Van der Baan v R - [2012] NSWCCA 5

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: VAN DER BAAN v R

Medium Neutral Citation: [2012] NSWCCA 5

Hearing Date(s): 8 July 2011

Decision Date: 01 August 2012

Jurisdiction: Criminal

Before: BEAZLEY JA at [1];
HALL J at [2];
HARRISON J at [124]

Decision:
(i) Leave to appeal against the sentences imposed by the District Court on 5 February 2010 be granted.

(ii) The appeal upheld in part.

(iii) In respect of Count 5 - the offence of aggravated sexual assault pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023.

(iv) In respect of Count 6 - the offence pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023.

(v) In respect of Count 7 - the offence pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - six counts of various forms of sexual assault and one count of armed robbery - where Applicant had committed two serious unrelated sexual assaults for which he had been sentenced at earlier points in time - whether sentencing judge erred in finding that offences against one victim aggravated by earlier offending - no error by sentencing judge because prior convictions were only taken into account once objective gravity of offences determined - whether overall sentence manifestly excessive in circumstances of case - whether error in approach to concurrence of sentences - individual sentences not manifestly excessive but increased amount of concurrence of sentences warranted.

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited: Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Clinch v The Queen (1994) 72 A Crim R 301
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
House v R [1936] HCA 40; (1936) 55 CLR 499
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Postiglione v The Queen [1997] HCA 26, (1997) 189 CLR 295; (1997) 94 A Crim R 397
R v AEM & ORS [2002] NSWCCA 58
R v Baker (NSWCCA 2 August 1994)
R v Bilal Skaf [2005] NSWCCA 297
R v Boatswain (unreported, NSWCCA, 15 December 1993)
R v Burns (NSWCCA 21 September 1994)
R v Carlton [2008] NSWCCA 244; (2008) 189 A Crim R 332
R v Dodd (1991) 57 A Crim R 349
R v Elemes [2000] NSWCCA 235
R v George [2004] NSWCCA 247
R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Jason Mark Russell (unreported, NSWCCA, 21 June 1996)
R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252
R v Lewis (NSWCCA 14 December 1993)
R v Logue (NSWCCA 31 March 1994)
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v McNaughton [2006] NSWCCA 242 (2006) 66 NSWLR 566; 163 A Crim R 381
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Morgan (1993) 70 A Crim R 368
R v Presta [2000] NSWCCA 40
R v Roberts (unreported, NSWCCA, 8 August 1994)
R v Salameh NSWCCA 9 June 1994
R v Trevenna [2004] NSWCCA 43
Veen v R [1979] HCA 7; (1979) 143 CLR 458
Veen v The Queen (No 2) [1988] HCA 14; (1998) 164 CLR 465
Vuni v R [2006] NSWCCA 171
Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Texts Cited:

Category: Principal judgment

Parties: Jason Anthony VAN DER BAAN
Regina

Representation

- Counsel: J Pickering Crown
A Francis Applicant

- Solicitors: S Kavanagh
Legal Aid Commission

File number(s): 2009/5448; 2009/5449

Decision Under Appeal

- Court / Tribunal: District Court

- Before: King DCJ

- Date of Decision: 05 February 2010

- Citation:

- Court File Number(s) 2009/5448; 2009/5449

Publication Restriction: No

JUDGMENT

BEAZLEY JA: I agree with Hall J.
HALL J: The Applicant, by notice dated 15 March 2011, seeks leave to appeal against sentences imposed on him in the District Court at Sydney on 5 February 2010.
The Applicant was charged on 28 January 2009 with a total of seven offences comprising six offences of aggravated sexual assault against two victims contrary to the provisions of s.61J(1) of the Crimes Act 1900 and one count of robbery with an offensive weapon contrary to the provisions of s.97(1) of the Crimes Act.
The offences which occurred on 14 April 1995, being three aggravated sexual assault offences under s 61J(1) and an offence under s 97(1), concerned a female victim who was identified by the initials "BH" who, at the time of the offences, was 18 years of age. The offender, at the time, was 25 years of age.
The Applicant entered a plea of guilty in respect of each offence in the Local Court on 8 April 2009.
In relation to the second female victim, known as "SP", the relevant offences occurred on 2 August 1996. The Applicant was charged with three offences of aggravated sexual assault pursuant to s 61J. He entered a plea of guilty in respect of each offence in the Local Court on 8 April 2009.

The sentences challenged in this Court

(1)The sentences imposed in respect of the offences against the victim, "BH"

For the offences against the victim, BH, the Applicant was sentenced as follows:
(1)In respect of the offence of robbery whilst armed with an offensive weapon (Offence 4), a fixed term of imprisonment of 18 months which was backdated to commence on 23 May 2007 and to expire on 22 November 2008.
(2)In respect of each of the three offences of aggravated sexual assault (Offences 1, 2 and 3), a fixed term of imprisonment of 6 years and 9 months to be served concurrently to commence on 23 November 2007 and to expire on 22 August 2014.

(2)The sentences imposed in respect of the offences against the victim, "SP"

In respect of offences against the victim, SP, the Applicant was sentenced to a term of imprisonment of 12 years to commence on 23 August 2012 and to expire on 22 August 2024 involving a non-parole period of 9 years to commence on 23 August 2012 and to expire on 22 August 2021 and a parole period of 3 years. Accordingly, the fixed date upon which the Applicant would become to be released on parole is 22 August 2021.
The overall effective sentence imposed in respect of both complainants is a total effective sentence of 17 years and 3 months comprised of a non-parole period of 14 years and 3 months commencing 23 May 2007 and expiring on 22 August 2021, with a balance of 3 years to date from 22 August 2021 and expiring on 22 August 2024.
A matter of importance in the sentencing of the Applicant for the above offences in relation to other victims, was the fact that he had committed two serious unrelated sexual assaults for which he had been sentenced at earlier points in time. In this regard:
(1)The Applicant had committed a violent sexual assault on a young woman (LH) in October 1996 for which he was sentenced by his Honour Judge Holt on 14 November 1997.
(2)The Applicant had also committed a violent sexual assault on a young woman (JL) in May 1996 for which he was sentenced by her Honour Judge Tupman on 8 November 2002.
By reason of the sentences that had been imposed for the earlier offences, namely, those committed respectively in May 1996 and October 1996, it was necessary for King DCJ, in determining the sentences to be imposed by him, to consider the issue of totality with regard to the offending that had been the subject of sentences effectively imposed by their Honours Judge Holt and Judge Tupman in 1997 and 2002, inter alia.
The Crown set out in its written submissions a convenient summary of the sentences imposed in respect of each of the offences involving BH and SP. I reproduce that summary below:

The charge and date of offence and basic allegation	Maximum penalty	Sentence
Offence 1: s 61J(1) Aggravated Sexual Assault on 14.4.1995 on BH - use knife threaten ABH - penile/ vaginal intercourse	20 years	Fixed Term of 6 years and 9 months to date from 23 November 2007 to expire on 22 August 2014
Offence 2: s 61J(1) Aggravated Sexual Assault on 14.4.1995 on BH - use knife threaten ABH - penile/anal intercourse	20 years	Fixed Term of 6 years and 9 months to date from 23 November 2007 to expire on 22 August 2014
Offence 3: s 61J(1) Aggravated Sexual Assault on 14.4.1995 on BH - use knife threaten ABH - penile/ mouth intercourse	20 years	Fixed Term of 6 years and 9 months to date from 23 November 2007 to expire on 22 August 2014
Offence 4: s 97(1) Robbery with an offensive weapon of BH on 14.4.1995 - stealing her watch and belt at end of the sexual assault	20 years	Fixed Term of 18 months to date from 23 May 2007 to expire on 22 November 2008
Offence 5: s 61J(1) Aggravated Sexual Assault on 2.8.1996 on SP - use knife threaten ABH and victim under 16 - penile/vaginal	20 years	12 years to be served by way of a Non Parole Period of 9 years to date from 23 August 2012 and expire on 22 August 2021, and balance of 3 years to expire on 22 August 2024
Offence 6: s 61J(1) Aggravated Sexual Assault on 2.8.1996 on SP - use knife threaten ABH and victim under 16 - digital/vaginal	20 years	12 years to be served by way of a Non Parole Period of 9 years to date from 23 August 2012 and expire on 22 August 2021, and balance of 3 years to expire on 22 August 2024
Offence 7: s 61J(1) Aggravated Sexual Assault on 2.8.1996 on SP - use knife threaten ABH and victim under 16 - penile/vaginal	20 years	12 years to be served by way of a Non Parole Period of 9 years to date from 23 August 2012 and expire on 22 August 2021, and balance of 3 years to expire on 22 August 2024

The Crown noted that the overall effect of sentences imposed on him was a total effective sentence of 17 years and 3 months, comprising a non-parole of 14 years and 3 months to commence on 23 May 2007 and to expire on 22 August 2021 and a balance of 3 years from 23 August 2021 and to expire on 22 August 2024.
The Crown further submitted:
"6. When his Honour imposed the above sentences a crucial factor impacting on his Honour's ultimate sentence was the issue of totality, not just with the two matters he was dealing with, but also the totality of offending encompassed in the matters, which Judge Holt had dealt with in 1997 and Judge Tupman had dealt with in 2002, for the other 1996 offences."
The Crown noted that the sentences in question were to be seen in context. In that respect, details of the sentences imposed by Holt DCJ and by Tupman DCJ were noted as follows:
(1)Sentences imposed by Holt DCJ on 14 November 1997 with regard to the offences committed by the Applicant on 27 October 1996 upon LE.

The charge and date of offence and basic allegation	Maximum penalty	Sentence
s.61J(1) Aggravated sexual intercourse without consent on 27.10.1996 on LE - threaten ABH with a knife - penile and anal penetration	20 years	Sentence of 8 years - to be served by way of: Minimum term of 5 years and 6 months to date from 25 November 1996 to 24 May 2002, and additional term of 2 years and 6 months to date from 25 May 2002 to 24 November 2004

(2)Sentences imposed by Tupman DCJ on 8 November 2002 with regard to the offences committed by the Applicant on 1 May 1996 upon JL.

The charge and date of offence and basic allegation	Maximum penalty	Sentence
s.61J(1) Aggravated sexual intercourse without consent on 1.5.1996 on JL - threaten ABH with a pistol - penile penetration (with a Form 1 of armed robbery of JL with a pistol of $10)	20 years	Sentence of 8 years and 6 months to be comprised by way of a non parole period of 6 years to date from 24 May 2001 to 23 May 2007, and a balance of 2 years and 6 months to date from 24 May 2007 to 23 November 2009

On the question of the length of the sentences imposed by the sentencing judge, the Crown noted that the sentences imposed in respect of the offences on SP had the most significant impact on the overall sentence imposed on the Applicant.
One way of assessing the sentences, it was suggested, could be undertaken by converting the sentence imposed on BH (fixed term of 18 months in respect of offence 4 and the fixed term of 6 years and 9 months in respect of counts 1, 2 and 3) to a sentence slightly in excess of 8 years and 6 months, with a non-parole period of 6 years and 9 months which it was observed would be similar to the sentences imposed by Holt DCJ and Tupman DCJ for LE and JL.
The Crown set out in its written submissions (paragraph 69) the following sentences referable to each victim (based on non-parole periods only):
LE:4 years and 6 months (25.11.1996 to 24.5.2001).
JL:6 years (24.5.2001 to 23.5.2007).
BH:5 years and 3 months (23.5.2007 to 23.8.2012).
SP:9 years (23.8.2012 to 22.8.2021).

Grounds of appeal

The Applicant relies on two grounds of appeal which were framed in the following terms:
1.His Honour erred in finding that the offences against SP were aggravated by the earlier offending.
2.The overall sentence is manifestly excessive in the circumstances of this case.

Factual background

The factual background to the offences in question was summarised in detail in the Crown's written submissions, which it was accepted accurately sets out the relevant facts in respect of the offences on BH and on SP.
Accordingly, I extract into this judgment the relevant paragraphs of the Crown's written submissions:
"FACTUAL BACKGROUND
Offences on BH
11.At that time, the victim, BH, was eighteen (18) years old and had just moved to Granville, New South Wales.
12.On 13 April 1995, the victim caught a train from Granville to Parramatta. She went there to visit the Youth Access Centre. When in the vicinity of the Parramatta Mall, Church Street, Parramatta, the victim spoke to the Applicant and asked him for directions to the Centre. The Applicant introduced himself as 'Jason'. He told her was going that way and offered to show her the way. The two talked and the victim indicated that she was new in town. The Applicant volunteered to show her around Parramatta. The victim gave the Applicant the telephone number of the place where she was staying.
13.During that initial meeting the Applicant indicated that he was working as a nurse's aid.
14.On the morning of 14 April 1995, the Applicant telephoned the victim. They arranged to meet at Granville Railway Station at 4.00 pm that day, with the view of travelling to Parramatta together.
15.About 4.00 pm that afternoon, the victim and the Applicant met at Granville Railway Station and travelled to Parramatta. They walked to a café and ate a meal. They then decided to go to the cinema. The two walked for about ten minutes. On the way to the cinema the Applicant told the victim he wanted to visit a marijuana crop he had growing in some parkland in Parramatta. When they reached a parkland area adjacent to the Parramatta River, the Applicant directed the victim towards the river. The Applicant left the victim alone for a short period before returning.
16.The Applicant suddenly placed his left hand around the mouth of the victim and pressed the blade of a flick knife against her neck. The blade of the knife was about 2 inches long. He said, 'You know this is a knife, if you don't do what I say, I will kill you.' The Applicant led the victim at knifepoint to a grassy area surrounded by trees. By this stage it was dusk and almost dark.
17.Offence 1: The Applicant told the victim to take her jeans off and sit on them. In fear the victim took off her jeans. The Applicant removed the victim's underpants. The Applicant pulled his jeans down to his knees. The victim said a number of times 'Please don't kill me' to which the Applicant said 'Shut up'. He pushed the victim onto her back and commenced penile/vaginal intercourse. This hurt the victim. That continued for about five minutes. The victim was uncertain whether the Applicant ejaculated.
18.Offence 2: The Applicant removed his penis from the victim's vagina and told her to turn over. She complied through fear. The Applicant told her to take her top off which she did leaving her bra on. The Applicant attempted to insert his penis into her anus telling her, 'Spread your legs further'. Eventually the Applicant inserted his penis into her anus and commenced intercourse. Whilst doing so, he said, 'You've done this before haven't you?' The victim said 'No'. The Applicant said 'Yes you have you slut.' The Applicant said 'You're a slut aren't you?' a number of times whilst having anal intercourse with the victim. He said 'You like this don't you?' and when the victim did not reply he said 'Act like you're enjoying it.' The victim complied because she wanted to get the incident over with. The Applicant then said, 'Say you're a slut.' When the victim said 'No' he slapped her across the back of the head and demanded she say it. The victim complied. The victim did not know if the Applicant ejaculated during the anal intercourse.
19.Offence 3: The Applicant removed his penis from the victim's anus and told her to turn over and sit down. He knelt above her and said, 'Suck this bitch and don't get any ideas.' He placed his erect penis in to the victim's mouth and took hold of the back of her head, forcing her forward onto his penis. The Applicant pushed his penis in and out of the victim's mouth for 2-3 minutes. The Applicant took hold of the victim's hair and forced her head down further onto his penis. The victim felt sick and tried to pull away but the Applicant slapped her across the face and said 'Keep going bitch'. A short time later the Applicant removed his penis from the victim's mouth. The victim did not think he ejaculated.
20.Offence 4: He told her to remove her bra. She complied and he told her to turn over and lay on her stomach. He used the victim's bra to tie her wrists together behind her back. He said 'I won't tie you hard, just give me some time to get away.' He said 'You better not tell anyone about this because if I get caught I can still get to you from jail, I know people.' He took the victim's wrist watch and belt off her. He asked her if she had any money but the victim only had thirty-five cents. She is unsure if this was taken. The Applicant said 'You better not tell anyone' and left.
21.Throughout the incident, the Applicant was in possession of the flick knife.
Offences against SP
22.In August 1996 the Applicant was 26 years of age. He was living in the Parramatta area.
23.At the time the victim SP was a female child who was 15 years of age. (It is important to note that this was the only victim of the four victims who was under the age of 16 years, and as such this was an additional aggravating feature pursuant to s.61J(2) - ultimately this is one of the main reasons these offences received the greatest sentences not because of any error made by his Honour as suggested by the Applicant in grounds 1 and 2).
24.On the evening of Friday 2 August 1996, the victim left her home address to walk to Parramatta Railway Station to meet a friend. She was alone at the time and it was already dark.
25.After walking for about half an hour, the victim commenced walking along Macarthur Street, Parramatta. Macarthur Street crosses the Parramatta River at a bridge called the Gasworks Bridge. In 1996, the Gasworks Bridge had two lanes for vehicles (one in each direction) and a narrow footpath for pedestrians.
26.By the time the victim got to the bridge it was dark. As the victim crossed the bridge, she was grabbed from behind by the Applicant. The Applicant covered her mouth with his left hand and held a knife against her neck with his right. The victim described the blade of the knife as being 10-12 cm in length. He pulled her backwards and said to her 'Shut the fuck up bitch'.
27.He lifted the victim over a stone wall on the bridge and then forced her to walk forwards down a narrow set of steps that lead to the river bank. He continued to hold his hand over her mouth and the knife to her throat throughout this period. He directed her to an area underneath the Gasworks Bridge. Once under the bridge he pushed her backwards and she fell onto the ground. He undid her jeans and forcibly removed them. He still had the knife in his right hand whilst doing this and would occasionally place it against her throat.
28.Offence 5: He said, 'Sit the fuck up.' The victim complied. The Applicant stood up, undid his trousers and pulled them down. He knelt in front of the victim and pushed his penis against the victim's mouth. The victim had her mouth closed but the Applicant forced his penis into her mouth.
29.The Applicant took hold of the back of the victim's head and repeatedly pushed her head forward and back onto his penis. He was very rough and said to the victim 'You better not bite this bitch'. He continued until he ejaculated into her mouth. At the point of ejaculation the Applicant's semen went down the victim's throat and she gagged.
30.Offence 6: The Applicant removed his penis from the victim's mouth and pushed her backwards, onto the ground. He pulled her legs apart and positioned himself on his knees between her legs. He pulled her underpants to the side with force and placed a number of his fingers inside her vagina. The victim could feel at least three fingers inside her vagina. The Applicant initially held his fingers still inside her vagina but then he moved his fingers around inside her up and down and side-to-side. The Applicant said, 'You're a tight little slut aren't you.' The finger movement hurt the victim.
31.With his fingers still inside of her vagina the Applicant moved on top of the victim. He started to kiss her. The victim initially resisted the kissing but eventually complied. The Applicant placed his tongue inside her mouth and down her throat. He kept his fingers inside her vagina throughout this. This went on for ten to fifteen minutes.
32.Offence 7: The Applicant told the victim to remove her underpants. The victim complied. He lifted himself off her and spread her legs apart. He knelt between her legs and forcefully pushed his penis into her vagina and commenced sexual intercourse with her. He lay on top of the victim and pushed his tongue into her mouth. The thrusting of the Applicant's penis caused the victim pain and she started to cry. The Applicant said, 'Stop crying bitch, you can't cry.' The Applicant continued to have sexual intercourse with the victim thrusting his penis forcefully into her vagina. This went on for some time. He ejaculated inside her vagina. As he ejaculated the victim said, 'How much longer is this going to take? I am supposed to be meeting people and if I don't show up they will alert the police.' The Applicant said, 'It will take as long as I want it to take bitch'.
33.The Applicant then stopped. He stood up, pulled his pants up and pulled the victim to her feet. He walked around behind her, held the knife against her throat and walked her to the edge of the river.
34.When they got close to the river the Applicant said, 'I'll let you go if you don't look at my face. You have to wait here until I go'. The victim agreed. The Applicant instructed her to remain at the riverbank until he had gone. He then left.
35.The victim stood facing the river for about ten minutes. She then made her way back to the area underneath the bridge where she found her underpants and jeans. She put those clothes back on.
36.The victim made her way to Parramatta Railway Station. At the railway station, she met her friend and the two travelled to the victim's home by bus. Once at home, the victim disclosed the incident to her mother. The victim went to Parramatta Police Station where she reported the incident to police. She then attended Westmead Hospital where a Sexual Assault Examination Kit was obtained.
37.At the hospital she was also treated for cuts that occurred during the incident; one to her arm and one to her back.
38.At the time of the offences, the 15 year old victim had never had sexual intercourse.
39.The Sexual Assault Examination Kit was subsequently taken to the Division of Analytical Laboratories. A DNA profile was recovered from a vaginal swab. That DNA profile was identified as matching the DNA profile of the Applicant. The DNA notification was forwarded to Parramatta Police. On Wednesday 28 January 2008, the Applicant was arrested at Burwood Police Station and interviewed in relation to the matter. He stated he did not know the victim and that he did not wish to say anything about the matter at this point."

Ground 1: His Honour erred in finding that the offences against SP were aggravated by the earlier offending

This ground concerns the sentencing judge's observations set out in the Remarks on Sentences at pp.40-41 as follows:
"Sentence for the Offences against SP
Offences 5, 6 and 7 - aggravated sexual assault
The offender committed these offences subsequent to two previous occasions of committing aggravated sexual assaults. The offender has already been sentenced in respect of those offences and the sentences for these offences must be appropriate to them and only to them, that is, there must be no element of double punishment for the past offences. However, it is relevant to take into account when sentencing for these offences that the offender's past conduct includes previous offences of the same type. The commission of those offences is an aggravating feature to be taken into account when sentencing for these offences."
Ms A Francis of counsel, who appeared on behalf of the Applicant in this Court submitted that these observations or comments demonstrate that his Honour "... elevated the objective criminality of the latter offending on the basis of the antecedents" and that his Honour, accordingly, fell into error. It was contended that the sentencing judge acted contrary to settled principle as expressed in Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565 and R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; 163 A Crim R 381, namely, that, for the purpose of sentencing, an offender's antecedent criminal history will not impact upon the objective seriousness of an offence.
In the course of submissions, particular attention was drawn to the sentencing judge's observation that the commission of the offences against SP "was an aggravating feature to be taken into account when sentencing for these offences".
It was submitted that it was evident that the approach that the sentencing judge took to the "antecedents" was to determine that they constituted an objective aggravating factor as distinct from it being merely a subjectively adverse factor.
It was argued that the asserted error had resulted in a sentence concerning SP which "reflects a starting point of 16 years as against a maximum penalty of 20 years".
It was further contended that a comparison of the sentences imposed in respect of the offences against BH and SP made good the assertion that the finding of aggravation had a significantly upward impact upon the sentences.
Finally, it was argued that, having regard to sentencing patterns at the time of the commission of the offence, the submission was that the sentences imposed were manifestly excessive.

Consideration of Ground 1

In considering this ground, it is necessary to identify the principles that directly and indirectly bear upon the question of whether and, if so, the basis upon which the antecedent criminal history of an offender may be a factor to be taken into account in determining sentence.
The principles in this regard may be stated shortly as follows:
(1)The principle of proportionality as enunciated in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances: Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354; McNaughton (supra) at 572 per Spigelman CJ at [15].
(2)The proportionality principle applies so that a sentence should not be less than the objective gravity of the offence required: McNaughton (supra) per Spigelman CJ.
(3)The antecedent criminal history of any offender may not be used to increase the sentence beyond what is an appropriate sentence for the particular offence: Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 at 57.
(4)Accordingly, prior convictions do not themselves play a role in determining the gravity of the offence which, as the High Court confirmed in Hoare (supra), turns on the objective circumstances of the offence: McNaughton (supra) at [24]:
"... the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions."
(5)Prior convictions are pertinent in terms as to where, within the boundaries set by the objective circumstances, a sentence should lie: McNaughton (supra) per Spigelman CJ at [26] (Bell J (as her Honour then was) and Hislop J agreeing). This proposition may be seen to be reflected in references in Veen (No 2) (supra) to concepts such as an "attitude of disobedience to the law" and to the increased weight to be given to retribution, to "deterrence" (relevantly personal deterrence) and "the protection of society".
In this respect, in Veen (No 2) (supra), having stated that the principle of proportionality is a firmly established one, the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) observed at 473:
"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principal is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."
Spigelman CJ in McNaughton (supra) at [28] set out the following passage from the joint judgment in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at 640:
"... A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offence for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration." (emphases added)
In the present case, it is necessary that attention be given to the structure and detailed analysis contained in the sentencing judge's Remarks on Sentence. His Honour set out the facts and circumstances of each of the offences against BH and SP. He then turned to discuss what was subtitled "Objective Seriousness of the Offences" (Remarks on Sentence, pp.10-16).
In relation to the offences against SP, his Honour set out fifteen matters as follows:
"i. The offences were premeditated. (The offender was armed with a knife. The attack came when it was dark and at a place where the victim could be immediately removed to a secluded location where detection was unlikely.) It was submitted that the court should not find that this was premeditated offence. The court finds beyond reasonable doubt that this was not an offence committed as a result of a spur of the moment decision made when conducive circumstances coincidentally occurred, but that the offender, carrying the knife in anticipation of committing the offences, either lay in wait at the location until a suitable victim appeared, or that he stalked the victim until she reached a suitable location. It cannot be determined and is not relevant to determine which of the two alternatives occurred.
ii. The offences occurred when it was dark, and the victim was entitled to feel secure while walking on a public street.
iii. The victim was 15 years of age.
iv. He was armed with a 10-12 cm bladed knife, and used it to obtain acquiescence.
v. The removal of the victim from the bridge to underneath it was accomplished by physical force as well as intimidation with the knife.
vi. Her clothes were forcibly removed.
vii. Each of the acts involved physical force in the act itself.
viii. The victim was demeaned and belittled by verbal abuse.
ix. He ejaculated in the victim's mouth, the semen entering her throat and causing her to gag.
x. He placed at least three fingers in her vagina for a lengthy period of 10 to 15 minutes and moved them around with sufficient force to hurt her while simultaneously forcing his tongue into her throat.
xi. The penile/vaginal intercourse also caused the victim to suffer pain and to cry.
xii. He further ejaculated while having penile/vaginal intercourse.
xiii. After the offences he forced her, while she was at least naked from the waist down, to the riverbank. At the time he was holding the knife to her throat. Although he later indicated that he would release her and subsequently did so, the victim, 15 years of age, must have been terrified, considering that he had replaced his clothes, indicating that he had completed the sexual assaults, that she was about to be disposed of in the river.
xiv. The facts do not provide sufficient information as to the time involved. However, it is clear that it must have been a significant period, considering that the digital/vaginal intercourse alone was estimated as taking 10-15 minutes.
xv. The victim suffered cuts as a result of the offences, one to her back and one to her arm. They do not appear to have been deliberately inflicted rather than acquired as a result of the force used in assaulting her in the particular location, that is, by interaction with the ground or objects on it."
His Honour then observed at pp. 14:
"Again, the offences disclose that the offender was driven by a need to sadistically dominate, demean and degrade the victim by placing her in significant fear for her life and wellbeing, to obtain acquiescence in her violation by the offender's extremely offensive conduct.
While it is possible to envisage the ways in which the offences may have been made worse, such as the infliction of deliberate injuries or being in company, the facts disclose a series of assaults than can properly be regarded in their overall effect as being very serious offences within the category of offence. That is, they fall at the high end of the range."
The fifteen factors identified by the sentencing judge were all directly relevant to assessing the objective seriousness of the offence and none were challenged in the present proceedings. The Applicant's prior offences were not included in the fifteen factors.
Finally, the length of the term of imprisonment imposed in respect of the offences against SP does not, in my assessment, support the argument put forward on behalf of the Applicant that it indicates his Honour presumably used the prior offences to aggravate the objective seriousness of the offence.
SP was the only one of the Applicant's four victims who was under the age of 16 years as at the date of the offences (she was 15 years old at the time). That was an additional aggravating factor under s.61J of the Crimes Act. Additionally, in relation to SP, the criminality was because it involved, inter alia, dragging a 15 year old girl with a knife under the bridge where violent sexual assaults were then perpetrated upon her. These factors initially would result in considerably higher sentences than those imposed in the cases of BH, LE and JL.
Additionally, I accept as valid the observation made in the Crown submissions that the sentencing judge dealt with the sentencing of BH on the basis that the offences committed against her were first offences. Secondly, in sentencing the Applicant in respect of BH no other prior offences played a role in determining the appropriate sentences.
Similarly Tupman DCJ when sentencing the Applicant in respect of JL, being unaware of the offences that the Applicant committed against BH, proceeded on the basis that the offences against JL were the first sexual offences committed by the Applicant. Again first offending played no role in that sentence determination.
Also, Holt DCJ had no information as to the Applicant having committed these prior sexual offences involving violence.
At the time of sentencing the Applicant, King DCJ was clearly required to sentence him having regard to his offending for which he had been sentenced by Holt DCJ and Tupman DCJ.
It is clear, having regard to the structure of the Remarks on Sentence, the detailed analysis of the facts and circumstances concerning the seriousness of the offence and his Honour's determination that they fall "at the high end of the range" that the observations by him were wholly directed to the question of determining the appropriate sentence for the offences against SP after, and not before, the sentencing judge had determined the objective gravity of the offences. It is, in my opinion, clear that his Honour's reference to the commission of the previous offences as an aggravating factor to be taken into account when sentencing for the offences was, consistently with the principles stated in Veen (No 2) (supra), an indication that his Honour was taking into account the antecedent criminal history to which he referred in determining the sentence to be imposed and not otherwise. In other words, having first determined, with regard to the objective gravity of the offences, that they fell at the high end of the range, prior convictions were taken into account only as to where, within the boundaries set by the objective circumstances, the sentences should lie.
I should add that his Honour's observations that the sentences for the offences against SP "must be appropriate to them and only to them," by which he explained he meant "there must be no element of double punishment for the past offences", evidences the fact that his Honour was acutely aware of the way in which the Applicant's prior criminal history could be taken into account. It is clear that he was careful in ensuring that that was the only basis upon which he would have regard to such history.
Accordingly, the submission on behalf of the Applicant that, in making these observations, his Honour was only "paying lip service" to the principle that there was to be no element of double punishment for past offences is without merit.
I accordingly have concluded that there is no validity in Ground 1 and it should be dismissed.

Ground 2: The overall sentence is manifestly excessive in the circumstances of this case

This ground was relied upon in support of the challenge to both the effective overall term and the claimed inadequacy of the period on parole.
The following general principles are noted in relation to this ground.
(i)First to establish that a sentence is manifestly excessive an Applicant has to demonstrate that the sentence was "unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 325 per Gleeson CJ and Hayne J.
(ii)This has to be established in the context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Vuni v R [2006] NSWCCA 171 at [33] per Hoeben J with Tobias JA and James J agreeing.
(iii)"The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) informing the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies:" Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at 371 per Gleeson CJ, Gummow, Hayne and Callinan JJ.
(iv)As with other discretionary judgments, the enquiry on an appeal against sentence is identified in the well-known passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505. Where specific error is not shown the question is whether the result embodied in the order is unreasonable or plainly unjust: Markarian v R (supra).
(v)The Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge: Markarian v R (supra).
(vi)"A basic objective of any sentencing exercise is that the sentence imposed should be reasonably proportionate to the offence committed and its attendant circumstances:" R v Bilal Skaf [2005] NSWCCA 297 at [116] the Court (Studdert, Bell and Latham JJ).
(viii)It is necessary for a sentencing judge to strike a proper balance between the sentences to be imposed and the principle of totality.
In the submissions for the Applicant, it was noted that the sentencing judge observed that the Applicant was to be sentenced on the basis of the general sentencing patterns at the time of the commission of the offences or shortly thereafter.
In that respect, his Honour said that the sentences imposed by Holt DCJ and Tupman DCJ were of assistance as were the statistics referred to by their Honours in their remarks on sentence. The submission was:
"8.4 Despite this the sentences imposed in respect of SP were at least four years longer than the sentences found to be appropriate by Tupman J and Holt J for the sexual offending in respect of which they were dealing."
In support of this ground, it was submitted, firstly, that the sentencing judge simply accumulated the first of the sentences in relation to the offences against SP upon the non-parole period that had been imposed by Tupman DCJ without any express consideration as to the impact that the principle of totality had upon the commencement date and, secondly, that an overall effective sentence in excess of 27 years, following pleas of guilty, was manifestly excessive particularly in light of the Applicant's personal history, which was said to be a sad one, and to his efforts to change whilst he was institutionalised.
The Crown in my opinion correctly observed that it was not the sentences imposed on the Applicant that resulted in the most significant impact on the overall non-parole period but the effect of their accumulation: Written Submissions at [71].
As to the sentences imposed on the Applicant in respect of SP, the Crown emphasised two matters. First is the age of SP, the fact that she was 15 years of age at the time the offences committed against her took place. Second, the important fact that the Applicant was not being sentenced upon the basis that the offences were first offences. It was submitted by the Crown that both significantly greater sentences imposed on the Applicant and a greater degree of accumulation were warranted. In the Crown's written submissions it was noted at [72]:
"In addition an effective non-parole period of 24 years and 9 months for the totality of this level of offending on four complainants for offences that were not far from being in the worst category for this type of offending was not manifestly excessive."
I turn at this point to the issue of sentencing patterns, a matter which was the subject of particular attention in the submissions for both the Applicant and the Crown.
As to the sentencing patterns in 1996, the Crown noted that in R v Jason Mark Russell (unreported, NSWCCA, 21 June 1996) the following observations were made:
"Although no two cases are the same, we have been referred to a number of other cases where the circumstances show some similarity to the present; particularly R v Lewis (CCA, 14 December 1993); R v Logue (CCA, 31 March 1994); R v Burns (CCA 21 September 1994); R v Baker (CCA 2 August 1994). Those cases show a pattern of sentences ranging from minimum terms of six years to nine years and each followed a plea of guilty." (Crown Submissions on Sentence Appeal at [73])

The sentencing judge was mindful of the need in sentencing the Applicant to take into account sentencing patterns as they existed at the time of the commission of the subject offences. Indeed his Honour expressly said as much: "Remarks on Sentence" at Appeal Book p 46. He noted the submissions that had been made on behalf of the Applicant and stated that he would sentence on the basis of what he understood to be the "general sentencing pattern". His Honour noted that he would be assisted by the sentence imposed by Holt DCJ on the Applicant as well as the sentences imposed by Tupman DCJ on him together with the statistics referred to in the Remarks on Sentence in those cases. However, his Honour added:
"The Court will take account of the obvious differing circumstances of each of those sentences to each other as well as the current circumstances": Remarks on Sentence at Appeal Book [46].
Ms Francis submitted that when allowance is made for the Applicant's guilty pleas, the notional starting point for them were greater than the accumulated sentences imposed by this Court in R v Bilal Skaf [2005] NSWCCA 297. In that case it was observed, the overall term was 36 years with a non-parole period of 30 years. Applying a discount of 25% to the sentences imposed in Skaf (to which the Applicant in the present case was entitled) this would result in a non-parole period of 21 years and a head sentence of 27 years.
Ms Francis also submitted that the sentences imposed in respect of the offences against SP were at least 4 years longer than the sentences imposed by both Tupman DCJ and Holt DCJ for the offences with which they were concerned. As will be discussed later in this judgment there were however, in my assessment, justifiable grounds for the specific sentences imposed with respect to the offences against SP.
Criticism was also directed by Ms Francis to the issue of the accumulation of the sentences in question:
"His Honour simply accumulated the first of the sentences upon the non-parole period imposed by Tupman J and in so doing was silent as to the impact that principles of totality had upon the commencement date." Submissions of behalf of the Applicant at 8.5.
In the Applicant's written submissions the sentencing results in a number of cases were set out. A number of these are referred to below. They were relied upon to support the submission that the sentences imposed were manifestly excessive.
The cases to which particular reference was made in the submissions include the following:
(i)R v Bilal Skaf (supra) - an effective non-parole period of 21 years with a period on parole of 6 years for the sexual assault of three complainants on two occasions (sentences imposed after trial).
(ii)The sentencing in the following cases (all of which were considered in Skaf (supra). R v Boatswain (unreported, NSWCCA, 15 December 1993); R v Roberts (unreported, NSWCCA, 8 August 1994) and R v Presta [2000] NSWCCA 40.
In Boatswain (supra), the offending took place in 1991. A head sentence of 23 years with a non-parole period of 15 years was imposed for sexual offending against two victims (including, inter alia, the possession of a shortened firearm). The application for leave to appeal against severity of sentence was dismissed. The submission was that:
"... It is notable that each case was regarded as being of the worst type in circumstances where the Applicant had been, previous to their commission, subject to lengthy periods of custody. The offending in this case against each complainant was objectively more severe than that alleged against the Applicant." (Applicant's written submissions at 8.10)
In the Crown's Additional Crown Submissions on Sentence Appeal (p2), it was observed:
"Where the onus lays or manifests excessiveness
6. In asserting that a sentence is manifestly excessive the Applicant takes on what has been referred to as the "heavy practicable burden" of demonstrating that the sentence imposed was "unreasonable or plainly unjust" Dinsdale, (supra). See R v Elemes [2000] NSWCCA 235.
7. The High Court has stressed that judges at first instance are to be allowed as much flexibility in sentencing as is consonant of approach and as accords with the statutory regime that applies: Markarian (supra).
8. The question for this court is not whether a different or lesser sentence could have been imposed, but whether the sentence imposed fell within the proper exercise of the sentencing judge's discretion."
The Crown submitted that caution should be exercised in determining a sentencing range. In that respect reference was made to the observations of this Court in R v George [2004] NSWCCA 247 at [48]:
"48... It is necessary to re-state that the practice, which appears to have developed in recent times, of approaching the sentence appealed by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority; see R v Morgan (1993) 70 A Crim R 368; R v Salameh NSWCCA 9 June 1994 and R v Trevenna [2004] NSWCCA 43 per Barr J at 98 to 101. At the most, other cases can do no more than become part of a range for sentencing... "
In the Additional Crown Submissions on Sentence Appeal, the Crown provided a very comprehensive analysis of like offences in the 1990s. The Crown's analysis and conclusions should in my opinion be accepted as providing valuable material for which the ground s of 'manifest excess' should be determined. In that regard the Crown Submissions include the following:
"Conclusion in relation to cases from the 1990s"
What the cases above demonstrate, consistent with what this Court said in Russell, is that sentences involving minimal terms (or non parole periods) between 6.5 years to 9 years, are within range for offences of this conduct - which is not to say that sentences could not be more or less.
The sentence for the offences of BH was well within the many cases outlined above despite the criminality being greater, and the overall seriousness of the offence being greater.
In relation to SP the sentence imposed in Burns was identical to that in SP - and this Court did not hold that sentence to be manifestly excessive. The criminality of the offence in SP was greater than Burns, as was the applicant's prior history. Although Burns involved a breach of a bond, that could not balance out the other factors.
The analysis of the cases, can not demonstrate that the sentences imposed by His Honour Judge King were manifestly excessive.
Indeed as was shown in AEM - even the examination of the statistics at [110] show that Judge King's sentences were not manifestly excessive."
In general terms it may be stated that the sentencing pattern be derived from the relevant sentencing decisions, in my opinion, confirms that the sentence imposed on the offender in respect of the offences against BH were entirely consistent with the sentencing pattern for the period 1996 and accordingly were not manifestly excessive.
The Crown's summary of cases, in my opinion, establishes that in relation to the more substantial sentences imposed in respect of the Applicant's offences against SP, those offences were more serious than the offences considered in the cases of MacKenzie, Pratt, Russell, Logue and Baker.
Additionally, in relation to the Applicant's offences against SP, the sentencing in R v Burns (CCA, unreported 21 September 1994) represents a useful comparator.
I have concluded that the analysis of sentencing patterns does not demonstrate that the sentences imposed in this case in respect of SP were manifestly excessive.

Consideration

(a) Facts concerning the individual offences and the approach taken in sentencing

The Applicant is required to establish that the sentences imposed by the sentencing judge were "unreasonable or plainly unjust". Dinsdale v R (supra) at 325. See also Vuni v R (supra) per Hoeben J.
That is a matter to be considered in the context of the total effective sentence imposed upon the Applicant in relation to the total offending against all four victims involving, as it does, a total effective non-parole period of 24 years and 9 months with a balance of term of 3 years.
In considering the issue I have taken into account the following matters:
(1)Each of the sexual offences committed by the Applicant against each of the four victims involved objective seriousness of a high order.
(2)The Applicant's offending can be seen as escalating over the four separate attacks.
(3)In particular, each offence involved a substantial level of pre-meditation.
(4)Each of the offences involved a marked level of callousness towards and degradation of the four victims.
(5)The offences against BH and SP involved the use of a knife accompanied by threats of violence.
(6)The four offences manifested a complete disregard for the law and for the personal welfare of the victims.
(7)The Applicant's offending occasioned very considerable physical and psychological injury to each of the four victims.
(8)The escalating level of sexual violence displayed in the four offences established the Applicant as a very dangerous offender. Considerable weight had to be given in sentencing to both retribution and the protection of society.
The above factors, in my opinion, had to be taken into account in determining both the length of individual sentences to be imposed and in the application of the principle of totality.
As the Crown observed, in this respect, no challenge was made to the sentencing judge's finding that the offences under s. 61J against BH and SP were in the "high end of the range". Each of the offences attracted a maximum penalty of 20 years imprisonment. The sentences imposed with respect to BH involved a fixed term of 6 years and 9 months (offences 1, 2 and 3) and a non-parole period with respect to SP of 12 years, 2 years of which was concurrent with the fixed terms for offences 1, 2 and 3. This resulted in an effective non-parole period of 14 years. Given the fifteen factors identified by the sentencing judge in relation to SP, I consider the sentences imposed with respect to the multiple offending against her were within the range of available sentences and were not either unreasonable or plainly unjust.
The Applicant's offending against BH and SP, in terms of moral culpability and objective criminality, was of a high order. Having attacked BH with a knife, threatening to kill her, and subjecting her to the most serious and degrading sexual assault, the following year 1996 he then subjected his 15 year old victim SP to similar serious sexual assaults, inflicting an horrendous level of trauma upon her.
It is to be observed that the sentences imposed with respect to offences 1, 2 and 3 against BH operated concurrently with the sentence imposed with respect to Count 4.
Similarly, each sentence of 12 years (with non-parole periods of 9 years) imposed with respect to the three offences under s. 61J(1) against SP were all concurrent (all commencing on 23 August 2012).
That approach was adopted as the sexual assaults in each case were characterised as involving a sequence of sexual assaults on the one occasion against the same victim. The Crown submitted that it would however, have been open to the sentencing judge to accumulate the sentences so as to reflect the total criminality. In this respect it was observed in R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 that sexual offences committed on the one night were partially accumulated. See also R v Carlton [2008] NSWCCA 244; (2008) 189 A Crim R 332 at [122]-[123] per Price J.
It is sufficient to observe here, as the above discussion illustrates, the discrete offences committed against both BH and SP were each serious and involved separate sexual assaults of different kinds. Those facts could have justified an amount of accumulation of the sentences imposed in respect of BH and SP. In this respect, I consider that the Applicant benefited from a degree of leniency in the approach that was taken by the sentencing judge in structuring the sentences. As the Crown observed in its written submissions:
"86. The effect of the total concurrency of the sentences and the backdating adopted by his Honour was to dilute the actual period to be served in custody for the discrete offences."
As earlier noted, the Applicant additionally had the benefit of backdating the sentences in respect of SP by a period of 2 years before the expiry of the non-parole periods imposed in respect of the offences against BH.

(b) Cases dealing with matters around the period 1996

The written submissions for the Applicant set out the sentencing results in a number of cases. The object of the sentencing comparison based on these cases was to demonstrate that the sentences imposed were manifestly excessive.
Set out below are relevant case summaries of the other cases upon which reliance was placed.
(i)In RvRussell (unreported NSWCCA, 21 June 1996) the court examined a range of cases involving aggravated sexual assault. These included the cases decided in the years 1993 to 1994. The court (Dunford J (with Gleeson CJ and Studdert J agreeing)) there observed:
"Although no two cases are the same, we have been referred to a number of other cases where the circumstances show some similarity to the present; particularly to R v Lewis (CCA, 14 December 1993, R v Logue (CCA, 31 March 1994), R v Burns (CCA, 21 September 1994), R v Baker (CCA, 2 August 1994). Those cases show a pattern of sentences ranging from minimum terms of six years to nine years and each followed a plea of guilty."
The Crown in its written submissions on the sentence appeal submitted at [74] that the sentences imposed in relation to BH and SP were not inconsistent with the approach of the court in Russell, with the minimum terms correlating with the non-parole periods. I will return to this aspect below.
The decision in Russell was given in a Crown appeal and the court noted the element of double jeopardy was involved and, accordingly, on re-sentencing the court generally imposed sentences less than that which it otherwise considered may have been available to the sentencing judge. Against that background the court determined that the Respondent should be re-sentenced to a minimum term of 14 years with an additional term of 2 years.
(ii)In R v Boatswain (supra), the Applicant appealed against the severity of sentences. He was sentenced in respect of 12 crimes charged upon indictment. One series of offences included very serious sexual offences against two women on separate occasions. In the course of his decision Grove J stated (with Studdert and James JJ agreeing) that the offences, though they may not have been the worst imaginable, would in his Honour's view "... fall into the category of the worst types of this offence" and it was noted that the facts had indicated that each victim had been subjected to "multiple outrage". On each of the counts of sexual intercourse without consent in circumstances of aggravation the Applicant had been sentenced on the following basis:
(a)On each of the counts (against the first victim (Dr X)) a concurrent minimum term of 9 years with an additional term of 3 years was imposed.
(b)For each of four counts of sexual intercourse without consent in circumstances of aggravation committed against the other victim (Mrs Y) concurrent minimum terms of 6 years cumulative upon the minimum term specified in relation to the offences against Dr X. An additional term of 8 years was specified.
Accordingly, the overall effect of the sentencing was to establish a total term of 23 years penal servitude divided into a minimum term of 15 years and an additional term of 8 years. The Court of Criminal Appeal reviewed a number of cases said to establish the then current sentencing pattern. However, the court concluded that it had not been established that the sentencing judge had erred in his approach or in his assessment or in the findings of fact made. Accordingly, this court declined to intervene.
(iii)In R v Presta (supra) the Appellant had been committed for sentence following pleas of guilty to 5 counts of kidnapping and 21 counts of aggravated sexual assault involving a number of victims over a period of time. He had been sentenced in respect of the kidnapping counts for fixed concurrent periods of 14 years penal servitude and, upon all of the aggravated sexual assault counts, to fixed terms of 14 years and 3 months with the exception of one count upon which the Appellant was sentenced to penal servitude for 19 years divided into a minimum term of 14 years and 3 months with an additional term of 4 years and 9 months.
Accordingly the effective sentencing order required the Appellant to serve a fixed or minimum period of 14 years and 3 months with an additional term of 4 years 9 months.
(iv)In R v Roberts (supra) the Appellant was tried and convicted by a jury of nine offences all involving acts of gross sexual indecency upon the complainant who was a 39 year old woman. In the course of his judgment Gleeson CJ (with whom Carruthers and Hunter JJ agreed) observed that the Appellant had a substantial criminal record including a conviction for the offence of threatening to inflict bodily harm with intent to have sexual intercourse. He had been convicted of that offence in 1986 and was sentenced to penal servitude for 7 years with a non-parole period of 4 years.
So far as the particular offences were concerned the objective seriousness of them was described as "extreme". The sentencing judge had sentenced the Appellant to a sentence that had the total effect of imposing on him penal servitude for 13 years made up of a minimum term of 11 years and an additional term of 2 years. In that respect the sentencing judge accumulated the sentences imposed in respect of the charge involving an act of indecency on Count1. On the remaining sentences that were imposed in respect of the charges of sexual intercourse without consent, the sentences imposed were concurrent.
The argument in that case was addressed not so much to the individual sentences but as to the total effect of the sentences. It was argued that the consequence of the accumulation was to produce a result which was manifestly excessive.
Gleeson CJ in that respect stated:
"In my view, having regard to the extraordinary serious objective circumstances of the case, and the appellant's previous record, a head sentence of thirteen years for all of these offences was well within the range of a proper sentencing discretion. It is to be noted in this respect that the legislature has, in fairly recent years, doubled the maximum penalty for crimes of this nature and it is appropriate for the courts to respond to that."
(v)In R vAEM & ORS [2002] NSWCCA 58, the offender AEM had been sentenced to a term of imprisonment of 6 years with a non-parole period of 4 years. The offender KEM was sentenced to 5 years 7 months imprisonment with a non-parole period of 3 years 6 months whilst the offender MM was sentenced to a term of imprisonment of 6 years with a non-parole period of 4 years.
On a Crown appeal AEM's sentence was increased to a total sentence of 13 years with a non-parole period of 9 years, KEM's sentence was increased to 14 years with a non-parole period of 8 years and MM's sentence was increased to 13 years with a non-parole period of 10 years.
The offences committed in that case were against two 16 year old females. They were forcibly detained for a period of 4 hours and subjected to serious sexual assaults. In the commission of the offences AEM produced a knife. The knife was also used against one of the two victims detained in another room. The multiple sexual assaults were extremely serious offences.
In the Additional Crown Submissions it was noted that all the sentences imposed in AEM & ORS were after a Crown appeal on sentence and subject to double jeopardy. Two of the offenders were juveniles. This is said to make comparison with the Applicant difficult. It was also submitted by the Crown that the criminality was significantly less than that of the Applicant and yet the total effective sentences were not significantly less than the total sentence imposed by the District Court in respect of the offences, the subject of the present case for BH and SP.
(vi)In R v Bilal Skaf (supra) the Applicant had been charged with two counts with detain for advantage, nine counts of aggravated sexual intercourse without consent (in company) and two counts of assault. He was found guilty on all counts.
There had been two trials. The first trial concerned criminal activity on 10 August 2000. The second trial concerned criminal activity on 30 August 2000.
In respect of the criminal activity on 10 August the Applicant was charged with offences against Ms A and separately in respect of offences against Ms B.
The court extracted the following well-known observations in Veen v R [No.2] (supra) at 472-473 Mason CJ, Brennan, Dawson and Toohey JJ observed:
"The principle of proportionality is now firmly established in this country. It was the unanimous view of the court in Veen [No. 1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: Veen v R (1979) 143 CLR 458 at 468, 482-483 and 495.
...
It is one thing to say that the principle of proportionality precludes the imposition of sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."
In re-sentencing for the offences of 10 August 2010 this court followed the approach of the sentencing judge giving the Applicant the benefit of concurrent sentences for the unlawful detention counts and for the assault counts.
In respect of the offences against Ms A in which the Applicant offended as a principal in the first degree, the court, on re-sentencing, imposed a term of imprisonment of 15 years. Accordingly for the offences of aggravated sexual assault without consent (counts 3 and 5 involving Ms A) on each count the Applicant was sentenced to imprisonment for a term of 15 years with a non-parole period of 11 years 3 months.
In respect of the offence against Ms B, in which the Applicant offended as a principal in the first degree, the court considered that a sentence of 15 years should be imposed such sentence to commence 2 years after the commencement date for the offences against Ms A. Accordingly, in respect of the offence of aggravated sexual intercourse without consent in company (Count 14) involving Ms B, the Applicant was sentenced to a term of imprisonment 15 years with a non-parole period of 11 years 3 months.

At the hearing of the present application on 8 July 2011 the presiding judge requested the parties to provide further assistance "in relation to the appropriate range of sentencing" with respect to the "manifestly excessive" ground of appeal.
Supplementary submissions were provided on behalf of the Applicant and the Court also received Additional Crown Submissions on Sentence Appeal dated 12 July 2011.
In the supplementary submissions for the Applicant, a number of decisions of this Court were referred to and summarised. These included:
R v Russell (supra), R v Burns (supra), R v Lewis (supra), R v Logue (unreported NSWCCA 31 March 1994) and R v Baker (supra).
It was submitted on behalf of the Applicant that these cases demonstrated a range of penalties as at 1996, which were significantly more lenient than those the subject of the present case. The Applicant also relied upon the cases summarised in its earlier written submissions.
The Crown's summary in relation to R v Burns is set out at pp 17-19 of the Additional Crown Submissions on the Sentence Appeal.
An examination of the relevant cases establishing the sentencing pattern in 1996 demonstrate, as the Crown observed, and consistently with what this court said in Russell that sentences involving minimal terms or non-parole periods of between figures 6 years and 6 months to 9 years are within range for offences under s. 61(J) although individual cases may fall below or above that range.
Having regard to cases which reference was made in submissions and constituting the relevant sentencing pattern I accept the Crown's submission that the sentences for the offences against BH were well within the range.
In relation to SP, the sentencing in respect of the serious offences in Burns provides guidance in evaluating the sentences imposed. I accept the Crown's submission that an examination of the relevant facts and circumstances of both cases establishes that the criminality of the Applicant in respect of the offences committed by him against SP is of a higher order than in Burns. Matters of significance in the comparison include the age of SP (15 years of age) and the fact that no weapon was used in Burns.
An evaluation of the relevant sentencing patterns supports the conclusion that the sentences imposed on the Applicant in respect of BH and SP cannot be considered either as excessive or manifestly excessive.
As the discussion above makes clear, the Remarks on Sentence were comprehensive. They, in particular, contained a detailed analysis of the facts concerning the aggravated sexual assaults against BH and SP. The remarks also addressed, in detail, the Applicant's criminal history and the facts in relation to his offending for which he was sentenced by Tupman DCJ and Holt DCJ. The sentencing judge additionally considered the Applicant's "personal circumstances", including the matters that were considered and discussed by Dr Furst, forensic psychiatrist. Finally, additional matters considered included "remorse and contrition", rehabilitation and the risk of re-offending before his Honour set out matters relevant to the exercise of the sentencing discretion under the heading "Sentencing Consideration".
In determining the sentences to be imposed, the sentencing judge specifically considered the question of delay between the commission of the offences and sentence.
In relation to the sentences against BH, the sentencing judge noted:
(1)That at the time of the commission of the offences, the offender had no relevant criminal history. They were first in time of the four episodes of offending behaviour in relation to the four victims.
(2)The offender was to be sentenced on the basis of his criminal record as it was at the time of the commission of the offences. The later aggravated sexual assaults could not be considered as an aggravating feature.
(3)The subsequent offences, however, would operate to deny the Applicant the leniency that he would be entitled to if the offences against BH represented one-off offences of sexual assault. Clearly the offences were not isolated and they were relevant in assessing the offender's prospects of rehabilitation and to considering issues involving risk to the community. (Remarks on Sentence at p.38-39)
In sentencing the Applicant for the offences against SP, in relation to offences 5, 6 and 7 - aggravated sexual assault - the sentencing judge expressly had regard to the following matters:
(1)That the offences were committed subsequent to previous offences of aggravated sexual assault.
(2)The sentences to be imposed in respect of the offences in question had to be appropriate to them and only to them. In other words, as noted above in relation to Ground 1, there had to be no element of double punishment for the past offences.
(3)That, as also discussed in relation to Ground 1, his Honour stated that it was relevant to take into account, when sentencing for the offences under s. 61J(1), the fact that the Applicant's past criminal conduct included similar offences.
The Crown noted that none of the cases referred to in the submissions are truly comparable to what the Applicant did in the present case in all the circumstances in what was described by the Crown as "... depraved and humiliating attacks on four young women, when his total criminality is assessed." Additional Crown Submissions on Sentence Appeal at [11]
The analysis in the Additional Crown Submissions on Sentence Appeal constitutes a comprehensive analysis of sentencing decisions. Based on an examination of those decisions I have concluded as follows:
(i)The cases are consistent with the observations made in Russell (supra) namely, that sentences involving minimum terms (non-parole periods between 6 years and 6 months to 9 years) were within range for offences of this kind. However that is not to say that sentences in particular cases could not be more or less.
(ii)The sentence for the offences against BH were within the range indicated by the cases referred to in the submissions despite the criminality of the Applicant being greater that in some of those cases and the overall seriousness of his offences being greater.
(iii)The sentence imposed in R v Burns (supra) was identical to that in SP. It was submitted that the criminality of the offence on SP was greater than that of the offender Burns, as was the Applicant's prior history. I accept the submission. Although Burns involved a breach of a bond, that could not balance out the other factors.
(iv)The analysis of the abovementioned cases does not demonstrate that the sentences imposed by the District Court on the Applicant in the present case were manifestly excessive.

(c) The principal of totality

Consideration then arises as to whether or not the sentencing judge failed to properly apply the principle of totality. That issue is to be considered in light of the sentences imposed by Holt DCJ and Tupman DCJ and with regard to the extent of the concurrence (2 years) of the sentences imposed in respect of SP upon the sentences imposed in respect of BH.
In Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, at [27], Howie J, with whom Adams and Price JJ agreed, said:
"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other..."
The application of the principle of totality in cases of separate offences involving significant criminality, was explained by this court in R v MMK [2006] NSWCCA 272; 164 A Crim R 326 at [13] where Spigelman CJ, Whealy and Howie JJ stated:
"In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending... This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion... The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although it has been held that a determination of the extent, if any, that the sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality."
In determining the sentences to be imposed with respect to the Applicant's multiple offending in respect of BH and SP, the sentencing judge was required to take into account the following matters:
(1)The need for the individual sentences to reflect the gravity of each offence viewed objectively: R v Dodd (1991) 57 A Crim R 349 at 354 per Gleeson CJ, Lee CJ at CL and Hunt J.
(2)The need for appropriate weight to be given to give effect to the purposes of punishment as set out in s. 3A of the Crimes (Sentencing Procedure) Act 1999. In particular there was a need to ensure that the Applicant was adequately punished so as to denounce his conduct and to recognise the severe and extensive harm done to the victims.
(3)The need to consider how the sentences in respect of the offences were to be structured in light of the sentences imposed by Holt DCJ and Tupman DCJ.
(4)The need to ensure that, when sentencing for multiple offences, there were different victims.
(5)The Applicant was already serving sentences for other offences and the aggregation of all of the sentences constitute a "just and appropriate measure of the total criminality involved:" Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307-308; (1997) 94 A Crim R 397 at 406 per McHugh J.
In R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [16] this Court observed that the severity of the sentence is not simply the product of a linear relationship. In other words severity may increase at a greater rate than an increase in the length of a sentence: R v MAK, supra, at [16]. The Court (Spigelman CJ, Whealy and Howie JJ) there quoted the following passage in the judgment of Malcolm CJ in Clinch v The Queen (1994) 72 A Crim R 301 at 306:
"... [T]he severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of 7 years may be appropriate for one set of offences, a sentence of 8 years may be appropriate for another set of offences, each looked at in isolation. Where both sets are committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences."
The other matter to be considered under the totality principle, also referred to by this court in MAK, (supra), is the fact that an extremely long total sentence may be "crushing" upon an offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. It was observed in MAK at [17]-[18]:
"... This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.
A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim 252 at [112]. For similar reasons in a case such as the present where an offender is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no or little penalty is imposed for the additional offences."
Turning to the present case I make the following observations:
(1)The Applicant's offending under s. 61J(1) of the Crimes Act on 1 May 1996 in respect of JL, involving threats with a pistol, and his further offending under s. 61J(1) in respect of LE, involving threats with a knife, were extremely serious offences.
(2)Similarly, the Applicant's offences under s. 61J(1) in respect of the victim JL, also involving threats of actual bodily harm involving the use of a pistol, were at least equally serious offences to those against LE.
(3)The multiple offending of the Applicant (three offences under s. 61J(1) against the victim BH) involving threats with the use of a knife of actual bodily harm were also at least equally serious offences as those referred to above. In combination, all of the abovementioned offences involved total criminality of an extremely high order.
(4)The imposition of three concurrent sentences in respect of the offences under s.61J(1) against BH, each involving fixed terms of 6 years and 9 months from 23 November 2007 to 22 August 2014 involved an exercise of the sentencing discretion which operated, to a significant extent, in favour of the Applicant.
(5)The three offences against SP committed by the Applicant under s.61J(1), each involving the use of a knife and threats of actual bodily harm, involved criminality of an even higher order than the previous offences referred to above. The sentences in respect of each offence under s.61J(1), namely terms of imprisonment involving a non-parole period of 9 years to date from 23 August 2012 to 22 August 2021 with a balance of term of 3 years to expire on 22 August 2024 were all concurrent with each other. Again, as earlier noted, this represented an exercise of the sentencing discretion which operated, to a significant extent, in favour of the Applicant.

Decision

A review of the sentencing decisions referred to above, in my assessment, establishes that the terms of the sentences imposed in respect of BH were consistent with the sentencing pattern for similar offences in the period 1995/1996.
In respect of the offences committed against SP, by reason of the particular facts associated with the offending and taking into account the victim's age (15 years), the sentences imposed in respect of such offending were also consistent with the range of sentencing in the relevant period and in particular were consistent with the sentence imposed in R v Burns, (supra).
There remains for consideration the issue of totality in the circumstances:
(a)Where at the time of the sentencing for the offences against BH and SP the Applicant had been sentenced by Holt DCJ and Tupman DCJ as discussed above; and
(b)The Applicant was to be sentenced for a number of serious offences, in particular those under s 61J(1) against two victims, one of whom was under the age of 16 years.
In relation to the aggregation of sentences, as the Crown noted at [10] of its written submissions on the sentence appeal the total effective sentence for all 4 victims when combined forms a total sentence of 27 years and 9 months to date from 25 November 1996 to 22 August 2024 and the total effective non-parole period of 24 years and 9 months from 25 November 1996 to 22 August 2021 with a balance of 3 years to date from 23 August 2021 to 22 August 2024.
In the submissions on behalf of the Applicant, it was noted that the ratio of the total effective non-parole period of 24 years and 9 months to the total effective sentence of 27 years and 9 months is 89%. The submission was that that ratio indicated the total effective sentence was manifestly excessive.
I record the following observations in relation to the structure of the sentences imposed by the sentencing judge in this case:
(i)The first sentence in time imposed by the sentencing judge commenced 23 May 2007 on which date the non-parole period imposed by Tupman DCJ was due to expire. In other words, there was no concurrence provided for in relation to that sentence and the sentence in respect of the offence under s 97(1), robbery with an offensive weapon, involving a fixed term of 18 months.
(ii)The sentences imposed under s 61J(1) on the Applicant in respect of the three offences against BH were each for fixed terms of 6 years and 9 months to commence on 23 November 2007 (that is 6 months after the commencement of the sentence referred to in (i) above and to expire on 22 August 2014).
(iii)The sentences imposed under s 61J(1) in respect of the three offences by the Applicant against SP were made concurrent by two years on the fixed term of 6 years and 9 months in respect of BH. In that respect, the three concurrent sentences in respect of SP commenced on 23 August 2012 involving a non-parole period of 9 years to date from that date and to expire on 22 August 2021.
On consideration of the facts and circumstances of the subject offences and the sentences imposed in relation to them, I have concluded that whilst the individual sentences were not manifestly excessive, there was a need for greater concurrency in relation to the sentences than that for which provision was made by the sentencing Judge for the following reasons:
(i)The sentence imposed in respect of the offence of robbery with an offensive weapon on BH was entirely cumulative upon the substantial sentence imposed by Tupman DCJ which expired on 23 May 2007.
(ii)Whilst the extent of concurrence in relation to the sentences in respect of offences 1, 2 and 3 upon offence 4 (BH) referred to in paragraph 110(ii) above, namely 6 months was appropriate, the sentences imposed with respect to offences 5, 6 and 7 against SP were only made concurrent by 2 years on the offences imposed with respect to BH (offences 1, 2 & 3) to commence on 23 August 2012.
(iii)Given the fact that the total effective sentence in relation to the subject offences against BH and SP amounted to 17 years and 3 months with a total effective non-parole period of 14 years and 3 months there was a need for greater concurrence in relation to the sentences imposed both because of the total effective period of imprisonment imposed under the terms of those sentences and as well, the period of imprisonment imposed by the sentences for which the Applicant had already been sentenced (respectively on 14 November 1997 by Holt DCJ and on 8 November 2002 by Tupman DCJ.
(iv)An increase in the concurrence of sentences ameliorates, to a point, the risk or prospect of a "crushing" sentence in the sense discussed above.
Concurrency of Sentences
As I have indicated above the sentencing Judge sought to give effect to the principle of totality by allowing for a measure of concurrence in the sentences imposed, including in particular the sentences imposed with respect to the offences against BH and SP. The issue arising in relation to Ground 2 is the sufficiency of the concurrence of sentences overall.
In respect of BH as earlier noted the sentences in respect of offences 1, 2 and 3 were concurrent by 6 months on the sentence imposed with respect to offence 4. There is no basis for challenging the adequacy of the extent of concurrence in that respect.

In respect of SP, as noted above, the sentences in respect of 5, 6 and 7 were made concurrent by a period of 2 years on the sentences imposed in respect of the offences 1, 2 and 3 concerning BH.
Accordingly the total concurrence of sentences determined by the sentencing Judge amounted to a total period of 2 years 6 months.
In assessing the adequacy of the same it is necessary to evaluate, in a broad sense, the overall criminality involved in all of the offences and having done so, to determine what downward adjustment is necessary, whether by telescoping or otherwise the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: R v Holder [1983] 3 NSWLR 245, 260.
In the evaluation of totality, relevant considerations include the fact that the multiple sexual offences by the Applicant involved two victims, that the group of offences against each victim occurred on two separate occasions and the fact that each of the offences fell within the more serious band of the range of criminality involved therein. Additionally it is also necessary to take into account that each of the sentences under s 61J(1) carried maximum penalties of 20 years imprisonment.
In my assessment, taking into account all of the relevant factors, I consider that a greater level of concurrence should have been provided for in respect of the sentences against SP so far as offences 5, 6 and 7 are concerned. In that respect I have concluded that those sentences should have been made concurrent by a total period of 4 years on the sentences imposed in respect of offences 1, 2 and 3 committed against BH. In re sentencing the applicant to make provision for the additional concurrence in that respect, the sentences imposed in respect of counts 5, 6 and 7 against SP should be adjusted to commence on 23 February 2011 in lieu of the commencement dates of 23 August 2012 imposed by the sentencing Judge. That alteration will give effect to the additional concurrence to which I have referred above.
In summary I have concluded that the only basis for this Court's intervention is the need to adjust the concurrence of the abovementioned sentences to give effect to the principle of totality having regard to (a) the terms of the sentences imposed by the sentencing Judge (b) the sentences that had been previously imposed on the applicant by Holt DCJ and Tupman DCJ. The total extent of concurrence of sentences as determined by the sentencing judge namely, 2 years and 6 months should be adjusted by a further period of 1 year 6 months, thereby making the total concurrence of sentences, as referred to in paragraph 118 above, of 4 years.
Accordingly in re sentencing the Applicant, the terms of the sentences to be imposed by this Court will be the terms specified by King DCJ except that the specified commencement dates of the sentences in respect of offences 5, 6 and 7 will be altered in order to give effect to the abovementioned increase in the extent of the concurrence of sentences.
I accordingly propose that the sentences imposed by the District Court in respect of Counts 5, 6 and 7 be set aside and the applicant be re sentenced as follows:
(i)Leave to appeal against the sentences imposed by the District Court on 5 February 2010 be granted.
(ii)The appeal upheld in part.
(iii)In respect of Count 5 - the offence of aggravated sexual assault pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023.
(iv)In respect of Count 6 - the offence pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023.
(v)In respect of Count 7 - the offence pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023.
The total effective non parole period in respect of offences 1, 2, 3, 4, 5, 6 and 7 will accordingly be a period of 12 years 9 months and a balance of 3 years to date from 23 February 2023.
Accordingly the first date upon which the applicant will be eligible for parole will be 22 February 2020.
HARRISON J: I agree with Hall J.
THE COURT: Since delivery of this judgment the Court's attention has been drawn to a typographical error in respect of Order (v) whereby the commencement date for the non parole period was stated to commence on 22 February 2011, whereas it should have read 23 February 2011. This error appeared in paragraph 121(v) of the judgment.
The Court accordingly made an Order varying Order (v) under the 'slip' rule so that the non-parole period stated in Order (v) is to commence on 23 February 2011.
Additional amendments have been made to the text of the judgment. In the course of the amendments, the date referred to in paragraph 122, 22 February 2023, has been amended to 23 February 2023, to accord with order (v).
**********

Amendments

01 Aug 2012	hearing date and to order (v) ("to commence on 22 February" changed to "to commence on 23 February")	Paragraphs: coversheet
01 Aug 2012	additional explanatory paragraphs to the judgment	Paragraphs: [125] and [126]
14 Aug 2012	References in the text that refer to accumulation have been amended so as to refer to concurrence of sentences.	Paragraphs: [74], [98]-[126] and catchwords
14 Aug 2012	Paragraph has been added to the text.	Paragraphs: [127]

Case Title:	VAN DER BAAN v R
Medium Neutral Citation:	[2012] NSWCCA 5
Hearing Date(s):	8 July 2011
Decision Date:	01 August 2012
Jurisdiction:	Criminal
Before:	BEAZLEY JA at [1]; HALL J at [2]; HARRISON J at [124]
Decision:	(i) Leave to appeal against the sentences imposed by the District Court on 5 February 2010 be granted. (ii) The appeal upheld in part. (iii) In respect of Count 5 - the offence of aggravated sexual assault pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023. (iv) In respect of Count 6 - the offence pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023. (v) In respect of Count 7 - the offence pursuant to s 61J(1) Crimes Act 1900 the applicant be sentenced to a non parole period of 9 years to commence on 23 February 2011 and to expire on 22 February 2020 with a parole period of 3 years to expire on 22 February 2023.
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - six counts of various forms of sexual assault and one count of armed robbery - where Applicant had committed two serious unrelated sexual assaults for which he had been sentenced at earlier points in time - whether sentencing judge erred in finding that offences against one victim aggravated by earlier offending - no error by sentencing judge because prior convictions were only taken into account once objective gravity of offences determined - whether overall sentence manifestly excessive in circumstances of case - whether error in approach to concurrence of sentences - individual sentences not manifestly excessive but increased amount of concurrence of sentences warranted.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Clinch v The Queen (1994) 72 A Crim R 301 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 House v R [1936] HCA 40; (1936) 55 CLR 499 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Postiglione v The Queen [1997] HCA 26, (1997) 189 CLR 295; (1997) 94 A Crim R 397 R v AEM & ORS [2002] NSWCCA 58 R v Baker (NSWCCA 2 August 1994) R v Bilal Skaf [2005] NSWCCA 297 R v Boatswain (unreported, NSWCCA, 15 December 1993) R v Burns (NSWCCA 21 September 1994) R v Carlton [2008] NSWCCA 244; (2008) 189 A Crim R 332 R v Dodd (1991) 57 A Crim R 349 R v Elemes [2000] NSWCCA 235 R v George [2004] NSWCCA 247 R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 R v Jason Mark Russell (unreported, NSWCCA, 21 June 1996) R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 R v Lewis (NSWCCA 14 December 1993) R v Logue (NSWCCA 31 March 1994) R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v McNaughton [2006] NSWCCA 242 (2006) 66 NSWLR 566; 163 A Crim R 381 R v MMK [2006] NSWCCA 272; 164 A Crim R 481 R v Morgan (1993) 70 A Crim R 368 R v Presta [2000] NSWCCA 40 R v Roberts (unreported, NSWCCA, 8 August 1994) R v Salameh NSWCCA 9 June 1994 R v Trevenna [2004] NSWCCA 43 Veen v R [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1998) 164 CLR 465 Vuni v R [2006] NSWCCA 171 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
Texts Cited:
Category:	Principal judgment
Parties:	Jason Anthony VAN DER BAAN Regina
Representation
- Counsel:	J Pickering Crown A Francis Applicant
- Solicitors:	S Kavanagh Legal Aid Commission
File number(s):	2009/5448; 2009/5449
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	King DCJ
- Date of Decision:	05 February 2010
- Citation:
- Court File Number(s)	2009/5448; 2009/5449
Publication Restriction:	No