SDM v The Queen

[2007] NSWCCA 34

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

SDM v R [2007] NSWCCA 34

Hearing dates:

24 January 2007

Decision date:

20 February 2007

Before:

Adams J at [1];
Howie J at [9];
Price J at [10]

Decision:

(1)   Leave to appeal be granted.

(2) Quash the sentence imposed by Ellis DCJ for count two on Indictment two (relating to the “Glenorie offences”) being an offence contrary to s 61JA of the Crimes Act 1900 (NSW).

(3)   Sentence the applicant to imprisonment for a non-parole period of 12 years and 6 months to date from 15 March 2012 and expire on 14 September 2024 with a balance of term of 7 years and 6 months expiring on 14 March 2032 for count two on Indictment two.

(4) Quash the sentence imposed by Ellis DCJ for count three on Indictment two (relating to the “Glenorie offences”) being an offence contrary to s 61JA of the Crimes Act 1900 (NSW).

(5)   Sentence the applicant to imprisonment for a non-parole period of 12 years and 6 months to date from 15 March 2014 and to expire on 14 September 2026 with a balance of term of 7 years and 6 months to expire on 14 March 2034 for count three on Indictment two. The earliest date on which the applicant will be eligible for release to parole is 14 September 2026.

(6)   The names of the complainants in counts one to four (inclusive) in Indictment two (relating to the “Glenorie offences”) not be published.

Catchwords:

CRIMINAL LAW – sentencing – totality – stated intention to depart from statutory ratio of non-parole period – need for adjustment in overall sentence – relationship between totality of criminality and totality of sentences.

Legislation Cited:

Crimes Act 1900 (NSW), ss 33, 59, 60, 61, 61I, 61JA, 112, 562I

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54B

Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Perry v R [2006] NSWCCA 35; (2006) 166 A Crim R 383

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Close (1992) 31 NSWLR 743

R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Simpson (1992) 61 A Crim R 58

R v Swan [2005] NSWCCA 252

Category:

Principal judgment

Parties:

SDM (Applicant)
Regina (Crown)

Representation:

Counsel:
C Davenport (Applicant)
R Ingram (Crown)

Solicitors:
S O'Connor (LAC) (Applicant)
S Kavanagh (Crown)

File Number(s):

CCA 2006/2233

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the names and any matter which could identify the complainants is prohibited.

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names and any matter which could identify the complainants who were a child at the time the offence was committed is prohibited.

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

17 March 2006

Before:

Ellis DCJ

File Number(s):

05/21/0273

JUDGMENT

1. ADAMS J: I have read the judgment of Price J in draft. I agree with his Honour’s analysis of the relevant considerations and his Honour’s conclusion that the individual sentences imposed for the crimes committed by the applicant were not manifestly excessive. But for the matter which I discuss below, I agree, with respect, that the overall sentence would not be manifestly excessive and the variation in the non-parole period proposed by Price J would be appropriate.

2. As the learned sentencing judge made clear (and Price J agrees) this was a case in which it was appropriate to discount for utilitarian reasons the sentences that would otherwise have been imposed in the event of a trial by 25% in respect of the Glenorie offences and 15% in respect of the offences against his former wife. The approach taken by the learned trial judge was, in relation to each offence, to arrive at an appropriate sentence, having taken into account all the relevant objective and subjective factors and then to apply the discounts. If I may say so with respect, this approach was entirely proper. However, when his Honour accumulated by varying degrees the individual sentences, he made no mention – in dealing with the question of totality – to the significance at this stage of ensuring that the granted discount was carried through into the ultimate result. In many cases, this might readily be inferred from the outcome although, given the important public policy considerations underlying the giving of utilitarian discounts, it is obviously desirable that sentencing judges should make specific mention of the impact of the discounts on the ultimate overall sentence.

3. Where the discounts to apply to the individual offences are different, no merely mathematical solution is appropriate when assessing the way in which the discounts are to apply, in an accumulative way, to the ultimate overall sentence. It is the substance to which effect must be given. At then end of the day it is imperative, in my view, that the overall sentence is seen to be significantly less than that which would have resulted had the offences gone to trial. Otherwise, the effect of the accumulation will have been to negate the grant of the utilitarian discount.

4. To some degree, of course, the measurement of the utilitarian discount is necessarily arbitrary, though it ought never be capricious. At the end, the object is to allow a utilitarian discount that reflects the overall benefit accorded to the administration of justice by the pleas of guilty. Although the difficulty presented by different discounts applying to different offences might be resolved by a number of possible approaches, the most reasonable seems to me, in the circumstances here, to regard the overall utilitarian discount as somewhere between the 25% allowed for the Glenorie offences and the 15% allowed for the offences against his former wife. In my view, an overall discount of 20% would be appropriate.

5. In the present case, accepting that the differential discounts were appropriate (as I do), the necessary implications are that the learned trial judge either considered that an overall sentence before discount of something a little over thirty-seven years was appropriate to reflect the totality of the criminality involved in the offences or his Honour did not look at the question of totality in light of the discounts. It is no answer to this analysis that the individual sentences reflected the respective discounts, since it is obvious that the effect of the discounts might be entirely destroyed by the extent of accumulation. In my view, a starting point of between thirty-five and forty years before application of the overall discount – that is, an overall sentence (on the learned sentencing judge’s assessment of overall criminality) that would have been appropriate had the offences gone to trial – must have been manifestly excessive, accepting as I do that the offences were here very grave indeed and the overall criminality was very great.

6. It matters not which of the implications that I have mentioned is the fact: both are errors in the exercise of the sentencing discretion. Having regard to the significance of the utilitarian benefit to the administration of justice in this particular case, there was a distinct public interest in specifically mentioning its application. This was done by the learned sentencing judge when dealing with the individual sentences. However, considering the potential for undoing by the extent of accumulation what was rightly considered to be appropriate – taking away with one hand what was given with the other – it was also desirable to make specific mention of the matter when considering the appropriateness of the overall sentence. Had his Honour done so, it is inescapable, I think, that he would have discussed the problem posed by the differing discounts and resolved the matter. Because his Honour did not discuss the problem, it seems to me, with respect, that his Honour overlooked the potential to which I have referred.

7. The overall sentence of thirty years imprisonment arrived at by the learned sentencing judge would not, with respect, have been manifestly excessive had the applicant gone to trial – that is, had he not pleaded guilty. However, for the above reasons, I have concluded that this sentence does not reflect the utilitarian discounts identified by the learned sentencing judge as appropriate. In my view the overall sentence of thirty years should be regarded as the starting point and reduced by the utilitarian discount to twenty-four years imprisonment with an overall non-parole period of eighteen years.

8. To effect this result would require adjustment of the commencing dates of the individual sentences. Since I have the misfortune to disagree with my brethren on the outcome of the appeal, I have not felt it necessary to undertake this exercise.

9. HOWIE J: I agree with Price J.

10. PRICE J: The applicant, SDM, seeks leave to appeal against the severity of sentences imposed upon him in the District Court at Parramatta by Ellis DCJ on 17 March 2006.

11. On 10 October 2005, the applicant pleaded guilty to an indictment containing eight counts relating to offences against his former wife, namely four counts of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act1900 (NSW) and four counts of sexual intercourse without consent contrary to s 61 of the Crimes Act.

12. An offence contrary to s 59 of the Crimes Act is punishable by imprisonment for five years. An offence contrary to s 61 of the Crimes Act is punishable by imprisonment for 14 years. A standard non-parole period has been prescribed (s 54B Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) and table in Division 1A) in respect of an offence contrary to s 61 of seven years imprisonment.

13. Four matters of common assault contrary to s 61 of the Crimes Act on a Form 1 were taken into account on sentence on count eight on the indictment. One count on a s 166 certificate of contravene apprehended violence order contrary to s 562(1) of the Crimes Act was also taken into account.

14. The applicant on 24 February 2006 pleaded guilty to an indictment containing four counts involving offences committed at Glenorie (the “Glenorie offences”).

15. The first count is one of aggravated break and enter and commit serious indictable offence, namely armed robbery and in circumstances of special aggravation contrary to s 112(3) of the Crimes Act. The offence is punishable by imprisonment of 25 years. A standard non-parole period of seven years has been prescribed (s 54B CSP Act and table in Division 1A) in respect of the offence.

16. The second and third counts are counts of aggravated sexual intercourse without consent in company and with deprivation of liberty contrary to s 61JA of the Crimes Act.

17. The offences contrary to s 61JA of the Crimes Act are punishable by imprisonment for life. A standard non-parole period of 15 years has been prescribed (s 54B CSP Act and table in Division 1A) in respect of the offence.

18. The fourth count is one of maliciously inflict grievous bodily harm with intent to do grievous bodily harm contrary to s 33 of the Crimes Act.

19. The offence is punishable by imprisonment for twenty five years. A standard non-parole period of seven years has been prescribed (s 54B CSP Act and table in Division 1A) in respect of the offence.

20. Two matters of intimidate police in execution of their duty contrary to

“s 60(1) of the Crimes Act 1900 on a Form 1 were taken into account on sentence in relation to the second count on the indictment.”

21. On 17 March 2006, the applicant was sentenced by the Judge for all the offences contained in the two indictments and the following sentences were imposed:

“Indictment one (relating to offences against the former wife)

Counts 1 – 4: The applicant on each count was sentenced to a fixed term of imprisonment of eighteen months to date from 15 March 2004 and to expire on 14 September 2005.

Counts 5 – 7: The applicant on each count was sentenced to imprisonment with a non-parole period of four years and six months to date from 15 September 2004 and to expire on 14 March 2009 with an additional term of 18 months to date from 15 March 2009 and expire on 14 September 2010.

Count 8: Taking into account the matters on the Form 1, the applicant was sentenced to imprisonment with a non-parole period of six years to date from 15 March 2005 and to expire on 14 March 2011 with an additional term of two years to date from 15 March 2011 and to expire on 14 March 2013.

In relation to the s 166 offence, the applicant was sentenced to a fixed term of twelve months imprisonment to date from 13 April 2004 and to expire on 12 April 2005.

Indictment Two (relating to the ‘Glenorie offences’)

Count one: The applicant was sentenced to imprisonment with a non-parole period of seven years and six months to date from 15 March 2008 and to expire on 14 September 2015 with an additional term of two years and six months to date from 15 September 2015 and expire on 14 March 2018.

Count two: Taking into account the matters on the Form 1, the applicant was sentenced to imprisonment with a non-parole period of 15 years to date from 15 March 2012 and to expire on 14 March 2027 with an additional term of five years to date from 15 March 2027 and to expire on 14 March 2032.

Count three: The applicant was sentenced to imprisonment with a non-parole period of 15 years to date from 15 March 2014 and to expire on 14 March 2029 with an additional term of five years to date from 15 March 2029 and to expire on 14 March 2034.

Count four: The applicant was sentenced to imprisonment with a non-parole period of seven years and six months to date from 15 March 2010 and to expire on 14 September 2017, with an additional term of two years and six months to date from 15 September 2017 and to expire on 14 March 2020.”

22. Total effective sentence: As a result of accumulation and partial accumulation the total effective sentence imposed by the Judge was a non-parole period of twenty five years to date from 15 March 2004 and to expire on 14 March 2029 with a balance of term of five years to date from 15 March 2029 and to expire on 14 March 2034.

23. The Notice of Appeal identifies two grounds namely:

“Ground one

His Honour erred in failing to find special circumstances.

Ground two

The sentence imposed was manifestly excessive.”

The offences

24. It is convenient to adopt the facts from his Honour’s remarks on sentence. The Judge made an order that the names of the complainants in the “Glenorie offences” not be published. This Court continues this order and where applicable pseudonyms are used. His Honour said (at pp 4-15):

“The facts in brief were that the offender and the complainant commenced a relationship in June 2000 and were later married [in] February 2001. The offender was violent towards the complainant from the commencement of their marriage. The violence included physical violence, verbal abuse, smashing of property, and controlling behaviour. This violence culminated in the offences before the Court. There is one son to the union, who was born on … July 2002. In relation to count one, assault occasioning actual bodily harm, the facts are that by November of 2003, [the complainant] had been separated from the offender for eight months. After promises by the offender that he would not hurt her again she agreed to reunite and try and work things out. One night during November, [the complainant], the offender and their son were in a vehicle when the offender started questioning [the complainant] about who she had seen during their separation. He became angry and slapped her in the face. The slap caused her nose to bleed. The offender yelled out to the complainant “you fucking bitch, you put blood on my seat”. She replied “please don’t [the baby] is in the back”, but she was not able to get out of the car because her vision was blurry and she felt dizzy. There was a police car nearby but she thought that if she got out and told the police and they did not help her she would be bashed even more.

She asked where they were going and the offender backhanded her with his left hand saying “you fucking slut, I shouldn’t even be with you after what you’ve done to my family, how could you get up in Court and say that about me, you said you loved me”. That clearly was a reference to judicial proceedings wherein the offender was charged with assault on the complainant and also with being in breach of an apprehended violence order and those proceedings had resulted in a period of incarceration.

In relation to counts two, three and four, they all related to 3 December 2003, count two related to the offender punching [the complainant] to the back of the head and face, she ended up with blood all over her face. Count three arose when the offender entered the shower that the complainant was using and hit her face against the shower wall several times. Count four relates to an occasion shortly thereafter when the complainant got out of the shower and the offender kicked with a lot of power to the right hand side of her ribcage and actually caused a displaced fracture to her right lateral fifth rib, which caused her to have difficulty breathing.

In relation to the fifth count of sexual intercourse without consent, that occurred on 5 December 2003. The complainant had finished washing with her son, when the offender who was in an angry mood having earlier that day contacted the complainant saying that he had been trying to contact her all morning, accused her of being on the phone to someone else. She told him she had just woken up. Words were exchanged when they subsequently met and he drove her home from a friend’s place in the company of his cousin Gary. During that trip the offender said, in reference to the complainant, to his cousin, “she’s just a fucking slut, she’s a prostitute, I’ll let you fuck her for fifty dollars if you like”. When they all entered the home the offender then said to the complainant “you are fucking going to give me a head job now” she ignored him and commenced to bathe her child. The offender then approached her and said “hurry up you’re going to give me a head job” and threw a metal bottle at [the complainant] which struck her in the chin. He pushed her onto the bed and again started to accuse her of sleeping with other guys when they had been apart. He then obtained a bottle of hair conditioner and told her to compare its size with the other bloke’s penis. It was cylindrical shape. Further words were exchanged, the offender then grabbed the bottle and placed it between the complainant’s legs and penetrated her vagina. She screamed. That constitutes count five.

The offender then got a smaller black Lynx deodorant metal can and used it to insert into the complainant’s vagina. That constitutes count six. She was crying for him to stop. She managed to get back off the bed and tried to get out of the room but the offender slammed the door telling her to get back. The baby was still in the room and screaming. The offender then said “give me a head job” and further said “you gave that other bloke a head job, you better make sure you give me a better head job than him, you better enjoy it too” and he continued in that vein. The complainant then, because she was afraid, complied and commenced to suck the penis of the offender. This constitutes count seven.

When she had finished sucking his penis she was pushed to the ground so that she was on her hands and knees. The offender then placed his penis into the complainant’s anus. She begged him to stop. He did not and continued. She screamed, but he continued to have anal intercourse for approximately five minutes, despite her refusals, until he ejaculated inside her. The complainant as a consequence was in great pain and on going to the toilet found that she was bleeding from her anus. That constitutes count eight. The next morning when she discovered that the offender was no longer home, she then left the house.

The four matters on the Form 1, which are to be taken into account on the eighth count of sexual intercourse without consent, all relate to common assaults on the 3 and 4 December 2003. The first related to a mobile phone that was thrown at the complainant. The second was when the complainant was punched to the face a number of times. The third count related to the offender pushing a stool out from under the complainant and then kicking and punching her and the fourth count related to the offender throwing a bottle at the complainant and then striking/hitting her again.

The facts in relation to the s166 certificate are that on 6 December the offender continued to call and send text messages of a threatening nature to the complainant. The complainant reported the matter to the police on 12 December 2003, but again on 1 January and on 2 January she received threatening text messages. At that time an apprehended violence order was in force.

The facts in relation to the second indictment which I will refer to as “the Glenorie offences”, can be found in exhibit A (1), although I will not refer to those facts in full in these remarks. On 20 January 2004, [AV] lived on an eight acre lot at Glenorie in a six bedroom home with his wife [BV], their 16 year old daughter [CV], their 13 year old son [DV], who suffers from cerebral palsy and who at the time had a mental age of ten years and had only recently had surgery to mend his legs and was walking with the assistance of a walking frame, and a young friend [EV] who was aged 18 years and who was recovering from an operation to remove a substantial portion of his lung following a serious motor cycle accident.

One of the co-offenders David Buckley also lived on the premises up until 21 January 2004, the date of the commission of these offences. David Buckley and [AV] were involved in the cultivation of approximately 30 to 40 cannabis plants in the basement of [AV’s] house. David Buckley was the only one of the offenders who knew of the cannabis before that evening. At about 9pm on Tuesday 20 January 2004, David Buckley and Daniel Ball, who was a friend of David Buckley and known to [the family] and who had visited their home on occasion, left the premises of [the family] at Glenorie and travelled in David Buckley’s vehicle to the unit of another co-offender, Atil Singh at Panania. Present at the unit were this offender, [SDM], Michael Merkoreh another co-offender who is yet to proceed to trial, and Nazmi Chabaan who is also a co-offender. Soon after arriving, Buckley began to tell the others that [AV] had forced him to do chores around the house. He told them of the existence of the cannabis plants and that he was unhappy generally with the arrangement regarding the cannabis plants and having to do chores at the home. Plans were then hatched among the co-offenders to travel to Glenorie, break into the house, and steal the cannabis plants. Over the course of that night of Tuesday 20 January, [AV, BV, CV, DV and EV] retired to bed. The offenders left Panania and travelled to Glenorie in two vehicles, a blue WRX owned by this offender and a white utility, rented by Mr Singh. When they arrived at Glenorie they pulled into a dirt side road near the house. Buckley, [SDM], Merkoreh and Chabaan disguised themselves and walked up the side of the house into the backyard and entered the house through a closed but unlocked door. Co-offenders Ball and Singh remained with the vehicles as lookouts and never entered the house at any stage.

Buckley pointed out the rooms where the occupants were sleeping and he then went to the basement and commenced transporting the cannabis plants from that location to the utility. Mr Chabaan led [DV] into the room used by [EV] and he detained both of them during the home invasion. Neither of those two young men was injured during the course of the evening, nor did they have any property stolen during the course of the evening.

This offender, [SDM] and the co-accused Merkoreh entered the bedroom of [AV] and [BV], both of whom were asleep at the time. [BV] was clothed in pyjamas, while [AV] was naked. This offender and the co-offender Merkoreh were armed with two large kitchen knives and a handgun and they wore rubber washing up gloves on their hands. [AV] was dragged from the bed to the floor and pistol-whipped to the head with the revolver a number of times. He was also hit on the head with a machete, which had been kept by [AV] beside his bed. He received a number of wounds to his head as a consequence. This offender and Merkoreh demanded money and also demanded to know where the cannabis plants were secreted although they already had that information. During the assault on [AV], his head was covered with a cloth and his hands were handcuffed behind his back with a set of fur-covered handcuffs, which belonged to [AV] and [BV]. [BV] had a blanket or similar placed over her head. [CV], the 16 year old daughter, was then brought into her parents’ room.

Whilst in the master bedroom this offender and the co-offender found a combination safe and demanded that the safe be opened. They were informed that the safe was there when [the family] had moved in and that the combination was unknown. During the assault of [AV] demands were made for money, for the combination of the safe, and for the location of the cannabis.

Both offenders then commenced to sexually assault [BV] and [CV] to elicit more information from [AV]. The sexual assault involved cutting clothing off both women using a knife and in relation to [BV] the detail of the sexual assault is contained in paragraphs 62 to 67 of her statement which is marked as exhibit A1(a). [BV] had her hands tied behind her back. She was laid face down on the bed and this offender then shoved his hand hard between her legs. She tightened her muscles as hard as she could. The offender then shoved what the complainant believed was a screwdriver handle into her vagina. The offender did not shove the whole thing into her vagina but he was pushing it hard and he pushed it into her two or three times and it caused her significant pain. The offenders then grabbed [AV] and dragged him out of the room. This offender then returned to the room and while the complainant [BV] was laying face down on the floor with her hands tied behind her back he leant over and placed two or three fingers into her vagina, he did that two or three times, she said it felt as if he was wearing rubber gloves. She resisted and he said “you’re a dirty smelly bitch” and she kicked him as hard as she could to the legs. He then kicked her to the ribs and then to the left side of her torso, he then punched her a number of times to the face and then used his foot to kick her a number of times to the head. As a consequence she saw stars and was close to passing out.

In relation to [CV] the detail of the sexual assaults against her can be found at paragraph 41 and on of her statement which is marked exhibit A(1b). Indeed from paragraph 37 she describes having her clothing cut from her body, and some type of cold runny substance such as a lubricant placed on her back and bottom and vaginal area. The offender then had young [CV] lay on her stomach, he then as she said “jammed what felt like his whole hand with his fingers stretched out flat into my vagina, he did this a number of times, it felt like he was trying to put his whole hand inside my vagina, it was extremely painful and I tried to get away from him by moving up the bed and screaming. I was screaming from pain and I started to cry”.

Sometime shortly after, approximately five minutes later, the offender took hold of [CV] and took her into the bathroom an demanded that she get into the bath there still being water from a bath her brother had had. She refused saying it would be freezing cold. He then took her to her bedroom and said, “Will you give me a head job?” She said, “You can kill me first because I ain’t doing that”. He refused to let her put any clothes on and he made her lay down face down on the bed again but at that point the co-offender walked into the room, there was conversation and they both left. Shortly after that she heard her father scream.

The co-offender then walked into her room, told her to open her legs and she felt a cold hard metal like object pushing into her vagina. She believed that to be the gun, which she had previously seen. He then took the gun away and jammed what felt like his whole hand with his fingers stretched out flat into her vagina, she screamed with pain, and the first male left shortly after. She some five minutes later, returned to her parent’s room and saw on the bed where she had been laying at the time she was sexually assaulted by this offender, that the sheets were covered in blood. The penetration of the young complainant’s vagina caused considerable vaginal tearing.

During the assault upon [AV, BV and CV] by this offender and Merkoreh, the other offenders were either removing the cannabis plants from the cellar, guarding [DV and EV] or keeping a lookout out near the cars. [AV] was subsequent removed from the bedroom into the bathroom. In that bathroom there is a full-length window, which faces the side of the house. He managed to breakthrough that window by simply jumping through it. He fell to the ground and then ran off. The offender, Merkoreh and Chabaan then gave chase and short struggle ensued between [AV] and the accused. During that struggle this offender brandished a knife and [AV] took hold of the blade of the knife to protect himself. During that struggle the offender Merkoreh struck [AV] with the machete. In order to defend the blows [AV] positioned his arm in front of his face. As a result of the blows from the machete [AV] received significant injuries, including the complete severing of a forearm bone.”

The applicant’s subjective circumstances

25. Evidence of the applicant’s subjective circumstances was put before the Judge by way of a probation and parole report dated 2 December 2005 and a report by Professor David Greenberg psychiatrist dated 7 December 2005.

26. The applicant was born in March 1979 and at the time of the offences committed at Glenorie was aged 24 years.

27. The applicant’s parents divorced when he was eight years old. During his early childhood, his mother abused heroin and his father was absent because of criminal activities. After his parents separated the applicant lived with his mother until aged 13 years. He reports that he was physically abused by his mother’s boyfriends. He then lived with his cousins at Kings Cross or squatted. At the age of 16 he went to live with his father.

28. The applicant said that he attended over twenty different schools. He has a lengthy juvenile record, with nine Court appearances dealing with 17 offences. At the age of 16 he was sentenced to a term of six years with a non-parole period of four years for armed robbery and maliciously shoot at police to avoid apprehension. He spent at least four years at the Kariong Juvenile Justice Centre where he was able to complete his school certificate.

29. The applicant married his former wife in February 2001. Their relationship, it appears, was characterised by frequent domestic violence, separations and re-unions. A son was born in July 2002.

30. Professor Greenberg noted that the applicant admitted being jealous and possessive of his former wife and it is noted in the probation and parole report that the applicant had shown himself to be a very possessive, jealous and demanding husband.

31. The applicant at the age of 13 years commenced using various illicit substances and there is a long history of illicit substance abuse/dependence. He stated he had been taking ICE (methamphetamine) for eight or nine months which affected his behaviour. Professor Greenberg diagnosed him as having an Antisocial Personality Disorder associated with a history of poly-substance abuse/dependence.

32. The probation and parole report reveals that the applicant stated he committed the “Glenorie offences” whilst under the influence of drugs and believed his victim to be a drug dealer. After stealing drugs he believed there was a safe containing a large amount of cash. He states that he made the female victims strip in an attempt to force the victim to open the safe. Once they did he became aroused and sexually assaulted them.

33. The applicant was assessed as suitable for high level interventions by the Probation and Parole Service which would include counselling and treatment in relation to alcohol and other substance abuse issues together with anger management and the sex offenders program.

Dealing with the Appeal

34. The first ground of appeal is that his Honour erred in failing to find special circumstances. The Judge when sentencing the applicant said (ROS at 37):

“Although arguably there may be some features of this case, which could constitute special circumstances, the reality is that by reason of the effective length of the sentence to be imposed a parole period of one third of the non-parole period will be sufficient and there is no justification for altering the statutory ratio.”

35. Whilst conceding that his Honour was entitled to make such a finding, the applicant contends that as a result of the way in which his Honour structured the sentences, the parole period was substantially less than one-third of the non-parole period of the total sentence. In determining each individual sentence, the applicant agrees that the Judge imposed a parole period that was one-third of the non-parole period, but contends because of the accumulation of sentences, this ratio was not reflected in the final sentence.

36. The Crown submits, although in isolation the Judge’s remarks might suggest the contended error, the remarks on sentence considered as a whole indicate he intended to impose an aggregate balance of term less than one-third of the aggregate non-parole period having regard to the totality of the applicant’s criminality.

37. For each individual sentence for which a non-parole period was set, the Judge fixed a ratio of 3:1 between the non-parole period and the remainder of the sentence. The ratio, however, between the overall effective non-parole period and overall effective remainder of sentence was 5:1.

38. Section 44(2) of the CSP Act does not prohibit such a ratio nor does such a ratio require a finding of special circumstances. The subsection prescribes a ratio between the non-parole period and the remainder of the term such that the remainder of the term cannot, without special circumstances, be more than one-third of the non-parole period. In the present case, the remainder of the term was less than one-third, it being one-fifth.

39. This Court has held however that where a sentencing Judge’s reasons disclose an intention to reflect a ratio not greater than 3:1 prescribed by the CSP Act and no reasons are given for an overall sentence which does not reflect that ratio, an appeal Court will generally consider this not to be a deliberate departure, but rather an understandable mistake of the effect of cumulative sentencing: Perry v R [2006] NSWCCA 351; (2006) 166 A Crim R 383 at [16], R v Swan [2005] NSWCCA 252 (“Swan”).

40. As was observed by Rothman J in Swan at [24]:

“Where a Judge, having fixed the 3:1 ratio for each individual offence, intends deliberately to depart from the ratio in the overall sentence a statement to that effect should be made. Otherwise it will be presumed that the adjustment to account for cumulative sentence has accidentally been omitted.”

41. I do not understand by those remarks that Rothman J intended to convey that a statement of intended departure from the statutory ratio in the overall sentence in express terms is always required when the statutory ratio has been set for each individual offence. Whilst such a statement is preferable, there may be instances where a sentencing Judge’s reasons disclose by implication an intention to reflect in the overall sentence a ratio greater than 3:1.

42. In the present case, there was no express statement by the Judge of his intention to depart from the statutory ratio in the overall sentence imposed.

43. His Honour was faced with a complex sentencing task which involved separate indictments, multiple offences and four standard non-parole periods. The remarks on sentence bespeak careful consideration and diligence.

44. Having made the remarks in the first passage quoted above, the Judge went on to closely consider the principles associated with cumulation, concurrence and totality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 and made determinations in respect of the offences within the first indictment of concurrence, partial accumulation and accumulation.

45. The Judge then remarked (ROS at p 38):

“In relation to the Glenorie offences, the Court has concluded that these offences should be cumulative upon the [former wife] sexual intercourse without consent offences as the offences are entirely unrelated. As each Glenorie count represents either different serious criminality or serious criminality on multiple victims, the Court has concluded that cumulative sentences are appropriately (sic). The Court having determined that these be cumulative, has reviewed the aggregate sentence and considered whether it is just in accordance with the principle of totality. As a consequence of this review the Court has determined that partial concurrency, with regard to all of these offences, more appropriately reflects a just, fair and proper sentence.” (emphasis added).

46. The Crown contends that the Judge by these remarks conveyed an intention to depart from the statutory ratio in the overall sentence. Notwithstanding his Honour’s assiduity, I do not agree.

47. The Judge when considering special circumstances opined in the first passage of the sentencing remarks quoted above that the reality was by reason of the “effective length” of the sentence to be imposed a parole period of one-third of the non-parole period “will be” sufficient. The “effective length” of the sentence could only mean the total aggregate sentence imposed after questions of cumulation, concurrence and totality had been considered.

48. With respect to his Honour, I am of the view that he overlooked when considering the principle of totality the adjustment which was required to be made to the ratio of the overall effective non-parole period to the overall effective remainder of the sentence consistent with his earlier stated intention of a ratio of 3:1.

49. The second ground of appeal is that the sentence is manifestly excessive. The applicant points in particular to the determination by the Judge to accumulate the “Glenorie offences” upon those committed against his former wife and submits that the Judge failed to give effect to the principle of totality.

50. The Court was referred in the applicant’s written submissions to what was said in Postiglione v The Queen (1997) 189 CLR 295 by Kirby J at 341 (“Postiglione”):

“It has been recognised by this Court that the adjustment for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed. While this is unfortunate, it is to be preferred to imposing a sentence which is excessive in its totality or unfair when tested by parity in the punishment of comparable offenders.”

51. The Judge considered the principle of totality as he was obliged to do and gave careful reasons for the effective sentence which was ultimately imposed (ROS at p 37-39). It was necessary for his Honour to ensure that the aggregation of all the sentences was a “just and appropriate measure of the total criminality involved”: Postiglione at 307-308 per McHugh J.

52. As was observed by this Court in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15] (“R v MAK; R v MSK”), the need to maintain an appropriate relationship between the totality of the criminality involved and the totality of the sentences to be imposed arises for at least two reasons. The first reason being the severity of a sentence may increase at a greater rate than an increase in the length of a sentence – it is not simply the product of a linear relationship and the second the proposition that an extremely long total sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release: R v MAK; R v MSK at [16]-[17].

51. The Court in R v MAK; R v MSK emphasised at [18] the need to take care when applying the totality principle “to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]”.

52. In the second passage of the sentencing remarks quoted above, the Judge concluded that the “Glenorie offences” should be cumulative upon the offences of sexual intercourse without consent upon his former wife as the offences were entirely unrelated. As each “Glenorie” count represented either different serious criminality or serious criminality on multiple victims, he concluded that cumulative sentences were appropriate. The Judge reviewed the aggregate sentence and considered whether it was just in accordance with the principle of totality and then determined as a consequence of the review partial concurrency with regard to all of the “Glenorie offences” more appropriately reflected a just, fair and proper sentence.

53. The analysis by his Honour of the structure of the sentences was in my view careful and correct (save for the understandable oversight of the adjustment to the statutory ratio).

54. The applicant’s criminality in the “Glenorie offences” was appalling. The Judge found the applicant to be the ringleader and main perpetrator in relation to the sexual offending and in relation to the violence occasioned to AV both within the bedroom and outside the house (subject to the remarks he had earlier made about the use of the machete). The offences of aggravated sexual intercourse in company with deprivation of liberty, the Judge observed, took place in the victims’ own home as part of a home invasion. The offence against CV, then sixteen years old, was committed in the presence of her mother and father and for BV it was in the presence of her daughter and husband. The Judge had earlier found that the applicant and co-offender Merkoreh were armed with two large kitchen knives and a handgun and wore rubber washing up gloves on their hands when they entered the bedroom where AV and BV were sleeping.

55. As the Judge remarked (ROS at p 21):

“These offences, occurring as they did in the sanctity of one’s home, cannot be described as anything less than every person’s worst nightmare. General and specific deterrence is to the fore. Punishment and protection of the community is essential.”

58. The offences at Glenorie were separate and distinct from the offences committed against the applicant’s former wife which were serious. The totality of the applicant’s criminality was high and there was little to mitigate the seriousness of the offences.

59. I am not persuaded that the Judge failed to give effect to the principle of totality in any way other than to make the adjustment required to preserve the statutory relationship between the non-parole period and the balance of the sentence.

60. The Judge’s stated intention to apply the statutory ratio would have achieved an appropriate aggregate sentence. Adjusted in this way, the total effective non-parole period is 22 years and six months with a total effective balance of term of seven years and six months. The parole period being one-third of the non-parole period will be sufficient, as his Honour remarked, to assist in the applicant’s rehabilitation. The adjusted non-parole period adequately reflects his total criminality. The need to make such an adjustment in order to preserve the statutory ratio amounts to special circumstances: R v Simpson (1992) 61 A Crim R 58; R v Close (1992) 31 NSWLR 743. No change is to be made to the length of the total effective sentence of 30 years.

61. Error having been identified the Court, in my view, should form as required by s 6(3) of the Criminal Appeal Act 1912 (NSW) an opinion that “some other sentence … is warranted in law and should have been passed” so that an adjustment is made to the ratio of the overall effective non-parole period to the overall balance of term of the sentence to reflect the statutory ratio.

62. This may be achieved by adjusting the non-parole periods in each of the sentences imposed in counts two and three of the second indictment (relating to the “Glenorie offences”) to 12 years and 6 months. With these adjustments the effective non-parole period will be 22 years and 6 months to date from 15 March 2004 and to expire on 14 September 2026. The effective balance of term is 7 years and 6 months to date from 15 September 2026 and to expire on 14 March 2034.

63. I propose the following orders:

1. Leave to appeal be granted.

2. Quash the sentence imposed by Ellis DCJ for count two on Indictment two (relating to the “Glenorie offences”) being an offence contrary to s 61JA of the Crimes Act 1900 (NSW).

3. Sentence the applicant to imprisonment for a non-parole period of 12 years and 6 months to date from 15 March 2012 and expire on 14 September 2024 with a balance of term of 7 years and 6 months expiring on 14 March 2032 for count two on Indictment two.

4. Quash the sentence imposed by Ellis DCJ for count three on Indictment two (relating to the “Glenorie offences”) being an offence contrary to s 61JA of the Crimes Act 1900 (NSW).

5. Sentence the applicant to imprisonment for a non-parole period of 12 years and 6 months to date from 15 March 2014 and to expire on 14 September 2026 with a balance of term of 7 years and 6 months to expire on 14 March 2034 for count three on Indictment two. The earliest date on which the applicant will be eligible for release to parole is 14 September 2026.

6. The names of the complainants in counts one to four (inclusive) in Indictment two (relating to the “Glenorie offences”) not be published.

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Decision last updated: 13 June 2025