC in relation to convictions after trial for seven counts of sexual intercourse with a person under 10 years of age and one count of aggravated indecent assault upon a person under 10 years of age.
The sentences imposed in respect of those offences consisted of an aggregate term of 16 years and two months commencing on 18 September 2003 and expiring on 17 November 1919 and an aggregate non-parole period of 12 years and one month commencing on 18 September 2003 and expiring on 17 October 2015.
(2)The second group of offences initially imposed on 11 August 2006 in relation to convictions after trial for one count of manslaughter (returned by the jury on a murder count) and one count of sexual intercourse with a person under 10 years of age. The victim of both offences was a three year old boy.
The sentences initially imposed consisted of an aggregate term of 25 years commencing on 17 October 2015 and expiring on 16 October 2040 and an aggregate non-parole period of 18 years and nine months commencing on 17 October 2015 and expiring on 16 July 2034.
On appeal, this Court quashed the non-parole period of the manslaughter sentence and re-sentenced the respondent to an aggregate term of 25 years commencing on 17 October 2015 and expiring on 16 October 2040 and an aggregate non-parole period of 15 years and nine months commencing on 17 October 2015 and expiring on 16 July 2031.
(3)The third group of offences are the offences presently under appeal, the particulars of which are set out above.
In the Crown submissions, it is noted that the net effect of the sentences the subject of this appeal was the addition of one year to the total effective non-parole period.
In the respondent’s submissions, Ms Cox set out in convenient chart form the history of the sentences currently being served and I re-produce her summary as follows:-

SENTENCE IMPOSED/ MODIFIED BY:	PERIOD OF HEAD SENTENCE	DATE OF HEAD SENTENCE	PERIOD OF NPP	DATES OF NPP
Judge Norrish	16 y	18.9.03 to 17.9.19	12 y 1 m	18.9.03 to 17.10.15
Justice Grove	25 y	17.10.15 to 16.10.40	18 y 9 m	17.10.15 to 16.7.34
CCA	Same	Same	15 y 9 m	17.10.15 to 16.7.31
Judge Flannery	2 y	16.7.30 to 15.7.32	None	None

Remarks on sentence

In its written submissions, the Crown observed that the learned sentencing judge in the remarks on sentence:-
“a.noted correctly the nature of the counts upon the indictment and the respective maximum penalties (ROS 1.3 – 1.5);
b.made brief findings of fact in relation to each of the five count (ROS 1.6 – 2.2);
c.found correctly that two (count 1 and count 4) of the three offences of sexual intercourse involved penile-vaginal intercourse (ROS 2.2);
d.found that there had been no force or coercion beyond that necessary to commit the offence (ROS 2.3) and that no threats or pressure had been made by the Respondent when he gave the Complainant directions that she not tell anyone about the offences (ROS 2.4);
e.found that while the aggravated indecent assault (count 2) was a serious example of an offence of its type, the incitement to an act of indecency offence (count 5) was not a particularly serious example of its type (ROS 2.5);
f.found that the Respondent had a significant prior history of sexual offences, particularly involving children (ORS 2.6 – 3.1);
g.ruled correctly that the criminal history of the Respondent was an aggravating factor in relation to the present offences as it demonstrated the Respondent had a continuing attitude of disobedience of the law (ROS 3.2 – 3.7);
h.ruled correctly that the sentences to be imposed ought to be incremented ‘… up in the range of appropriate sentences …’ because of the aggravating effect of the criminal history of the Respondent to ‘… reflect the greater need for retribution, deterrence and protection of society …’ (ROS 3.8);
i.found that none of the other aggravating factors by section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were present (ROS 3.9);
j.summarised the relevant subjective circumstances including that the Respondent:
i. was born on 27 October 1972 (ROS 4.1);
ii.had been professional assessed as having a low average to borderline level of cognitive ability – 4th percentile (ROS 4.2); and
iii.had reported to Dr Westmore that he considered himself to be a paedophile (ROS 4.5 – 4.6);
k.referred to the sentences for manslaughter and sexual assault presently being served by the Respondent consequent upon the Orders of this Court (ROS 4.5 – 4.6);
l.correctly noted that pursuant to those Orders the Respondent would first have become eligible for release on parole on 15 July 2031 and that the term of the aggregate sentence was not due to expire until 16 October 2040 (ROS 4.7);
m.correctly observed that the principle of totality applied to the assessment of both any accumulation as between the individual sentences presently under appeal as well as any accumulation of those sentences upon the pre-existing sentences (ROS 4.8 – 4.9);
n.acknowledged that regard had been given to:-
i.the statutory framework and Common Law principles of sentencing;
ii.section 3A of the Crimes (Sentencing Procedure) Act 199 (NSW); and
iii.the need for general deterrence in cases such as the present (ROS 5.1 – 5.2);
o.referred to the ranges of sentence that were disclosed in the statistics that had been tendered (ROS 5.3 – 5.6);
p.indicated that some partial accumulation would have been ordered between the sentences here under appeal had it been that the Respondent was to be sentenced on those offences alone (ROS 5.7);
q.indicated that having regard to the length of the pre-existing sentences and the totality of the criminality disclosed in both those and the present offences, the sentences here under appeal would extend the aggregate non-parole period to be served by the Respondent by a further twelve (12) months (ROS 5.8 – 6.1);
r.acknowledged that one of the effects of such a disposition was to provide for an aggregate non-parole period that is in excess of three quarters of the aggregate term (ROS 6.2);
s.declined to impose a non-parole period for any of the present sentences since such non-parole periods ‘… would be subsumed by the sentences that the offender is presently serving …’ (ROS 6.3);
t.imposed the sentences presently under appeal (ROS 6.4 – 6.9).”
Ms Cox, in her written submissions (paragraph [11]), observed that the Crown had not submitted that the sentencing judge had failed to consider any relevant considerations in the sentencing exercise and, in fact, the Crown had conceded that her Honour had considered all relevant matters.
The Crown’s submissions
The Crown observed that the offences in question were quite discrete from those referred to in the first two groups of sentences set out above. The offences the subject of consideration in this appeal occurred between November 1999 and December 2000, whereas the offences in the other two groups occurred in September 2003.
It was also observed that the offences in question involved a young girl on a family farm, whereas the other groups of offences had involved two victims, being brother and sister, whom the respondent had been looking after in suburban Sydney.
The Crown submitted that the circumstances warranted consideration of partial accumulation between the sentences presently under appeal and the pre-existing sentences.
It further submitted that, in relation to the sentences presently under appeal, not only was it necessary that there be imposed appropriate individual sentences and an appropriate aggregate sentence as between those sentences, but it was also necessary that an appropriate total effective sentence be imposed having regard to the totality of the criminality for which the respondent was to be punished. In that respect, the Crown cited Regina v Holder [1983] 3 NSWLR 245 at 260 per Street CJ; Regina v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11] to [14] (Spigelman CJ, Whealy and Howie JJ); Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] to [29] per Howie J (with whom Adams and Price JJ agreed).
The Crown formulated three contentions in support of the appeal as follows:-
(1) Contention 1: The learned sentencing Judge erred by imposing … sentences on Count 1, Count 2, Count 3, Count 4 and Count 5 that are individually manifestly inadequate
The Crown, in respect of this contention, relied upon the High Court’s judgment in Pearce v The Queen (1998) 194 CLR 610 at 623 to 624 per McHugh, Hayne and Callinan JJ.
In this respect, the following considerations were identified as relevant to the assessment of the appropriate sentence in each count:-
(1) The respective maximum penalty.
(2) The objective seriousness of each offence.
(3)The substantial record of prior convictions that the respondent has for offences involving sexual violation of young children.
(4)The complete absence of any remorse or contrition demonstrated by the respondent defending the count at trial.
(5)The other subjective circumstances of the respondent.
The Crown contended that these matters and the relevant sentencing statistics tendered on sentence are sufficient to demonstrate that the sentences imposed on Count 1 and Count 4 were manifestly inadequate. In particular, the Crown contended that the sentences imposed could not appropriately reflect the circumstances of those offences, including that the respondent had engaged in penile-vaginal intercourse with an 11 year old child on her own family property.
It was submitted that the similarity of the circumstances of the two offences meant that the sentence imposed on Count 1 itself served to underscore that the sentence imposed on Count 4 was manifestly inadequate. The Crown contended that a term of imprisonment of not less than five years was required on each count.
In reliance on the same matters as identified above in relation to Counts 1 and 4, the Crown contended that a sentence of a term of not less than four years was required for Count 3.
Again, in reliance on the same factors, it was submitted that a sentence of a term of imprisonment of not less than three years was required for Count 2.
In respect of Count 5, it was contended that a sentence of not less than 12 months was required.
(2) Contention 2: The learned sentencing judge erred in the application of the principle of totality by imposing an aggregate sentence as between the five counts presently under appeal that is manifestly inadequate
In this respect, the Crown noted that the sentences under appeal related to five offences occurring on three discrete occasions.
The sentencing judge, the Crown observed, acknowledged that some degree of partial accumulation would otherwise have been appropriate as between the five individual sentences, but that such partial accumulation was itself subject to the operation of an aspect of the principle of totality concerning the accumulation of sentences upon any pre-existing sentences.

The Crown drew attention to the fact that the sentencing judge did not provide for any accumulation as between the five offences the subject of the present appeal and imposed an aggregate sentence of a fixed term of two years.
It was contended that her Honour was required to impose an aggregate sentence in relation to the present sentences that appropriately reflected the totality of the criminality disclosed in those offences: Mill v The Queen (1988) 166 CLR 59 at 63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ; Pearce (supra) at 623 to 624 per McHugh, Hayne and Callinan JJ.
The Crown further submitted that, having regard to the totality of the criminality disclosed in relation to Counts 1 to 5, an aggregate sentence of not less than 10 years and an aggregate non-parole period of not less than seven and a half years was required.
It, accordingly, submitted that the sentences should be quashed and the respondent should be re-sentenced, making appropriate orders for accumulation as between the new sentences to be imposed on Counts 1 to 5.
(3) Contention 3: The learned sentencing judge erred in the application of the principle of totality by imposing upon the applicant sentences that have resulted in a total effective sentence that is manifestly inadequate.
As observed above, the Crown noted that the net effect of the sentences presently under appeal was the addition of one year to the total effective non-parole period.
The Crown contended that, subject to the application of the principle of totality, and having regard to s.44(2) of the Crimes (Sentencing Procedure) Act 1999, the circumstances warranted consideration of partial accumulation between the sentences presently under appeal and the pre-existing sentences.
The Crown finally contended that the relevant considerations demonstrated that consequent upon the imposition of the sentences presently under appeal, the non-parole period of the total effective term was manifestly inadequate.
Accordingly, the submission was that the sentences should be quashed in respect of Counts 1 to 5 and the respondent re-sentenced, making appropriate orders for the accumulation of the new sentences upon the pre-existing sentences.
The respondent’s submissions
Ms Cox contended that what the Crown described as an appropriate aggregate sentence of not less than 10 years and an aggregate non-parole period of seven and a half years, would be a sentence of such magnitude that it would have to be, at least, partially accumulated on the pre-existing sentence.
Accordingly, it was submitted, that the effect of such a sentence would have been to partially extend the non-parole period but at the expense of the parole period, “a matter which weighed heavily upon her Honour” (Respondent’s written submissions, at [22]).
Ms Cox contended that, given what she termed were “the highly unusual features of the extreme length of the sentences already imposed upon the respondent …”, the issues of totality and the overall need to avoid imposing a “crushing sentence” upon the respondent, the sentences imposed were not manifestly inadequate.
In that respect, Ms Cox contended the following matters were appropriately taken into account by the sentencing judge:-
•That the sentence (and the sentences already imposed) were to be served by the respondent in conditions of hardship on protection.
•The respondent’s subjective circumstances.
•The available maximum penalty.
•The objective criminality of the offences as found by the sentencing judge.
It was consequently contended on behalf of the respondent that, given what was termed the unusual and complex features of the sentencing exercise, the sentences imposed were within the reasonable range of the sentencing discretion.
It was contended that the sentencing judge appropriately considered and applied the principle of totality as it affected the sentencing exercise. In that respect, reference was made to the observations of McHugh J in Postiglione v The Queen (1997) 189 CLR 295 at 308 as follows:-
“… a sentencing judge must consider the total criminality involved, not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.”
Ms Cox contended that the sentencing judge was alive to the importance of this principle when sentencing the respondent, referring to the following observations by the sentencing judge (remarks on sentence, p.4.9):-
“In those circumstances, the principle of totality looms large. I must have regard to the criminality involved not only in the matters before me but also in the matters that the offender is currently serving sentences in relation to and having done so determined what, if any, downward adjustment is necessary in the aggravated sentences [sic] in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”
Consideration
The present appeal raises the issue of the need to maintain an appropriate relationship between the totality of the criminality involved in a case involving a series of offences and the total of the sentences to be imposed for those offences: Regina v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15].
As the Crown observed, the sentences the subject of this appeal were imposed in relation to five counts that disclosed offending which had occurred on three discrete occasions.
Additionally, Counts 1 and 4 involved a high level of criminality involving offences of sexual intercourse with a child of a young age.
Those matters must be considered in light of the fact that, at the time of sentencing in respect of the five counts in question, the respondent was serving an existing sentence for a number of very serious offences occurring later in time than the five counts to which I have referred, with a total effective term of 37 years and 29 days commencing on 18 September 2003 and expiring on 16 October 2040 and a total effective non-parole period of 27 years, nine months and 29 days commencing on 18 September 2003 and expiring on 16 July 2031.
In Postiglione (supra) at 307 to 308, McHugh J observed:-
“The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved …”
McHugh J cited remarks of King CJ in Regina v Rossi (unreported, Court of Criminal Appeal of SA; 20 April 1988) as follows:-
“There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.”
McHugh J went on to observe in Postiglione (supra) at 308:-
“The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged … Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences …”
In MAK (supra), this Court (Spigelman CJ, Whealy and Howie JJ) at [16] observed:-
“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 Regina 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 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 may 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.’”
Ms Cox submitted that, in the event the respondent’s primary submission was rejected, the Court should nonetheless abstain from exercising its discretion in Crown appeals for a number of specific identified reasons including:-
(1)That the aggregate head sentence to which the respondent is currently subjected extends until 16 October 2040, at which time he will be 68 years old.
(2)That the date of the respondent’s first consideration for release to parole is 15 July 2032, when he will be 60 years old.
The sentencing judge was required to consider whether a sentence imposed in respect of the five counts in question, having regard to the extremely long effective total sentence and non-parole period being served by the respondent as at the date of sentencing, would result in a sentence which would be “crushing” upon him in the sense referred to by this Court in MAK (supra), namely, that it would induce a feeling of hopelessness and destroy any expectation of a useful life after release. As the Court there observed (at [17]):-
“… 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.”
It is, of course, necessary in a case such as the present for a sentencing court to exercise care when applying the totality principle for as this Court observed in MAK (supra) at [18], 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. As stated in MAK (supra) “… 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” (at [18]).
I am of the opinion that the sentencing judge correctly applied the principle of totality to the circumstances of the present case in determining the sentence imposed. In other words, I am of the opinion that her Honour was correct in identifying that some amelioration of the punishment otherwise warranted was necessary and that the exercise of her judgment in that respect was an appropriate one. That conclusion is stated, mindful of the fact that, whilst the sentences imposed were lenient, they were not such as to require this Court to intervene in the interest of the general community. In reaching that conclusion, I have borne in mind the relevant principles that apply to Crown appeal: Regina v Wall [2002] NSWCCA 42. A proper recognition and application of the limits applying to Crown appeals, accordingly, results in the conclusion, in my opinion, that the appeal should fail.
Accordingly, the order I propose is that the appeal be dismissed.
HARRISON J: I agree with Hall J.

**********

AMENDMENTS:

20/11/2008 - Crown appeal - removal of order "Leave to appeal granted" - Paragraph(s) Cover sheet, [64]

LAST UPDATED:
20 November 2008