Sharma v R

[2022] NSWCCA 190

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sharma v R [2022] NSWCCA 190

Hearing dates:

26 August 2022

Date of orders:

15 September 2022

Decision date:

15 September 2022

Before:

Beech-Jones CJ at CL at [1]
Adamson J at [8]
Bellew J at [9]

Decision:

(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Whether sentence manifestly excessive – Cause to take intoxicating substance to enable the commission of an indictable offence – Sexual intercourse without consent – Intentionally recording intimate images without consent – No specific error asserted – Where manifest excess was said to be reflected in the application of the discount to reflect the applicant’s pleas of guilty and sentences imposed in other cases of similar offending – No error in the application of the discount – Where it was expressly conceded that the objective and subjective circumstances in the cases relied upon for comparative purposes were distinguishable from the present case on various bases – Serious offending – Findings of sentencing judge unchallenged – Leave to appeal granted – Appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

BB v R [2021] NSWCCA 283

Chartres-Abbott v R [2021] NSWCCA 239

Clarke v R [2021] NSWCCA 248

Dinsdale v The Queen [2000] 202 CLR 321; [2000] HCA 54

DL v R [2020] NSWCCA 164

Doe v R [2013] NSWCCA 248

Greenwood v R [2014] NSWCCA 64

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

JM v R [2014] NSWCCA 297

Kelly v R (2017) NSWCCA 256

Lee v R [2016] NSWCCA 66

Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25

Moodie v R [2020] NSWCCA 160

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

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

R v Reyes [2005] NSWCCA 218

Samadi v R; Djait v R [2008] NSWCCA 330

Shi v R [2020] NSWCCA 250

Smith v R [2020] NSWCCA 181

Vaiusu v R [2007] NSWCCA 71

Zahorsky v R [2013] NSWCCA 268

Category:

Principal judgment

Parties:

Maanau Sharma – Applicant
Regina – Respondent

Representation:

Counsel:
P Doyle – Applicant
S Traynor – Respondent

Solicitors:
David Ryan Legal – Applicant
C Hyland, Solicitor for Public Prosecutions NSW – Respondent

File Number(s):

2019/167136; 2019/307750

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 October 2020

Before:

Her Honour Judge Baly SC

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant formed a relationship with the victim (KB) through a dating app. KB suffered from Trigemina Neuralgia, as a consequence of which she experienced episodic pain. The applicant told her that he could provide her with analgesic medication but instead gave her several tablets of Zolpidem, a sleep inducing sedative, which caused her to lose consciousness. Whilst unconscious, the applicant took a number of images of KB partially naked, before having sexual intercourse with her on three occasions. When arrested, police seized the applicant’s phone, analysis of which revealed the presence of intimate images and videos taken of another victim (MH) along with a video which had been taken of a third victim (JM). The applicant pleaded guilty to:

1. one count of causing KB to take an intoxicating substance to enable the commission of an indictable offence;

2. two counts of having sexual intercourse with KB without her consent (attached to one of which was a Form 1 containing a further similar count);

3. one count of intentionally recording intimate images of KB without her consent;

4. one count of intentionally recording intimate images of MH without her consent; and

5. one count of attempting to intentionally record an intimate image of JM without her consent.

The sentencing judge imposed an aggregate sentence of 11 years imprisonment with a non-parole period of 7 years. In doing so, the sentencing judge applied a discount of 25% to the indicative sentences. The applicant sought leave to appeal against that sentence on the single ground that it was manifestly excessive. In advancing that ground, the appellant did not assert specific error, but argued that manifest excess was apparent from:

6. the undiscounted aggregate sentence;

7. the application of the discount to some of the particular counts of offending; and

8. the sentences imposed in other cases of similar offending.

Held granting leave to appeal and dismissing the appeal:

Per Beech-Jones CJ at CL (Adamson J agreeing):

1. There is limited utility in comparing an aggregate sentence imposed in one case with that imposed in another, particularly in circumstances where each aggregate sentence includes different offences. In the present case, the aggregate sentence was imposed in respect of six separate counts of sexual and related offending involving three separate victims. It is one thing to analyse comparable cases to ascertain a range of sentences for particular offences as part of the process of determining whether a sentence is manifestly excessive. However, it is quite another to attempt to ascertain a range of notional discounts applied on account of the application of the totality principle for that purpose: at [6].

Per Bellew J (Beech-Jones CJ at CL and Adamson J agreeing):

2. The entirety of the applicant’s offending involved a disgraceful and intrusive interference upon the personal and intimate integrity of all of the victims, and required the imposition of a stern sentence so as to give effect to principles of general deterrence and denunciation: at [69].

Greenwood v R [2014] NSWCCA 64; Samadi v R; Djait v R [2008] NSWCCA 330 applied.

3. The seriousness with which the Parliament views such offending is reflected in the maximum penalties which operate as a guidepost or yardstick: at [70].

Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25 referred to.

4. The applicant’s subjective case was generally unremarkable and the sentencing judge had made such findings in his favour as were open to her: at [71].

5. An approach to an assertion of manifest excess which involves considering the undiscounted aggregate sentence is contrary to principle. To the extent that there may be any tension in the authorities in that regard it was not necessary to resolve it. Even if such an approach were permissible, it was not one which was of any utility in the circumstances of the present case: at [72]-[74].

BB v R [2021] NSWCCA 283 applied; Chartres-Abbott v R [2021] NSWCCA 239 referred to.

6. There was nothing to suggest that there had been an incorrect application of the discount to reflect the utilitarian value of the applicant’s pleas of guilty. The approach taken by the applicant in this respect would, if adopted, have the tendency to reduce sentencing to a mathematical exercise, and overlook the fundamental nature of sentencing as one involving a process of instinctive synthesis: at [72].

7. Bearing in mind the concession made by counsel for the applicant that each of the cases relied upon for comparative purposes was distinguishable to some degree, such cases provided no support for the conclusion that the sentence imposed was manifestly excessive. This was particularly so when a number of particular matters were taken into account: at [76]-[83].

Moodie v R [2020] NSWCCA 160; Smith v R [2020] NSWCCA 181; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; Zahorsky v R [2013] NSWCCA 286 referred to.

Judgment

1. BEECH-JONES CJ at CL: I have read the judgment of Bellew J. I agree with his Honour but wish to add the following.

2. Counsel for the applicant contended that, in considering the contention that the sentence imposed was manifestly excessive, the Court should ascertain what the aggregate sentence would have been had the indicative sentences not been discounted on account of his plea of guilty and compare that to other cases. He sought to rely on the following passage from the judgment of Brereton JA in Chartres-Abbott v R:[1]

“The applicant received a discount of 25 percent for his early pleas of guilty. Based on that, his counsel submitted that the ‘starting point for the head sentence was eighteen years and eight months. The Crown submitted that this was misconceived, as discounts for a guilty plea are applied to the indicative sentences and not to the aggregate sentence. While it is correct that the prevailing view is that discounts for a guilty plea are to be applied to the indicative separate sentences rather than to the aggregate sentence, it does not follow that for the purpose of comparison with other cases the approach advanced on behalf of the applicant is impermissible. Plainly, in comparing aggregate sentences in one case with those in others, regard must be had to whether or not the sentence followed a plea of guilty, and the discount that was allowed. While I acknowledge that ‘the determination of an aggregate sentence is not merely the sum of its parts’, particularly in a case such as the present, where the same 25 percent discount was applicable to each offence, there is little difficulty in reasoning that it was reflected commensurately in the aggregate sentence. That is, it follows as a matter of logic that, had the applicant not received a discount of 25 percent on each of the indicative sentences, the aggregate sentence would have been lengthier by a corresponding proportion. At least for the purpose of comparison with other sentences, it is reasonable to proceed on the basis that but for his plea of guilty the aggregate sentence would have been in the order of eighteen years and eight months.” (emphasis added; citations omitted)

1. [2021] NSWCCA at 239 [23].

3. In addressing this passage, I will confine myself to its potential application to this case and not address the broader question of whether there is ever any utility in comparing a discounted aggregate sentence imposed in one case with an undiscounted aggregate sentence imposed in another.

4. Prior to the introduction of aggregate sentences, sentencing was undertaken in accordance with the strictures stated in Pearce v The Queen [2] (“Pearce”), namely, “fix[ing] an appropriate sentence for each offence and then consider[ing] questions of cumulation or concurrence, as well, of course, as questions of totality”. [3] As explained by R A Hulme J in JM v R,[4] the provision enabling the imposition of aggregate sentences, s 53A, was introduced in order to ameliorate the difficulties of applying Pearce in sentencing for multiple offences. The provision “offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a ‘cascading or “stairway” sentencing structure’ when the principle of totality requires some accumulation of sentences” although it is still “necessary in assessing the indicative sentences to have regard to the requirements of Pearce”.

   2. (1998) 194 CLR 610; [1998] HCA 57.

   3. At [45].

   4. [2014] NSWCCA 297 at [39].

5. Hence the process of aggregation, that is, the step in the sentencing process of moving from the indicative sentences to fixing an aggregate sentence, involves an application of the requirement in Pearce to “consider questions of cumulation or concurrence, as well … as … totality” without having to fix start and end dates for individual sentences. At that point, considerations of parity with sentences imposed on co-offenders still have a role to play because a differential application of the totality principle to two offenders who committed multiple offences can infringe the parity principle even if only some of the offences were common offences. [5]

   5. Postiglione v The Queen (1997) 189 CLR 295 at 303 to 304; [1997] HCA 26; Kelly v R [2017] NSWCCA 256 at [30] and Clarke v R [2021] NSWCCA 248.

6. However, for the purposes of addressing a claim that a sentence is manifestly excessive in a case such as this, I struggle to see the relevance of comparing the aggregate sentence imposed with the aggregate sentence imposed in another case, especially where each aggregate sentence included different offences. In this case, the aggregate sentence is imposed for six sexual offences involving three different victims. At least so far as this case is concerned, it is difficult to envisage that there is much of a pool of aggregate sentences for six sexual offences of the kind involved here concerning three different victims. Even if there were such a pool of aggregate sentences, a comparison of aggregate sentences, as opposed to the indicative sentences, would at most only reveal how the totality principle was applied in another case. The utility of ascertaining that in a claim of manifest excess is not apparent. It is one thing to analyse comparable cases to ascertain a range of sentences for particular offences as part of the process of determining whether a sentence is manifestly excessive. However, it is quite another to attempt to ascertain a range of notional discounts applied on account of the application of the totality principle for that purpose. For my part, at least in a case of this kind, I do not see how that would assist.

7. I agree with the orders proposed by Bellew J.

8. ADAMSON J: I agree with the reasons of Bellew J and with the orders proposed by his Honour and with the additional remarks of Beech-Jones CJ at CL.

9. BELLEW J: Maanau Sharma (the applicant) pleaded guilty in the District Court to the following offences, in respect of which the sentencing Judge gave the indicative sentences which are set out:

Sequence	Offence	Section and Act		Maximum penalty	Indicative sentence
2/91	Sexual intercourse without consent (penile/vaginal intercourse)	Crimes Act 1900, s 61I		14 years imprisonment with a standard non-parole period of 7 years	3 years and 9 months imprisonment with a non-parole period of 2 years and 5 months
3/91	Sexual intercourse without consent (penile/anal intercourse)	Crimes Act 1900, s 61I		14 years imprisonment with a standard non-parole period of 7 years	4 years and 10 months imprisonment with a non-parole period of 3 years and 1 month
4/91	Intentionally record intimate images without consent (18 photos and 3 videos)	Crimes Act 1900, s 91P(1)		3 years imprisonment or 100 penalty units	1 year and 6 months imprisonment
8/91	Cause to take intoxicating substance (Zolpidem) to enable the commission of an indictable offence (sexual intercourse without consent)	Crimes Act 1900, s 38(b)		25 years imprisonment	8 years imprisonment
3/53	Intentionally record intimate images without consent (5 photos and 5 videos)	Crimes Act 1900, s 91P(1)	3 years imprisonment or 100 penalty units		1 year and 6 months
4/53	Attempt to intentionally record an intimate image without consent (2 videos)	Crimes Act 1900, s 91P(1)	3 years imprisonment or 100 penalty units		5 months imprisonment

10. In respect of sequence 3/91, the applicant asked the sentencing Judge to take into account a further offence of having sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). Two further counts of possessing a prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) were included in a Certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

11. The sentencing Judge imposed an aggregate sentence of 11 years imprisonment with a non-parole period of 7 years. In respect of each of the matters contained in the s 166 Certificate, her Honour recorded a conviction but did not impose any further penalty.

12. The applicant now seeks leave to appeal against that sentence on the single ground of appeal set out below. It should be noted that in advancing that ground of appeal, counsel for the applicant before this Court took no issue with any of the findings of the sentencing Judge.

THE FACTS OF THE OFFENDING

13. Agreed facts were tendered to the sentencing Judge [6] which may be summarised as follows.

    6. AB 62 – AB 67.

Background

14. In late 2017, the applicant met the first victim (KB) via the dating application “Tinder”. They began communicating with each other and a friendship developed between them.

15. In December 2018, KB was diagnosed with a chronic pain condition known as Trigenminal Neuralgia, as a consequence of which she was prescribed analgesic medication. She did not experience any side effects whilst taking that medication, but was warned that it could cause drowsiness and was not to be taken with alcohol.

16. In March 2019, KB told the applicant that she was experiencing pain in her arm and neck. The applicant offered to give her a massage, telling her that he was qualified to do so. KB agreed and attended the applicant's premises. She became comfortable with the applicant in the course of the massage, and engaged in consensual sexual intercourse with him. The applicant then drove KB home, in the course of which he made reference to the fact that he could obtain strong medication to assist her in dealing with her pain. There were two further occasions in April and May 2019 on which KB engaged in consensual sexual intercourse with the applicant.

17. During the week of 20 May 2019 the applicant repeatedly messaged KB, attempting to meet up with her. KB initially declined, but ultimately agreed to stay at the applicant’s premises overnight on 24 May 2019. Sometime after 7:30pm that day the applicant sent KB a message telling her that he had painkillers for her to try.

THE OFFENDING AGAINST KB

Sequence 8/91 – Causing KB to take an intoxicating substance with intent to enable the commission of an indictable offence, namely sexual intercourse without consent

18. The applicant collected KB from her premises at 9:33pm on 24 May 2019. In the course of returning to the applicant's premises, KB mentioned that she was experiencing pain in her face. The applicant responded by telling her that:

1. he had strong painkillers which had cost him $25.00 each and had assisted him in dealing with knee pain; and

2. he was able to take up to 6 at a time before they upset his stomach, and that she should take 2 to begin with.

19. The applicant then opened the centre console of his vehicle, pulled out a white tablet box, and asked KB how many tablets she wanted. When KB asked what was in the tablets, the applicant told her that they had “Endone or something else” in them, and said that he would send a message to a friend later in the evening to obtain more precise information.

20. The applicant gave KB 2 of the tablets. Acting on what he had told her about their ingredients, KB took them. The applicant had in fact given KB Zolpidem (trade name Ambien), a non-benzodiazepine sedative and hypnotic which rapidly induces sleep.

21. When they arrived at the applicant’s premises, KB sat down in the lounge room to watch television, whilst the applicant prepared a drink in the kitchen. By this time it was about 10:00pm. KB's memory began to fade due to the effects of the Zolpidem and by 10:30pm, KB had lost consciousness entirely.

Sequence 4/91 – Intentionally recording intimate images of KB without consent

22. Between 10:31pm on 24 May 2019 and 12:02am on 25 May 2019, the applicant took a series of photographs and videos of KB when she was unconscious on the couch. These included:

1. photographs of KB's bare breasts;

2. photographs of KB's bare buttocks, with the applicant’s finger stroking her left buttock cheek; and

3. a photograph of the applicant’s erect penis pressed up against KB's lips.

Sequences 2/91 and 3/91 – Sexual intercourse with KB without consent

23. During the evening of 24 May 2019 and the early hours of the morning of 25 May 2019, the applicant engaged in penile/vaginal and penile/anal intercourse with KB whilst she was unconscious or semi-unconscious and thus incapable of consenting, in the knowledge that she was so incapable. KB was able to recall the applicant removing his penis from her vagina and inserting it into her anus, at which point she said:

Not that.

24. The applicant responded with words to the effect:

Just a second.

25. The next thing KB could recall was being shaken awake by the applicant at 6:30am on 25 May whilst lying on his bed. She was completely clothed at the time with her clothing properly positioned. The applicant drove her home.

26. The Form 1 attached to sequence 3/91 detailed that the applicant had also engaged in penile/oral intercourse with KB whilst she was unconscious. As he was thrusting his erect penis in and out of KB’s mouth, he said to her:

Don't bite, don't bite, don't bite.

Events following the offending against KB

27. During 25 May 2019, KB began having flashbacks of what had occurred at the applicant's premises. As a consequence of these flashbacks, she conducted a Google search of the term “rape if they are unconscious” and found a picture that said:

At what point does consensual sex become rape if a consenting partner becomes unconscious? Seriously.

28. KB sent a copy of this picture to the applicant, following which there was an exchange of messages between them:

APPLICANT: I was out of it too, I don't know what you are talking about.

KB: I don't do anal.

APPLICANT: That would have been an accident.

29. KB had no further communication with the applicant following this exchange.

30. KB disclosed her concerns to her sister and a friend and then attended Liverpool Hospital where she was examined. Her urine sample was found to contain Zolpidem metabolites. Bearing in mind what the applicant later told police when arrested (as set out below) nothing detected in the sample was consistent with the presence of Valium. On the morning of 27 May, KB reported the incident to the police.

The applicant’s arrest

31. Police arrested the applicant on 28 May 2019. The applicant spoke with police en route to the police station, in the course of which he said (inter alia) that:

1. he had given KB Valium tablets;

2. he had told her what they were, and that they operated as a relaxant;

3. KB had 2 tablets and he had 3 tablets;

4. he had not had a prescription for Valium, and had obtained 10 tablets in total from a friend, all of which had been consumed;

5. the Valium did not affect him to any real degree, nor did it affect KB;

6. KB was coherent and responsive during the sexual intercourse which had taken place;

7. he did not think about the consequences of mixing Valium with other medication which was been taken by KB at the time;

8. KB did not hesitate in choosing to take the tablets which were given to her, and was not forced to do so; and

9. he had photographed KB on the couch when they were watching a movie after they had consensual sexual intercourse.

32. After arriving at the police station, the applicant participated in a formal interview during which he told police that:

1. he had engaged in penile/oral, penile/vaginal and penile/anal intercourse with KB, all of which was consensual (other than the penile/anal intercourse which, he maintained, was both momentary and accidental);

2. on 24 May 2019, he and KB had first had sexual intercourse at about 10:00pm or 10:30pm, during which KB was awake and conscious;

3. KB had consented to the photographs which were taken; and

4. he had said to KB words to the effect “don't bite” when he had penile/oral intercourse with her.

Further investigations

33. Following the applicant's arrest, his car and home were searched. In the course of that search, police located 5.6g of Testosterone located in a vile marked “Sustanon 250” and two tablets of Oxymetholone. The applicant's possession of those substances constituted the basis of the two offences in the Certificate issued pursuant to s 166.

34. Police also seized a number of electronic storage devices. A Cellebrite download of the applicant's phone established a browsing history dating back to 2018 which included:

1. searches conducted on various pornography websites using the search terms “shopping upskirt”, “sleeping”, “voyeur”, “wife spycam”, “sleeping wife”, “forced wife”, “asleep”, “neighbour voyeur”, “sleep sex”, “passed out wife”, “drugged wife” and “sister sleeping”;

2. the viewing of pornographic footage with titles including “sleeping sister gets played with”, “sleeping mum molested by daughter”, “cum on passed out chubby milf on the couch”, “passed out sleeping drunk bitch on the train showing her nice round candid ass”, “naughty brother fucking sleeping step-sister”, “wife sleeping facial”, “using her drunk passed out pussy”, “fucking her while on ambien – mature, sleepy sleep sleeping dormida passed out”, “cum in her sleeping mouth”; and

3. multiple visits to the website voyeurcentre.com between August 2018 and May 2019.

THE OFFENDING AGAINST MH

Sequence 3/53 – Intentionally recording intimate images of MH without consent

35. When examining the applicant's phone following his arrest, police recovered videos and photographs of a second victim, MH, next door to whom the applicant had lived between 2016 and 2017. Those images had been taken by the applicant through the back door and window of her home on multiple dates between February and November 2017. The images variously captured MH in a state of undress, wearing only underwear, naked after having a shower, and masturbating on her lounge. A total of 16 photographs and 36 videos were taken of MH after 25 August 2017. 5 photographs and 8 videos amounted to intimate images. MH was unaware of the photographs and videos which had been taken, and did not consent to the applicant doing so.

THE OFFENDING AGAINST JM

Sequence 4/53 – Attempting to intentionally record intimate images of JM without consent

36. The applicant was employed by a major bank as a customer lending/service specialist, and on 6 September 2018 attended a training session conducted by a further victim to whom I shall refer as JM. The applicant was sitting to the immediate left of JM during the training session, in the course of which he surreptitiously recorded two videos of her underneath the table. In doing so, he pointed the camera towards JM’s legs and crotch. JM was unaware of the videos which were taken, and did not consent to the applicant doing so.

FINDINGS OF THE SENTENCING JUDGE AS TO OBJECTIVE SERIOUSNESS

Sequence 8/91

37. The sentencing Judge found that [7] :

    7. AB 31 – AB 33.

1. the applicant was aware that KB was taking pain medication, and had caused her to take Zolpidem without regard to possible contra indications;

2. the offending was planned and premeditated;

3. Zolpidem had the effect of rapidly inducing sleep;

4. the Zolpidem given to KB by the applicant rendered her unconscious, such that she was unable to resist the offending of having sexual intercourse without consent;

5. such offending was very serious; and

6. as a consequence of the prior consensual sexual relationship between the applicant and KB, the offending involved a breach of trust, albeit not one that fell within s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

38. Her Honour concluded that the objective seriousness of the offending fell above the mid-range, albeit perhaps only slightly above.

Sequences 2/91 and 3/91

39. The sentencing Judge found that: [8]

1. in each case the offending was planned;

2. the form of sexual intercourse in each case (but particularly the forced anal intercourse in sequence 3/91) was a more serious form of intercourse than (for example) digital intercourse; and

3. in each case the applicant knew that KB did not consent, as opposed to being reckless as to that fact.

   8. AB 32.

40. Her Honour also concluded that the offending in the Form 1 meant that a moderately heavier sentence was to be imposed in respect of the offending in sequence 3/91 in order to reflect the increased weight to be attributed to personal deterrence for that offending.

41. Her Honour found that the objective seriousness of the offending in each case fell at the mid-range.

42. I interpolate that although counsel for the applicant before this Court took no issue with any of the findings of the sentencing judge, her Honour's finding at [33](ii) above tends against observations previously made by this Court that forms of forced sexual intercourse should not be graded or ranked in a hierarchy for the purposes of determining issues of objective of seriousness. [9]

    9. See for example Doe v R [2013] NSWCCA 248 at [54] per Bellew J, Hoeben CJ at CL and Johnson J agreeing; Lee v R [2016] NSWCCA 66 at [44] per McCallum J (as her Honour then was), Basten JA and Davies J agreeing.

Sequence 4/91

43. The sentencing Judge found that: [10]

1. the photographs taken by the applicant showed both KB's face and the fact that she was undressed;

2. one photograph depicted the applicant's penis pressed against KB's lips; and

3. the events must have been extremely humiliating and demeaning for KB.

   10. AB 32.

44. Her Honour concluded that the objective seriousness of the offending fell above the mid-range.

Sequence 3/53

45. The sentencing Judge found that: [11]

1. the photographs pictured MH (inter alia) in intimate acts of an inherently private nature in the privacy of her own home; and

2. the offending was not isolated, and had continued over a period of 3 months.

   11. AB 32 – AB 33.

46. Her Honour concluded that the objective seriousness of the offending fell above the mid-range.

Sequence 3/53

47. The sentencing Judge found that: [12]

1. the offending was an attempt as opposed to a completed offence; and

2. no intimate images were in fact produced.

   12. AB 15.

48. Her Honour concluded that the objective seriousness of the offending fell below the mid-range.

49. In terms of the offending overall, her Honour concluded that general deterrence was a significant consideration, that the applicant's offending was to be denounced, and that it was necessary for any sentence to recognise the harm done by the applicant to all three of his victims. [13]

    13. AB 35.

THE APPLICANT'S SUBJECTIVE CASE

50. It was common ground that the applicant had pleaded guilty to all of the offences at the first available opportunity and was entitled to a discount of 25%. [14] Her Honour accepted that the applicant was entitled to a “measure of leniency” on account of the fact that he had no prior convictions. [15]

    14. AB 20.

    15. AB 24.

51. Other non-contentious aspects of the applicant's subjective case were summarised by the sentencing Judge as follows: [16]

[The applicant] was born and raised in Australia with loving parents in a deeply religious Hindu family. He has a son aged eight. He has a strong work history. He is a type 1 diabetic and requires daily insulin injections. In a lengthy letter to the court [the applicant] set out a number of things, including what was happening for him when he committed the offences involving [KB] – he said that as a result of a relationship breakdown he was stressed and resorted to taking anabolic steroids and sleeping tablets. His sex drive was uncontrollable and his mood was unstable.

…

[The applicant] also explained some difficulties that he has experienced whilst being in custody. Being in the custodial environment has been a shocking experience for him. He has had some difficulties controlling his diabetes and a one stage he suffered some violence.

Since his incarceration [the applicant] has done some courses and he is working. He says that he has come to appreciate that he needs psychological assistance. He has gained benefit from participation in regular psychological sessions.

[The applicant] claims that when he was a child he was sexually assaulted by a family friend. He claimed that the person who said she assaulted him introduced him to voyeurism and all or most types of pornography.

16. AB 24 – 25.

52. Her Honour found that the applicant was genuinely remorseful, and took that fact into account in mitigation. [17] Her Honour also found that the applicant had “reasonably good prospects of rehabilitation”, although she considered that there was more work to be done” in that regard. [18]

    17. AB 33.

    18. AB 34.

53. Tendered in that the applicant's case on sentence was a report of Dr Sidorov, Consultant Forensic Psychiatrist. In addressing the applicant's psychiatric history, Dr Sidorov recorded [19] that the applicant had reported that he had been diagnosed with Bipolar Affective Disorder by a psychiatrist in Bathurst Correctional Centre 2 to 3 months prior to Dr Sidorov’s examination on 19 April 2020. Dr Sidorov went on to express the following opinion: [20]

Based on the account presented by [the applicant] and a review of associated documents, he meets the diagnostic criteria for Substance-Induced Mood Disorder as per DSM-5. This is based on [the applicant's] history of substance use including anabolic steroids and cocaine that coincides with a history of mood instability of both low and high periods of mood that has caused significant impairment to occupational, social, and other areas of his functioning as well is contributing to him coming into contact with the criminal justice system.

19. AB 102.

20. AB 106 – 107.

54. Having expressed the further opinion [21] that the applicant also met the criteria for a substance use disorder (anabolic steroids and cocaine), Dr Sidorov went on to say: [22]

It is possible that [the applicant] has an underlying primary mood disorder such as a Bipolar-type disorder or a depressive illness, particularly considering his family history of mood disorders. If he does have an underlying primary mood disorder, he may experience a relapse in symptoms in the absence of substance use and if he were to stop taking his prescribed psychotropic medications.

21. AB 106 – 107.

22. AB 107.

55. When the matter first came before the Court for sentence, her Honour raised an issue concerning Dr Sidorov’s diagnoses in the course of the applicant giving evidence. This caused the sentence proceedings to be adjourned for the purposes of giving those representing the applicant the opportunity to consider the issue raised by her Honour and obtain further evidence. On the resumption of the proceedings some months later, the applicant tendered a report of Thea Gumbert, Psychologist.

56. As to the applicant's Bipolar disorder, Ms Gumbert recorded the following history: [23]

In February 2020, [the applicant] reports he was diagnosed with Bipolar Disorder by a Justice Health psychiatrist (Dr Sue Morgan) and prescribed Latuda (lurasidone), a mood stabilising medication, 80mg nocte. He reports this has been effective in managing his symptoms and he feels “a lot more level headed”. He also sees a psychologist every two or three weeks, which he reports has been helpful.

23. AB 137 – AB 138.

57. Ms Gumbert went on to express the following opinion: [24]

Based on his self-report, [the applicant] would meet DSM-5 diagnostic criteria for Bipolar Disorder which is characterised by a history of both manic and depressive episodes. It is my understanding that he was formally diagnosed by a Justice Health psychiatrist, however his custodial records were not available for review and so this cannot be verified. He reports having responded well to mood-stabilising medication, resulting in successful management of manic episodes, albeit some persisting depressive symptoms.

24. AB 146.

58. Ms Gumbert also expressed the opinion [25] that the applicant met the DSM-5 criteria for diagnosis of a voyeuristic disorder, and concurred with Dr Sidorov’s diagnosis of a substance use disorder. [26] Ms Gumbert also “acknowledged” what she described as Dr Sidorov’s “potentially additional” diagnosis of a substance induced mood disorder. [27]

    25. AB 146.

    26. AB 146.

    27. AB 146.

59. Having reviewed the entirety of the expert evidence in detail [28] the sentencing Judge reached the following conclusion in relation to the applicant’s psychological issues: [29]

I have grave reservations about the veracity of [the applicant’s] evidence as to symptoms of bipolar disorder. I do not accept it, even on the balance of probabilities. I am not convinced, even on balance, that if it existed at all it played any role in his offending.

I do accept, on balance that his offending is best explained by voyeuristic tendencies for which he never sought treatment, and for which his moral culpability should not and will not be reduced.

I accept that his libido would have increased by his use of steroids. That is not a mitigating factor.

28. Commencing at AB 28.

29. AB 30.

60. Her Honour expressly addressed issues of accumulation, and the need to apply the principle of totality. [30] In terms of the offending in sequences 2/91, 3/91, 4/91 and 8/91, her Honour concluded [31] that a “fairly high degree of concurrency” was required, but recognised the necessity for some accumulation in order to reflect the separate and discrete criminality which was involved in those separate episodes of offending. In terms of the offending in sequences 3/53 and 4/53, her Honour concluded [32] that a greater degree of accumulation was appropriate.

    30. AB 35.

    31. AB 35.

    32. AB 35.

61. Finally, her Honour made a finding [33] of special circumstances in favour of the applicant, adopting a ratio of 63%. The primary basis of that finding was that the applicant would require a longer period on parole in order to be able to successfully reintegrate into the community. [34]

THE GROUND OF APPEAL

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE

33. AB 35 – 36.

34. AB 36.

Submissions of the applicant

62. Counsel for the applicant did not assert specific error on the part of the sentencing Judge in support of the proposition that the sentence was manifestly excessive. Counsel relied on two matters which, he submitted, were indicative of manifest excess.

63. The first stemmed from the sentencing judge’s application of the 25% discount following the applicant’s pleas of guilty, in respect of which counsel advanced two submissions. First, he submitted that the undiscounted aggregate sentence reflected a starting point of 14 years and 8 months imprisonment, and that this was indicative of a manifestly excessive sentence. Secondly, he submitted that the starting point for the indicative sentences imposed for the offending in each of sequences 3/91, 8/91 and 4/53 reflected that “the 25% discount was not properly applied by the sentencing judge”. [35] Counsel submitted that in each case, the undiscounted sentence incorporated “figures that may seem unusual if the applicant had received the full benefit of the 25% discount” and that “even allowing for some rounding of the figures ….. this is suggestive that the 25% discount was not properly applied by the sentencing judge”. [36]

    35. Applicant’s written submissions at [22]-[23].

    36. Applicant’s written submissions at [22] – [23].

64. Secondly, counsel relied on sentences imposed in other cases which, he submitted, demonstrated the manifest excess of the sentence which was imposed on the applicant. Those cases were Samadi v R; Djait v R,[37] Zahorsky v R,[38] Shi v R [39] and DL v R. [40]

    37. [2008] NSWCCA 330.

    38. [2013] NSWCCA 268.

    39. [2020] NSWCCA 250.

    40. [2020] NSWCCA 164.

Submissions of the Crown

65. As to the applicant’s first complaint, the Crown submitted that any discount applied to reflect a plea of guilty is to be applied to the indicative sentence and not the aggregate sentence. It was submitted that the applicant’s approach, involving as it did focussing upon the undiscounted aggregate sentence, was inconsistent with principle.

66. The Crown further submitted that the proposition that her Honour’s application of the discount had yielded “unusual figures” in three particular instances overlooked the fact that the sentencing of an offender involves a process of instinctive synthesis.

67. Finally, the Crown addressed, in considerable detail, each of the cases relied upon by the applicant for comparative purposes. Having done so, the Crown submitted that each was distinguishable from the present case on various bases, to the point where none of them provided any support for the conclusion that the sentence was manifestly excessive.

CONSIDERATION

68. The ground of appeal which is relied upon requires the applicant to establish that the sentence imposed was unreasonable or plainly unjust. [41] Before addressing the specific matters relied upon by counsel for the applicant in support of such a conclusion, it is appropriate to make three general observations.

    41. Dinsdale v The Queen [2000] 202 CLR 321; [2000] HCA 54 at 325; for a convenient summary of the principles see Vaiusu v R [2007] NSWCCA 71.

69. First, the entirety of the applicant’s offending involved, in varying degrees, an intrusive interference upon the personal intimate integrity of the three victims. As the sentencing judge properly pointed out, the offending required the imposition of a stern sentence in order to ensure that effect was given to the principle of general deterrence, and also to ensure that predatory and exploitative behaviour of this kind. [42]

    42. Greenwood v R [2014] NSWCCA 64 at [31] – [32]; Samadi v R; Djait v R [2008] NSWCCA 330 at [158].

70. Secondly, the seriousness with which Parliament views the applicant’s offending is reflected in the prescribed maximum penalties which operate as a sentencing guidepost or yardstick. [43] In particular, the offending in sequence 8/91 carries a maximum penalty of 25 years. Other than offences for which a maximum penalty of life imprisonment is prescribed, a maximum penalty of 25 years imprisonment is the highest available determinate sentence for which provision is made in the Crimes Act 1900 (NSW). [44]

    43. Markarian v The Queen [2005] 228 CLR 357.

    44. R v Reyes [2005] NSWCCA 218.

71. Thirdly, the applicant's subjective case was unremarkable. He was entitled to (and received) a discount of 25% to recognise his pleas of guilty which were entered at the first available opportunity. Her Honour made favourable findings as to his remorse and prospects of rehabilitation, and also reached what might be regarded as a generous finding of special circumstances, as a consequence of which the ratio between the total sentence and the non-parole period was reduced to one of 63%.

72. In terms of the specific matters relied upon by counsel for the applicant, the sentencing judge’s application of the discount of 25% to each of the indicative sentences was entirely correct, and consistent with authority. [45] An approach to a complaint of manifest excess which involves considering the undiscounted aggregate sentence is contrary to principle. In adopting such an approach, counsel for the applicant relied on the judgment of Brereton JA in Chartres-Abbott. [46] In that case, his Honour acknowledged what he described as the “prevailing view” that a discount for a plea of guilty is to be applied to the indicative, rather than the aggregate, sentence. However, he expressed the view that it did not follow that, for the purpose of comparison with other cases, an approach which considered an undiscounted aggregate sentence was impermissible.

    45. See for example BB v R [2021] NSWCCA 283 at [64]-[66] per Wilson J (Bathurst CJ and Wright J agreeing) and the authorities cited therein.

    46. At [23].

73. In this respect, Wilson J made the following observations in BB:[47]

I do not understand Brereton JA to be contradicting the long and well-considered line of authority ….. as to the requirement for any discount on sentence to be applied to the indicative sentences in cases where an aggregate sentence is imposed. To the extent that his Honour found it useful in the matter there under appeal to determine a presumed starting point of sentence by increasing the aggregate sentence by the discount announced, the same approach is not helpful in this matter. Indeed, having regard to the obligation on a sentencing court to consider at least notionally questions of concurrency and accumulation in determining an aggregate sentence which properly reflects the overall criminality, it is difficult to see how it could be useful in many sentencing appeals, to aid in making comparison with other cases or otherwise.

47. At [68].

74. It is not necessary to consider, much less attempt to resolve, any tension between the approach of Brereton JA and that adopted by Wilson J in BB, and in the authorities to which her Honour referred. It is sufficient to note that in the circumstances of the present case, and even if the approach adopted by counsel for the applicant were permissible, it is of no utility given the conclusions I have reached regarding the cases which were relied upon by the applicant for comparative purposes.

75. The submission that the starting point for the indicative sentences for the offending in sequences 3/91, 8/91 and 4/53 reflected the adoption of “unusual figures” which, in turn, reflected manifest excess, is without merit. Such a submission entirely overlooks the fact that sentencing an offender involves a process of instinctive synthesis and would, if accepted, have the effect of reducing the process of sentencing an offender to little more than a mathematical exercise.

76. As to the previous cases which were relied upon, it is important to emphasise the important concessions which were properly made by counsel for the applicant,[48] namely that:

1. the objective circumstances of the offending in each of those cases was different to those in the present case;

2. some of the sentences were imposed following a plea of guilty, and some were imposed following a trial; and

3. the personal circumstances of each of the offenders were distinguishable from those of the applicant.

   48. Applicant’s written submissions at [26].

77. Those concessions are significant given the principles which govern this Court when asked to undertake a comparative exercise of this nature. Those principles include the following.

78. First, whilst careful comparison of the outcome of a previous case may assist the Court,[49] it remains the case that the individual circumstances of each case must be examined. [50]

    49. Moodie v R [2020] NSWCCA 160 at [83]; Smith v R [2020] NSWCCA 181 at [78]; [90]-[91].

    50. Smith at [78].

79. Secondly, such an exercise is to be undertaken with a degree of caution. [51]

    51. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55].

80. Thirdly, whilst a history of sentencing can establish a range of sentences that have been imposed, that history does not establish that any such range is the correct one, nor does it establish the upper and lower limits of such range, or otherwise fix the boundaries within which future judges must, or even ought to, sentence. [52]

    52. Hili at [55].

81. Fourthly, when considering past sentences, it is only by examination of the whole of the circumstances that have given rise to the sentence that unifying principles may be discerned. [53]

    53. Hili at [55].

82. Finally, what is sought in sentencing is consistency in the application of principle, not numerical equivalence. [54]

    54. Hili at [18].

83. I have considered each of the cases relied upon by the applicant. In light of the concessions made, I do not propose to engage in a lengthy analysis of them. The obvious distinctions which can be drawn between each of them and the circumstances of the present case, both objective and subjective, lead me to the view that they provide no support for the proposition that the sentence imposed on the applicant is manifestly excessive. I am fortified in that view by the following:

1. the offending in sequence 8/91, of itself, carried a maximum penalty of 25 years imprisonment;

2. the offending in sequences 2/91 and 3/91 each carried a maximum penalty of 14 years imprisonment with a standard non-parole of 7 years imprisonment;

3. a Form 1 offence was attached to the offending in sequence 3/19, which required the sentence imposed for that offending to be increased;    

4. the sentencing judge properly recognised that in imposing sentence for the offending in sequences 2/91 and 3/91 (they being the counts of sexual intercourse without consent) it was necessary to recognise that such offending was entirely separate to the offending in sequence 8/91 of causing KB to take an intoxicating substance; [55]

5. the sentencing judge properly had regard to the fact that general deterrence had a significant role to play and that it was necessary that any sentence properly denounce the applicant's offending; and

6. the sentencing judge properly took into account the matters relied upon by the applicant in his subjective case in a way which (but for the application of the discount for the pleas of guilty) were not the subject of any complaint before this Court.

   55. See Zahorsky v R [2013] NSWCCA 286 at [59].

84. For all of these reasons, the ground of appeal has not been made out.

ORDERS

85. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

**********

Endnotes

Amendments

23 September 2022 - [6] first sentence - "...aggregate sentence included different sentences" amended to read "...aggregate sentence included different offences"

Decision last updated: 23 September 2022