Trindall v The Queen

[2007] NSWCCA 119

New South Wales
Court of Criminal Appeal

CITATION:	TRINDALL v R [2007] NSWCCA 119
HEARING DATE(S):	16 March 2007
JUDGMENT DATE:	30 April 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J at 25; Hislop J at 26
DECISION:	Appeal dismissed. The order previously made suppressing the publication of the names of the victims is continued.
CATCHWORDS:	CRIMINAL LAW - Appeal against severity of sentence - multiple offences - 7 charges - 7 victims - sexual assaults - sentencing - slip rule - correction to sentence - partly cumulative and partly concurrent sentences - whether special circumstances ought to have been found - whether parole and non-parole periods imposed were appropriate – whether principles of totality were properly applied
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Musgrove v R (2007) NSWCCA 21) Pearce v The Queen (1998) 194 CLR 610 R v Gill (2002) NSWCCA 93 R v Swann (2005) NSWCCA 252 R v So (2004) NSWCCA 362
PARTIES:	Wayne Anthony Trindall (Appl) The Crown
FILE NUMBER(S):	CCA 2006/2575
COUNSEL:	B P Hancock (Appl) N Noman (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/1060
LOWER COURT JUDICIAL OFFICER:	Hosking DCJ
LOWER COURT DATE OF DECISION:	21 April 2006

2006/2575

McCLELLAN CJ at CL
HULME J
HISLOP J

MONDAY 30 APRIL 2007

TRINDALL, Wayne Anthony v R

( The order previously made suppressing the publication of the names of the victims is continued.)

Judgment

1 McCLELLAN CJ at CL: The applicant Wayne Anthony Trindall seeks leave to appeal against the severity of the sentences imposed on him in the District Court on 21 April 2006 for 17 offences. He pleaded guilty to each offence which were as follows:

• Three counts of detain for advantage and cause substantial injury contrary to s 90A Crimes Act 1900 (now repealed) – maximum penalty 20 years imprisonment.
• One count of aggravated detain for advantage (inflict actual bodily harm) contrary to s 86(2)(b) – maximum penalty 20 years imprisonment.
• One count of detain for advantage contrary to s 86(1)(b) of the Crimes Act 1900 – maximum penalty 14 years.
• Six counts of aggravated sexual assault contrary to s 61J of the Crimes Act. – maximum penalty 20 years imprisonment with a standard non-parole period of 10 years.
• Three counts of sexual assault contrary to s 61I Crimes Act 1900 – maximum penalty 14 years imprisonment.
• One count of inflicting actual bodily harm within intent to have sexual intercourse contrary to s 61K(a) of the Crimes Act 1900 – maximum penalty 20 years imprisonment.
• Two counts of robbery contrary to s 94 of the Crimes Act 1900 – maximum penalty 14 years imprisonment.

2 In all the 17 charges involved 7 different victims, the offences being committed over a period of 9 years from 1995 to 2004.

3 The applicant was originally sentenced on 21 April 2006. By reason of the multiplicity of offences the sentencing process was complicated. As it happens some “slips” occurred and on 24 April 2006 the Court reconvened to correct a number of errors. The Crown asserted that some errors were not corrected and, although the sentencing judge identified a document which his Honour said would comprise the written record of the corrected sentences, suggested that it also contained typographical errors. However, the intention which his Honour expressed in making the corrections on 24 April was to reduce the overall term and non-parole period which his Honour had originally imposed by 6 months and provide a non-parole period of 21 years and 6 months and an overall term of 23 years and 6 months.

4 The applicant does not complain of errors in the individual sentences and having regard to the issues raised by the applicant many individual sentences are not relevant in the resolution of this application. Nevertheless, the Crown has prepared a table which incorporates a reference to the offence, original sentence imposed, corrected sentence and the sentence apparently intended by his Honour having regard to his further remarks. For completeness I include that table below:

Victim	Seq	Date of offence	Charge, Crimes Act section, maximum penalty	Original sentence imposed by his Honour in ROS 21.4.06	Corrected sentence imposed by his Honour as typed in the document referred to in ROS 24.4.06 at p 1 (from the District Court file)	Sentence intended by his Honour as stated at ROS 24.4.06 at p 1, ie a 6 month backdate to the start date for each sequence from sequence 31 onwards, without changing the length of any of the sentences as stated in ROS 21.4.06
(LC)	28	29/9/95	Detain for advantage & cause substantial injury s 90A (20 years)	4 years from 6.10.04 – 5.10.08, minimum term 3 years from 6.10.04 – 5.10.07	4 years from 6.10.04 – 5.10.08, minimum term 3 years from 6.10.04 – 5.10.07	4 years from 6.10.04 – 5.10.08, minimum term 3 years from 6.10.04 – 5.10.07
30	29/9/95	Aggravated sexual assault, s 61J (20 years)	4 years from 6.10.05 – 5.10.09, minimum term 3 years from 6.10.05 – 5.10.08	4 years from 6.10.05 – 5.10.09, minimum term 3 years from 6.10.05 – 5.10.08	4 years from 6.10.05 – 5.10.09, minimum term 3 years from 6.10.05 – 5.10.08
31	29/9/95	Aggravated sexual assault, s 61J (20 years)	5 years from 6.10.06 – 5.10.11, minimum term 3 years 9 months from 6.10.06 – 5.7.10	5 years from 6.10.06 – 5.10.11, minimum term 3 years 9 months from 6.10.06 – 5.1.10 (as typed)	5 years from 6.4.06 – 5.4.11, minimum term 3 years 9 months from 6.4.06 – 5.1.10
(FH)	36	31/5/97 – 1/6/97	Robbery s 94 (14 years)	2 years 6 months from 6.11.08 – 5.5.11, minimum term 1 year 10 months from 6.11.08 – 5.9.10	2 years 6 months from 6.3.08 – 5.10.10, minimum term 1 year 10 months from 6.5.08 – 5.3.10 (as typed)	2 years 6 months from 6.5.08 – 5.11.10, minimum term 1 year 10 months from 6.5.08 – 5.3.10
4	31/5/97 – 1/6/97	Detain for advantage & cause substantial injury s 90A (20 years)	4 years from 6.9.08 – 5.9.12, minimum term 3 years from 6.9.08 – 5.9.11	4 years from 6.3.08 – 5.3.12, minimum term 3 years from 6.3.08 – 5.3.11	4 years from 6.3.08 – 5.3.12, minimum term 3 years from 6.3.08 – 5.3.11
37	31/5/97 – 1/6/97	Sexual intercourse without consent s 61I (14 years)	5 years from 6.3.09 – 5.12.14 (as stated) minimum term 3 years 9 months from 6.3.09 – 5.12.12	5 years from 6.9.08 – 5.9.13, minimum term 3 years 9 months from 6.9.08 – 5.6.12	5 years from 6.9.08 – 5.9.13, minimum term 3 years 9 months from 6.9.08 – 5.6.12
8	31/5/97 – 1/6/97	Aggravated sexual assault s 61J (20 years)	4 years from 6.12.10 – 5.12.14, minimum term 3 years from 6.12.10 – 5.12.13	4 years from 6.6.10 – 5.6.14, minimum term 3 years from 6.6.10 – 5.6.13	4 years from 6.6.10 – 5.6.14, minimum term 3 years from 6.6.10 – 5.6.13
9	31/5/97 – 1/6/97	Aggravated sexual assault, s 61J (20 years)	5 years from 6.6.11 – 5.6.16, minimum term 3 years 9 months from 6.6.11 – 5.3.15	5 years from 6.12.10 – 5.12.15, minimum term 3 years 9 months from 6.12.10 – 5.9.14	5 years from 6.12.10 – 5.12.15, minimum term 3 years 9 months from 6.12.10 – 5.9.14
(KN)	14	30/1/00	Detain for advantage & cause substantial injury s 90A (20 years)	5 years from 16.11.12 (as stated) – 5.11.17, minimum term 3 years 9 months from 16.11.12 (as stated) – 5.8.16	5 years from 6.5.12 - 5.5.17, minimum term 3 years 9 months from 6.5.12 – 5.2.16	5 years from 6.5.12 – 5.5.17, minimum term 3 years 9 months from 6.5.12 – 5.2.16
38	30/1/00	Sexual intercourse without consent s 61I (14 years)	5 years from 6.2.14 – 5.2.19, minimum term 3 years 9 months from 6.2.14 – 5.11.17	5 years from 6.8.13 – 5.8.18, minimum term 3 years 9 months from 6.8.13 – 5.5.17	5 years from 6.8.13 – 5.8.18, minimum term 3 years 9 months from 6.8.13 – 5.5.17
39	30/1/00	Robbery s 94 (14 years)	2 years 6 months from 6.7.13 – 5.1.16, minimum term 1 year 10 months from 6.7.13 – 5.5.15	2 years 6 months from 6.6.13 – 5.12.15, minimum term 1 year 10 months from 6.6.13 – 5.11.14 (as typed)	2 years 6 months from 6.1.13 – 5.7.15, minimum term 1 year 10 months from 6.1.13 – 5.11.14
(DM)	20	12/10/03	Aggravated sexual assault s 61J (20 years, SNPP 10 years)	NPP 6 years from 6.11.13 – 5.11.19, additional term 2 years 6.11.19 – 5.11.21	NPP 6 years from 6.5.13 – 5.5.19, additional term of 2 years from 6.5.19 – 5.5.21	NPP 6 years from 6.5.13 – 5.5.19, additional term 2 years 6.5.19 – 5.5.21
(RP)	33	26/1/04	Aggravated detain for advantage (inflict ABH) s 86(2)(b) (20 years)	NPP 3 years 9 months from 6.5.17 – 5.2.21, additional term 1 year 3 months 6.2.21 – 5.5.22	NPP 3 years 9 months from 6.11.16 – 5.8.20, additional term of 1 year 3 months from 6.8.20 – 5.11.22 (as typed)	NPP 3 years 9 months from 6.11.16 – 5.8.20, additional term 1 year 3 months 6.8.20 – 5.11.21
41	26/1/04	Sexual intercourse without consent s 61I (14 years, SNPP 7 years)	NPP 5 years from 6.10.17 – 5.10.22, additional term 1 year 10 months (as stated) 6.10.22 – 5.1.24 (as stated)	NPP 5 years from 6.4.17 – 5.4.22, additional term of 1 year 8 months from 6.4.22 – 5.12.23	NPP 5 years from 6.4.17 – 5.4.22, additional term 1 year 8 months 6.4.22 – 5.12.23
(JE)	40	17/5/04	Detain for advantage s 86(1)(b) (14 years)	NPP 2 years 3 months from 6.7.22 – 5.10.24, additional term 9 months from 6.10.24 – 5.7.25	NPP 2 years 3 months from 6.1.22 – 5.4.24, additional term of 9 months from 6.4.24 – 5.1.25	NPP 2 years 3 months from 6.1.22 – 5.4.24, additional term 9 months from 6.4.24 – 5.1.25
23	17/5/04	Aggravated sexual assault s 61J (20 years, SNPP 10 years)	NPP 6 years from 6.10.20 – 5.10.26, additional term from 6.10.26 – 5.10.28	NPP 6 years from 6.4.20 – 5.4.26, additional term of 2 years from 6.4.26 – 5.4.28	NPP 6 years from 6.4.20 – 5.4.26, additional term from 6.4.26 – 5.4.28
(TP)	1	27/8/04	Maliciously Inflict ABH with intent to have sexual intercourse s 61K(a) (20 years)	NPP 3 years 9 months from 6.4.20 – 5.1.24, additional term 1 year 3 months 6.1.24 – 5.4.25	NPP 3 years 9 months from 6.10.19 – 5.7.23, additional term of 1 year 3 months from 6.7.23 – 6.10.24 (as typed)	NPP 3 years 9 months from 6.10.19 – 5.7.23, additional term 1 year 3 months 6.7.23 – 5.10.24
Overall term	Total term 24 years from 6.10.04 – 5.10.28, minimum term / NPP 22 years from 6.10.04 – 5.10.26	Total term 23 years & 6 months from 6.10.04 – 5.4.28, minimum term / NPP 21 years & 6 months from 6.10.04 – 5.4.26	Total term 23 years & 6 months from 6.10.04 – 5.4.28, minimum term / NPP 21 years & 6 months from 6.10.04 – 5.4.26

5 An agreed statement of facts was tendered before the sentencing judge. It reads as follows:

"Victim 1 LC
29 September 1995
Charge number H22001138-28, 30, 31.
Around 8.30pm on the evening of Friday 29 September 1995 LC was walking in the vicinity of Yurong and Francis Streets, Darlinghurst. LC worked in this general area as a prostitute, however on this evening was not working.
Around this time Wayne Anthony Trindall ("the offender") approached LC and engaged her in conversation offering to pay her $150 for posing for photographs to be used in a calendar. The offender advised LC that these photographs would be done in York Street, Randwick and LC agreed to go with the offender and travelled in a taxi to that general area.
From here the offender took LC through a wooden fence into a secluded area where she requested payment and the offender took out his wallet showing her a large quantity of cash.
The offender dropped the wallet onto the ground and charged at LC grabbing her around the neck with his arm. The offender punched LC a number of times to the face and ribs. As a result of being punched to the face LC sustained a black/bruised right eye.
The Crown relies on the injury to the victim's eyes as proof of substantial injury in sequence 28 detain for advantage, and cause injury to victim charge. The Crown does not rely on this injury as proof of another offence in itself.
Charge Sequence 28 - Section 90A Crimes Act
Detain For Advantage and Cause Substantial Injury to Victim
The offender produced a number of ties from his pocket and tied LC’s hands behind her back and placed a gag in her mouth. The advantage obtained by the offender by this action was control of LC to enable him to commit a sexual assault.
Charge Sequence 30 - Section 61J Crimes Act Aggravated Sexual Assault
Circumstance of Aggravation: That at the time of the commission of the offence the offender inflicted actual bodily harm on the victim.
The offender placed some lubricant on his fingers and then penetrated LC’s vagina with his penis. LC did not consent to this action.
Charge Sequence 31 - Section 61J Crimes Act Aggravated Sexual Assault
Circumstance of Aggravation: That at the time of the commission of the offence the offender inflicted actual bodily harm on the victim.
The offender then said ‘I'm going to do anal sex.’ LC replied ‘I'd rather you didn't'. The offender then inserted his penis into the anus of LC. LC did not consent to this action and the offender's actions caused immediate pain and discomfort.
The offender put his trousers back on and allowed LC to sit up and gave her a cigarette. At this point the offender stated that he was going to walk 30 metres away to recover her clothing and warned her not to move. The offender walked away and did not return.
LC was able to free herself of the bindings and hail down a passing motorist and said ‘I've been raped'. This motorist took LC to her mother's house in Darlinghurst. LC did not shower and both police and ambulance were notified and attended her location.
The matter was reported and LC was taken to the Royal Prince Alfred Hospital where a sexual assault examination was conducted. From this examination a number of swabs were obtained.
Actual bodily harm was inflicted on LC in the course of the commission of the sexual assault charged in sequence 31. A physical examination was performed on the victim by Dr Larsen at about 2am on 1 October 1995. The examination was carried out at the Royal Prince Alfred Hospital.
Dr Larsen noted the following abnormalities:
- a 3.5 centimetre graze on the right knee and other grazes 1 centimetre in diameter near the right knee
- linear scratches medially on the right leg
- a 1 centimetre graze on the right foot
- grazes on the left knee
- a U shaped laceration on the right hand middle fingers and
- tenderness over the upper anterior chest.
The following day LC led investigators to the scene of this incident and was able to identify and locate a number of her personal items left there from the previous night. LC provided investigators with a statement about this matter on 3 October 1995. At the time a number of photographs were taken of LC showing bruising to her right eye, cuts and abrasions to both her knees and an abrasion to the knuckle of the middle finger on her right hand.
Victim 2 FH
31 May - 1 June 1997
Charge Number H22001138 - sequences 4, 8, 9, 36, 37.
During the evening of 31 May 1997 FH was working as a street prostitute in the vicinity of William Street, Kings Cross. At this time FH was approximately seven months pregnant.
Towards midnight the offender approached FH while driving a red sedan. A conversation ensued where FH detailed the prices of her services and the offender negotiated a fee of $200 for the offender to take FH to his house at Sutherland and engage in sexual acts and then return her to the city.
FH entered the offender's vehicle and he drove towards Sutherland where the offender engaged FH in general conversation. The offender told FH he was taking a short cut through the Royal National Park whereby he parked the vehicle in a secluded area near Audley. At this time FH began to cry, fearing for her safety.
The offender took hold of FH’s hair and shook her head and told her to stop crying. FH pleaded for her safety with the offender striking her across the right side of her face with the back of his hand. The offender motioned as if reaching from an item in the driver's door pocket while stating ‘I'm not going to have any problems from you'.
The offender got out of the car and went to the boot before going to FH’s door as she opened it. The offender took hold of FH’s arm and directed her to take her shoes off. FH complied with this direction and the offender directed her to walk a distance into the bushes. The offender has grabbed FH around her throat and pushed her back against a tree.
The Crown concedes that the offender's criminal acts encompassed in paragraphs above are referable only to the sequence 4 offence of detain for advantage and cause substantial injury and the Crown does not rely on these facts as proof of or aggravation of any other offence.
Charge Sequence 36 - Section 94 Crimes Act Robbery
At this time FH had a bum bag around her waist containing a Motorola brand mobile telephone, various make-up and personal items. The offender took the bum bag from FH and rifled through it taking the mobile phone and putting it into his own pocket whilst maintaining his grip on her throat. The offender directed FH to remove her top which she did whilst he pulled her pants and underpants down to her ankles.
The deprivation of the victim's liberty encompassed in the above paragraph is not relied upon by the Crown as a circumstance of aggravation of the robbery but is proof of the sequence 4 offence of detain for advantage and cause substantial injury.
Charge Sequence 4 - Section 90A Crimes Act
Detained for Advantage and Cause Substantial Injury to Victim
The offender took a rope from his pocket and tied FH’s hands behind her back around a tree as well as looping the rope around her feet and tree. The advantage obtained by the offender by this action was control of FH to enable him to commit a sexual assault.
The offender kissed and bit FH on her neck and breasts in particular biting her right nipple breaking the skin and causing it to bleed.
Sequence 37 - Section 61 I Crimes Act Sexual Intercourse Without Consent
The offender picked up a stick approximately 1 centimetre thick and forced it into her vagina manipulating it causing FH severe pain and discomfort. The offender forced FH to squat down while still tied to the tree and forced his erect penis into her mouth a number of times before ejaculating on her face. The offender untied FH and turned her around so that she was facing the tree and again tied to the tree.
Sequence 8 - Section 61J Crimes Act Aggravated Sexual Assault
Circumstance of Aggravation: That at the time of the commission of the offence the offender inflicted actual bodily harm on the victim.
The offender penetrated FH’s vagina with his erect penis from behind.
Sequence 9 - Section 61J Crimes Act Aggravated Sexual Assault
Circumstance of Aggravation: That at the time of the commission of the offence the offender inflicted actual bodily harm on the victim.
The offender moved his penis from FH’s vagina and forced it into FH’s anus.
The offender loosened the rope on FH and grabbed her by the hair and threatened to kill her should she report the matter to the police before running off and driving away. FH complied with the offender's actions as she was fearful for her safety and the safety of her unborn child as well as being of the belief that the offender was armed with a weapon. This matter was reported to the police that same evening and a medical examination was conducted.
Actual bodily harm was inflicted on FH in the course of the commission of the sexual assaults charged in sequences 8 and 9. A medical examination was conducted on the victim on the night of the offences by Dr Emmanuel Karantanis, a gynaecology fellow at the St George Hospital.

Dr Karantanis noted the following abnormalities:
- the victim complained of severe anal and vaginal pain and cramps in the lower abdomen
- there were two lots of 1 centimetre diameter bruises just above her elbow on the back of her arm
- there was a bruise on the left knee and a 4 centimetre scratch above the right knee and a 1 centimetre bruise at the left shin
- there was a red area and a 3 centimetre scratch on the right upper quadrant of the victim's uterus
- the fourchette was very tender as was the perineum and anus
Victim 3 KN
30 January 2000
Charge Number H22001138 - Sequences 14, 38, 39
In the early hours of 30 January 2000 KN was in Craigend Street, Darlinghurst when she was approached by the offender who engaged her in conversation and offered to take swimsuit photographs of her for $100.
KN agreed and went with the offender in a taxi. The offender directed the taxi to Anzac Parade near Allison Road where they together walked into Centennial Park.
The offender directed KN through a clump of trees where he grabbed her by the arm and produced a knife placing it to her throat. A struggle ensued and the offender punched KN to her left cheek causing both of them to fall to the ground. The offender placed KN face down and forced her face into the ground threatening to kill her.
The Crown concedes that the offender's criminal acts encompassed in the above paragraph are referable only to the sequence 14 offence of detain for advantage and cause substantial injury and the Crown does not rely on these facts as proof of aggravation of any other offence. The Crown does not rely on the offender's threat to kill the victim as proof of an actual intent to kill or proof of any offence in itself.
Sequence 14 - Section 90A Crimes Act
Detain for Advantage and Cause Substantial Injury to Victim
Whilst sitting on KN’s back the offender tied her hands together around a tree. The advantage obtained by the offender by this action was control of KN to enable him to commit a sexual assault.
Substantial injury was sustained by KN in the course of the commission of the offence charged in sequence 14. A physical examination was conducted on the victim at around 7.50pm on 30 January 2000 by Dr Wendy Thornwaite who was at the time employed as an after hours sexual assault service medical officer for the Eastern and Central Sexual Assault Service. The victim was seen at Royal Prince Alfred, Hospital.
Dr Thornwaite noted the following abnormalities:
- a tender left cheek generally with a one point centimetre long diagonal pale purple bruise
- purple petechial bruises on the upper and left lower lids of the left periorbital area
- a .75 centimetre long vertical abrasion of the mid line forehead at the hair line
- a medially right tender wrist with two red spots on the palmer aspect.
- a medially tender left wrist with a 2 centimetre abrasion on the medial almar aspect
- on the victim's left arm a tender anterior upper left arm, a 1 centimetre medial abrasion to the elbow, a 1.5 centimetre horizontal linear abrasion located seven and a half centimetres proximal to the volar wrist crease and a 1 centimetre linear abrasion just distal to the left elbow posteriorly
- on the victim's right leg a 4.5 centimetre vertical by 5.2 centimetre horizontal abrasion on the anterior mid upper leg, a 7 centimetre vertical by 1 centimetre horizontally diagonal abrasion on the mid lower anterior leg medially and two thin longitudinal 1.5 centimetre abrasions in parallel position on the mid posterior upper leg
- on the victim's left leg a 1.5 centimetre round petiole bruise on the medial aspect of the mid upper leg, two faint red marks on the lateral aspect of the anterior left knee and a 7 centimetre vertical by 2 centimetre horizontal diagonal abrasion on the medial left leg mid way down the lower leg
- on the victim's lower back tender across the low back at the level of the L5 vertebrae
- on the victim's buttocks a 1 centimetre long abrasion on the right buttock two linear horizontal abrasions 5.1 centimetre long in parallel and 1 centimetre long linear abrasions more laterally
- no abnormalities were found on genital examination
Sequence 38 - Section 61 I Crimes Act Sexual Intercourse Without Consent
The offender removed KN’s g string, underpants and put another pair of underpants on her pulling them down to her ankles. The offender spat in her vagina and penetrated her vagina with his fingers.
The offender removed his fingers from KN’s vagina and penetrated her vagina with his erect penis from behind, thrusting a number of times before ejaculating inside her vagina. Whilst penetrating her vagina with his penis the offender said he wanted her to be his girlfriend.
The Crown relies on the offender's digital penetration of the victim's vagina and the offender's penile penetration of the victim's vagina as unlawful sexual intercourse constituting the sexual assault.
Around this time the offender's mobile telephone rang and he stood up and had a conversation. KN attempted to untie herself and the offender returned and laid on top of her. The offender pushed her face into the ground stating ‘you better be quiet the guy who is coming is not as nice as me'.
Sequence 39 - Section 94 Crimes Act Robbery
During the commission of the sexual assault the offender took possession of KN’s blue Velcro Ripcurl brand wallet containing $140 in Australian currency and personal items.
The offender fled from the area and KN was able to release herself and seek assistance. The matter was reported to the police that evening and a medical examination was conducted. KN submitted to the actions of the offender as he was in possession of a knife and she was fearful of injury should she fail to comply.
Victim 4 DM
12 October 2003
Charge Number H22001138 - Sequence 20
During the late evening of 12 October 2003 DM was working as a street prostitute in the vicinity of Forbes Street, Kings Cross. The offender approached DM and engaged her in conversation resulting in an agreement for her to accompany him to his house and engage in sexual relations for a fee of $250.
The offender and DM walked from the area, ultimately walking to a darkened area within the grounds of Centennial Park. During this walk the offender engaged DM in general conversation including his regular use of another prostitute as well as raising the issue of taking cocaine.
The offender increased his walking pace and walked past DM then turning around and running at her, tackling her around the waist and taking her to the ground.
The offender punched DM to her head and face with both his fists closed. The offender attempted to roll DM onto her back and force her legs open, however DM has violently resisted these efforts with the result being that an amount of dirt entered her mouth making it difficult for her to speak and breathe.
Sequence 20 - Section 61J Crimes Act Aggravated Sexual Assault
Circumstance of Aggravation: That at the time of the commission of the offence the offender inflicted actual bodily harm on the victim.
Due to the actions of the offender DM began to lose consciousness with the offender pushing her skirt up. The offender removed his penis from his pants and spat into his hand before wiping it onto his penis. At this point DM lost consciousness.
DM regained consciousness a few moments later and was aware the offender had placed his erect penis into her vagina and he was thrusting it in and out of her vagina. The offender ejaculated inside her vagina withdrew his penis and following this the offender stood up with DM saying ‘why couldn't you have even used a rubber?' The offender has said ‘you could have made this easier on yourself, it could have been easy'. The offender called DM a ‘stupid bitch' before fleeing the scene. This matter was reported to police and a medical examination was conducted.
Actual bodily harm was inflicted on DM in the course of the sexual assault charged in sequence 20. A physical examination of the victim was conducted at approximately 8.15pm on 12 October 2003 by Dr Karen Leemen, an obstetrics and gynaecology registrar. The examination was conducted at Royal Prince Alfred Hospital.
Dr Leemen noted the following abnormalities:
- tenderness bilaterally over the temples, the left side of the victim's head was swollen
- bruising and abrasions approximately 5 centimetres in diameter to both wrists
- track marks on both arms
- grazes to both knees and recent scratches
- the victim's thighs were red, scratched and swollen, the left more so than the right and
- no abnormalities were found on genital examination
Victim 5 RP
26 January 2004
Charge Number H22001138 - Sequences 33 and 41
Charge Sequence 33 - Section 86(2)(b) Crimes Act
Heading Detain Person With Intent to Obtain Advantage and Occasion Actual Bodily Harm
The offender and RP went to Centennial Park in the early hours of Monday 26 January 2004. The offender forced RP to the ground where he then tied a rope around her wrists and tied her arms to a tree. At this time RP was on her back and has attempted to defend herself and the offender produced a knife and said 'if you do that again I'll fucking slit your throat'. The advantage obtained by the offender by this action was control of RP to enable him to commit a sexual assault.
RP sustained actual bodily harm during the course of her detention as charged in sequence 33. This included redness to the wrists, a bite mark to the neck and bruising to the nose.
Charge Sequence 41 - Section 611 Crimes Act Sexual Intercourse Without Consent
The offender then tore RP’s clothes from her and inserted his penis into her vagina without her consent.
The offender removed his penis from RP's vagina and rolled her onto her stomach and then he said 'I'm going to do it to you in the bum'. The offender then forced his penis into RP's anus without her consent causing her immediate pain and discomfort. While the offender forced his penis into RP's anus he pulled back on her head extending her neck. At this time RP felt that her life was in danger.
After the offender removed his penis from RP's anus he said to her ‘don't move or I'll kill you'. The offender then fled the scene. RP waited a short time and managed to free herself and seek assistance from a passing cyclist. From there police and ambulance were called and. attended the scene.
RP was conveyed to the Royal Prince Alfred Hospital where a sexual assault examination was conducted. From this examination a number of swabs were obtained.
Further police conducted a forensic examination to the scene and a number of exhibits were located.
I am going to interrupt the recitation of the agreed statement of facts at this point to quote from the only victim impact statement before me, that of RP.
RP said this of her experiences at the hands of the offender:
‘It is hard to express how I feel since the rape happened. I honestly thought that was it, I was going to lose my life. I didn't think he would do what he did. I have never felt this way ever before. I can't explain the pain I experienced and at the time I wished I was dead than go through the agony. Since this happened my life has not been the same. The nights are now long and I'm always locked inside my house and I have bad dreams about being raped. I often cry and cry and get depressed. My doctor has tried to help by giving me anti-depressants but I don't feel any different. Nothing can take away how I feel about what has happened to me. Since that night I feel like I have been branded for the rest of my life and it won't go away. I'll never be the woman I was before, I try but it hurts too much. This took my womanhood away from me. I cry so much I can't say any more. God was with me that night and always will be. I got anxiety attacks and migraines so bad, so sad, I couldn't walk for weeks and to go to the toilet I screamed, it was torture. It is now late, I now hate the night time.’
I return now to the statement of facts.
Victim 6 JE
17 May 2004
Charge Number H22001138 - Sequences 40 and 23
On the evening of 17-18 May 2004 JE was at a hotel in Surry Hills with her de facto when she met the offender. She entered into an arrangement to accompany the offender to a unit at Randwick for the purpose of obtaining cannabis. At this time JE was approximately seven months pregnant.
JE went with the offender in a taxi towards Randwick where JE and the offender entered Centennial Park. JE followed the offender into Centennial Park where he directed JE towards a secluded area bounded by trees.
The offender grabbed JE around the throat and pushed her backwards with the offender producing a knife, pressing the blade of the knife to the side of her neck telling her to be quiet.
The Crown relies on the offender's pressing of the blade of the knife on the victim's throat and the accompanying instruction to be quiet is a circumstance of aggravation in the sequence 23 aggravated sexual assault charge, in that, it constitutes a threat to inflict actual bodily harm by means of an offensive weapon immediately prior to the commission of the sexual assault.
Sequence 40-86(1)(b) Crimes Act.
Detain person with Intent to Obtain Advantage.
The offender directed JE to sit down and he took a length of cord from his jacket and tied her hands together at the front. The advantage of detain by the offender by the action was controlling JE to enable him to commit a sexual assault.
Sequence 23, s 61J Crimes Act Aggravated Sexual Assault.
Circumstance of Aggravation: That immediately before the commission of the offence the offender threatened to inflict actual bodily harm on the victim by means of an offensive weapon.
The offender pulled his pants down and pushed JE onto her back, pushed up her skirt and cut her underpants open with a knife. The offender attempted to force JE's legs open and put the knife to her throat and JE pleaded for her safety and her unborn child's safety. The offender put the knife to the ground and penetrated JE's vagina with his erect penis causing immediate pain and discomfort.
JE freed herself and sought immediate assistance and the police were alerted, locating her with her hands still tied together. The matter was reported to the police and a medical examination was conducted. JE submitted to the actions of the offender due to the presence of a knife and the belief that should she not comply, the offender would have harmed either her or her unborn child.
Victim 7. TP.
27 August 2004.
Charge-Number H21387052.
Charge Sequence 1 - Section 61K(a) Crime Act.
Inflict Actual Bodily Harm with intent to have sexual intercourse.
The victim TP first met the offender on 5 August 2004 at the Alfred Park Lodge located at Cleveland Street Redfern. This is a budget hostel that caters for persons requiring temporary accommodation. At the time TP and the offender were staying in separate rooms and became friends. They went for coffee and lunch on separate occasions. They did not however, have an intimate relationship.
On Thursday 26 August 2004, TP was asked to leave a women's refuge due to conflict with other residents. At about 5pm that evening, TP walked to the Alfred Park Lodge and saw the offender at the front of the building.
The offender offered TP that she could stay overnight in his room due to her currently being homeless for the evening. An agreement was made that TP and the offender were to remain clothed in bed and would not touch each other.
The offender's room contained two single beds pushed together, a table, wardrobe, lounge and a small television.
That night, TP stayed in room 76 at the Alfred Park Lodge with the offender. The offender and TP watched television until around 10.30pm, they both fell asleep.
At approximately 6am the following morning, Friday 27 August 2004, an alarm clock sound and the offender and TP began to wake up.
Shortly after this TP rolled onto her back still fully clothed but this time she felt the offender on top of her. The offender was wearing a t-shirt and no pants. The offender was holding TP's arms above her head. The offender was attempting to force TP's legs apart.
TP could feel the offender's penis pushing up against her leg. TP told police that the offender was trying to put his penis into her vagina. No penetration was made. TP continued to resist the offender and a wrestle ensued. TP tried to push away the offender's penis. TP took hold of the offender's penis and noticed that he was not wearing a condom.
TP said ‘you're a better man than this, what are you doing? You don't know what diseases I have, you haven't known me for that long. You're a small man'. In an attempt to prevent being raped TP further said ‘I'll give you a hand job', to which the offender replied 'no'.
The offender rolled off TP. TP exhausted from wrestling with the offender was laying on the bed in shock. The offender used cream from a bottle of moisturiser and rubbed this on his erect penis. The offender said 'I want a dry root'. The offender began to rub his penis on TP's bottom. TP told the police the offender was attempting to push his penis into her anus. She stated that no penetration was made.
The offender said 'I've got to go, I want to blow my load before I go to work'. The offender ejaculated on TP's bottom, hip and underwear. The offender handed TP a towel to wipe the semen off her body and TP used it for that purpose. The offender fell asleep and TP lay in the bed exhausted and in shock. Later that morning, the offender and TP left Alfred Park Lodge and had no further contact.
TP reported the matter to the police the next day. Saturday 28 August 2004. The offender participated in an ERISP with the police and denied the allegations made against him. A forensic procedure was conducted with the offender and a buccal swab was taken from him. The acquisition of his DNA in this matter enabled the police to identify him as a suspect in respect of the other victims.
TP had actual bodily harm inflicted on her in the course of this offence. She was examined. on 28 August 2004 by Dr Achana(?) Rao, an obstetrics and gynaecology registrar at the Royal Prince Alfred Women and Babies Hospital. On physical examination the following injuries were noted.
- a number of bruises on the patient's arms and legs.
- three two centimetre circular bruises on her right arm.
- a 2.5 centimetre purple bruise to the medial aspect of the left upper arm and
- a 0.5 centimetre to 1 centimetre diameter bruises immediately adjacent to this.
- a 2 centimetre bruise to the medial aspect of her left thigh.
- a 1 centimetre diameter bruise above her left knee medially.
- a graze to the anterior aspect of her left knee.
- an area of tenderness without any bruising or swelling on the dorsal surface of her left wrist.
- a reddened area over the dorsal aspect of the first MTP joint of her left foot.
- no genital abnormalities were noted.
Arrest and Charging of the Offender - victims FH, KN, DM and JE.
A notification was received from the Division of Analytical Laboratories (DAL) linking DNA (semen) samples recovered from four incidences belonging to the offender. This notification related to victims, FH, KN, DM and FE.
At around 3.55pm Wednesday 6 October 2004, the offender attended Tamworth Police Station as per his bail requirements in the TP matter but this time he was arrested, cautioned and placed into custody where his rights and obligations under Pt 10A were explained to him.
The full details of the allegations were explained to the offender and following this the offender received legal advice. The offender was offered the opportunity to participate in an electronically recorded interview to which he agreed. The allegations were again explained to the offender and he denied any and all knowledge of these matters.

Following the electronically recorded interview, a forensic procedure (buccal swab) ,was obtained from the offender.
The offender was charged in relation to the FH, KN, DM and JE matters.
Charging of the offender - Victim LC.
As a result of the ongoing enquiries into these matters, confirmation was received from the Division of Analytical Laboratories (DAL) on Thursday 10 February 2005. The swabs taken from LC following her report of sexual assault to police in September 1995 were linked to the DNA profile of the offender.
Following previous instructions from the offender's legal representative, the offender declined to be interviewed in respect of those allegations. Fresh charges were laid on 21 February 2005.
Charging of the offender.- RP.
In early December 2004, investigating police received notification from the Division of Analytical Laboratories in relation to a DNA link between the offender and a sexual assault investigation kit in the name of RP relating to an alleged assault on 26 January 2004.
Charges were laid in relation to victim RP on 12 April 2005".

The remarks of the sentencing judge

6 The sentencing judge described the applicant as a serial sexual predator:

“preying upon mostly working women who because of their occupation were vulnerable to such persons. Most offences took place in a secluded location far away from available help for the victims, sometimes the offender used a rope to secure his victims. In some instances, he threatened them with a knife. In a number of instances, his victims sustained significant physical injury. Many offences involved humiliation and degradation of his victims which appears to me to have been a significant part of the offender’s motivation. Two of his victims were in advanced stages of pregnancy.”

7 His Honour described the experience of the victims as terrifying ordeals. Apart from the two robberies, his Honour concluded that every one of the offences was well up in the range of objective seriousness for an offence of the particular kind. As there were so many offences, each of which justified a significant sentence, his Honour recognised that if the total sentences were not adjusted for totality the applicant would probably receive a sentence greater than the remainder of his anticipated life. Accordingly, his Honour concluded that there would need to be a large degree of concurrency in the sentences, although some aggregation was required.

8 As I have indicated the applicant pleaded guilty. His Honour recognised the value of this plea. His Honour was conscious of the need to fix an appropriate sentence for each offence in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610 at 624. His Honour was also mindful of the fact that some of the offences were committed after 1 February 2003 requiring a sentence to be imposed in accordance with s 44(1) of the Crimes (Sentencing Procedure) Act 1999.

9 The transcript of the sentencing hearing included a discussion between counsel and his Honour of matters relevant to a potential finding of special circumstances when sentencing the applicant. In his remarks on sentence his Honour said:

“Mr Gilson submitted that because this is the offender’s first gaol sentence that I would not only be entitled to but should find special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act . I have given careful thought to the question of special circumstances. Although, I could find special circumstances, I do not propose to do so in the circumstances of this case. One significant reason for that is that I propose to make a large adjustment to the offender’s total sentence by substantial concurrency of sentences. He will have, on the basis of these sentences, I propose to impose a period of two years on parole following his release. Because of the substantial adjustment I have made for reasons of totality, I do not see the need for and in my view, nor is inappropriate for me to further reduce the time the offender must actually spending custody on account of special circumstances. Mr Gilson submitted that the offender is likely to serve the whole of his sentence in some form of protection. I acknowledge that that is a real possibility. I have taken that into account.”

10 The context makes it clear that in the above passage “appropriate” rather than “inappropriate” was the word his Honour meant to use.

11 After expressing these conclusions his Honour identified the sentence he considered to be appropriate for each offence and at the same time expressed conclusions in relation to matters of concurrency and accumulation.

12 It is a normal incident of sentencing for a judge to reflect on the minimum term an offender should serve in actual custody and this whether or not one or more than one offence is the subject of consideration. Commonly in that exercise consideration will be given to the overall length of the sentence and to the length of its component parts but once his Honour concluded that there should be no reduction of the time to be spent in custody below that at which he arrived then his Honour faced a choice between 2 courses. He could impose the balance of term that he did or he could have increased the length of the applicant’s sentence by imposing a longer balance of term. By not taking that approach, his Honour provided a benefit to the applicant which his counsel, when offered the alternative, did not want to lose.

13 When fixing the individual sentences his Honour supplemented his previous discussion in relation to special circumstances and stated that he intended to “preserve at least some reasonable … parole period to allow the offender when he is eventually released back into the community some measure of supervision by the Probation and Parole Service.”

14 After imposing individual sentences with respect to each offence and allowing for accumulation and concurrency, his Honour initially imposed an overall sentence of 24 years of imprisonment with a non-parole period of 22 years backdated to 6 October 2004. However, as I have indicated, on 24 April 2006 the court reconvened and his Honour, applying the “slip rule” imposed the overall sentence to which I have referred.

The appeal

15 The applicant advanced two grounds of appeal.

Ground 1: the learned sentencing judge erred in his application of s 44 Crimes (Sentencing Procedure) Act 1999 in not finding that special circumstances existed when fixing partly cumulative and partly concurrent sentences.

16 As I have indicated the question of special circumstances was the subject of discussion between counsel and the sentencing judge. In the result his Honour declined to find special circumstances for the reasons which I have already identified. In most cases his Honour provided a non-parole period for the individual sentences at 75% of the total term but, because of the impact of partial accumulation of the sentences, the overall non-parole period was 91.49% of the overall sentence. The applicant submitted that this figure is such a significant departure from the “normal ratio” that reasons ought to have been articulated for it.

17 In my opinion this complaint is entirely without justification.

18 The resolution of appropriate parole and non-parole periods in circumstances similar to the applicant’s have been considered on a number of occasions. In R v Gill (2002) NSWCCA 93 Dunford J said at [12]:

“There is no magic in the 75 percent. Section 44(2) requires that the non-parole period must not be less than ¾ of the term of the sentence unless there are special circumstances. It does not provide that in the absence of special circumstances it must not be any more than ¾ of the term of the sentence.”

19 (see also R v Swann (2005) NSWCCA 252; R v So (2004) NSWCCA 362; Musgrove v R (2007) NSWCCA 21).

20 In the present case his Honour concluded, after careful consideration, that the minimum term he provided was appropriate. His Honour then determined the overall term, acknowledging that the statutory ratio would not be preserved. His Honour indicated that this was a deliberate decision made to ensure that the applicant’s time in custody was appropriate but also that the overall term was within the appropriate range of sentence. In my opinion if the statutory ratio had been maintained it would have inevitably led to an increase in the overall term rather than any reduction of the non-parole period.

Ground 2: The learned sentencing judge erred in his application of the principles of totality in Pearce v The Queen in giving insufficient consideration to the overall effect of the partly concurrent and partly cumulative sentences as it related to the ratio between the non-parole and parole portions of the overall sentence.

21 I have already included the passage from his Honour’s remarks on sentence when he addressed the question of totality (see [8]). For the reasons his Honour stated he provided a significant adjustment of the individual sentences to produce an overall sentence which his Honour believed was appropriate. His Honour concluded that it was necessary to provide a large degree of concurrency. To the extent of the concurrency provided this was a benefit to the applicant.

22 The offences committed by the applicant were extremely serious. I have included both the maximum sentences and where appropriate the standard non-parole periods provided by statute. The objective seriousness of the offences demanded a significant period of full time custody. The applicant committed his crimes over a prolonged period targeting his victims separately, inflicting gross indignities on some, and physical injuries on others. Each of his victims must have been seriously traumatised. The objective seriousness of the offences demanded a significant period of time in custody. Two of his victims were in an advanced state of pregnancy and the applicant used a stick to penetrate FH.

23 I am satisfied that the total non-parole period and overall sentence which his Honour imposed were appropriate. Although compared with the non-parole period, the applicant’s period on parole will be modest, as I have already indicated in my view, if a greater parole period was required the only appropriate course would have been to increase the overall term of the applicant’s sentence.

Orders

24 Although I would grant leave to appeal in my opinion the appeal should be dismissed.

25 HULME J: I agree with the orders proposed by McClellan CJ at CL and with his Honour’s reasons.

26 HISLOP J: I agree with McClellan CJ at CL.